Ebert v. Lamar Truck Plaza

• Decision Date: 16 January 1987
• Docket Number: Civ. A. No. 85-F-2518.
• Citation: 715 F. Supp. 1496
• Parties: Ruby EBERT, Carla K. Ebert, Esther C. Ebert, Tempa Roselind Ebert, Willa Dean Atkinson, and Ila K. Brown, Plaintiffs, v. LAMAR TRUCK PLAZA, Defendant.
• Court: U.S. District Court — District of Colorado

715 F. Supp. 1496

Ruby EBERT, Carla K. Ebert, Esther C. Ebert, Tempa Roselind Ebert, Willa Dean Atkinson, and Ila K. Brown, Plaintiffs, v. LAMAR TRUCK PLAZA, Defendant.

Civ. A. No. 85-F-2518.

United States District Court, D. Colorado.

January 16, 1987.

Penfield W. Tate, II, Denver, Colo., for plaintiffs.

John Gehlhausen, Lamar, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

THIS MATTER is before the Court on plaintiffs' claims under Title VII of the Civil Rights Act of 1964, as amended, at 42 U.S.C. § 2000e et seq., and the Equal Pay Act, at 29 U.S.C. § 206(d). Jurisdiction exists pursuant to 28 U.S.C. § 1331. This Memorandum Opinion and Order constitutes our findings of fact and conclusions of law, following trial to the court. Rule 52(a), Fed.R.Civ.P. We find for the defendant Lamar Truck Plaza on all claims, and direct entry of judgment accordingly.

I. Factual Background

This action arises out of the plaintiffs' employment at the Lamar Truck Plaza (LTP), a 24 hour full service restaurant in Lamar, Colorado. The players include plaintiffs, who were female employees at LTP, and persons who were either plaintiffs' superiors or managers during the time period relevant to plaintiffs' claims. Mr. Gene Taylor was a shift supervisor during most of the relevant time period; Mr. Charles Purdy was an assistant manager; Mr. Wes Caudillo was a prep cook; Mr. Ron Woolert was Chief Executive Officer of LTP, Inc. and general manager of LTP; Ms. Susan Woolert had no formal position with LTP during 1984 and 1985, but assisted in management duties; and Mr. Jim Dixon was the LTP restaurant manager.

LTP management hired plaintiffs in May of 1984. The restaurant was beginning operations at that time. Plaintiffs were hired in various capacities — as baker, line cook, or dishwasher — depending on management needs and employee experience. Each of the plaintiffs either resigned or was terminated by late November 1985. Plaintiff Willa Dean Atkinson was rehired several days after her termination, and is currently employed as a prep cook at LTP.

Plaintiffs claim that during the period from approximately June of 1984 through May of 1985, the LTP working environment was permeated with sexual hostility. They also claim that defendant discriminated against them on the basis of their sex, by paying them lower wages than similarly situated males. Defendant denies that plaintiffs were harassed because of their sex or that working conditions were altered by the allegedly hostile atmosphere, and claims that wage differences were based on factors other than sex.

II. Plaintiffs' sexual harassment claims

Plaintiffs claim that LTP management engaged in conduct and commentary which created an offensive and hostile working environment. The Supreme Court has held that conduct of a sexual nature which creates such an environment is actionable. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). To establish a prima facie case of sexual harassment, plaintiffs must show that: (1) they are members of a class of persons protected under the statute, (2) they were subjected to unwelcomed conduct in the workplace, (3) the unwelcomed conduct was based on sex, (4) the sexual nature of the work environment was so pervasive as to alter working conditions and create an abusive working environment, and (5) the employer knew or should have known of the abusive conduct. Meritor Savings Bank, supra. Plaintiffs have failed to sustain their burden.

Plaintiffs claim that use of vulgar language and various instances of touching created the abusive environment. Each plaintiff testified that LTP employees, specifically Gene Taylor, Charles Purdy and Wes Caudillo used vulgar language consistently. Each remembered several specific instances which they considered offensive.¹ Plaintiffs also testified that Mr. Taylor and Mr. Purdy each gestured offensively at least one time in the presence of female employees, and touched various female employees on the breasts or buttocks. Ruby Ebert claims that she was terminated as a result of her complaints about the sexually hostile atmosphere. Tempe, Esther and Carla Ebert and Ila Brown, claim that the atmosphere effected their constructive discharge.² We find that plaintiffs have failed to establish that the alleged harassment was based on their sex, and have failed to show that the environment at LTP was the kind of pervasively hostile environment which is actionable under Title VII, as interpreted by the Supreme Court in Meritor Savings Bank.

