Anspach v. Tomkins Industries, Inc.

• Decision Date: 26 March 1993
• Docket Number: Civ. A. No. 91-2279-EEO.
• Citation: 817 F. Supp. 1499
• Parties: Vicki ANSPACH and John Anspach, Plaintiffs, v. TOMKINS INDUSTRIES, INC., Ruskins Division; Irvin Clements; Delmar Fischer; Robert Carey; Don Merwarth; Sheet Metal Workers' International Association, Local No. 2; and Mike Krasovec, Defendants.
• Court: U.S. District Court — District of Kansas

817 F. Supp. 1499

Vicki ANSPACH and John Anspach, Plaintiffs, v. TOMKINS INDUSTRIES, INC., Ruskins Division; Irvin Clements; Delmar Fischer; Robert Carey; Don Merwarth; Sheet Metal Workers' International Association, Local No. 2; and Mike Krasovec, Defendants.

Civ. A. No. 91-2279-EEO.

United States District Court, D. Kansas.

February 11, 1993.

Memorandum and Order March 26, 1993.

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COPYRIGHT MATERIAL OMITTED

Alan V. Johnson, Sloan, Listrom, Eisenbarth, Sloan & Glassman, W. Thomas Stratton, Topeka, KS, for plaintiffs.

Alison Armstrong, Michael F. Delaney, Spencer, Fane, Britt & Browne, Kansas City, MO, Nancy M. Landis, Spencer, Fane, Britt & Browne, Overland Park, KS, for defendants.

Kathleen A. McNamara, Frederic O. Wickham, Jolley, Walsh & Hager, P.C., Kansas City, MO, for Sheet Metal Workers' Intern. Ass'n, Local No. 2 and Mike Krasovec.

Bruce W. Kent, H. Dean Cotton, Kansas Dept. of Human Resources, Legal Unit, Topeka, KS, for Kansas Dept. of Human Resources.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on two motions for summary judgment, one filed on behalf of defendants Tomkins Industries, Clements, Fischer, Carey, and Merwarth (the "Company defendants"), and the other filed on behalf of defendants Sheet Metal Workers' International Association Local No. 2 and Mike Krasovec (the "Union defendants"). The material facts are uncontroverted unless otherwise noted. The uncontroverted facts pertinent to the first motion will be stated initially, and additional uncontroverted facts pertinent to the second motion will be noted in the second part of this opinion, which discusses the issues raised by that motion.

I. Motion for Summary Judgment on Plaintiffs' Claims Against the Company Defendants

Facts

1. The plaintiffs, John and Vicki Anspach, were employed in non-management positions by defendant Tomkins Industries, Inc., Ruskins Division ("the company"). They were husband and wife. John is now deceased. Irvin Clements was at all relevant times a vice president of the Ruskins division. Delmar Fischer served as plant manager of the company's plant in Parsons, Kansas, and subsequently became manager of the company's plant in Galesburg, Kansas. Robert Carey was at all relevant times the personnel manager responsible for the two plants. Don Merwarth was at all relevant times the general foreman of the Parsons plant.

2. Vicki's co-workers at the Parsons plant subjected her on numerous occasions to offensive and abusive sexual comments, gestures, practical jokes, and uninvited touchings. This treatment continued until Vicki quit her job at the plant. Vicki usually discussed these incidents with her husband, John, and complained to management about some of the occurrences.

3. After a co-worker made a remark to Vicki suggesting the two of them go to bed together, John took the individual to foreman Merwarth who told Vicki's co-worker to behave himself and get back on the job. Shortly thereafter, the worker was transferred to another department.

4. On July, 12, 1989, John complained to personnel manager Carey that the men were harassing Vicki at the time clock. John informed Carey that this was a real problem and it had been going on for a while. Carey convened a meeting with the leadmen (non-management supervisory personnel) on July 20, 1989, to discuss the problem of sexual harassment. At the meeting, Carey handed out a magazine article and memorandum on sexual harassment, and also distributed a copy of the corporate sexual harassment policy. Carey told the leadmen to read the article and censor behavior on the floor.

5. On one occasion, Vicki got a spark from welding in her eye and went to Carey to have the spark removed. Carey removed the spark and put drops in Vicki's eye. While putting in the drops, Carey made a remark to the effect he did not want this to turn into a wet T-shirt contest. Vicki considered the remark offensive.

6. On August 23, 1989, John met with company vice president Clements and informed him that the men were still sexually harassing Vicki. Clements told John he would take care of the problem and that John should let him know if it continued. That same day, Clements met with other management employees, including Fischer, Merwarth, and Carey. Clements told Carey to talk to the people Vicki had indicated were harassing her. Carey talked to at least two of the alleged offenders and told them to stop harassing Vicki.

