Dunning v. Simmons Airlines, Inc.

• Decision Date: 31 July 1995
• Docket Number: No. 94-2689,94-2689
• Citation: 62 F.3d 863
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 785, 66 Empl. Prac. Dec. P 43,696 Tracy DUNNING, Plaintiff-Appellee, v. SIMMONS AIRLINES, INCORPORATED, a defunct corporation, now doing business as American Eagle Airlines, Incorporated, a wholly owned subsidiary of AMR Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 863

62 F.3d 863

68 Fair Empl.Prac.Cas. (BNA) 785,

66 Empl. Prac. Dec. P 43,696

Tracy DUNNING, Plaintiff-Appellee, v. SIMMONS AIRLINES, INCORPORATED, a defunct corporation, now doing business as American Eagle Airlines Incorporated, a wholly owned subsidiary of AMR Corporation, Defendant-Appellant.

No. 94-2689.

United States Court of Appeals Seventh Circuit.

Argued Feb. 7, 1995.

Decided July 31, 1995.

Ernest T. Rossiello, Margaret A. Zuleger (argued), Rossiello & Associates, Chicago, IL, for plaintiff-appellee.

Hubert O. Thompson, Deborah A. Richard (argued), Carney & Brothers, Chicago, IL, for defendant-appellant.

Before BAUER, COFFEY and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Simmons Airlines, Inc., which now operates as American Eagle Airlines, a subsidiary of AMR Corporation, employed Tracy Dunning as a fleet service clerk since 1979. In October of 1991, Dunning was placed on unpaid, involuntary maternity leave for eighteen weeks. She filed a charge against Simmons Airlines with the Illinois Department of Human Rights, and a lawsuit in the United States District Court for the Northern District of Illinois alleging that she was sexually harassed by two of her supervisors at Simmons Airlines and that she was placed on unpaid, involuntary maternity leave in retaliation for complaining to one of her managers about the harassment.

The district judge ruled in favor of Dunning on her retaliation claim and entered judgment in her favor in the amount of $6,080 in back pay for the eighteen weeks she was placed on leave. The defendant filed a motion to set aside the judgment which was denied, and the court awarded back pay and $45,434.75 in attorneys' fees and costs. Simmons Airlines appeals. We AFFIRM.

I. FACTUAL BACKGROUND

In 1989, Tracy Dunning was hired by Simmons Airlines to be a fleet service clerk at O'Hare International Airport in Chicago, Illinois. Her duties included loading and unloading baggage from planes and carts, driving baggage carts, and doing computer work in the bagroom. While at Simmons, Dunning reported to five different ramp supervisors, Fred Mills, Louis Domenech, Gregory Dortch, Hal Jerklin, and Cedric Turner. The ramp supervisors all reported directly to the ramp department manager who in 1991, when the majority of the events which comprise this lawsuit took place, was Mark Yankowski.

At trial, Dunning, a married woman, testified about four incidents in which she was sexually harassed by co-workers or supervisors at Simmons Airlines. In November, 1989, she alleged that one of her co-workers, Herb Bell, grabbed her right breast. Dunning complained to her supervisor, Fred Mills, who told her to write up a report about the incident. Dunning did so, but did not keep a copy of the report, nor did Mills give her a copy of it. Mills spoke to Von Williams, the ramp manager, about the incident. Several days after Dunning reported Bell's actions to Mills, Williams told her that the company could take no action concerning her complaint because there were no witnesses to the incident, although at the time of trial, Dunning testified that two co-workers were present when Bell allegedly assaulted her. ¹ There is no indication in the record that Dunning or anyone at Simmons Airlines pursued further action regarding this matter.

The next incident occurred in May, 1990, when Dunning heard that Gregory Dortch, one of her supervisors, was telling one of her co-workers, Kevin Bonnett, "that he wanted to sleep with [her.]" Dunning stated that as soon as she heard that Dortch was making such statements, she reported the remarks to Mark Yankowski, her ramp manager, although she did not advise Yankowski who was making the remarks. When asked about Yankowski's reaction to her complaint during direct examination, the plaintiff testified that Yankowski simply responded "okay," and did not press her to identify the individual who was making the suggestive statements about her. As to this second incident of harassment, Yankowski testified and denied that Dunning ever lodged a complaint that Greg Dortch was telling co-workers that he wanted to engage in sexual intercourse with her.

