715 F.Supp. 1496 (D.Colo. 1987), Civ. A. 85-F-2518, Ebert v. Lamar Truck Plaza

Docket Nº:Civ. A. 85-F-2518
Citation:715 F.Supp. 1496
Party Name:Ebert v. Lamar Truck Plaza
Case Date:January 16, 1987
Court:United States District Courts, 10th Circuit, District of Colorado
 
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Page 1496

715 F.Supp. 1496 (D.Colo. 1987)

Ruby EBERT, Carla K. Ebert, Esther C. Ebert, Tempa Roselind Ebert, Willa Dean Atkinson, and Ila K. Brown, Plaintiffs,

v.

LAMAR TRUCK PLAZA, Defendant.

Civ. A. No. 85-F-2518.

United States District Court, D. Colorado.

Jan. 16, 1987

Page 1497

Penfield W. Tate, II, Denver, Colo., for plaintiffs.

John Gehlhausen, Lamar, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

THIS MATTER is before the Court on plaintiffs' claims under Title VII of the Civil Rights Act of 1964, as amended, at 42 U.S.C. § 2000e et seq., and the Equal Pay Act, at 29 U.S.C. § 206(d). Jurisdiction exists pursuant to 28 U.S.C. § 1331. This Memorandum Opinion and Order constitutes our findings of fact and conclusions of law, following trial to the court. Rule 52(a), Fed.R.Civ.P. We find for the defendant Lamar Truck Plaza on all claims, and direct entry of judgment accordingly.

I. Factual Background

This action arises out of the plaintiffs' employment at the Lamar Truck Plaza (LTP), a 24 hour full service restaurant in Lamar, Colorado. The players include plaintiffs, who were female employees at LTP, and persons who were either plaintiffs' superiors or managers during the time period relevant to plaintiffs' claims. Mr. Gene Taylor was a shift supervisor during most of the relevant time period; Mr. Charles Purdy was an assistant manager; Mr. Wes Caudillo was a prep cook; Mr. Ron Woolert was Chief Executive Officer of LTP, Inc. and general manager of LTP; Ms. Susan Woolert had no formal position with LTP during 1984 and 1985, but assisted in management duties; and

Page 1498

Mr. Jim Dixon was the LTP restaurant manager.

LTP management hired plaintiffs in May of 1984. The restaurant was beginning operations at that time. Plaintiffs were hired in various capacities--as baker, line cook, or dishwasher--depending on management needs and employee experience. Each of the plaintiffs either resigned or was terminated by late November 1985. Plaintiff Willa Dean Atkinson was rehired several days after her termination, and is currently employed as a prep cook at LTP.

Plaintiffs claim that during the period from approximately June of 1984 through May of 1985, the LTP working environment was permeated with sexual hostility. They also claim that defendant discriminated against them on the basis of their sex, by paying them lower wages than similarly situated males. Defendant denies that plaintiffs were harassed because of their sex or that working conditions were altered by the allegedly hostile atmosphere, and claims that wage differences were based on factors other than sex.

II. Plaintiffs' sexual harassment claims

Plaintiffs claim that LTP management engaged in conduct and commentary which created an offensive and hostile working environment. The Supreme Court has held that conduct of a sexual nature which creates such an environment is actionable. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To establish a prima facie case of sexual harassment, plaintiffs must show that: (1) they are members of a class of persons protected under the statute, (2) they were subjected to unwelcomed conduct in the workplace, (3) the unwelcomed conduct was based on sex, (4) the sexual nature of the work environment was so pervasive as to alter working conditions and create an abusive working environment, and (5) the employer knew or should have known of the abusive conduct. Meritor Savings Bank, supra. Plaintiffs have failed to sustain their burden.

Plaintiffs claim that use of vulgar language and various instances of touching created the abusive environment. Each plaintiff testified that LTP employees, specifically Gene Taylor, Charles Purdy and Wes Caudillo used vulgar language consistently. Each remembered several specific instances which they considered offensive. 1 Plaintiffs also testified that Mr. Taylor and Mr. Purdy each gestured offensively at least one time in the presence of female employees, and touched various female employees on the breasts or buttocks. Ruby Ebert claims that she was terminated as a result of her complaints about the sexually hostile atmosphere. Tempe, Esther and Carla Ebert and Ila Brown, claim that the atmosphere effected their constructive discharge. 2 We find that plaintiffs have failed to establish that the alleged harassment was based on their sex, and have failed to show that the environment at LTP was the kind of pervasively hostile environment which is actionable under Title VII, as interpreted by the Supreme Court in Meritor Savings Bank.

In Meritor Savings Bank, the Supreme Court cited with approval the EEOC guidelines which state "that the trier of fact must determine the existence of sexual harassment in light of 'the record as a whole' and 'the totality of circumstances, such as the nature of...

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