Excel Corp. v. Bosley

• Decision Date: 19 January 1999
• Docket Number: Nos. 97-3505,97-3626,s. 97-3505
• Citation: 165 F.3d 635
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 1844, 74 Empl. Prac. Dec. P 45,685 EXCEL CORPORATION, Appellant/Cross-Appellee, v. Kristine BOSLEY, Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 635

165 F.3d 635

78 Fair Empl.Prac.Cas. (BNA) 1844,

74 Empl. Prac. Dec. P 45,685

EXCEL CORPORATION, Appellant/Cross-Appellee, v. Kristine BOSLEY, Appellee/Cross-Appellant.

Nos. 97-3505, 97-3626.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 18, 1998.

Decided Jan. 19, 1999.

Dale A. Knoshaug, Des Moines, IA, argued, for appellant.

Steven Verne Lawyer, Des Moines, IA, for appellee.

Before BOWMAN, Chief Judge, LOKEN, Circuit Judge, and SIPPEL, ^* District Judge.

SIPPEL, District Judge.

Kristine Bosley was an Excel Corporation (Excel) employee from July, 1990 until Excel fired her on May 16, 1994. She filed suit in federal district court alleging that her ex-husband Rock Johnson (Johnson), also an Excel employee, had harassed her while she was at work, that the harassment created a hostile work environment, and that Excel discharged her in violation of Title VII, 42 U.S.C. § 2000e-2(a)(1) and the Iowa Civil Rights Act, Iowa Code Chapter 216 (ICRA). Bosley's claims were tried to a jury.

The jury returned a verdict for Bosley on her claim for hostile work environment sexual harassment and awarded Bosley back pay. The jury advised against an award of front pay. The jury returned a verdict in favor of Excel on Bosley's claim for disparate treatment sexual harassment. Following the trial, the district court ¹ denied Bosley's request for front pay. On appeal, we affirm.

I.

The facts of this case, as they were presented to the jury, are discussed at length in the district court's Ruling on Post-Trial Motions, and on Application for Attorney's Fees and Expenses, see Bosley v. Excel Corporation, Civil No. 4-96-CV-20267 (S.D.Iowa Aug. 22, 1997), and we recount only those facts relevant to the determination of this case.

Bosley began working at Excel, a meat packing plant, in July 1990. Bosley was married to Johnson at that time. Johnson was also employed at Excel. Bosley separated from Johnson in 1993. Both continued to work at Excel. At trial, Bosley introduced testimony and other evidence that Johnson subjected her to sexual harassment during confrontations at work. There was also evidence that Bosley reported this harassment to Excel's management, but that management personnel did little to investigate or end the harassment.

Bosley was a line worker on the kill floor at Excel. Her position was such that she was not allowed to leave her work station, even to use the restroom, without permission from a supervisor. Johnson was a "floater" at the plant. He worked at different workstations in the plant for absent employees. He circulated regularly on the kill floor where Bosley worked.

The record is replete with evidence of the harassment suffered by Bosley. At various times at the workplace, in the presence of other co-workers, Johnson called Bosley "bitch", "slut" or "whore". Johnson also threatened to kill Bosley's friend, now husband, Jeff Bosley. Bosley repeatedly reported the unwelcome harassment to the management at Excel. She also reported fear of Johnson's temper.

Excel's first action was to tell both Bosley and Johnson to keep their disputes at home. Later, following screaming matches on the kill floor, Bosley and Johnson were separated but neither was sanctioned. Johnson continued to harass Bosley even throwing meat and animal organs at her. This was a violation of work rules.

Beginning on May 4, 1994, Bosley took personal time off from work due to the stress of the harassment and other personal problems. She returned to work on May 9, 1994 to find Johnson once again, near her work station on the kill floor. Johnson continued his harassment calling her names such as "fucking bitch." Bosley asked the floor supervisor to relieve her temporarily from her work station. The supervisor refused, despite knowledge of the harassment and Johnson's proximity to Bosley. About fifteen minutes later, Bosley again requested permission to leave her work station. The supervisor denied her request again. Johnson continued to harass Bosley. In frustration, Bosley pushed Johnson once in the chest and told him to get out of the area and go back to his assignment. At that point, the supervisor intervened and escorted Johnson from the area.

After Bosley pushed Johnson, she was sent to a supervisor's office. Physical contact between employees is a work rule violation. Bosley was placed under "indefinite suspension." Bosley was upset. As she was leaving the work floor, Bosley saw Johnson in another room. Bosley believed that Johnson was not being sanctioned as strongly as she was, if at all. Bosley pushed past a supervisor to enter the room to talk to Johnson. This incident was reported as Bosley having struck a supervisor.

