Dombeck v. Milwaukee Valve Co., 92-C-561-S.

• Decision Date: 15 June 1993
• Docket Number: No. 92-C-561-S.,92-C-561-S.
• Citation: 823 F. Supp. 1475
• Parties: Marina DOMBECK, Plaintiff, v. The MILWAUKEE VALVE COMPANY, Larry L. Carpenter, John R. Schmidt, James A. Seder, and Jayne Carlson, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

823 F. Supp. 1475

Marina DOMBECK, Plaintiff, v. The MILWAUKEE VALVE COMPANY, Larry L. Carpenter, John R. Schmidt, James A. Seder, and Jayne Carlson, Defendants.

No. 92-C-561-S.

United States District Court, W.D. Wisconsin.

June 15, 1993.

Aaron N. Halstead, Lawton & Cates, Madison, WI, for plaintiff.

James R. Scott, Lindner & Marsack, Milwaukee, WI, for defendants.

ORDER

SHABAZ, District Judge.

After jury trial judgment was entered in the above entitled matter on April 5, 1993 in favor of the plaintiff Marina Dombeck against defendant The Milwaukee Valve Company for the amount of $100,000 together with costs and injunctive relief, enjoining the defendant from assigning Larry L. Carpenter to a work area to which plaintiff is assigned and dismissing the remaining defendants. Thereafter pursuant to Rules 50 and 59 of the Federal Rules of Civil Procedure defendant Milwaukee Valve moved for judgment as a matter of law or in the alternative for a new trial.

Defendant argues it is entitled to judgment as a matter of law because there was no evidence to support the jury's verdict that plaintiff was subjected to a hostile working environment of which the defendant had knowledge. Initially plaintiff argues that the defendant has waived its right to pursue a Rule 50(b) motion by failing to renew its motion for judgment as a matter of law at the close of all evidence at trial.

At the close of plaintiff's case in the liability part of the trial defendant moved for judgment as a matter of law pursuant to Rule 50. The Court granted judgment as a matter of law in defendant's favor as to the State law battery claim and denied the remainder of the motion which was addressed to questions 1 and 2 of the proposed special verdict, whether plaintiff was subjected to a hostile working environment and whether defendant failed to take reasonable remedial action after it knew or should have known that plaintiff was subjected to said environment.

Although, as argued by defendant, reservation on the motion would have made it unnecessary for defendant to restate said motion at the close of all evidence in order to preserve its right to pursue a post-trial Rule 50 motion, see Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 (9th Cir.1985), nonetheless, the Court did not reserve, although the minute sheet may not so reflect as accurately as it should. A reexamination of defendant's argument concerning its Rule 50 motion after the close of plaintiff's evidence persuades the Court beyond doubt that the motion was addressed to the three proposed special verdict liability questions. The Court's order granted only that part of the motion directed to proposed question 3, which referred to the battery claim. It denied as to questions 1 and 2 addressed to hostile working environment and reasonable remedial action based on knowledge, respectively.

The text of Rule 50(b) admits of no exceptions. Benson v. Allphin, 786 F.2d 268, 274 (7th Cir.1986). Although the Court continued, "Unless Seventh Amendment questions are presented, the requirements of Rule 50(b) are not strictly enforced provided the prevailing party's failure to renew the motion for directed verdict did not unduly prejudice his opponent." Id. In Allphin the failure to move for directed verdict at the close of all evidence did not foreclose the presentation of a qualified immunity defense in defendant's motion for judgment notwithstanding the verdict because defendant previously pursued that defense through other recognized avenues.

The most recent discussion concerning the necessity to move for judgment as a matter of law after the close of all evidence is in Pro Football Weekly, Inc. v. Gannett Co., 988 F.2d 723, 726 (7th Cir.1993), wherein the Court states as follows:

Although Gannett had not explicitly made another motion for a directed verdict at the close of all the evidence, we agree with the district court that the above discussion constitutes a sufficient renewal of Gannett's earlier motion. As the district court aptly noted, "Counsel for Gannett would have looked silly making an additional motion for directed verdict after the Court stated that it considered the motion already made." Pro Football Weekly , Inc. v. Gannett Co., Inc., 1991 WL 256693, at *2 N.D.Ill.1991. We therefore hold that the district court did have the power to direct a verdict for Defendant. Thus we need not address the question of whether a renewal of Gannett's earlier directed verdict motion was even necessary. Cf. Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342, 1346 (9th Cir.1985) (reservation of ruling on motion for directed verdict "constitutes judicial indication that renewal of the motion is not necessary to preserve the moving party's rights").

