Hixson v. Norfolk Southern Ry. Co.

Decision Date10 June 1996
Docket NumberNo. 94-5832,94-5832
Citation89 F.3d 834
PartiesNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Beverly K. HIXSON, Plaintiff-Appellant, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Before: JONES and BOGGS, Circuit Judges and COFFMAN, District Judge 1

PER CURIAM.

Appellant, Beverly K. Hixson ("Hixson"), challenges the district court's granting of summary judgment in favor of the appellee, Norfolk Southern Railway Co. ("NS"), on her retaliation claim. Hixson also challenges the district court's dismissal, after a bench trial, of her sexual harassment and constructive discharge claims. For the reasons that follow, we affirm the decisions of the district court.

I.

Hixson was employed by NS as a student electrician from December 11, 1989 until she tendered her resignation on August 8, 1991. After completing a student mechanic-electrician training program, Hixson was assigned to work in the Chattanooga Diesel Shop of NS's DeButts Yard Terminal located in Chattanooga. Hixson and another female employee, Paula Sisson ("Sisson"), were the first women hired to work in the diesel shop.

Hixson worked an intermittent rotating schedule before taking an assignment to the third shift in July of 1990. Hixson was the first and only female at NS to work permanently on the third shift. Hixson's immediate supervisor on the third shift was electrician Howard Evans ("Evans"). Frank Hartman ("Hartman") was Hixson's general foreman. Barry Reese ("Reese") was the manager and the ranking company officer of the Chattanooga Diesel Shop in 1989 and 1990.

At a meeting before Hixson and Sisson started to work in the diesel shop, Reese told NS's male employees not to do anything which might be interpreted as sexually oriented with regard to the new female employees. Reese told the men to treat the women as they would their mothers or sisters. In May of 1990, Reese held meetings for all three shifts to inform employees of certain new policies regarding safety rules and regulations. In one of those meetings, at which Hixson was present, Reese, in response to a question, used the phrase "have us by the balls," without any intent to offend Hixson or make her feel uncomfortable. Reese immediately apologized for making such a statement. Hixson accepted Reese's apology for the statement and she claims that she considered it a matter for joking with Reese. Hartman testified that Hixson told him at a later point in time that she had Reese "by the balls."

After she began working in the diesel shop, Hixson started dating one of her co-workers, A.J. Rice ("Rice"), whom she later married. On several occasions while all three were on duty, Evans saw Hixson and Rice kissing each other. He ordered them to refrain from such activity because it was inappropriate at work. When they failed to heed Evans's directive, Evans reported their conduct to his supervisors. 2

In late 1990, Hixson became upset with Evans because he did not take her on a "road trip." 3 Also in mid- to late August, according to Hixson's testimony, Evans began asking her for dates and suggesting that they engage in a sexual relationship. Hixson further testified that she refused his advances but that Evans persisted by making several specific lewd and sexual remarks. Evans denied that the conduct occurred.

Hixson further complained about a heating and ventilation vent which was installed in the women's dressing room and bathroom. As a result of Hixson's complaints about a lack of adequate ventilation, NS installed a ventilation system, one component of which was a standard, double-louvered heating and air conditioning vent. This vent was located in the door to the women's restroom near the floor. Hixson was not satisfied with the vent because she felt that someone could use it as a "peephole" to observe her in the bathroom. Hixson first noticed the alleged peephole in July of 1990 but did not report it to anyone at NS until September 1990. Hixson stated that she did not report the vent problem to NS because she was hoping to catch someone looking through it at her. She never caught anyone looking through the vent.

Hixson eventually complained to Gary Brazelton ("Brazelton"), a fellow electrician, about the purported peephole. Brazelton testified that if a person got down on his or her hands and knees, then he or she would have a limited view of a portion of the bathroom. Brazelton immediately attached a piece of cardboard to the vent so that no one could see through it. From that day until the last day Hixson worked, the cardboard (or a permanent metal replacement) remained in place, preventing anyone from peering into the bathroom.

