Hicks v. Gates Rubber Co.

• Citation: 833 F.2d 1406
• Decision Date: 25 November 1987
• Docket Number: No. 84-1232,84-1232
• Parties: 45 Fair Empl.Prac.Cas. 608, 44 Empl. Prac. Dec. P 37,542, 56 USLW 2328 Marguerite HICKS, Plaintiff-Appellant, v. The GATES RUBBER COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1406

833 F.2d 1406

45 Fair Empl.Prac.Cas. 608,

44 Empl. Prac. Dec. P 37,542, 56 USLW 2328

Marguerite HICKS, Plaintiff-Appellant, v. The GATES RUBBER COMPANY, Defendant-Appellee.

No. 84-1232.

United States Court of Appeals,

Tenth Circuit.

Nov. 25, 1987.

Elisa Moran, Denver, Colo. (John Mosby, Denver, Colo., was also on the brief), for plaintiff-appellant.

Steven F. Biskup, Denver, Colo. (David R. Gorsuch of Gorsuch, Kirgis, Campbell, Walker and Grover, Denver, Colo., was on the brief), for defendant-appellee.

Before HOLLOWAY, Chief Judge, SETH, Circuit Judge, and CROW, District Judge. ^*

HOLLOWAY, Chief Judge.

This an appeal by Plaintiff Marguerite Hicks ("Hicks") from a judgment by the district court in a Title VII action in favor of Gates Rubber Company ("Gates"). The case arose out of a series of incidents that occurred during a brief, eight month period of employment of Hicks by Gates. Stripped to its essential elements, Hicks' claim was that she was subjected to racial harassment in violation of 42 U.S.C. Sec. 1981 (1982), and that she was subjected to racial and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982). In addition, Hicks alleged that when she complained of the harassment to the Equal Employment Opportunity Commission ("EEOC"), she was retaliatorily discharged. In defense, Gates maintained that Hicks was neither sexually nor racially harassed, and that she was discharged solely because of unsatisfactory job performance. An outline of the evidence follows.

I

On July 15, 1980, Hicks, a black woman, was hired by Gates as a security guard. At the time she began working, Gates employed thirty people in its security force. Hicks was the only black woman in the security force, and one of only two black guards.

The primary responsibility of the security guards at Gates was to patrol the Gates plant and grounds. To ensure the thoroughness of these patrols, Gates had developed an elaborate system--known as "walking the keys"--that monitored a guard's progress on patrol. In essence, the system required each guard to carry a time clock on patrol which was activated by keys strategically placed at ninety-three various locations on the patrol route. When a guard reached one of the locations, he or she inserted the key into the clock which recorded the time of the guard's arrival. Although the time involved in "walking the keys" could vary depending on external factors, the optimal rate for patrolling the grounds was fifteen keys per half hour. In addition guards carried short-wave radios and were subject to periodic radio checks. Guards were also required to maintain daily logs that detailed any variation from the normal patrol routine.

When a new employee began working at Gates, the employee was automatically placed on a ninety day probationary period, during which time he or she could be discharged without cause.

At trial, Hicks sought to establish that the work environment at Gates during her probationary period was permeated with racial and sexual hostility. Gates' employees testified that an atmosphere existed in which racial slurs and jokes were tolerated. III R. 40-42. At least one supervisor, Gleason, referred to blacks as "niggers," III R. at 40, and "coons." IV R. 162. On one occasion, Gleason was said to have made a reference to "lazy niggers and Mexicans" that appeared to have been specifically directed at Hicks. IV R. 236. In a similar vein, one of the security guards, Brawley, referred to Hicks as "Buffalo Butt." IV R. 164.

Hicks claimed that early in her probationary period she was subjected to disparate treatment by both supervisors and coworkers. She complained that her trainer, Lyon, forced her to make a four or five foot jump off of a loading dock, III R. 51-52; and that Lyons, in contravention of standard procedure, would not permit her to sit while conducting the plant inspection. III R. 52. She asserted that on one occasion supervisor Holec refused to allow her to take her lunch break at the usual time, instead requiring her to relieve a white coworker, III R. 54; and that Holec insisted that she ride in a car even though the passenger seat was wet, the consequence of which was that she was forced to "walk the plant with wet pants the rest of the shift." III R. 55. Hicks also claimed that during her probationary period she was sexually harassed. She recounted an incident during a trip to patrol the hangar where Holec reached over and rubbed her thigh and said, "I think you're going to make it." III R. 55. Finally, Hicks delineated examples of hostility exhibited by coworkers.

