928 F.2d 966 (10th Cir. 1991), 89-1373, Hicks v. Gates Rubber Co.

Docket Nº:89-1373.
Citation:928 F.2d 966
Party Name:Marguerite HICKS, Plaintiff-Appellant, v. The GATES RUBBER COMPANY, Defendant-Appellee.
Case Date:March 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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928 F.2d 966 (10th Cir. 1991)

Marguerite HICKS, Plaintiff-Appellant,


The GATES RUBBER COMPANY, Defendant-Appellee.

No. 89-1373.

United States Court of Appeals, Tenth Circuit

March 22, 1991

Elisa J. Moran (John Mosby with her on the briefs), Denver, Colo., for plaintiff-appellant.

David R. Gorsuch of Gorsuch, Kirgis, Campbell, Walker and Grover, Denver, Colo., for defendant-appellee.

Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This case is a paradigm of one of the central problems of litigation today--the problem being the length of time it takes for a lawsuit to resolve once it commences. The events giving rise to this litigation largely occurred more than a decade ago, and the initial complaint was filed in October, 1981. Since the filing of the complaint under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. Sec. 1981, there has been one trial, an appeal and remand, and further proceedings in the district court. The

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matter is now before us again after the district court's latest judgment for the Defendant.


Marguerite Hicks (hereinafter "Plaintiff" or "Hicks") was hired by Gates Rubber Company (hereinafter "Gates") in July 1980 as a security guard. When she was hired Hicks was the only black woman in the security force, and one of only two black guards. The factual details of Hicks's employment with Gates are thoroughly told in the published opinion resulting from Hicks's first appeal to this court. See Hicks v. Gates Rubber Co., 833 F.2d 1406, 1408-11 (10th Cir.1987) (Hicks I ). We highlight only those facts necessary to put the case in context for purposes of this appeal.

In summary, Hicks thought the work environment at Gates was permeated with both racial and sexual hostility. This led her to file a charge of race and sex discrimination with the Equal Opportunity Employment Commission ("EEOC"). Hicks I, 833 F.2d at 1410. Among other things, this EEOC charge alleged: "The work environment is hostile where I am concerned. The non-Black guards complain about me to one another, make unnecessary comments to one another and to my supervisor about me."

After this EEOC charge was filed, Hicks began to receive discipline from Gates in the form of written Derogatory Personnel Notations ("DPN's"), verbal warnings, and suspensions without pay. According to Gates, these forms of discipline were necessary because Hicks was a poor worker who had problems getting along with her co-workers. One DPN issued to Hicks stated her job performance was not at an "acceptable level" because of missed radio checks, procedural errors and deficient "key checks." These complaints were repeated in a subsequent DPN that included an additional comment about Hicks's "clock charts" that allegedly did not correspond to her "assigned duties." This DPN further included a charge of mishandling a weapon. All three written DPN's indicated Hicks could receive further discipline, including discharge, if the problems persisted.

Hicks, on the other hand, obviously thought the discipline was in retaliation for her initial EEOC charge of race and sex discrimination. This belief drove her to file four additional charges with the EEOC over a five-month period from December 1980 to April 1981. Each of the subsequent EEOC charges alleged unlawful retaliation by Gates.

Throughout her employment Hicks had particular problems with a supervisor named Gleason. In her first EEOC charge, she alleged she was subjected to sexual harassment and that Gleason "patted me on the buttox [sic]." At trial she testified Gleason told her "he would put his foot up my ass so far that I would have to go to clinic to take it out." Hicks I, 833 F.2d at 1410. According to Hicks, Gleason said "I'm going to get you yet." Hicks I, 833 F.2d at 1410. She further testified that when Gleason saw her sitting down once during a shift he said "I caught you" or "I got you," and then proceeded to grab her breasts and get on top of her as she fell over. Hicks I, 833 F.2d at 1410. Finally, in addition to the allegations of sexual improprieties by Gleason, there was testimony Gleason called black people "niggers" and "coons." Gleason allegedly spoke of "lazy niggers and Mexicans." One of the other guards also allegedly referred to Hicks as "Buffalo Butt."

Hicks fell and was injured on the job in January 1981. She believed her supervisor, Gleason, intentionally did not warn her about the broken step that caused her injury. She also claimed Gleason remarked about her pending EEOC charges, saying: "[I]f I go downtown and I lose my case that he hope I take it like a woman." There was testimony the plant superintendent told Hicks she could not "buck" Gates by going to the EEOC. Hicks believes her injuries from the fall were ignored, and that after the injury she was even required to walk more than usual.

Hicks was discharged by Gates in March, 1981. According to the company, the reason

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for her discharge was her "poor quality and low output."

Hicks received her Right to Sue letter and filed in federal court after the EEOC found "[n]o reasonable cause" to believe her various charges against Gates. 42 U.S.C. Secs. 2000e-5(b), 2000e-5(f)(1). Hicks claimed in her lawsuit she "suffered greater disciplinary action than other guards solely because [she is] black and female." The complaint does not contain any other allegation of sexual discrimination. She further claimed her training was more rigorous and her work environment was hostile because she is black. She claimed retaliation because of her EEOC charges and also alleged a violation of 42 U.S.C. Sec. 1981.

Following a trial lasting more than three days, the district court ordered judgment for Gates. The court rejected all claims of racial and sexual harassment. Although it labeled supervisor Gleason's conduct as "boorish," the court found his conduct was "unrelated to any overt or implicit demand or invitation by him for responsive conduct of any kind by plaintiff." The court concluded her tolerance or consent to conduct by Gleason, and another guard, was not made a condition of continued employment. It also concluded Gates discharged her for her "inability to adequately perform the job for which she was hired and for no other...

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