Barrett v. Omaha Nat. Bank, CV 80-0-597.

• Decision Date: 13 July 1983
• Docket Number: No. CV 80-0-597.,CV 80-0-597.
• Citation: 584 F. Supp. 22
• Parties: Deanna BARRETT, Plaintiff, v. OMAHA NATIONAL BANK, Defendant.
• Court: U.S. District Court — District of Nebraska

584 F. Supp. 22

Deanna BARRETT, Plaintiff, v. OMAHA NATIONAL BANK, Defendant.

No. CV 80-0-597.

United States District Court, D. Nebraska.

July 13, 1983.

Jerold Fennell, Omaha, Neb., for plaintiff.

Soren Jensen, Omaha, Neb., for defendant.

MEMORANDUM OPINION

BEAM, District Judge.

This is an action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff, Deanna Barrett, alleges that she was subjected to sexual harassment which caused her constructive discharge from the employ of defendant, The Omaha National Bank (ONB). Plaintiff further alleges that, as a result of voicing these charges of sexual harassment, she was subjected to certain retaliatory actions by defendant.¹ As a result, she seeks injunctive and equitable (back pay²) relief.³

It is undisputed that plaintiff timely filed her sex discrimination complaint with the Nebraska Equal Employment Opportunity Commission (NEOC) and the Federal Equal Employment Opportunity Commission (EEOC). It is also undisputed that Deanna Barrett received a Right to Sue Letter from the EEOC, and did, within the statutory period of time, initiate her lawsuit in this federal court. 42 U.S.C. § 2000e-5(e). Therefore, the Court has jurisdiction over the parties and the subject matter of this action.

The facts, as the Court finds them from the competent evidence adduced during the six days of trial, are set forth in this Memorandum Opinion.

BACKGROUND

Plaintiff, Deanna Barrett, is a female, and was age 31 at the time of the incidents complained of herein. Defendant ONB is a financial institution which has its principal place of business in Omaha, Nebraska. From roughly 1969 through 1979, Mrs. Barrett was employed in various positions with the defendant bank, and steadily received promotions; the last position she held with the bank being that of a Personal Banker, handling, for the most part, personal loans.

Timothy Day, not a party to this action, but most assuredly the pivotal actor in this scenario, was also an employee of ONB during the time in question here, and had been for approximately seven years. Mr. Day met Mrs. Barrett when he transferred to the main bank location in the latter part of 1977. He first transferred to the position of supervisor in the teller area, but was later moved, in approximately August of 1978, to the Personal Banking Department.

Upon Day's arrival in the Personal Banking Department it was Mrs. Barrett who was responsible for training him in the various procedures. Although Mrs. Barrett and Mr. Day did not socialize outside of the confines of ONB, they did consider themselves friends, and often chatted during breaks and at lunch time, as well as during less busy working hours. The topics of conversation were many and varied, ranging from work-related matters to more personal discussions involving their respective romantic relationships, as well as some discussions concerning their respective sex lives.

Another actor who was a central figure in this lawsuit, but not a party to this action, was William Legenza. Mr. Legenza was, at the times pertinent to this matter, the Assistant Manager of a branch location of ONB. He had, previous to that time, been the manager of teller operations at the main bank, and knew both Mr. Day and Mrs. Barrett only casually through his employment there, although he had previously worked directly with Mr. Day.

In December of 1978, plans were made for Day, Legenza, and plaintiff to attend a loan seminar to be held in Grand Island, Nebraska. The travel arrangements were made by Tim Day.

On Wednesday, January 17, 1979, the three co-employees: Day, Legenza, and Barrett, left Omaha in a rental automobile and proceeded to Grand Island, Nebraska. Mr. Legenza drove the vehicle the entire way, with Mrs. Barrett sitting in the middle of the front seat, and Mr. Day on the right side. It should be noted that one of the three could have occupied the back seat of the auto, but apparently none chose to do so.

Plaintiff alleges that during the trip, she was subjected to sexual harassment from Mr. Day, which harassment manifested itself both verbally and physically.⁴ The physical harassment, according to plaintiff, included a nonconsensual touching and rubbing of her thighs by Mr. Day, and the pressing of his arm into her breast. She also alleges that Day, under the facade of reaching for a bag of potato chips in plaintiff's lap, grabbed plaintiff in the crotch area. Plaintiff testified that she complained of this behavior to Mr. Legenza while Day was out of the car during stops, but that he took no action to remedy the situation.

