Baker v. Weyerhaeuser Co., 89-7013

• Decision Date: 30 May 1990
• Docket Number: No. 89-7013,89-7013
• Citation: 903 F.2d 1342
• Parties: 52 Fair Empl.Prac.Cas. 1872, 53 Empl. Prac. Dec. P 39,960, 58 USLW 2747, 5 Indiv.Empl.Rts.Cas. 1519 Nancy BAKER, Plaintiff-Appellee, v. The WEYERHAEUSER COMPANY, a Washington corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1342

903 F.2d 1342

52 Fair Empl.Prac.Cas. 1872,

53 Empl. Prac. Dec. P 39,960, 58 USLW 2747,

5 Indiv.Empl.Rts.Cas. 1519

Nancy BAKER, Plaintiff-Appellee, v. The WEYERHAEUSER COMPANY, a Washington corporation,

Defendant-Appellant.

No. 89-7013.

United States Court of Appeals, Tenth Circuit.

May 30, 1990.

J. Patrick Cremin (Janet M. Reasor and C. Kevin Morrison of Hall Estill, Hardwick, Gable, Golden & Nelson, P.C., with him on the brief), Tulsa, Okl., for defendant-appellant.

Susan Manchester of Miskovsky, Sullivan, Taylor & Manchester, Oklahoma City, Okl., for plaintiff-appellee.

Before TACHA and McWILLIAMS, Circuit Judges, and CHRISTENSEN, District Judge. ^*

McWILLIAMS, Circuit Judge.

Nancy Baker, a single twenty-five year old mother of two children, brought suit in the United States District Court for the Eastern District of Oklahoma against her employer, The Weyerhaeuser Company, a Washington corporation with a plant in Valiant, Oklahoma. The gist of Baker's complaint was that she had been sexually harassed while on the job in Weyerhaeuser's paper mill in Valiant by a fellow employee and that Weyerhaeuser knew, or should have known, of such harassment and did not take steps to stop the harassment.

As a first cause of action, Baker pled an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. In essence, Baker alleged that Weyerhaeuser knowingly allowed sexual harassment in the workplace of female employees by male employees thereby creating a hostile work environment, and she specifically alleged that she suffered "repeated offensive sexual flirtations, advances, propositions, continued and repeated verbal commentaries and sexually suggestive conduct by an employee, A.L. Caldwell, known to Weyerhaeuser and its agents and supervisors to be a sexual harasser."

As a second cause of action, Baker pled a pendent action based on the Oklahoma common law tort of intentional infliction of emotional distress by outrageous conduct. ¹ Specifically, Baker in her second cause of action alleged that she had suffered severe emotional suffering and mental pain, anguish, and distress caused by the sexual harassment of her by A.L. Caldwell which conduct was "known to the defendant and ignored by the defendant."

The pendent state claim was tried to a jury simultaneously with the trial of the Title VII claim to the court. The jury returned a verdict awarding $45,000 to Baker as actual damages, and $45,000 as punitive damages. The district court later made findings in favor of Baker on her Title VII claim against Weyerhaeuser and awarded her nominal damages in the sum of $1.00. Weyerhaeuser appeals.

Title VII Claim

As indicated, the district court made its findings in the Title VII claim several weeks after the jury had returned its verdict in Baker's pendent claim based on Oklahoma law concerning intentional infliction of emotional distress by outrageous conduct. In so doing, the district court, in connection with Baker's Title VII claim, found, inter alia, as follows: (1) The basis for Baker's intentional infliction of emotional distress claim was that Weyerhaeuser had intentionally or recklessly inflicted severe emotional distress upon her by outrageous conduct which consisted of Weyerhaeuser's failure to take appropriate action against Baker's fellow employee, A.L. Caldwell, who was sexually harassing Baker on the job; (2) that the conduct of A.L. Caldwell was pervasive and ongoing for a period of months; (3) that Baker had complained to fellow workers and to her supervisor; (4) that such harassment caused Baker to have severe emotional distress and created a hostile and abusive working environment; (5) that Weyerhaeuser knew, or should have known, that A.L. Caldwell was sexually harassing Baker and failed to take corrective action; (6) that Baker herself was never discharged, demoted or denied promotion and was in fact still working at time of trial for Weyerhaeuser; and (7) then generally found the issues in Baker's Title VII claim in favor of Baker and against Weyerhaeuser.

