West v. Tyson Foods, Inc., 041510 FED6, 08-6516

Docket Nº:08-6516
Opinion Judge:HELENE N. WHITE, Circuit Judge.
Party Name:AMANDA WEST, Plaintiff-Appellee, v. TYSON FOODS, INC., Defendant -Appellant.
Judge Panel:Before: SUTTON, KETHLEDGE and WHITE, Circuit Judges.
Case Date:April 15, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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AMANDA WEST, Plaintiff-Appellee,

v.

TYSON FOODS, INC., Defendant -Appellant.

No. 08-6516

United States Court of Appeals, Sixth Circuit

April 15, 2010

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

Before: SUTTON, KETHLEDGE and WHITE, Circuit Judges.

HELENE N. WHITE, Circuit Judge.

Tyson Foods, Inc., appeals the judgment entered on a jury award of compensatory and punitive damages in this sexual harassment and constructive discharge action brought under Title VII of the Civil Rights Act and its state counterpart, the Kentucky Civil Rights Act. 42 U.S.C. § 2000e, et seq.; Ky. Rev. Stat. § 344.040. Tyson challenges the sufficiency of the evidence, the adequacy of the jury instructions, and the application of evidentiary rules. We affirm.

I. Background

Amanda West began working for a Tyson Foods, Inc. ("Tyson") chicken processing plant in Robards, Kentucky on January 10, 2005. West took part in two Tyson Harassment/Discrimination Policy Trainings, where she was informed that an investigation as a result of a sexual harassment complaint would in all cases be completed within two weeks and that complaints would be kept confidential. Tyson's harassment policy required that any Tyson employee who became aware of harassment report the incident to management, and that an employee who suffers harassment report such harassment to his or her supervisor.

West testified that within her first week of work, several male employees began harassing her. They told her she had a "nice ass, " "big boobs, " asked her if she had a boyfriend, and asked her to "go" with them. She was also subject to frequent "wolf whistling" and staring. These incidents occurred approximately ten to fifteen times per shift. In addition, a line-lead named Samuel Sapeda was "constantly coming up to [her] and saying sexual things . . . ."

West also testified that in her third week of employment, while she was working on an enclosed assembly line, she became aware of someone standing behind her. When she turned around, a line-lead named Jorge (a/k/a George) Ramirez tried to kiss her and their cheeks brushed. West pulled away and told him to leave her alone and that she was married. In response, Ramirez stared at her and asked her if she would go home and have sex with him. West responded that she would not and that she was married. Ramirez did not move and smiled at her "creepily." He then "grabbed his private part and he shook it at [West] and he said, suck my, you know, D-I-C-K." West told him to leave her alone, at which point Ramirez smiled and walked away. West noticed that other male co-workers on the line with her had witnessed what had just occurred with Ramirez and were laughing. West testified that she felt embarrassed, humiliated, upset and scared. She began crying, left the line and walked off the processing floor. As she was leaving, she encountered her trainer, Odell (a/k/a "Junior") Stokes. West testified that when Stokes saw her crying, he asked what was wrong, and West described the incident with Ramirez and how scared she was.1

The supervisor in charge of the line, Cory Parks, noticed West and Stokes talking and West crying, approached them, and asked West what was wrong. West testified that she told Parks what she had told Stokes, and also told him about the comments, stares and wolf whistles from co-workers she had endured since she started working there. West testified that she mentioned Ramirez and Sapeda by name to Parks, and that she also pointed out some other men whose names she did not know, but who had engaged in the harassing activity. West testified that Parks' initial reaction was to tell West "don't take it offensive; that's just how they treat their women over there, " and then "well, you know, you are hot, " after which both he and Stokes laughed. When they realized West was not laughing, however, Parks "got serious also and promised [West] that he would see to it that it was resolved, and he asked [West] not to go to [human resources ("HR")], that he wanted to resolve it first, and he promised that he would get to the bottom of it."

