Steiner v. Showboat Operating Co.

• Decision Date: 11 February 1994
• Docket Number: No. 92-16882,92-16882
• Citation: 25 F.3d 1459
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 58, 64 Empl. Prac. Dec. P 43,114, 63 USLW 2047 Barbara L. STEINER, Plaintiff-Appellant, v. SHOWBOAT OPERATING COMPANY, d/b/a Showboat Hotel & Casino, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1459

25 F.3d 1459

65 Fair Empl.Prac.Cas. (BNA) 58, 64 Empl.

Prac. Dec. P 43,114,

63 USLW 2047

Barbara L. STEINER, Plaintiff-Appellant, v. SHOWBOAT OPERATING COMPANY, d/b/a Showboat Hotel & Casino Defendant-Appellee.

No. 92-16882.

United States Court of Appeals Ninth Circuit.

Submitted Feb. 11, 1994. ^*

Decided June 10, 1994.

Richard Segerblom, Las Vegas, NV, for plaintiff-appellant.

Malani L. Kotchka, Smith & Kotchka, Las Vegas, NV, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

Opinion by Judge FLETCHER.

FLETCHER, Circuit Judge:

Barbara Steiner appeals the district court's grant of summary judgment in favor of defendant-appellee Showboat Operating Company ("Showboat"), her former employer. Steiner's complaint alleged sexual harassment and retaliation in violation of 42 U.S.C. Sec. 2000e et seq. ("Title VII"), constructive discharge, and intentional infliction of emotional distress. We have jurisdiction under 28 U.S.C. Sec. 1291. We reverse the district court's grant of summary judgment for Showboat on Steiner's sexual harassment and intentional infliction of emotional distress claims, affirm on all other issues, and remand for further proceedings.

FACTS

Showboat hired Steiner to work as a Blackjack dealer at Showboat Hotel and Casino in March of 1986. Two months later she was promoted to be the casino's first female "floorperson." Her supervisor was Jack Trenkle, a Showboat vice-president.

In 1987, Steiner complained to Showboat management that Trenkle was calling her offensive names based on her gender, such as "dumb fucking broad," "cunt," and "fucking cunt." ¹ Trenkle was not reprimanded; rather, Steiner was moved to a different shift so that she would not have to be in contact with him. After about one month, however, she decided the new shift was too inconvenient and moved back to her old shift.

On December 19, 1988, Trenkle learned that Steiner had "comped" a breakfast for two men who had been playing Blackjack at her table. He confronted Steiner in front of customers and other employees, expressing his disapproval of her decision in the following words:

You are not a fucking floor man [her job]. You are a fucking casino host. You comp every fucking fleabag that walks through the door.

She claims he moved toward her in a threatening manner during this tirade. By his own admission, he then yelled,

Why don't you go in the restaurant and suck their dicks while you are at it if you want to comp them so bad?

She claims he repeated this two or three times, laughed, and walked off with a grin on his face. Her version is corroborated by the Steiner complained to Showboat's manager the next day, and Trenkle was told to apologize. He did, although Steiner claims it was in a rude and sarcastic manner. Unsatisfied with this response, Steiner filed a complaint with the Nevada Equal Rights Commission (NERC). Once aware of her complaint, Showboat conducted a more serious investigation, in which numerous Showboat employees were questioned about Trenkle's treatment of Steiner and of women generally. Their statements establish that Trenkle was abusive to men and women alike; however, his abusive treatment and remarks to women were of a sexual or gender-specific nature.

deposition of a cocktail waitress who overheard the exchange.

As a result of its investigation, Showboat sent a written reprimand to Trenkle for "sexually harassing" Steiner. Trenkle was told that if he ever again used sexual or derogatory language to or about any employee, he would be fired. Trenkle's shift was changed so that he and Steiner would no longer be at work during the same hours.

Steiner claims that Trenkle continued to harass her by showing up for work early, as she was finishing her shift, and making "stares, glares, snickers, and comments." She complained to management, who said security police were watching Trenkle on casino video cameras, but had not yet seen anything incriminating. Management also asked her to transfer to the day shift, so that there would be no chance of meeting with Trenkle. She declined. A few days later, however, she was moved to day shift against her wishes, because "day shift is less demanding and will give you time to perform your job competently and with less stress," so that she could learn to supervise some different games (she could only supervise blackjack), and so that she would not have to be around Trenkle. Letter from G.C. Taylor, Jr. to Barbara Steiner (July 17, 1989).