In Meritor Savings Bank, the Supreme Court cited with approval the EEOC guidelines which state "that the trier of fact must determine the existence of sexual harassment in light of `the record as a whole' and `the totality of circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.'" 477 U.S. at 69, 106 S.Ct. at 2406, quoting, 29 C.F.R. § 1604.11(b). On the record as a whole, plaintiffs have failed to show that the alleged harassment was based on their sex. Defendants presented evidence that vulgar language was used by a number of LTP employees — including some of the plaintiffs — not just by Mr. Purdy and Mr. Taylor. The testimony of Kathy Leffingwell, a waitress at LTP during the time period at issue here, indicated that plaintiff Ruby Ebert's language was as offensive as that of the male kitchen employees she heard. The evidence showed that such language was directed indiscriminately at both male and female coworkers. Several witnesses testified that the language used was typical of that used in the restaurant business. Congress did not intend for Title VII to obliterate the use of foul language in the American workplace.

... it cannot be seriously disputed that in some work environments the language is rough hewn and vulgar.... Title VII was not meant to — or can sic — change this. It must never be forgotten that Title VII is the Federal Court mainstay in the struggle for equal employment opportunity for female workers of America. But it is quite different to claim that Title VII was designed to bring about a magical transformation in the social mores of American workers.

Rabidue v. Osceola Refining Co., 584 F.Supp. 419, 430 (E.D.Mich.1984), aff'd, 805 F.2d 611 (6th Cir.1986).

Additionally, plaintiffs have not established that the alleged harassment was so pervasive as to alter working conditions and create an abusive working environment. The specific instances of use of foul language and alleged unwelcomed touching reported by the witnesses at trial were actually sparse. For example, Carla Ebert testified that she was touched two times in what she felt was an abusive manner, although her tenure at LTP ran from May of 1984 until August of 1985. The Court's record of trial indicates that she testified to an additional four incidents of unwelcomed touching or sexually oriented actions involving other employees during her 15 months at LTP. Kathy Leffingwell's testimony confirmed that any unwelcomed touching incidents were few and far between; indeed, Ms. Leffingwell stated that she never saw any sexually oriented contact initiated by Mr. Taylor or Mr. Purdy.

We find that the paucity of plaintiffs' complaints to management belie the severity of the problem they assert existed at LTP. Testimony was undisputed that many allegedly offensive incidents went unreported by the victims. We are persuaded by the testimony of Mr. Dixon, as part of LTP management, that he and other LTP managers responded properly and promptly to all reported incidents. Ruby Ebert testified that when she complained to Mr. Dixon, he spoke to the offending party in a timely manner. And again, Ms. Leffingwell's testimony bolsters defendant's argument. She stated that the one time that Mr. Dixon heard her use a vulgar expression, he promptly took her into his office and reprimanded her. In our view, the defendant dealt expeditiously and efficiently with a difficult and admittedly sometimes uncomfortable working environment.

Based on the above facts elicited at trial, we are not convinced that the "conduct of LTP management had the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a). "For sexual harassment to state a claim under Title VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982). Plaintiffs simply have not demonstrated the existence of a pervasive, sexually hostile atmosphere. They have not shown that LTP management created or condoned an environment which significantly and adversely affected employees because of their sex. They have not established a pattern of sexual harassment inflicted on employees. In sum, plaintiffs have not established that the conduct complained of occurred because of their sex, and have not shown that the alleged harassment affected the working environment significantly.³

III. Plaintiffs' claims under the Equal Pay Act

Plaintiffs claim that defendant discriminated against them on the basis of their sex, by paying them lesser wages than similarly situated male employees. Title VII provides that it is unlawful for an employer to "discriminate against any individual with respect to compensation ..." because of their sex. 42 U.S.C. § 2000e-2(a) (1982). The Equal Pay Act provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill,

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