Chiapuzio v. BLT Operating Corp., 92-CV-0277-B.

• Decision Date: 29 July 1993
• Docket Number: No. 92-CV-0277-B.,92-CV-0277-B.
• Citation: 826 F. Supp. 1334
• Parties: Dale CHIAPUZIO, Carla Chiapuzio, Clint Bean, and Christina Vironet, Plaintiffs, v. BLT OPERATING CORPORATION, Defendant.
• Court: U.S. District Court — District of Wyoming

826 F. Supp. 1334

Dale CHIAPUZIO, Carla Chiapuzio, Clint Bean, and Christina Vironet, Plaintiffs, v. BLT OPERATING CORPORATION, Defendant.

No. 92-CV-0277-B.

United States District Court, D. Wyoming.

July 29, 1993.

Kennard Nelson, Michael H. Schilling, Laramie, WY, for plaintiff.

Paul D. Schierer, Laramie, WY, for defendants.

ORDER DENYING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BRIMMER, District Judge.

The above-entitled matter having come before the Court upon cross-motions for summary judgment, and the Court having reviewed the materials on file herein, having heard argument from the parties, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

Plaintiffs Dale & Carla Chiapuzio, Clint Bean and Christina Vironet were employed by the Wyoming Technical Institute ("WTI"), a trade school owned and operated by and through defendant BLT Operating Corp. ("BLT"), a Delaware corporation.

Plaintiff Dale Chiapuzio was employed as a resident housing manager and worked for a supervisor, one Eddie Bell ("Bell"). Dale and his wife, Carla, resided on the premises of WTI. Plaintiffs Chiapuzio complain that, up until the time Mr. Bell resigned in April 1992, Mr. Bell subjected Dale and Carla to an incessant series of sexually abusive remarks, the majority of which referred to the fact that Bell could do a better job of making love to Carla Chiapuzio than Dale could. Apparently, Mr. Bell's supervisor, one Terry Harrison ("Harrison"), endorsed Bell's sexually abusive behavior toward the Chiapuzios.

The Chiapuzios filed a claim with the Wyoming Fair Employment Commission in April 1992. Immediately thereafter, Terry Harrison told Dale that he risked termination because of his claim. Apparently, from this point on, Dale's supervisors failed to support him when he attempted to properly enforce disciplinary measures against students under his supervision. Dale lost the trust, confidence and respect of his students as a result. Ultimately, Dale Chiapuzio resigned in July 1992 because he believed the conditions of his employment had become intolerable.

Plaintiff Carla Chiapuzio was an admissions clerk at WTI; she also lived on the premises. Mr. Bell subjected Carla to an incessant series of sexually abusive remarks. Apparently, Supervisor Terry Harrison also endorsed Bell's actions in this regard.

Plaintiff Clint Bean began as a residential housing manager at WTI, and eventually was promoted to Assistant Housing Manager. Bell subjected Bean and his wife to a constant series of sexually abusive remarks. Apparently, many of these comments were made in front of other WTI employees. Once, Bell offered Clint Bean's wife a $100 dollars if she would sit on his lap.

Plaintiffs generally allege that Bell and Harrison were good friends and that complaining to Harrison about Bell's harassment would be futile. On February 10, 1992, Clint Bean asked Bell to cease his harassment. On February 13, 1992, Clint Bean was fired.

Plaintiff Christina Vironet was a receptionist at WTI, and was eventually promoted to the position of Assistant Director of Placement at the school. Bell subjected Christina to an incessant series of sexual advances. Christina was pregnant at the time Bell made such advances. Bell's wife was Christina's immediate supervisor. Bell's wife often laughed when she heard Bell verbally abuse Christina, and, therefore, Christina believed complaining would be futile.

The plaintiffs sue the defendant pursuant to Title VII for sexual harassment, and, additionally, for breach of employment contract and retaliatory discharge. The plaintiffs seek exemplary damages due to Bell's egregious sexual harassment of the plaintiffs, and the defendant's reckless indifference to plaintiffs' rights under Title VII.

Standard of Review

"By its very terms, the Rule 56(c) standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original).