Milwaukee Valve failed to move for judgment as a matter of law at the close of all the evidence in either the liability or damage phase of trial. The exceptions suggested by said defendant are without foundation. It has waived its opportunity to now pursue a Rule 50 motion. This Court did not reserve on the only Rule 50 motion which was presented during the trial, nor has defendant justified any other exception which may be available.

Even had defendant pursued a Rule 50 motion at trial which would have allowed it to renew said motion after trial, it could not prevail on the record before this Court. In considering a motion for judgment as a matter of law pursuant to Rule 50(b), the Court

determines whether the evidence presented, combined with all reasonable inferences that may be drawn from it, is sufficient to support the verdict when viewed in the light most favorable to the party winning the verdict. Any conflicts in the evidence must be resolved in favor of the party winning the verdict, and every permissible inference favoring that party must be drawn.

Tennes v. Massachusetts Dept. of Revenue, 944 F.2d 372, 377 (7th Cir.1991) (citations omitted). The Court does not evaluate the credibility of witnesses nor otherwise weigh the evidence. Id. In ruling on a motion for judgment as a matter of law the Court must consider the substantive evidentiary standard of proof in determining whether the jury's verdict was sufficiently supported. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-54, 106 S.Ct. 2505, 2512-13, 91 L.Ed.2d 202 (1985).

Evidence was presented that defendant Carpenter forcefully placed his foot in plaintiff's crotch and wiggled it, pulled the waistband on her pants and disclosed her undergarments on at least two occasions, slapped her on the buttocks, and pushed her in a threatening manner. Plaintiff complained to John Schmidt, her supervisor, that Carpenter had been mean to her and frequently used sexual language in her presence. The jury had every reason to accept this overwhelming evidence when determining that plaintiff was subjected to a hostile working environment. Defendant's argument in support of its motion for judgment as a matter of law after plaintiff's presentation of evidence in the liability phase suggested counsel for plaintiff lacked sufficient familiarity with factory conditions. The jury had every reason to determine that regardless of those factory conditions which may exist, defendant could not close its eyes to that intolerable sexual harassment accorded plaintiff by Carpenter which did, indeed, reach the pervasive level of a hostile working environment.

Defendant further contends that the jury's verdict concerning its knowledge of the existence of a hostile working environment is not supported by the evidence. There was considerable testimony that in 1990 plaintiff complained to her supervisor, John Schmidt, about Carpenter's offensive sexual language. Although she may not have provided the specifics of sexual harassment at that time, she certainly placed Schmidt on notice of Carpenter's offensive conduct, which had been previously brought to defendant's attention by Joanne Neuheusel and others. Terry Collins, Human Resources Officer of defendant, became aware of Carpenter's conduct, but did not commence any investigation until about October 1991, stating that he was not fully aware of the sexual abuse complaint until about that date. Plaintiff's first formal complaint was filed with the Wisconsin Equal Rights Division on or about July 25, 1991. James Seder, Chief Executive Officer and co-owner of defendant, referred any corrective action which may be necessary to John Schmidt when he became aware of plaintiff's concern. Schmidt did little investigating and provided no timely corrective action, believing, perhaps, that the conduct was not as extensive as it was later determined to be.

Jayne Carlson, defendant's occupational health nurse, was advised by Dr. Haakon P. Carlson of complaints of sexual harassment made to him by plaintiff in May 1991. The jury had evidence before it from which its members could have reasonably determined that the defendant knew or certainly should have known of the hostile working environment and failed to take appropriate remedial action. In 1990 a female employee, Joanne Neuheusel, complained to Schmidt that Carpenter was harassing her and threatening to disrupt her marriage, for which Carpenter was given a written warning that if his conduct continued he would be terminated. The jury could have also readily inferred from plaintiff's testimony that she had complained to Schmidt on numerous occasions about conduct similar to that which had been brought to his attention by Neuheusel, and often advised that she could not continue to work with Carpenter and desired a transfer. When plaintiff advised James Seder in May 1991 that she wanted a transfer, Schmidt became angered that his authority was being questioned. The jury could furthermore have determined that Jayne Carlson in May 1991 had sufficient information from plaintiff's personal physician suggesting an earlier investigation than that which defendant conducted after it had...