Swentek v. USAIR, Inc.

• Decision Date: 07 October 1987
• Docket Number: Nos. 86-2589,s. 86-2589
• Citation: 830 F.2d 552
• Parties: 44 Fair Empl.Prac.Cas. 1808, 44 Empl. Prac. Dec. P 37,457, 56 USLW 2251, 9 Fed.R.Serv.3d 568, 24 Fed. R. Evid. Serv. 173 Betsy Ann SWENTEK, Plaintiff-Appellant, v. USAIR, INC.; Jon R. Ludlam, Defendant-Appellee, Women's Legal Defense Fund, Amicus Curiae. Betsy Ann SWENTEK, Plaintiff-Appellee, v. Jon R. LUDLAM, Defendant-Appellant, USAIR, Inc., Defendant-Appellee, Women's Legal Defense Fund, Amicus Curiae. (L), 86-2614.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 552

830 F.2d 552

44 Fair Empl.Prac.Cas. 1808,

44 Empl. Prac. Dec. P 37,457, 56 USLW 2251,

9 Fed.R.Serv.3d 568, 24 Fed. R. Evid. Serv. 173

Betsy Ann SWENTEK, Plaintiff-Appellant, v. USAIR, INC.; Jon R. Ludlam, Defendant-Appellee, Women's Legal Defense Fund, Amicus Curiae.

Betsy Ann SWENTEK, Plaintiff-Appellee, v. Jon R. LUDLAM, Defendant-Appellant, USAIR, Inc., Defendant-Appellee, Women's Legal Defense Fund, Amicus Curiae.

Nos. 86-2589(L), 86-2614.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1987.

Decided Oct. 7, 1987.

Francine K. Weiss (Edith Barnett, on brief) for appellant.

Brian William Shaughnessy (Shaughnessy, Borowski & Gagner, on brief), Gregory S. Lewis (Morgan, Lewis & Bockius, Washington, D.C., Thomas Rawles Jones, Jr., Moffit & Jones, Alexandria, Va., on brief), for appellees.

Sonia A. Jarvis, Donna R. Lenhoff, Women's Legal Defense Fund, Terry Bancroft Dowd, Kevin C. Dwyer, B. Lee Willis, Miller & Chevalier, Chartered, Washington, D.C., on brief, for amicus curiae Women's Legal Defense Fund.

Before PHILLIPS, ERVIN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

Betsy Ann Swentek, a flight attendant, sued her employer, USAIR, alleging sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. In the same action, she brought pendent state claims of intentional infliction of emotional distress, assault and battery, and invasion of privacy against USAIR and against Jon Ludlam, a USAIR pilot. The trial judge found against Swentek on the Title VII claim, and the jury found for her only on the claim of emotional distress. The trial court then set aside that verdict and ordered a new trial. A second judge subsequently granted Ludlam's motion for a directed verdict on the emotional distress claim as well. From these various rulings, Swentek appeals.

I.

The facts of this case are much in dispute. In fact, they are wildly at variance. We trace with some reluctance the tortured history of animosity between the principals, and the various acts in which each is alleged to have been involved.

Appellant Betsy Ann Swentek has worked as a USAIR flight attendant for over 16 years. Jon Ludlam has been a USAIR pilot for almost 20 years. Swentek was assigned to work with Ludlam for a three-day period covering July 28, 29, and 30, 1984. After this trip, Swentek filed a complaint against Ludlam with USAIR's Manager of Flight Attendant Services.

The complaint alleged that during the trip, Ludlam interrupted a conversation between Swentek and a customer service agent with an obscene comment about the agent's wife; embarrassed her in front of an FAA official with a non-sexual prank; disparaged her age and weight; jumped up in her presence on the registration desk at a hotel in Newark to "check out" the legs of the female registration clerk; and exposed himself to her by dropping his trousers. The complaint also contained her allegation, as explained at trial, that Swentek began to cry during the trip and told Ludlam, "I don't have to take this from you and I won't." He allegedly replied, "I haven't even started on you yet." The complaint was accompanied by the sworn statements of two other flight attendants who witnessed these events.

Swentek also alleged in her complaint that, during the preceding month of June, Ludlam reached under the skirt of her uniform and grabbed her genitals during a chance meeting in a stairwell at the Pittsburgh airport. She claimed that she did not immediately report the incident because she was humiliated and afraid and because Ludlam said that he would thereafter "be a good boy."

Swentek brought a claim for sexual harassment under Title VII and pendent state claims of intentional infliction of emotional distress, assault and battery, and invasion of privacy. She sought equitable relief and over $1 million in damages.

The state tort claims were tried before the jury. Swentek testified that Ludlam made numerous obscene comments during the July trip, ¹ and threatened to delay her pay by withholding her name from a flight log book. She further testified that Ludlam made obscene comments to her before the July trip when they happened to meet. ² According to appellant, Ludlam dropped to his knees and sniffed her when he was first introduced to her during a crew change on a DC-9. Swentek said that she told Ludlam to leave her alone after each of these encounters.