Steiner said in a conference at NERC that she liked the day shift and was comfortable and less stressed there; however, she asked to be transferred back to her old shift. In September, 1989, Showboat complied with this request, transferring her to swing shift under the supervision of Dean Flurry, who had recently been hired as part of a new management team.

In November, Trenkle was fired because he broke the terms of his disciplinary letter. Specifically, he denied a female employee's request to leave early by saying "I wouldn't want you to lose your job either because you have got big boobs. I'd hate to terminate someone with big boobs." Trenkle Deposition of June 26, 1991, at 12.

In December, the new management team gave all employees evaluations. Steiner received three "Below Standard" marks out of seven categories, primarily because of her alleged inability to supervise any game except blackjack. At least two male supervisors got worse marks than Steiner on their evaluations. Steiner protested her evaluation to Showboat, saying she perceived it to be the first step toward terminating her.

Finally, Steiner claims she was "set up" by her new supervisor, Dean Flurry, in January, 1990. She claims he ordered her to supervise a complicated game of roulette, which he knew she was incapable of doing. When she was unable to properly calculate the payoffs, Flurry publicly ridiculed her. Soon after this, Steiner quit her job at Showboat. She was replaced by a younger woman, Connie Knight.

Steiner then brought suit in district court, claiming sexual harassment and retaliation under Title VII, as well as constructive discharge and intentional infliction of emotional distress. The district court granted summary judgment in favor of Showboat on all claims.

DISCUSSION

I. Sexual Harassment

Steiner's claim relies upon the "hostile or offensive work environment" theory of liability for sexual harassment. See Harris v. Forklift Systems, Inc., --- U.S. ----, ----, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 2404-2405, 91 L.Ed.2d 49 (1986). In order to survive Showboat's summary judgment motion, Steiner must show that there are genuine factual disputes as to (1) whether a reasonable woman would find that Trenkle's conduct was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment," and (2) whether Showboat, once apprised of Trenkle's behavior, failed to take adequate remedial and disciplinary action. Ellison v. Brady, 924 F.2d 872, 879, 881-83 (9th Cir.1991).

The Supreme Court has recently reconfirmed its "middle path" approach in such cases: while coworkers' occasional annoying or "merely offensive" comments do not constitute sexual harassment, "Title VII comes into play before the harassing conduct leads to a nervous breakdown." Harris, --- U.S. at ----, 114 S.Ct. at 370. Sexual or gender-based conduct which is abusive, humiliating, or threatening violates Title VII even if it does not cause diagnosed psychological injury to the victim. Id. at ----, 114 S.Ct. at 371. It is enough, rather, if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay on in her position.

Steiner has established without contradiction that Trenkle habitually referred to her and to other female employees in a derogatory fashion using sexually explicit and offensive terms. Indeed, in describing the episode in which he was fired for stating he would "hate to terminate someone with big boobs," he said "I spoke the same way ever since I have been born, I think." Trenkle Deposition at 13. ² Moreover, Trenkle's ongoing comments and conduct, and particularly those made to Steiner on December 18, 1988, were sexually explicit, offensive, highly derogatory, and publicly made. See Harris, --- U.S. at ----, 114 S.Ct. at 371 (while a "mere offensive utterance" might not create a hostile environment, conduct which is "humiliating" is more likely to do so). ³ Steiner has made her case, ⁴ unless Showboat can demonstrate that it took adequate remedial and disciplinary action.

Showboat attempts to meet Steiner's sexual harassment claim, with a two-pronged defense. First, Showboat claims that Trenkle harassed everyone, male and female alike, and therefore his harassment of Steiner was not based on her gender. Appellee's Brief at 18-20. Second, Showboat argues that Steiner could handle--and in fact "welcomed"--Trenkle's abuse, since she herself was "legendary for talking like a 'drunken sailor.' " Id. at 4, 20-21. The district court's disposition relies on the former defense. Order of Sept. 23, 1993, at 13-14. Both defenses, however, rely on a misstatement of the undisputed facts and a misunderstanding of the law.

The district court erred in endorsing Showboat's argument that Trenkle's conduct was not sexual harassment because he consistently abused men and women alike. In the first place, that argument mischaracterizes his actual behavior. The numerous depositions of Showboat employees reveal that Trenkle was indeed abusive to men, but that his abuse of women was different. It relied on sexual epithets, offensive, explicit references to women's bodies and sexual conduct. See Harris, --- U.S. at ----, 114 S.Ct. at 369 (defendant call...