Mr. Day and Mr. Legenza deny that any such harassment, either verbal or physical, took place. They further testified that any "touching" done by Mr. Day was unintentional and may have been caused by the fact that all three actors were sitting in the front seat of a mid-sized rental car. Mr. Day also specifically denies grabbing or pressing against plaintiff's crotch area with his hand. Mr. Legenza further denies that plaintiff ever voiced any displeasure to him as to Day's behavior.

When the three arrived in Grand Island, Legenza drove to a Holiday Inn, thinking that it was the motel at which they had secured reservations. Upon inquiry at the desk, however, it was discovered that their reservations were at another Holiday Inn in the area. When the three arrived at the correct motel, Day and Legenza went to the front desk to check-in, while Deanna Barrett waited in the rental auto.

After completing the paperwork, the two men returned to the auto and informed plaintiff that there had been a mistake made, and that the motel only had one room available for the three of them. After a few moments, however, it was disclosed that the two men were joking and that there indeed were two rooms rented. The testimony conflicted as to Mrs. Barrett's knowledge that this was a joke.

That night, after changing clothes in their respective rooms, Day, Legenza, and plaintiff went out for dinner at a restaurant in Grand Island. After an uneventful dinner, the three of them went to a lounge at the Ramada Inn at which the seminar would be held. This Ramada Inn was located approximately one mile from the Holiday Inn at which the three were staying. Day, Legenza, and Barrett stayed at the Ramada Inn lounge for approximately fifteen to twenty minutes, after which they went to the lounge at the Holiday Inn in which they were staying. After about twenty minutes in that lounge, the three proceeded up to their rooms. Mrs. Barrett testified that Day and Legenza accompanied her to her room, and that, upon arrival Day laid on her bed and proceeded to make lewd sexual comments. Conversely, Day and Legenza claim that they did not go to Mrs. Barrett's room after leaving the Holiday Inn lounge, but rather went directly to their own room. Legenza testified that Mrs. Barrett may have visited their room for a few minutes, but that no sexual conversation took place.

Mrs. Barrett further testified that after she left the two men's room, she received a phone call which consisted only of heavy breathing and panting. Plaintiff assumed that the perpetrator was Day, and slammed the phone down. Within a few minutes after this call, plaintiff claims that there was pounding on the wall adjoining Day and Legenza's room. Day and Legenza testified that there were no such occurrences.

The next morning, Thursday, Deanna Barrett called her brother, a resident of nearby Kearney, Nebraska,⁵ to inquire as to whether he could transport her back to Omaha. She mentioned that she was having some trouble with the two men she had driven out with, but she did not disclose any specifics. She then called her mother's house in Omaha in order to speak with her daughter, who was staying there. She made no mention of her problems to either her daughter or her mother. Plaintiff then went to breakfast with Day and Legenza, after which the three of them went to the Ramada Inn for the seminar. After chatting with Messrs. Selk and Allen⁶ from ONB, they proceeded to the seminar room.

During the meetings Mrs. Barrett sat between Day and Legenza, although there were a number of open chairs in the room. Plaintiff claims that Day continued physical contacts by placing his hands on her thighs and by rubbing against her breast. She claims that a number of the other people attending the conference could see these activities, but offered no evidence in support of this contention. Day denies that there was any such behavior on his part, and Legenza denies having seen anything by way of physical contact between Day and Barrett.

Following the meeting there was a hospitality hour at the Ramada. During the day there had been a severe ice storm which had left the Grand Island roads in very treacherous condition. Mrs. Barrett claims that, during the hospitality hour, Day and Legenza told her that they (the two men) were going to stay at the Ramada that night due to the weather, and that she would have to "fend for herself." Plaintiff further alleges that she told Mr. Allen of the problem and that he then chastized Day and Legenza, instructing them to take her back to the Holiday Inn.

Mrs. Barrett also testified that she called her mother during that time to tell her generally of the problems she was encountering. She claims that she broke into tears and became very upset. Her mother corroborates this testimony.

However, Day and Legenza deny that they said anything to Mrs. Barrett with regard to "fending for herself." Further, they deny that Deanna Barrett seemed upset at the time. Two other ONB employees, Messrs. Selk (a senior loan officer) and Allen (a vice president), also deny that plaintiff appeared upset in any way, or that she voiced any complaints regarding the behavior of either Day or Legenza.

Once the car had been cleared of ice, Day, Legenza, and Selk took plaintiff back to the Holiday Inn, dropped her off, and then...