The events of May 9, 1994 formed the basis for the decision to terminate Bosley on May 16, 1994. Excel did not sanction Johnson for any of the events of May 9, 1994.

Bosley's claims that Excel fired her in violation of Title VII were tried to a jury. Both Bosley's claim of hostile work environment sexual harassment and disparate treatment based on sex were submitted. The jury returned a verdict for Bosley on her claim of hostile work environment sexual harassment and granted her back pay damages. The jury recommended against a front pay award. The jury found for Excel on Bosley's claim of disparate treatment. In its Ruling on Post-Trial Motions, the district court denied Bosley's request for front pay damages.

II.

On appeal Excel argues that the jury erred in awarding back pay to Bosley. Excel further argues that the district erroneously held that evidence of sexual relations between Johnson and Bosley was inadmissible. Bosley cross-appeals claiming that the district court's denial of front pay damages was in error.

A. Back Pay Issue

On appeal Excel argues that the facts in the record do not support the jury's award of back pay to Bosley. Excel argues that because it had a legitimate reason for firing Bosley, the evidence did not support a finding that sexual harassment caused Bosley's termination. Excel argues that without such a finding, back pay could not be awarded.

Under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(m), an employee is entitled to relief if he or she proves that impermissible discrimination was a "motivating factor" in the employment decision, "even though other factors also motivated" the employer's decision. Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir.1995). The relief may include payments of front and back pay. Doane v. City of Omaha, 115 F.3d 624, 629 (8th Cir.1997).

It is not necessary that the actual termination decision be motivated by discriminatory animus. Kientzy v. McDonnell Douglas, 990 F.2d 1051, 1060 (8th Cir.1993). If the decision making process is tainted by discrimination, the claimant is entitled to relief. Id. When an employee is fired because he acted to defend himself against harassment, which supervisors failed to take reasonable measures to prevent or correct, the termination process cannot be said to be free from discrimination. DeGrace v. Rumsfeld, 614 F.2d 796, 804 (1st Cir.1980); see also Kientzy v. McDonnell Douglas, 990 F.2d at 1060. This is so even if the ultimate decision maker was moved purely by a legitimate concern about personnel matters. Id.

The issue on appeal is whether the record contains sufficient evidence for a rational fact finder to conclude that, absent the hostile work environment, Bosley would not have been fired. On appeal, discriminatory intent and discrimination are issues that may be determined from all of the facts in the case. Kientzy v. McDonnell Douglas Corp., 990 F.2d at 1060. Further, we consider the evidence in the light most favorable to Bosley as the prevailing party. Finley v. Empiregas, Inc. of Potosi, 975 F.2d 467, 474 (8th Cir.1992).

In applying this standard of review, we hold that there was sufficient evidence to support the award of back pay. The jury found that Bosley had been subjected to a hostile work environment at Excel. Excel does not appeal this finding. The following evidence was admitted relevant to the causation of Bosley's termination. Bosley and other co-workers complained repeatedly of the harassment Bosley was suffering. Excel chose not to act to stop the harassment because Bosley and Johnson had been married. On the day of the firing, Bosley asked twice to be relieved of her position in an effort to get away from the harassment. Twice the supervisor refused the request. Finally, Bosley testified that she shoved Johnson out of the way. As a result of this action Bosley was fired.

The evidence was sufficient for a reasonable fact-finder to find that the termination process was tainted by sex discrimination even if the actual decision to terminate was not. This is the same conclusion expressly reached by the district court in its analysis of the front pay issue discussed below. We confirm the district court's analysis. The award of back pay was proper. Accordingly, we affirm the district court's award of back pay.

B. Front Pay Issue

A district court's decision regarding the award of front pay is reviewed for abuse of discretion. Curtis v. Electronics & Space Corp., 113 F.3d 1498, 1504 (8th Cir.1997). The district court may not reject findings made by the jury, but it does have the discretion to consider all the circumstances involved in determining appropriate equitable relief. Id.

The issue of front pay is not an issue for the jury to decide, rather it is a form of equitable relief which must be determined by the district court after considering all aspects of the case. Newhouse v. McCormick & Co., 110 F.3d 635, 641 (8th Cir.1997). Front pay may be granted in lieu of reinstatement in situations where reinstatement would be impracticable or impossible. Id.

A Title VII claimant seeking either back pay or front pay damages has a duty to mitigate those damages by exercising reasonable diligence to locate other suitable employment and...