7. On August 28, 1989, a vibrator was found in the women's restroom. Carey asked the employees about it, but they professed ignorance. Carey told the leadmen that this conduct would not be tolerated and that if he found out who put it there, that person would be terminated on the spot. The leadmen told Carey that he should talk to the employees directly because the problem was out of control. Carey stated that he would prepare a memo for distribution to all departments, but he did not follow through and do it. Carey considered the incident a dumb, sick joke. Carey took no further action at that time because he thought the problem had been stopped.

8. On September 15, 1989, Vicki complained to general foreman Merwarth about continued harassment by the men at the time clock. On September 19, 1989, Merwarth told Vicki there was nothing he could do about the time clock situation, and suggested she wear less revealing clothing.

9. On September 20, 1989, John and Vicki came back from lunch to find a crowd lined up at the time clock. When Vicki walked up, the crowd began yelling at her and gesturing offensively. Vicki was very upset by their behavior, and was shaking badly as she went to her machine to begin work. Fifteen minutes later she left the plant in tears.

10. The same day, Carey investigated the time clock incident, conducting interviews with plant employees. He continued to investigate during the days following, and conducted more interviews on September 28, 1989. Carey gave verbal reprimands to everyone he interviewed. Carey sought the support of the Union and its members to end the problem, and eventually sought guidance from the corporate office in Dayton, Ohio, because he felt the situation was out of control. At this point, it was rumored that Vicki had filed administrative charges, so Carey was advised to interview the employees and keep notes of what he learned. Carey made a preliminary investigation, then turned it over to people in Dayton who were preparing the company's defense to Vicki's charges.

11. On September 21, 1989, Vicki filed charges of sexual harassment with the Kansas Commission on Civil Rights.

12. On September 22, 1989, obscenities were scrawled on the walls of the women's restroom at the plant. Carey had the writing painted over the same day. On September 25, 1989, more obscenities appeared on the walls, and Carey had them scraped off and a sign posted prohibiting further writing on the walls.

13. December 12, 1989, Vicki left work early due to a problem with her wrist. She was off work with this injury until January 17, 1990. The day Vicki returned to work, January 18, 1990, she ran her finger through her machine. Vicki was not injured, but was shaken up by the incident. She was told to operate her machine correctly by facing it (instead of facing another direction, which allowed her to stare into the adjacent department where her husband was working).

14. The same day, John and Vicki met with Fischer to see what was wrong with the way Vicki wanted to operate her machine. Fischer pointed out the safety problems and Vicki's wrist injury. The following day, Carey ran a safety test on Vicki's machine and she demonstrated to him how she wanted to operate the machine. Carey observed this, but told Vicki she needed to face the machine to operate it safely and correctly.

15. On January 23, 1990, Vicki left work at noon because she felt the problems at work were putting her under too much stress.

16. On January 25, 1990, Fischer demoted John from his leadman position. Fischer told John he was being demoted because of problems in his department. However, John believed (on information from a co-worker) that he was demoted because Fischer was unhappy about the trouble he and Vicki were causing the company. John asked Fischer what he was supposed to do—ask his wife to quit? Fischer replied that it would help and told John that he should be able to control his wife.

17. On January 25, 1990, Vicki saw John walk through her department on the way to his new assignment. This upset Vicki because she felt John had been demoted to upset her. She left work and told her supervisor that she was quitting. Later that day, she told Fischer that she thought the company was forcing her to quit and that John had been demoted to hurt her; she was crying and upset at the time.

18. Vicki saw a counselor on January 26, 1990, She sought treatment for stress, troubled sleep, headaches, difficulty concentrating, and crying spells. She saw a counselor three more times between then and March 1990.

19. On his new job assignment, John was asked to do work that was undesirable compared to his previous duties. He felt he was given these jobs in retaliation for opposing the harassment Vicki suffered at the hands of company employees.

20. Vicki filed a claim for unemployment compensation on February 12, 1990. Carey contested her claim even though he had previously told her he would not. The Kansas Department of Human Resources Appeals Referee found in Vicki's favor. The same day the company learned of these results (April 16, 1990), John was given additional undesirable work assignments.

21. In January, the company purchased a plant in Galesburg, Kansas, and transferred some departments there.

22. On January 18, 1990, John withdrew from the Union.

23. On January 28, 1990, John was written up for a "bad attitude." Apparently, this arose out of John calling his leadman a bad name while arguing with...