The trial court decides which facts are material as a matter of law. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. at 2510; see also Carey v. United States Postal Service, 812 F.2d 621, 623 (10th Cir.1987). Summary judgment may be entered "against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Carey, 812 F.2d at 623. The relevant inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Carey, 812 F.2d at 623. In considering a party's motion for summary judgment, the court must examine all evidence in the light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir.1981).

Discussion

Defendant BLT essentially argues that Bell harassed both male and female employees alike and, therefore, he could not have discriminated against the plaintiffs at bar based on gender. This argument is flawed in several respects.

First, in the key case of Meritor Savings Bank F.S.B. v. Vinson, the Supreme Court held that Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult. 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). The Court stated that hostile work environment sexual harassment occurs when a supervisor's conduct unreasonably interferes with an individual's work performance, or creates an intimidating, hostile or offensive work environment. Id. For such harassment to be actionable, it must be "sufficiently pervasive" to alter the conditions of the victim's employment and create an abusive working environment. Id. at 67, 106 S.Ct. at 2405.

Arguably, the Meritor Court moved away from a disparate treatment or "but for" analysis of gender harassment, and moved toward the view that gender harassment occurs when unwelcome physical or verbal conduct creates a hostile work environment. Id. at 64-7, 106 S.Ct. at 2404-5. Other courts have acknowledged this movement. See e.g., Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1384-85, 1385 n. 5 (10th Cir.1991) (citing Hicks v. Gates Rubber Co., ("Hicks I") 833 F.2d 1406 (10th Cir.1987) for the proposition that "one of the critical inquiries in a hostile environment claim must be the environment"); Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir.1991) (plaintiff must suffer "severe or pervasive and unwelcome verbal or physical harassment" because of gender); compare, Hicks v. Gates Rubber Co., ("Hicks II") 928 F.2d 966, 971 (10th Cir.1991) (plaintiff must show that the harassment would not have occurred "but for" the plaintiff's gender; and, the harassment was "sufficiently patterned or pervasive" to comprise an illegal condition of employment). Thus, the defendant's argument appears to run counter to the standard articulated by the Supreme Court.

Second, BLT's argument indirectly raises the specter of the "bisexual harasser." The District of Columbia Circuit has described the bisexual harasser as a supervisor who makes unwanted sexual overtures to both men and women employees. See e.g., Vinson v. Taylor, 760 F.2d 1330, 1333 n. 7 (D.C.Cir. 1985); Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981) (observing that the basis for discrimination for sexual harassment is not the employee's gender per se but the fact that the employee refused to submit to sexual advances he or she suffered in large part because of gender). In his dissent from the circuit's denial of rehearing en banc, Judge Bork opined in Vinson that:

Had Congress been aiming at sexual harassment, it seems unlikely that a woman would be protected from unwelcome heterosexual or lesbian advances but left unprotected when a bisexual attacks. That bizarre result suggests that Congress was not thinking of individual harassment at all when it enacted Title VII but of discrimination in conditions of employment because of gender. If it is proper to classify harassment as discrimination for Title VII purposes, that decision at least demands adjustments in subsidiary doctrines. See e.g., Bundy v. Jackson, 641 F.2d at 951.

760 F.2d at 1333 n. 7.

This Court understands Judge Bork to mean that he did not believe claims of sexual harassment fit comfortably within the purview of Title VII. However, if courts were to entertain harassment claims under Title VII, legal doctrines such as the burden of proof or causation, developed under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), would require adjustments. See also, Note, Sexual Harassment and Title VII—A Better Solution, 30 B.C.L.Rev. 1071, 1099 (1989) (highlighting the problems associated with characterizing sexual harassment as gender discrimination under Title VII).

Given this background, this Court reasons that the equal harassment of both genders does not escape the purview of Title VII in the instant case. Where a harasser violates both men and women, "it is not unthinkable to argue that each individual who is harassed is being treated badly because of gender." See John J. Donahue, Review Essay: Advocacy Versus Analysis in Assessing Employment Discrimination Law, 44 STAN.L.REV. 1583, 1610-11 (1992); see also, Cathleen Marie Mogan (Note), Current Hostile Environment Sexual Harassment Law: Time to Stop Defendants From Having Their Cake and Eating It Too, 6 NOTRE DAME J.L. ETHICS & PUB....