Eichenwald v. Krigel's, Inc.

• Decision Date: 13 December 1995
• Docket Number: No. 94-2292-JWL.,94-2292-JWL.
• Citation: 908 F. Supp. 1531
• Parties: Helene EICHENWALD, et al., Plaintiffs, v. KRIGEL'S, INC., et al., Defendants.
• Court: U.S. District Court — District of Kansas

908 F. Supp. 1531

Helene EICHENWALD, et al., Plaintiffs, v. KRIGEL'S, INC., et al., Defendants.

No. 94-2292-JWL.

United States District Court, D. Kansas.

October 12, 1995.

Memorandum Granting Limited Reconsideration December 13, 1995.

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Jeanne Gorman Rau, Deryl W. Wynn, Daniel B. Denk, McAnany, Van Cleave & Phillips, P.A., Kansas City, KS, for plaintiffs.

Leonard Singer, Sharon D. Hess, Bioff, Singer & Finucane, Michael J. Belfonte, Sanford P. Krigel, Karen E. O'Connell, Krigel & Krigel, P.C., Kansas City, MO, for defendants.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

I. Introduction

A trial to the court was held from September 5, 1995 through September 8, 1995, in this sexual harassment action brought under the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. The plaintiffs, Helene Eichenwald ("Ms. Eichenwald"), Marla Richman ("Ms. Richman"), Leanne Fuller (formerly Alexander) ("Ms. Fuller") and Thomas Harrison¹ ("Mr. Harrison"), claim that they were subjected to an unlawful hostile work environment (and that Ms. Eichenwald was subjected to "quid pro quo" sexual harassment) which led to the constructive discharge of Ms. Eichenwald, Ms. Richman, and Ms. Fuller and that Mr. Harrison was discharged in retaliation for complaining about unlawful discriminatory conduct. The plaintiffs contend that they were sexually harassed by supervisory employees of the defendants, Robert Shine², James Gross³, Gary Stein⁴, and Robert Ward⁵, while working at Krigel's of Metcalf South, Inc., Krigel's of Mission Center, Inc., Krigel's of Oak Park, Inc., and Krigel's of Bannister Mall, Inc. The plaintiffs further allege that Krigel's, Inc., the parent and sole shareholder of Krigel's of Metcalf South, Inc., Krigel's of Mission Center, Inc., Krigel's of Oak Park, Inc., and Krigel's of Bannister Mall, Inc., and these subsidiary corporations should be treated as a single employer for purposes of plaintiffs' Title VII claim under an integrated enterprise theory.

The court has carefully reviewed the submissions of the parties and has thoroughly considered the evidence and arguments presented at trial. It has relied to a considerable degree on its opportunity to form conclusions about the credibility of the witnesses from close observation of their demeanor while testifying at trial. This is not a pleasant case. It is clear that Mr. Shine engaged in appalling and abusive behavior which was sexually harassing, pervasive and unwelcome as to the plaintiffs Eichenwald, Richman and Fuller and which was so intolerable that it led to their leaving jobs with the defendants. Moreover, the evidence is abundantly clear both that the defendants meet the integrated enterprise test and that Mr. Shine's conduct is attributable to them. Thus, the court finds for these plaintiffs and against the defendants. On the other hand, the court does not find the testimony of Mr. Harrison credible concerning the unwelcomeness of Mr. Shine's behavior and finds that there is also no persuasive evidence that Mr. Harrison was retaliated against for opposing sexual harassment. His unsupported claims totally lack merit. As a result, the court finds against Mr. Harrison.

On the subject of remedy⁶, the court was not persuaded by the evidence presented at trial that the three prevailing plaintiffs are entitled to recover the sums demanded. In fact, these plaintiffs presented very little evidence from which the court could determine what they probably would have earned under Krigel's pay plan and its largely commission based compensation scheme. Thus, based on the evidence which was presented, the court's award of back pay to Ms. Eichenwald is in the amount of $22,558.24; to Ms. Richman is in the amount of $4,895.32; and to Ms. Fuller is in the amount of $3,956.01.

II. Sexual Harassment, Constructive Discharge & Retaliation

A. Sexual Harassment

Two principal theories of sexual harassment may be shown under Title VII: quid pro quo discrimination and hostile work environment. Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir. 1993) (citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). Plaintiffs Fuller, Richman, and Harrison's claims are based only on the latter theory. Plaintiff Eichenwald's claim is based on both theories.