Much testimony was also devoted to Ludlam's taunting remarks about Swentek's off-duty attire, to his tone of voice when he said "Hello, Swentek" at a party, and to his alleged attempt to block her way through some doors in an airport. She further testified that, shortly before trial, a pilot approached her as she was registering in a Toronto hotel, grabbed her breasts and said "this is a greeting from Jon Ludlam."

In addition to these allegations, Swentek attributed to Ludlam obscene phone calls that she allegedly received at her home beginning in late 1983 and continuing through the litigation of this lawsuit. She claimed that she recognized Ludlam's voice as that of the caller.

Ludlam emphatically denied that any of these incidents happened. At trial, he rebutted many of Swentek's allegations with eyewitness testimony and with flight records which showed that he was not in Swentek's vicinity when the incidents allegedly occurred. An eyewitness to the alleged pants-dropping incident testified that Ludlam was simply tucking in his shirt. The personnel on the July trip testified that Swentek did not seem upset or hostile toward Ludlam during the trip and that Ludlam did not seem to be harassing her. According to Ludlam, this suit is the result of personal animosity over Swentek's threat to sue another flight attendant. Various witnesses testified that Swentek told them that she intended to get Ludlam fired.

In addition, numerous witnesses described Swentek as a vindictive person who often threatened her coworkers with lawsuits for real or imagined personal slights. The two flight attendants who signed statements corroborating the events of the July trip recanted their statements at trial, stating that they had signed them merely to appease Swentek and to avoid any trouble with her. There was also testimony that Swentek was a foul-mouthed individual who often talked about sex. In addition, unrebutted testimony at the first trial revealed that Swentek placed a "dildo" in her supervisor's mailbox to get her to "loosen up," urinated in a cup and passed it as a drink to another employee, and once grabbed the genitals of pilot Don Matthews with a frank invitation to a sexual encounter. At the second trial, Swentek denied doing any of these things.

After the jury retired to consider the tort claims, the trial judge heard USAIR's case on the Title VII claim. USAIR's Regional Director of Flying, Captain James Sullivan, testified that he investigated Swentek's complaint and issued a letter of reprimand to Ludlam. Sullivan told Ludlam that he would be suspended if any more complaints were received. Sullivan also testified that he informed Swentek of this action. Swentek claims that she was not notified of it. Swentek then filed an EEOC charge which was investigated internally by a senior attorney in USAIR's legal department. The attorney determined that the charge lacked merit because Ludlam had ceased his foul language since his reprimand and no new complaints had been received. After receiving a right-to-sue letter, Swentek instituted this action.

After the evidence was in, but before final arguments, Swentek moved to amend her complaint to include punitive damages. Despite Ludlam's vigorous objection, the judge granted the motion. The jury held for Swentek on the emotional distress claim, awarding her $10,000 in compensatory damages and $10,000 in punitive damages. It held against her on the assault and battery and invasion of privacy claims.

After the jury returned its verdicts, Judge Cacheris held for USAIR on the Title VII claim. He specifically found that the Pittsburgh grabbing incident did not occur, that Ludlam was not responsible for the obscene phone calls, and that he did not drop his pants, drop to his knees, or make many of the rude, sexually suggestive comments attributed to him. The judge did find that Ludlam used some foul language and sang lewd limericks in Swentek's presence. He held for USAIR, stating that Ludlam's conduct was not severe or pervasive enough to constitute harassment under Title VII and that Swentek's own conduct indicated that Ludlam's behavior was "not unwelcome." He also found that Ludlam was not Swentek's supervisor and that USAIR took corrective action against Ludlam when it received complaints about him.

Swentek moved for a new trial on her state law claims, alleging that the trial judge erred in admitting evidence of her past sexual behavior. Ludlam moved for a new trial on the emotional distress claim, alleging that he was unfairly prejudiced by Swentek's late amendment of her complaint to include punitive damages. Judge Cacheris, noting that he had "painted himself into a corner" by making credibility findings in ruling on the Title VII claim, granted Ludlam's motion for a new trial on the emotional distress claim and recused himself from the second trial.

At the new trial, Judge Hilton held that Swentek was collaterally estopped by the jury verdicts on assault and battery and invasion of privacy from submitting evidence of the Pittsburgh grabbing incident or the obscene telephone calls. He found that Swentek failed to prove any intent by Ludlam to harass her, and that the conduct alleged was not severe enough to make out an emotional distress claim. He directed a verdict for Ludlam.

Swentek now appeals. She argues that Judge Cacheris erred in holding against her on the Title VII claim, and that he abused his discretion in setting aside the jury's verdict on emotional distress. She also asserts that the judge...