Parks then asked West if she wanted to move to a different line. West testified that she did not want to transfer because her current line was an easier job. Parks asked West what she wanted to do, and West asked if she could be moved to a different section of the same line, where the line is not enclosed. Parks agreed to this. West testified that Stokes was present for this entire conversation, but Stokes testified he was unable to recall the conversation.2

West testified that, at the conclusion of their conversation, she believed Parks was going to go to human resources to have the issue resolved; however, the only other action that Parks claims he took was to "observe her for a few days."

West believed that by telling Parks, her supervisor, about the treatment she was receiving, she had complied with Tyson's sexual harassment reporting procedure. Stephanie Rackard, Tyson's Equal Employment Opportunity Commission ("EEOC") Specialist, 3 testified that under Tyson's sexual harassment policy, it is sufficient for an employee to complain to her supervisor about harassment in order for an investigation to begin, even if all she reported was "hooping and hollering" as Parks claims. West also believed that HR would learn about her complaint because she had told Stokes, who, as a fellow employee, was obligated to tell human resources under Tyson's harassment policy. Parks was disciplined by Tyson for failing to report West's conversation to human resources or bring West directly to human resources, as were Stokes and Natasha Brown, a coworker of West's with whom she also discussed the harassment.

West testified that the comments, wolf whistles and stares continued with the same frequency for the entire five weeks she was employed at Tyson. Further, West testified that between the time of her conversation with Parks and the end of her employment with Tyson, several other incidents occurred. West testified that Sapeda pulled her back into him and touched her breast, told her she was "hot and sexy, " and groped her buttocks twice. On other occassions, unknown employees grabbed her buttocks at least twice while other employees were present and either laughed or also touched her. West testified she told her co-workers Andrea Boyken, John Fellows and Stokes about these incidents. Boyken testified that she, too, was subject to harassment while at Tyson and that her husband asked someone who worked on the processing floor to "look out for [her]". Additionally, Boyken testified that at some point during West's employment, a supervisor named Sharon Penick4 asked Boyken about West's harassment complaint. West decided not to return to work in her fifth week after she was followed to her car one night, making her fear that she would be raped.

On the date West decided not to return to work, more than two weeks had passed since she had spoken with Parks, during which she had not heard anything further about her complaint. Rackard testified that while Tyson is conducting a harassment investigation, the victim will often not know that there is an ongoing investigation because of confidentiality concerns; however, the victim will be informed at the conclusion of the investigation.

West did not appear for her scheduled work days on February 14 to 17, 2005 and did not call Tyson to explain the cause of her absence. On February 17, 2005 she was terminated for "job abandonment." Under Tyson's attendance policy for probationary employees (i.e., employees in their first three months of employment), termination is warranted after an employee accumulates 3.5 absentee points. By the time of her termination, West had accumulated 14 points, mostly for failing to show up for work the final four days. However, two of those points were unrelated to the harassment claims and were for leaving work early on two occasions.

On February 18, 2005, West went to Tyson to pick up her final paycheck and was told she was required to have an exit interview with HR manager Ralph Guizar before she could obtain her check. West testified that during that 45-minute meeting she told Guizar about all the harassment she had been subjected to at Tyson, that she had spoken with Parks and Stokes, that she mentioned Ramirez and Sapeda as perpetrators of some of the harassment by name, that she had pointed out a few other individuals to Parks, 5 and that Guizar took notes sufficient to fill the front and back of the exit interview form.

West testified that Guizar promised her he would start an investigation even though she no longer worked at Tyson. Guizar admitted at trial, however, that he never began an investigation into West's complaint of sexual harassment, despite it being company policy to do so, even when the employee requests that an investigation not be conducted. Rackard testified that even based on what Guizar stated was communicated to him in West's exit interview, which was less than West contends she communicated, the information conveyed was sufficient to begin an investigation under Tyson's policy. Rackard also testified that Guizar should have been disciplined for failing to commence an investigation, but was not.

Guizar testified that following the interview he took the exit-interview notes to another HR office and deposited them in a tray on a clerk's desk, and that after meeting with West, he did not hear anything further about her until the EEOC complaint was filed. Tyson Complex HR Manager Dave Phillips testified that he reviews "just about every exit interview that comes through" on a weekly basis. Nevertheless, Tyson admitted that it did not...

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