In October of 1990 Hixson began missing days at work, allegedly to avoid contact with Evans and to await repairs to the vent. Hixson requested and obtained two weeks of medical leave during October of 1990. While on medical leave, Hixson admitted herself to Northwestern Institute for the treatment of work-related stress that she felt as a result of her perception that she was the victim of sexual harassment which went unresolved by management. Hixson was treated at this psychiatric hospital by Dr. Jack Gomberg. 4

After returning to work, Hixson discussed with Reese both the so-called peephole and also Evans's alleged sexual harassment. Reese immediately contacted R.W. Stevens ("Stevens"), the director of the Equal Employment Opportunity Office for NS, to report the alleged sexual harassment. Reese also contacted NS's physician and requested that Hixson be taken off duty for medical purposes. The company doctor complied with the manager's request and removed Hixson from service. 5

The next day Stevens and Cheryl Moser ("Moser") traveled from the NS EEO office in Virginia to NS in Chattanooga. Stevens and Moser conducted an informal investigation of the allegations to assess the situation in order to determine whether to conduct a formal investigation, which is a process frequently used by NS for investigation of employee complaints. Hixson told them about the vent in the bathroom, the statement made by Reese, and her problems with Evans. The EEO investigation also uncovered behavior on the part of Hixson that could be construed as her having sexually harassed her male co-workers. A formal investigation ensued.

Evans, Hixson, Rice, Reese, and Brazelton were the targets of the formal investigation. As a result of this process, several of the employees were disciplined on some, but not all, of the charges. NS issued a letter of reprimand to Evans for failure to control his employees properly. 6 Hixson was charged with 1) kissing and embracing Rice; 2) failing to follow Evans's verbal instructions not to fraternize with Rice; 3) allowing Brazelton to rub her leg; 4) using lewd and obscene language, teasing, joking, and making remarks which had sexual overtones; and 5) touching and pinching employees. Hixson received a thirty-day suspension for kissing a fellow employee while on duty, after being instructed not to do so.

In January of 1991, after the medical leave, Hixson returned to work. At that time, she was informed that she would have to undergo a series of psychiatric examinations in order to return to work. It took several months to complete the testing and Hixson was cleared to return to work in June of 1991. She then served her thirty-day suspension and was scheduled to return to work in early August of 1991. Hixson requested a change to the second shift. However, because of her missed work days she did not have enough seniority to bid on a second-shift position. In an August 8, 1991 letter, Hixson informed NS that if she could not work a different shift, then the letter would constitute her resignation. Hixson never returned to work at NS.

Plaintiff filed her complaint in the district court on June 6, 1992. On March 16, 1993, she moved for leave to amend her original complaint in order to allege retaliation, which she claimed occurred after she filed her sexual harassment complaint with the Tennessee Human Rights Commission on November 14, 1990. She alleged that the retaliation comprised the letter of reprimand and the thirty-day suspension levied against her. Although it permitted the amendment, the district court later dismissed the retaliation claim as untimely.

II.

We review the district court's findings that led to the dismissal of Hixson's sexual harassment claim to determine whether the factual findings are clearly erroneous. Rabidue v. Osceola Refining Co., 805 F.2d 611, 616 (6th Cir.1986). A finding is clearly erroneous despite the existence of evidence to support it when the reviewing court, in examining the entire record, is left with a definite and firm conviction that a mistake has been made. Id.

The district court's dismissal of Hixson's constructive discharge claim is reviewed de novo. Yates v. Avco Corp., 819 F.2d 630, 636-37 (6th Cir.1987). We apply the standard of a reasonable woman, in ascertaining whether Hixson's refusal to return to work under the same or similar conditions that existed during the time of the alleged sexual harassment amounted to a constructive discharge. Id.

The district court's granting of a partial summary judgment dismissing Hixson's retaliation claim is also subject to de novo review. Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178 (6th Cir.1992).

III.

Hixson claims that NS created a hostile and abusive work environment as a result of sexual harassment. Her sexual harassment claim rests upon three separate grounds. The first of these is Reese's use of the phrase "having us by the balls" in a meeting at which Hixson was present. Hixson further alleges that Evans made offensive comments to her. The third and final...

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