32 F.3d 1007 (7th Cir. 1994), 93-2338, Carr v. Allison Gas Turbine Div., General Motors Corp.

Docket Nº:93-2338.
Citation:32 F.3d 1007
Party Name:Mary J. CARR, Plaintiff-Appellant, v. ALLISON GAS TURBINE DIVISION, GENERAL MOTORS CORPORATION, Defendant-Appellee.
Case Date:July 26, 1994
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1007

32 F.3d 1007 (7th Cir. 1994)

Mary J. CARR, Plaintiff-Appellant,

v.

ALLISON GAS TURBINE DIVISION, GENERAL MOTORS CORPORATION,

Defendant-Appellee.

No. 93-2338.

United States Court of Appeals, Seventh Circuit

July 26, 1994

Argued Feb. 22, 1994.

Page 1008

Lester H. Cohen (argued), John H. Haskin, Haskin & Associates, Brenda Franklin Rodeheffer, Indianapolis, IN, for Mary J. Carr.

Wendell R. Tucker, Baker & Daniels (argued), Indianapolis, IN, for Allison Gas Turbine Div., General Motors Corp.

Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.

POSNER, Chief Judge.

Mary Carr brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., against her former employer, a division of General Motors, charging sexual harassment and seeking backpay and other relief. After a bench trial, the district judge rendered judgment for General Motors. Apparently fearful that the clear-error standard which governs our review of findings of fact and applications of rules to fact imposes an insuperable burden on an appellant, Carr's lawyer strained to persuade us at oral argument that the district judge's opinion is infected by legal error, and specifically by a failure to have anticipated a decision by the Supreme Court handed down after he wrote his opinion. Harris v. Forklift Systems, Inc., --- U.S. ----, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Such an approach is needlessly defensive, for despite colorful language in some decisions, e.g., Parts & Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir.1988); United States v. Markling, 7 F.3d 1309, 1319 (7th Cir.1993), it is not true that the clear-error standard imposes an insuperable burden on appellants. Sante Fe Pacific Corp. v. Central States, Southeast & Southwest Areas Pension Fund, 22 F.3d 725, 727-28 (7th Cir.1994). It requires us appellate judges to distinguish between the situation in which we think that if we had been the trier of fact we would have decided the case differently and the situation in which we are firmly convinced that we would have done so. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust, --- U.S. ----, ---- - ----, 113 S.Ct. 2264, 2279-80, 124 L.Ed.2d 539 (1993); Anderson v. City of Bessemer City, 470 U.S. 564, 573-75, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985). Our scrutiny of the district judge's findings of fact thus is deferential, but it is not abject. As the Supreme Court pointed out in the Concrete Pipe case, we need not, to overturn a finding under the clear-error standard, adjudge the finding "so unlikely that no reasonable person would find it to be true." --- U.S. at ----, 113 S.Ct. at 2280.

The district judge believed that in a case such as this in which the harassment is by coworkers rather than by supervisors, the principal questions to be answered are whether the plaintiff was in fact sexually harassed to a degree that could be said to affect adversely the conditions under which she worked, whether it was unwelcome harassment, and whether management knew or should have known about the harassment yet failed to take appropriate remedial action. The only exceptionable entry in this catalog is the question about unwelcomeness. "Welcome sexual harassment" is an oxymoron; if as we concluded in Reed v. Shepard, 939 F.2d 484, 486-87 (7th Cir.1991), the employee demonstrates by word or deed that