Evidence offered by Gates differed radically from Hicks' account of her probationary period. According to Gates, Hicks had difficulties performing her duties as a security guard from the very beginning of her employment. Her trainer, Lyons, testified that during her training, Hicks was unable to accurately remember the locations of the keys along the patrol route, V R. 449-54, and as a consequence, he was instructed by his supervisor to simplify the training program to accommodate her memory problems. Lyons testified that Hicks' performance was so deficient that by the end of the first week, he had begun to question her ability to adequately perform the work. V R. 450. Lyons also found it necessary to extend Hicks' training period from the normal time of one week to four weeks. V R. 457. Even at the end of four weeks, Lyons did not really feel she was capable of fully performing her duties as a security guard.

Gates also challenged Hicks' interpretation of the events cited by her as evidence of disparate treatment. The loading dock event was said to be a minor incident that occurred when Hicks' trainer took a short cut to make up lost time on the patrol route. The incident when Hicks' pants got wet was described as the result of an inadvertent oversight. V R. 468. Finally, Gates strenuously disputed Hicks' contention that she had been sexually harassed by Holec, asserting that Hicks had misconstrued an innocent and harmless gesture of encouragement.

Despite difficulties, Hicks successfully completed her probationary period, becoming a full time guard on October 15, 1980. However, Hicks said she soon began to experience difficulties with her supervisor, Gleason. On November 8, 1980, Gleason told Hicks "that he would put his foot up [her] ass so far that [she] would have to go to clinic to take it out." III R. 56. In addition, Hicks said that the following day, November 9, Gleason touched her on the buttocks and said " 'I'm going to get you yet.' " III R. 56. At about this time, on instructions from the manager of security, Ely, Gleason also began making notations on Hicks' job performance.

Hicks also had problems with some of her coworkers. On November 18, 1980, for instance, Hicks had a heated verbal exchange with one of the other guards, Phyllis Adams. This altercation was the subject of an informal meeting with Ely on November 19. He warned Hicks that he was "not going to have this kind of action out of [her]...." III R. 61. Hicks filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 21. She alleged racial and sexual harassment arising out of the general work environment, as well as specific instances of harassment.

On November 29, Hicks was involved in an incident with another Gates security guard, Patricia Roe, in which Hicks allegedly challenged Roe to a fight. After an investigation of the incident by Ely, Hicks was issued a Derogatory Personnel Notation ("DPN") on December 2, 1980 and suspended for three days. In response, Hicks filed a second charge of discrimination with the EEOC alleging that the suspension was in retaliation for her earlier charge of discrimination.

On December 15, 1980, Hicks received a verbal warning for poor performance by Ely. In the record of verbal warning, Ely delineated five areas in which Hicks' job performance was unsatisfactory: (1) missing too many keys during her patrol, and walking less than fifteen keys per half hour; (2) taking too long in inspecting Mr. Gates' house and hangar; (3) failing to follow her supervisor's instructions; (4) missing or reporting late on too many radio checks; and (5) failing to report all deviations from her normal patrol route on her daily report. On December 19, Hicks again responded to the discipline by filing a claim of retaliation with the EEOC.

Not long after receiving the verbal warning, Hicks said that she was again sexually harassed by Gleason. She was taking a break on patrol when Gleason drove up in a go-cart. He stopped and said, "I caught you," or "I got you." III R. at 70. He then allegedly grabbed Hicks' breasts and she "fell over, and he got on top of [her]." III R. 70. Gleason denied such acts.

On January 3, 1981, Hicks injured her leg, back and head when she slipped and fell on a broken step while walking the keys. Although her supervisor, Gleason, knew of the broken step, he did not warn the guards on the swing shift--including Hicks--of the danger. On February 12, Hicks filed her fourth EEOC claim, alleging that her injury was in retaliation for having filed the previous EEOC complaints.

As a result of her injury, Hicks missed work for six days, returning to work on January 12, 1981. On her return, her injuries prevented an immediate resumption of her guard duties. Consequently, she was given a "light duty slip" by the Gates clinic for the week following her return, relieving her from walking the keys. When she resumed her regular duties, however, Hicks continued to have persistent pain in her back that interferred with her job performance. On February 7, Hicks was given a DPN for poor job performance.

On February 10, Hicks received a verbal warning for mishandling a weapon when her gun was accidentally dropped. On February 23, Hicks was again disciplined for a second incident...