989 F.2d 959 (8th Cir. 1993), 92-2059, Burns v. McGregor Electronic Industries, Inc.

Docket Nº:92-2059.
Citation:989 F.2d 959
Party Name:Lisa Ann BURNS, Appellant, v. McGREGOR ELECTRONIC INDUSTRIES, INC., Appellee.
Case Date:March 30, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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989 F.2d 959 (8th Cir. 1993)

Lisa Ann BURNS, Appellant,



No. 92-2059.

United States Court of Appeals, Eighth Circuit

March 30, 1993

Submitted Dec. 18, 1992.

Rehearing and Rehearing En Banc

Denied April 29, 1993.

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

Gary Robinson, Cedar Rapids, Iowa, argued, for appellee.

Before McMILLIAN, Circuit Judge, LAY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

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LAY, Senior Circuit Judge.

This is a sexual harassment case brought under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. It comes to this court on appeal for the second time. The district court originally found in favor of the employer, McGregor Electronic Industries, Inc., on the ground that the plaintiff failed to prove sexual harassment under Title VII and that her termination was unrelated to any harassment. This court reversed. In an unanimous opinion authored by Judge Wollman, we remanded the case for further consideration by the trial court. 1 On April 7, 1992, the trial court reaffirmed its earlier findings. Burns v. McGregor Elec. Indus., Inc., 807 F.Supp. 506 (N.D.Iowa 1992). On further review, we now reverse the trial court's order; based on the district court's latest opinion and the law of the case, as determined in our earlier review, we remand and direct that judgment be entered for the plaintiff, Lisa Ann Burns.

The grisly and shocking facts supporting a finding of unwelcome sexual harassment are contained in our earlier opinion and need not be repeated here. See Burns v. McGregor Elec., Indus., Inc., 955 F.2d 559, 560-63 (8th Cir.1992).

In its first opinion, issued in July 1990, the district court found that there is "no doubt" that Paul Oslac, the owner of McGregor Electronic, made unwelcome sexual advances toward Burns during two periods when she was previously employed at the McGregor, Iowa company. 2 However, the district court found that plaintiff exaggerated the severity and pervasiveness of the sexual harassment and its effect on her. The trial court observed that Burns had previously appeared in provocative poses in a lewd magazine called Easyriders. Some employees brought the magazine to work and circulated it. Oslac and other male workers repeatedly made harassing comments to Burns about the photographs.

Based on Burns's past behavior and the district judge's observation of her at trial, the trial court found that although the sexual advances at work were considered by Burns to be unwelcome, she would not have been offended by these advances and by the sexual innuendo from other employees and supervisors. The court also found that the sexual harassment subsided after Burns returned to work the third time, and that the primary reason she terminated her employment in 1984 was a work-related argument with one of her co-workers, Eugene Ottaway. On this basis, the court found that plaintiff failed to prove by a preponderance of evidence that "the harassment affected a term, condition, or privilege of employment."

Although acknowledging the trial court's finding of fact must be sustained unless clearly erroneous, this court, in its earlier opinion, reversed on the ground that the district court erred, as a matter of law, because its factual finding that the sexual advances by her employer were unwelcome was inconsistent with the finding that the plaintiff was not offended by the conduct of her employer. 955 F.2d at 965. This court also reasoned that the district court erred in compartmentalizing the question of harassment into the three work periods. We held the district court must look at the totality of circumstances of the entire hostile work environment without dividing the "work environment into a series of discrete incidents and then measur[ing] the harm occurring in each episode." Id. at 564.

On remand, the district court, quoting from our opinion, found "that a reasonable

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person would consider the conduct of Oslac and his supervisors sufficiently severe or persuasive to alter the conditions of employment and create an abusive working environment." 3 However, the court once again entered judgment in favor of the employer for the identical reasons set forth in its earlier opinion: (1) the employer's behavior did not offend the plaintiff because she had earlier posed nude for Easyriders; (2) the cause of termination was not related to the earlier sexual harassment.

