Burns v. McGregor Electronic Industries, Inc.

• Decision Date: 30 January 1992
• Docket Number: No. 90-2504,90-2504
• Citation: 955 F.2d 559
• Parties: 57 Fair Empl.Prac.Cas. (BNA) 1373, 58 Empl. Prac. Dec. P 41,257, 60 USLW 2527 Lisa Ann BURNS, Appellant, v. McGREGOR ELECTRONIC INDUSTRIES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 559

955 F.2d 559

57 Fair Empl.Prac.Cas. (BNA) 1373,

58 Empl. Prac. Dec. P 41,257, 60 USLW 2527

Lisa Ann BURNS, Appellant, v. McGREGOR ELECTRONIC INDUSTRIES, INC., Appellee.

No. 90-2504.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1991.

Decided Jan. 30, 1992.

William G. Blum, Dubuque, Iowa, for appellant.

Gary L. Robinson and Kimberly A. Ten Eick, Cedar Rapids, Iowa, for appellee.

Before FAGG, Circuit Judge, HENLEY, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

Lisa Ann Burns appeals from the judgment entered in favor of McGregor Electronic Industries, Inc., following the trial in her Title VII sexual harassment suit. We reverse and remand.

I.

On August 30, 1985, Burns filed a complaint alleging constructive discharge from her employment with McGregor, a stereo speaker manufacturer employing fifty to seventy-five workers. She sought back pay, reinstatement, and all other related relief. Burns had worked at McGregor during three separate periods: October 14, 1980 through August 10, 1981; September 15, 1981 through June 20, 1983; and September 26, 1983 through July 19, 1984.

McGregor, which is located in McGregor, Iowa, is owned by Paul Oslac, a resident of Chicago, Illinois. Burns testified that during her first period of employment with McGregor, manager-trainee Marla Ludvik often made sexual comments as Burns left the restroom, such as "have you been playing with yourself in there?" Ludvik also made almost daily comments to other workers that she did not think Burns took douches, that she saw Burns riding in Oslac's car, and that Burns was going out with Oslac. Ludvik tried to convince Burns to date male employees. Supervisors Cleo Martin and Eldon Rytilahti heard Ludvik's remarks. Burns complained to Martin and to Mary Jean Standford, then the plant manager, but nothing changed.

The plant consisted of assembly lines in the basement and on the main floor, an office, a laboratory, and a third floor apartment used by Oslac when he visited the plant. Burns testified that Oslac showed her advertisements for pornographic films in Penthouse magazine, talked about sex, asked her to watch pornographic movies with him, and made lewd gestures, such as ones imitating masturbation. A former worker, Kim Heisz, saw one of Oslac's gestures. Oslac asked Burns for dates at least once a week. She gave him excuses rather than direct refusals because, she testified, she feared the loss of her job. She stated that his behavior made her angry, upset, and "real nervous," and that sometimes she would cry at work or at home. Burns also testified that there was no one above Oslac to whom she could complain; and that although she received no complaints, her work slowed down and she started dropping assembly parts. She voluntarily left McGregor on August 10, 1981.

Burns returned on September 15, 1981, because, she maintained, she needed the work. The newly-hired plant manager, Virginia Kelley, placed her in a higher-paying quality control job. Burns testified that during this period Oslac visited the plant from 11:00 a.m. Monday until 9:00 a.m. Tuesday of each week and that he spent most of this time with her. He continued to ask for dates and wanted to engage in oral sex so she would "be able to perform [her] work better." When Burns refused a date, Oslac told her, "I'm tired of your fooling around and always turning me down. You must not need your job very bad." Believing that Oslac intended to fire her, she accepted an invitation to dinner at his apartment on the condition that her mother would join them. Burns testified that her mother refused to go, so her father, Daniel Burns, went with her. As the district court found, Oslac appeared shocked when Burns' father appeared at the dinner with Burns. After the meal, Daniel Burns told Oslac he knew what was going on and for Oslac "to leave the girls alone at work."

Burns further testified that during her second period of employment Ludvik, who was then a supervisor, circulated a petition to have Burns fired because nude photographs of her, taken by her father, appeared in two motorcycle magazines--Easyrider and In the Wind. One full frontal view of Burns revealed a pelvic tatoo; two photographs highlighted jewelry attached to her pierced nipples. Burns testified that she had willingly allowed her father to do the piercing and photography. She did not take copies of the magazines into the plant. Former employee Deborah Johnson testified that she saw Ludvik showing employees the magazine and the petition. Burns testified that after Oslac learned about the nude photos from Ludvik, he told her, "They're ganging up on you and trying to get rid of you. If you don't go out with me, I might just let them do it." Oslac then asked Burns to pose nude for him in the plant in return for overtime pay.