To make a prima facie case of hostile work environment under Title VII, a plaintiff must show that: (1) he or she is a member of a protected group; (2) the conduct in question was unwelcome; (3) the harassment was based on sex; (4) the harassment was sufficiently severe or pervasive to create an abusive working environment; and (5) that some basis exists for imputing liability to the employer. Schindler v. Larry's IGA, Inc., No. 92-1033-PFK, 1994 WL 324563, at *2 (D.Kan. June 16, 1994) (citing Ebert v. Lamar Truck Plaza, 715 F.Supp. 1496, 1498 (D.Colo.1987), aff'd, 878 F.2d 338 (10th Cir. 1989)); Ball v. City of Cheyenne, 845 F.Supp. 803, 809 (D.Wyo.1993) (citing Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir.1989)).

To prevail under a hostile work environment theory, a plaintiff must show that sexual conduct had the "purpose or effect of unreasonably interfering" with his or her work performance or created an "intimidating, hostile, or offensive working environment." Martin, 3 F.3d at 1414. Sexual harassment is actionable where the "workplace is permeated with `discriminatory intimidation, ridicule, and insult,' ... that is `sufficiently severe and pervasive to alter the conditions of the victim's employment and create an abusive working environment'." Harris v. Forklift Systems, Inc., ___ U.S. ___, ___, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993). Casual or isolated manifestations of a discriminatory environment are not sufficient to demonstrate a hostile working environment under the law. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1414 (10th Cir.1987). "Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances." Sauers v. Salt Lake County, 1 F.3d 1122, 1126 (10th Cir.1993). These may include:

... the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Harris, ___ U.S. at ___, 114 S.Ct. at 371. These factors are evaluated from both a subjective and an objective viewpoint. The court must consider not only the effect the discriminatory conduct actually had on the plaintiff, but also the impact it likely would have had on a reasonable employee in the plaintiff's position.⁷ Id. at ___, 114 S.Ct. at 370. Evidence of a general work atmosphere, in addition to evidence of specific hostility directed at the plaintiff, may be considered in evaluating the claim. Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1385 (10th Cir.1991). Relatively isolated instances of non-severe misconduct will not support a hostile work environment claim. Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 533 (7th Cir.1993). However, misconduct that is relatively less severe may become actionable, especially when the alleged misconduct is that of a supervisor, when it is so frequent and pervasive that it affects an employee's work environment. Schweitzer-Reschke v. Avnet, Inc., 874 F.Supp. 1187, 1193 (D.Kan.1995).

The fact that the sex-related conduct was "voluntary", in the sense that the complainant was not forced to participate against his or her will, is not a defense to a sexual harassment suit brought under Title VII. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 2406, 91 L.Ed.2d 49 (1986). The gravamen of any sexual harassment claim is that the alleged sexual advances were "unwelcome." Id.

Quid pro quo sexual harassment is anchored in an employer's sexually discriminatory behavior which compels an employee to elect between acceding to sexual demands and forfeiting job benefits, continued employment or promotion, or otherwise suffering tangible job detriment. Ridge v. HCA Health Services of Kansas, Inc., No. 91-1280-PFK, 1992 WL 363686, at *3 (D.Kan. Nov. 3, 1992) (citing Henson v. City of Dundee, 682 F.2d 897, 908 (11th Cir.1982)). To prevail under a quid pro quo theory, a plaintiff must show that (1) a supervisor with authority to materially affect the terms and conditions of the plaintiff's employment, (2) subjected the plaintiff to a demand for sexual favors, and (3) the rejection of which resulted in a tangible job detriment. Starrett v. Wadley, 876 F.2d 808, 820 (10th Cir.1989); Sauers v. Salt Lake County, 1 F.3d 1122, 1127 (10th Cir.1993). If the plaintiff can show that he or she suffered an economic injury from his or her supervisor's actions, the employer becomes strictly liable without any further showing of why the employer should be responsible for the supervisor's conduct. Id.

B. Constructive Discharge

Plaintiffs Eichenwald, Fuller, and Richman contend that the hostile environment to which they were subjected forced them to leave Krigel's and led to their constructive discharge. An employee who is not formally discharged from employment may still be constructively discharged if the employee was forced to quit due to genderbased intolerable working conditions. Derr v. Gulf Oil Corp., 796 F.2d 340 (10th Cir. 1986). In order to establish a claim of constructive discharge under Title VII, a plaintiff must show that the defendant's conduct produced working conditions that a reasonable person would view as intolerable. Daemi, 931 F.2d at 1386. The intolerable conditions must be the result of the employer's illegal discriminatory acts, Derr, 796 F.2d at 344, and the plaintiff must show a causal connection between her leaving and the employer's ...