842 F.2d 1010 (8th Cir. 1988), 87-1900, Hall v. Gus Const. Co., Inc.

Docket Nº:87-1900.
Citation:842 F.2d 1010
Party Name:Darla G. HALL, Patty J. Baxter and Jeannette Ticknor, Appellees, v. GUS CONSTRUCTION CO., INC. and John Mundorf, Appellants.
Case Date:March 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1010

842 F.2d 1010 (8th Cir. 1988)

Darla G. HALL, Patty J. Baxter and Jeannette Ticknor, Appellees,


GUS CONSTRUCTION CO., INC. and John Mundorf, Appellants.

No. 87-1900.

United States Court of Appeals, Eighth Circuit

March 25, 1988

Submitted Dec. 16, 1987.

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Russell L. Samson, Des Moines, Iowa, for appellants.

Mark W. Bennett, Des Moines, Iowa, for appellees.

Before GIBSON, BOWMAN, and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Gus Construction Co., Inc. and one of its foremen, John Mundorf, appeal from a judgment 1 imposing liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1982), and the Iowa Civil Rights Act, Iowa Code Chapter 601A

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(1985), for their having failed to protect Darla Hall, Patty Baxter, and Jeannette Ticknor from sexual harassment by their coworkers. The hostile and abusive working environment resulted in the women's constructive discharge. On appeal, appellants challenge the sufficiency of the evidence and the award of damages for emotional distress under the Iowa statute. We affirm.

Mundorf hired Ms. Hall, Ms. Baxter and Ms. Ticknor in April 1984 to work for Gus Construction Co. as "flag persons" or traffic controllers at road construction sites in various Iowa counties. All of the women were in their thirties. Ms. Baxter and Ms. Hall were single mothers who sought this employment so as to be better able to support young children. No other women worked on the crew. One flag person stood at one end of the section of the road under construction, another at the other end, and the third drove a pilot truck leading the motor vehicle traffic through the construction area.

Immediately after the women started work, male members of the construction crew began to inflict verbal sexual abuse on the women. The men incessantly referred to the women as "fucking flag girls." The men nicknamed Ms. Ticknor "Herpes" after she developed a skin reaction due to a sun allergy. On one occasion, Ms. Baxter returned to her car and found the name "Cavern Cunt" written in the dust on the driver's side, and "Blond Bitch" written on the passenger side where Ms. Hall sat. Male crew members repeatedly asked Ms. Hall if she "wanted to fuck" and requested that Ms. Hall and Ms. Baxter engage in oral sex with them. Mundorf was present during some of these incidents, and on one occasion used the term "fucking flag girls." Each of the women told Mundorf that the verbal abuse offended and upset her. Mundorf talked to the crew members about their conduct, but the verbal abuse soon resumed and continued up to the time the women quit their jobs.

In addition to the verbal abuse, male coworkers subjected Ms. Hall and Ms. Baxter to offensive and unwelcomed physical touching. Male crew members would corner the women between two trucks, reach out of the windows and rub their hands down the women's thighs. They grabbed Ms. Hall's breasts. One crew member picked up Ms. Hall and held her up to the cab window so other men could touch her. Mundorf observed this incident but did nothing.

All three women also experienced other types of abuse at work. Male crew members frequently pulled down their pants and "mooned" the women while they were working. One crew member exposed himself to Ms. Hall. Male crew members flashed obscene pictures of naked couples engaged in oral intercourse at the women. A male crew member urinated in Ms. Hall's water bottle. Several men urinated in the gas tank of Ms. Ticknor's car, causing it to malfunction. When carbon monoxide fumes leaked from the pilot truck causing the driver to become drowsy, the mechanic ignored the women's complaints. The women were forced to rotate their positions so that no one was in the truck for more than a short period of time. Later, a male crew member used the truck, and it was immediately repaired. Male crew members would refuse to give the women a truck to take to town for bathroom breaks. When the women would relieve themselves in the ditch, male crew members observed them through surveying equipment. Mundorf knew about this practice, but he disciplined no one.