In April, 1991, Louis Domenech, another of Dunning's supervisors, allegedly exposed his genitals to her when no one else was present and told her that she "should try some Puerto Rican meat." The next day, Dunning complained to Yankowski about Domenech's actions. When queried on direct examination as to the reason why she waited a day to lodge her complaint, Dunning responded that she did not report Domenech's actions right away "because in other instances when I complained nothing was done, and I was scared, I didn't know what to do. I didn't know if I should tell someone, or what." The plaintiff again withheld the name of the perpetrator of the harassment (Domenech), although on this occasion Yankowski asked her who it was. Dunning testified that she refused to tell Yankowski who harassed her because she "was not there to get anyone in trouble; [she] just wanted him to know what was going on." Dunning did not know if any investigation was made into these allegations.

Once again, Yankowski denied that Dunning had lodged any complaint about Domenech exposing himself to her. However, Rosie Shadd, a fleet service clerk and one of Dunning's co-workers, testified via deposition that in the summer of 1992, she was in the freight office one day with Louis Domenech and Greg Dortch and heard Domenech complain that Dunning wrote up a report accusing him of exposing himself to her, and Shadd further testified that Domenech showed her the report in question. Shadd also stated that Domenech was "very angry" about Dunning filing the report.

The final incident occurred in July, 1991. At that time, Dunning was told by a female co-worker that Louis Domenech told Mike Brown, a male employee, that Dunning engaged in oral sex with Gregory Dortch in his office. Dunning spoke with Brown later that day and he admitted that Domenech made these statements to him, but he refused to join Dunning in reporting the incident to Yankowski stating that his supervisors were "already on his back" about his poor attendance record. Dunning reported Domenech's statements to Dwight Harris, Chuck Arnieri, and Joyce Ely, the president, vice-president, and treasurer of the local union. Harris and Arnieri accompanied the plaintiff to ramp manager Yankowski's office to lodge a complaint against Domenech. ²

Dunning testified that she was crying and very upset during this meeting and that Yankowski told her, in front of Arnieri and Harris, "to either give him the facts or get out of his office." After she finished relating the problems, Yankowski inquired of her if she had any witnesses. Dunning stated that she did not have any witnesses. ³ Yankowski told Dunning to come back to his office the following day and that he would inform her what action, if any, he would take concerning her complaint. After this meeting, Harris suggested to Dunning that she write her account of the incidents concerning the sexual harassment, and she complied and gave the report to Harris.

When Dunning returned to Yankowski's office for the pre-arranged meeting the following day, Arnieri accompanied her. Louis Domenech and Gregory Dortch were present during the meeting and each of them individually denied the allegations Dunning made against them. Yankowski, although present, withdrew from the matter and let Domenech and Dortch, the accused, handle the resolution of Dunning's complaints. Domenech and Dortch informed Dunning that they were placing a disciplinary report (CR-1) in her personnel file for her "misrepresentation of facts," concerning her claim that she was sexually harassed. Yankowski testified at trial that he had not investigated Dunning's allegations other than to question Domenech and Dortch about whether they were spreading such rumors about Dunning. Dunning did not complain further to Yankowski about the disciplinary action "because he had left it up to the persons that [she] accused to discipline [her]."

At trial, Domenech, Dortch and Yankowski presented versions of the facts that contradicted those testified to by Dunning. Yankowski testified that Domenech and Dortch, not Dunning, brought to his attention the alleged rumors being spread about Dunning. Yankowski further testified, under oath, that when he was informed about the rumors, he told Domenech and Dortch to speak to Dunning about the allegations and also instructed the two men to call Employee Relations for advice on how to handle the matter.

Louis Domenech denied spreading rumors about Dortch and Dunning, and he also denied exposing his genitals to Dunning. Domenech further testified about the following facts concerning the rumors he was allegedly spreading. He stated that when he heard about the rumors, he spoke with Joyce Ely, a fleet service clerk who was the treasurer of the union, and that she investigated the rumors and informed Domenech that there were witnesses to verify that he was, in fact, spreading lewd stories about Dunning. Domenech further testified that he called Ely and Dunning into his office to discuss the rumors and Dunning refused to tell him who told her about them.

Domenech continued by stating that Ely left the meeting for a while, and came back after Dunning was gone to tell Domenech that the allegations of sexual harassment were just a misunderstanding and that Dunning was dropping all her complaints. Domenech informed the court that after Ely left his office, he and Dortch went to Yankowski to ask him what actions they could take against Dunning for filing a false complaint. Both men stated that after discussing the matter with Yankowski, they all came to the decision that Dunning should be given a disciplinary report for her "misrepresentation of facts," although Yankowski testified that he asked Domenech and Dortch to speak with someone in Employee Relations to...