For conclusions of law, the district court held, inter alia, as follows: (1) sexual harassment of an employee which creates a hostile or offensive work environment is actionable under Title VII; (2) for such conduct to be actionable it must be sufficiently severe or pervasive to alter the condition of employment; (3) damages for emotional distress, however, are not actionable under Title VII; and (4) accordingly, the issues are found in favor of Baker and her nominal damages are assessed at $1.00.

On appeal, Weyerhaeuser challenges the district court's findings and conclusions on Baker's Title VII claim, alleging that they are so sketchy and so conclusory that there cannot be a meaningful appellate review, and, further, even if the findings and conclusions be accepted as sufficient, the record does not support them.

Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privilege of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. Sec. 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49, 59 (1986), the Supreme Court held "that a plaintiff may establish a violation of Title VII by proving discrimination based on sex has created a hostile or abusive work environment." In line with Meritor, in Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987), we spoke as follows:

Although sexual harassment may take a variety of forms, courts have consistently recognized two distinct categories of sexual harassment claims: quid pro quo sexual harassment, and hostile work environment sexual harassment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits. Alternatively, hostile work environment harassment arises when sexual conduct "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." "For [hostile work environment] sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' " Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. (Citations omitted.)

Both parties agree that Baker's Title VII claim is not based on so-called "quid pro quo harassment," but is based on so-called "hostile work environment" caused by sexual harassment. As above stated, the district court found that the sexual harassment of Baker by A.L. Caldwell was so severe and continuous as to create a hostile and abusive work environment establishing a Title VII claim, and that Weyerhaeuser either knew, or should have known of such fact, and failed to take corrective measures. We think the district court's findings are sufficient for appellate review, and, in our view, the record supports such findings.

Plaintiff's evidence showed that in 1986 A.L. Caldwell was disciplined by Weyerhaeuser for sexually harassing another female employee. In January 1987, Baker was transferred to a work assignment where "Rocky" Kellebrew was the supervisor, and Caldwell was one of the employees on her shift. Baker was a so-called "sixth hand," and, as such, her duties consisted of performing clean-up work. The order of seniority above Baker was a fifth hand, fourth hand, third hand, back tender, machine tender, and foreman (Kellebrew). Caldwell was set-up back tender and third hand on Baker's shift, indicative of his seniority over Baker, and because of this fact he did, from time to time, give operational orders to Baker. However, Caldwell had no authority to fire any employee. ²

Baker testified at length concerning the sexual harassment inflicted on her by Caldwell from January 1987 until July 1987. We need not recite the details, as Weyerhaeuser concedes that Caldwell did sexually harass Baker. Suffice it to say, Caldwell's sexual overtures were explicit and repeated, but unsuccessful and never welcomed. There was testimony that when Baker spurned Caldwell's advances, he gave her "extra" work.

Baker testified that in January, 1987, she complained to her supervisor, Kellebrew, and that in June, 1987, she complained to Kellebrew and his substitute, Duckett, about Caldwell's actions, and that both Kellebrew and Duckett were aware that Caldwell had been disciplined in 1986 for sexually harassing another female employee. The extent of Baker's complaint to Kellebrew and Duckett is disputed. Her testimony, however, was that she complained in sufficient detail to put Kellebrew and Duckett on notice that hers was a serious complaint, and that Kellebrew and Duckett did nothing in response to her complaints. Further, neither Kellebrew nor Duckett reported Baker's complaint to "upstairs management," as they were required to do by company policy.

In July 1987, Caldwell was investigated on a complaint by another female employee. In the course of that investigation, "upstairs management" first became aware of Baker's prior complaints. This investigation resulted in the suspension of Caldwell, and three days after Caldwell was suspended, he was discharged.

In the course of his findings on Baker's Title VII claim, the district court noted that Caldwell was "senior" to Baker and "sometimes acted as plaintiff's supervisor. The jury was instructed on agency and found an agency relationship between Caldwell and the defendant." Weyerhaeuser argues, on appeal, that such was a critical finding and is not supported by the record. We do not agree that such was a critical finding. The crucial findings of the district court...