The women quit their jobs with Gus Construction Co. in August 1984. After complying with the procedural prerequisites regarding right-to-sue notices from the Equal Employment Opportunity Commission (EEOC) and the Iowa Civil Rights Commission, the women commenced this action, claiming that they were constructively discharged from their employment as a result of the opprobrious conduct of their male coworkers and foreman Mundorf. After a bench trial, the magistrate found for the women. The court awarded the women back pay, damages for emotional distress and attorneys' fees.

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Sexual discrimination that creates a hostile or abusive work environment is a violation of Title VII of the Civil Rights Act of 1964. 2 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986). Unlike quid pro quo sexual harassment, which "occurs when submission to sexual conduct is made a condition of concrete employment benefits," Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987), hostile work environment harassment arises when sexual conduct " 'has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.' " Meritor Sav. Bank, FSB v. Vinson, 106 S.Ct. at 2405 (quoting 29 C.F.R. Sec. 1604.11(a)(3) (1985)). To prevail on a sexual harassment claim, a plaintiff must show that "(1) she belongs to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a 'term, condition, or privilege' of employment, and (5) the employer knew or should have known of the harassment in question and failed to take proper remedial action." Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir.1986) (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982)). See also Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307, 309 n. 3 (5th Cir.1987); Yates v. Avco Corp., 819 F.2d 630, 633 (6th Cir.1987).

Appellants argue that each of the women failed to prove all of the elements necessary to establish her sexual harassment claim. 3 Appellants concede that the women belong to a protected group. They contend, however, that in finding that the women were subject to unwelcome sexual harassment the district court erred in not distinguishing between conduct of a sexual nature and other forms of harassment. Appellants also contend that the harassment against individual women was not sufficiently severe or pervasive to affect a condition of employment. They argue that the court erred by considering all three of the women's claims as a unit rather than individually. Finally, appellants contend that the offending crew members were not agents of Gus Construction Co.

We must assess the trial court's factual finding that the women were subjected to sexual harassment under the clearly erroneous standard of review. Fed.R.Civ.P. 52(a); Yates v. Avco Corp., 819 F.2d at 634; see also Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 702 (8th Cir.1987). We may reverse the district court's finding of sexual harassment only if we are " 'left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

In arguing that only conduct of a sexual nature should be considered in a sexual harassment claim, appellants rely on the language of 29 C.F.R. Sec. 1604.11(a) (1986), which defines sexual harassment as "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Id. Appellants point to various incidents that they contend were not sexual and should not have been considered. For example, they argue that calling Ms. Ticknor "Herpes" might have been cruel, but that it was not conduct of a sexual nature. 4 The incident in which the male crew members urinated

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in Ms. Ticknor's car's gas tank was a practical joke, they argue, not conduct of a sexual nature. Likewise, not fixing the pilot truck that gave off fumes was not conduct of a sexual nature and should not have been considered.

Although we have not previously considered this issue, other courts of appeals have held that the predicate acts underlying a sexual harassment claim need not be clearly sexual in nature. See Hicks v. Gates Rubber Co., 833 F.2d at 1415 (evidence of threats of physical violence and incidents of verbal abuse--calling plaintiff "Buffalo Butt"--properly considered); McKinney v. Dole, 765 F.2d 1129, 1139 (D.C.Cir.1985) (acts of physical aggression properly considered). In McKinney, the court stated:

We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of an employee must, to be illegal under Title VII, take the form of sexual advances or of other incidents with clearly sexual overtones. And we decline to do so now. Rather, we hold that any harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII.

Id. at 1138 (footnote omitted).

We agree with the rationale expressed in McKinney, and we hold that the district court correctly considered incidents of harassment and unequal treatment that would not have occurred but for the fact that Ms. Hall, Ms. Ticknor and Ms....

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