Burns further testified that she was humiliated by plant gossip that she was Oslac's girlfriend; that supervisor June Volske tried to get her to sit on Oslac's lap, to go out with him, or to go up to his apartment; and that coworker Eugene Ottaway called her vulgar names. ¹ She complained to Kelley, who appeared to try to "do something" for a period of time, and to Kelley's successor. Burns testified that her second period of employment was "hostile" and "extremely worse" than the first. She quit again on June 20, 1983.

Burns returned to McGregor for the third time on September 26, 1983, because, she said, Kelley had returned to the plant and because she needed work to support herself, her father, and her brother. When Burns expressed concerns about Oslac's behavior, Kelley assured her that Oslac would no longer enter the plant. Oslac continued to visit Burns, although he did not spend as much time with her as he had previously. According to Burns, he repeatedly asked her to go out, pose nude, and watch pornographic movies. On one occasion when other employees were present, Oslac threw his arm around her, cupped his hand as if to grab her breast, and said, "Well, I see I got you back, lover." He also gave her an Easyrider calendar.

Oslac had not visited the plant within the four to six weeks preceding Burns' last day, July 19, 1984. On that day, Burns asked Ottaway to move stacks of speakers, and he refused. Burns reported this to a supervisor, who instructed Ottaway to move the speakers. Ottaway then pushed and shoved the stacks, all the while calling Burns a series of vulgar names similar to those he admitted to having called her on other occasions, and placed the speakers so high she could not reach them. When Burns asked him to make the stacks lower, Ottaway threw the speakers across the room. Burns began crying and tried to get a supervisor to stop Ottaway, but the supervisor did nothing. Burns left work and did not return.

Burns testified that the overall work environment was "hostile and offensive." She testified that during the last six weeks of her third period of employment at McGregor she overheard Ottaway tell a fellow worker that "he should throw [Burns] over the [conveyor] belts" and commit an act of sodomitic intercourse upon her. Called as a witness for McGregor, Ottaway denied making the statement attributed to him by Burns about "throwing her over the belts." He admitted on direct examination, however, that he had called Burns names--"anything nasty." He testified that Burns had responded by calling him similar names. He further testified that during the speaker-throwing incident on July 19, 1984, he was angry at Burns and had "called her every name in the book." Finally, on redirect examination, he testified that he hadn't treated Burns any differently than he had the other women working at the plant.

Coworker Diane Zinkle testified that Eugene Ottaway and other male employees had subjected Burns to continual verbal abuse. She also testified that Burns did not yell or call Ottaway names during the July 19 speaker-throwing incident.

Coworker Mary Ellen White testified by deposition that the general working atmosphere at McGregor was bad and characterized it as the "last resort of anybody that needs a job." While she never saw Oslac ever directly harass Burns, she said that she had seen Oslac touch almost everyone in the plant in improper ways. She had seen Oslac sit under the conveyor belt rubbing the legs of the women at the line and had seen him rubbing the front or the back of female workers with his hands or a newspaper. She overheard Oslac telling dirty jokes on several occasions. She once saw Oslac drop his pants to his knees in front of several female workers. She overheard Oslac say that he wanted to show them a bruise on his leg. Oslac was, according to White, "always" in Burns' testing booth. She said that Ottaway harassed Burns on the line and that Volske "picked" on Burns. She stated that she was subject to constant comments from supervisors at the plant which she considered to be sexually harassing, such as "have you got your period," and "if you didn't have sex all night, you wouldn't be tired." She also heard these sorts of comments directed at Burns and Burns' mother.

Testifying by way of deposition, Oslac denied Burns' allegations. He testified that he had invited Burns and her father to dinner at his apartment because Burns was planning to quit and that he convinced her father to talk her into staying. He claimed that he never talked to Burns at all during her last period of employment. He admitted spending quite a bit of time in her testing booth during her second period of employment, but said that Burns needed a lot of encouragement. He admitted showing several workers a bruise, but said that he pulled his pant leg up to do so and did not drop his pants to his knees. He claimed that the Easyrider calendar was given to him by Burns, not the other way around.

On the basis of this and other testimony, the district court indicated that it had some difficulty in determining what actually...