Based upon the undisputed facts, the district court's new determination that a reasonable person would find the employer's behavior sufficiently severe to alter the conditions of employment and create an abusive work environment, and the law of the case as determined in our earlier appeal, we now reverse with directions that the district court compute plaintiff's economic loss and enter judgment in favor of the plaintiff against the employer.

In the decision now before us, the trial court explained that it believes there are two elements necessary for establishing sexual harassment: (1) whether the conduct was unwelcome because it was not solicited or invited, and (2) whether the conduct was offensive to the plaintiff.

We believe the trial court erred in requiring proof that the conduct at issue was unwelcome and offensive. Our statement in our prior opinion that the trial court's earlier findings were internally inconsistent was intended to convey this understanding. "The gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome.' " Meritor Savs. Bank v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 2406, 91 L.Ed.2d 49 (1986). On remand the trial court overlooked this court's earlier direction that "the threshold for determining that conduct is unwelcome" is whether it was uninvited and offensive. 955 F.2d at 565 (emphasis added). Thus, as we earlier held, for the court to find that the conduct was unwelcome but not offensive was internally inconsistent as a matter of law. Whether the behavior is unwelcomed is to be determined by weighing whether the conduct was uninvited and offensive.

The Supreme Court in Meritor makes this clear. Whether a plaintiff acquiesces in the employer's conduct is relevant not as a separate defense to a claim of sexual harassment, but is relevant to whether the sexual advances were "unwelcome." Meritor, 477 U.S. at 68, 106 S.Ct. at 2406. Thus, the Court observed: "The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether the actual participation in sexual intercourse was voluntary." Id.

The district court found that notwithstanding the fact that the employer's conduct was unwelcome and created a hostile work environment, the plaintiff was not an "affected" individual in that she did not regard the conduct of her employer as undesirable or offensive. This finding was premised on the fact that plaintiff had appeared in non-work related nude poses in lewd magazines. We rejected this reasoning in our earlier opinion. We observed:

The district court's finding that Oslac's advances were unwelcome necessarily required the district court to believe Burns' testimony that Oslac's behavior was offensive to her. Thus, the district court's finding that Oslac made unwelcome advances toward Burns and its finding that

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Burns was not credible when she stated that Oslac's behavior was offensive appear on their face to be internally inconsistent.

955 F.2d at 565. We added:

The district court reasoned that a person who would

appear nude in a national magazine could not be offended by the behavior which took place at the McGregor plant. It also believed that Burns had exaggerated the severity and pervasiveness of the harassment and its effect on her. Again, these findings are at odds with the district court's finding that Oslac's advances were unwelcome.

Id. at 566. The plaintiff's choice to pose for a nude magazine outside work hours is not material to the issue of whether plaintiff found her employer's work-related conduct offensive. This is not a case where Burns posed in provocative and suggestive ways at work. Her private life, regardless how reprehensible the trier of fact might find it to be, did not provide lawful acquiescence to unwanted sexual advances at her work place by her employer. To hold otherwise would be contrary to Title VII's goal of ridding the work place of any kind of unwelcome sexual harassment. In Swentek v. USAIR, Inc., 830 F.2d 552 (4th Cir.1987), the court rejected identical reasoning as used by the district court here. Even though the plaintiff had used foul language in the past, the court reversed the district court and observed:

We note at the outset that the trial court misconstrued what constitutes unwelcome sexual harassment. It held that Swentek's own past conduct and use of foul language meant that Ludlam's comments were "not unwelcome" even though she told Ludlam to leave her alone. In his oral opinion, the judge determined, not that Swentek welcomed Ludlam's comments in particular, but that she was the kind of person who could not be offended by such comments and therefore welcomed them generally. We think that was error. Plaintiff's use of foul language or sexual innuendo in a consensual setting does not waive "her legal protections against unwelcome harassment." Katz, 709 F.2d at 254 n. 3. The trial judge must determine whether plaintiff welcomed the particular conduct in question from the alleged harasser. 4

Id. at 557.

The trial court made explicit findings that the conduct was not invited or solicited despite her posing naked for a magazine distributed nationally. The court believed, however, that because...

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