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the "harassment" is welcome (the plaintiff in that case had instigated sexual pranks--for example, had given one of her male coworkers a softball warmer designed to resemble a scrotum), it is not harassment. So there really are only two questions in a case such as this. The first is whether the plaintiff was, because of her sex, subjected to such hostile, intimidating, or degrading behavior, verbal or nonverbal, as to affect adversely the conditions under which she worked; for Title VII is not directed against unpleasantness per se but only, so far as relates to this case, against discrimination in the conditions of employment. Harris v. Forklift Systems, Inc., supra, --- U.S. at ----, 114 S.Ct. at 371; Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). The second question is whether, if so, the defendant's response or lack thereof to its employees' behavior was negligent. Saxton v. American Telephone & Telegraph Co., 10 F.3d 526, 535-36 (7th Cir.1993); Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 320-21 (7th Cir.1992); Guess v. Bethlehem Steel Corp., 913 F.2d 463 (7th Cir.1990). It would be unrealistic to expect management to be aware of every impropriety committed by every low-level employee. But if it knows or should have known that one of its female employees is being harassed, yet it responds ineffectually, it is culpable. The two questions, harassment of the employee and negligence of the employer, are linked as a practical matter because the greater the harassment--the more protracted or egregious, as distinct from isolated (as in Weiss v. Coca-Cola Bottling Co., 990 F.2d 333, 337 (7th Cir.1993), and King v. Board of Regents, 898 F.2d 533, 537 (7th Cir.1990)) or ambiguous, it is--the likelier is the employer to know about it or to be blameworthy for failing to discover it.

The district judge did not formulate the legal standard in precisely these terms but he was close enough that we cannot find any error of law. If there was any error it was in the application of the legal standard to the facts, facts that we must treat as largely undisputed because the district judge believed the testimony of Carr and her witnesses and disbelieved the defendant's testimony where it differed from the plaintiff's. Disputes over the application of an agreed legal standard to the facts are just as much subject to the clear-error standard as disputes over the facts themselves (see Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir.1991), so holding with specific reference to discrimination), but we think there was clear error and point out that when the issue is whether the law was properly applied to the facts, questions of credibility, the resolution of which is rarely subject to effective appellate review, Anderson v. City of Bessemer City, supra, 470 U.S. at 575, 105 S.Ct. at 1512; Winchester Packaging, Inc. v. Mobil Chemical Co., 14 F.3d 316, 319 (7th Cir.1994), drop out. Insofar as there are credibility issues in this case, the district judge resolved them, as we have said, in favor of Carr. We are not entitled to reopen those issues, though invited by GM, in its brief and at argument, to do so.

Carr was a drill operator in GM's gas turbine division when, in August 1984, she entered the skilled trades in the division as a tinsmith apprentice. She was the first woman to work in the tinsmith shop, and her male coworkers were unhappy about working with a woman. They made derogatory comments of a sexual character to her on a daily basis (such as, "I won't work with any cunt"), continually referred to her in her presence by such terms as "whore," "cunt," and "split tail," painted "cunt" on her toolbox, and played various sex- or gender-related pranks on her, such as painting her toolbox pink and (without her knowledge) cutting out the seat of her overalls. They festooned her tool box and work area with signs, pictures, and graffiti of an offensive sexual character, hid and stole her tools, hid her toolbox, hung nude pin-ups around the shop, and would strip to their underwear in front of her when changing into and out of their work clothes. One of them placed an obscene Valentine Day's card, addressed to "Cunt," on her toolbox. The card shows a man carrying a naked woman upside down, and the text explains that the man has finally discovered why a woman has two holes--so that she can be carried like a six-pack. A worker named Beckham twice exhibited his penis. The first time, during an argument in which Carr told

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him the exit door "swings both ways," meaning that he could leave just as easily as she could, he replied that he had something that "swings," and he demonstrated. The second time, another male worker bet Beckham $5 that he would not expose himself. He lost the bet, although it is unclear whether Carr was in front of Beckham or behind him. And it was Beckham who told Carr on another occasion that if he fell from a dangerous height in the shop she would have to give him "mouth to dick" resuscitation. Carr's male coworkers urinated from the roof of the shop in her presence, and, in her hearing, one of them accused a black employee who was only intermittently hostile to Carr of being "after that white pussy, that is why you want a woman here, you want some of that." A number of racist remarks and practical jokes of a racial nature were directed against this, the only black employee among the tinsmiths. A frequent remark heard around the shop was, "I'll never retire from this tinsmith position because it would make an opening for a nigger or a woman." Another of Carr's male coworkers threw a burning cigarette at her.

At first she disregarded the harassment but beginning in 1985 and continuing until 1989, when she quit--constructively discharged, she contends, the situation having become unbearable--she complained about the harassment repeatedly to her immediate supervisor, Jim Routh. To no avail. He testified that even though some of the offensive statements were made in his presence...

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