Flockhart v. Iowa Beef Processors, Inc.

• Decision Date: 21 December 2001
• Docket Number: No. C 97-2054 MJM.,C 97-2054 MJM.
• Citation: 192 F.Supp.2d 947
• Parties: Jodee A. FLOCKHART Plaintiff, v. IOWA BEEF PROCESSORS, INC., Defendant.
• Court: U.S. District Court — Northern District of Iowa

192 F.Supp.2d 947

Jodee A. FLOCKHART Plaintiff, v. IOWA BEEF PROCESSORS, INC., Defendant.

No. C 97-2054 MJM.

United States District Court, N.D. Iowa, Eastern-Waterloo Division.

December 21, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Roxanne Barton Conlin, Roxanne Conlin & Associates, Des Moines, IA, Ronnie L Podolefsky, Podolefsky Law Office, Waterloo, IA, for plaintiff.

Thomas D Hanson, Dale A Knoshaug, Hanson Bjork & Russell, Des Moines, IA, for defendant.

ORDER

MELLOY, District Judge.

This matter came on for trial before the Court. The plaintiff alleged sexual discrimination under Title VII, the Equal Pay Act and the Iowa Civil Rights Act. The matter is deemed fully submitted and the Court now enters its findings of fact, conclusions of law, and Order.

I. FINDINGS OF FACT

A. Introduction

This case arises out of JoDee Flockhart's claim that she was constructively discharged from Iowa Beef Processors, Inc. ("IBP"), because she was the victim of pervasive and on-going sexual harassment by both co-workers and management employees. She also alleges that she received less pay than male peers performing equal work.

Many of the facts are undisputed, but as with most sexual harassment cases, the Court is called upon to resolve some significant factual disparities. The Court's findings are set forth as follows.¹

B. JoDee Flockhart Harassment

The plaintiff was born on April 5, 1966. She obtained her GED in 1984, and joined the Army in 1985. On September 19, 1988, Ms. Flockhart started with IBP as a security officer during the construction of the Waterloo plant. On October 21, 1989, she transferred from security to a temporary construction position. On March 15, 1990, Ms. Flockhart obtained a cut floor position at the Waterloo facility of IBP.

On July 16, 1990, Ms. Flockhart became a supply clerk, earning $5.80 per hour. The supply clerk position is known as a management support position. It is not part of the bargaining unit and is a non-union job. Her job grade for pay purposes was "DD". On October 24, 1994, Ms. Flockhart was promoted to senior supply clerk from pay grade "DD" to paygrade "BB". Ms. Flockhart left her employment with IBP on May 10, 1996.

Ms. Flockhart contends that she was the victim of sexual harassment of one kind or another from the time she began her employment at IBP. The sexual harassment can be grouped into three main categories: sexual touching and assault by a co-employee, David Wisecup; verbal abuse and harassment by Ms. Flockhart's immediate supervisor, Frank Eisermann; and general harassment, including groping and touching, by co-employees. In order to put this dispute into some context, the Court will briefly outline the chain of command at IBP. This is important in connection with the issues concerning notice to supervisors.

As indicated, Ms. Flockhart was in the supply department. She started initially as a supply clerk and was later promoted to senior supply clerk. The supply department is part of the plant engineering department and is under the general supervision of the plant engineer. The chain of command that existed during the entire period of Ms. Flockhart's employment is as follows. Starting with Ms. Flockhart, her immediate supervisor was the supply department manager, which position was occupied during her entire tenure by Frank Eisermann. Immediately above Mr. Eisermann were the engineering superintendents; those positions were occupied by Robert Law, and during the later years of Ms. Flockhart's tenure, by Tim Schelle. The next position in order of the IBP hierarchy was the plant engineer, who had overall responsibility for the engineering department. When Ms. Flockhart first started her employment in the supply department, that position was occupied by Chris Truxel; shortly after Ms. Flockhart began her employment, Mr. Truxel was replaced by Mark Schwenneker, who occupied the position of plant engineer during most of the period of the relevant events in this case. The final person in the chain of command at IBP was the plant manager; that position was occupied by James Schmitz during Ms. Flockhart's entire term of employment at IBP.

1. David Wisecup Harassment

Ms. Flockhart claims that she was fondled and sexually assaulted by David Wisecup on at least three occasions while employed at IBP.

Mr. Wisecup worked in the engineering department at IBP. His titles included maintenance supervisor, project engineer, and project supervisor during Ms. Flockhart's tenure at IBP. He was not in the direct chain of command between Ms. Flockhart and the plant engineer. However, he was "higher up" in the IBP hierarchy. He was under the direct supervision of the plant engineer. His duties were such that he was required to be in and around the supply department on a daily basis. Ms. Flockhart and the other members of the supply department had daily interaction with Mr. Wisecup, as part of their overall job responsibilities. Mr. Wisecup had no say in Ms. Flockhart's pay, promotion, or other conditions of employment. However, as a person with supervisory responsibility, he could give directions to Ms. Flockhart, and did do so on some occasions. For purposes of sexual harassment analysis, this Court finds that Mr. Wisecup was not a direct supervisor of Ms. Flockhart.

Ms. Flockhart testified that the first incident of sexual fondling occurred around 1992, the second in 1993, and the third in 1995. Unlike many cases of sexual harassment, the perpetrator does not dispute the conduct occurred. In fact, Mr. Wisecup believes that it happened on more occasions than Ms. Flockhart recalls. Mr. Wisecup testified, and admitted during discovery, that he fondled Ms. Flockhart on at least five or six occasions. One of the issues that will be discussed in more detail in the section on damages is Ms. Flockhart's belief that she has mentally repressed much of the conduct directed at her while at IBP, and her distress that she can only recall three incidents while the perpetrator of the acts believes that there were as many as twice that number.

Mr. Wisecup claims that the first incident occurred around 1989-1990 and was not unwelcome. Mr. Wisecup takes the position that Ms. Flockhart told Mr. Wisecup that he could fondle her breasts if she was not given a disciplinary report for a particular infraction Ms. Flockhart apparently committed. Ms. Flockhart does not recall this specific incident but denies that any of the incidents were invited by her or in any way welcome. In any event, the Court does not need to resolve this dispute because the Court finds that it is undisputed that all subsequent incidents of sexual fondling were unwelcome. Mr. Wisecup acknowledged in his testimony that he knew Ms. Flockhart did not want him to do it, protested his action, and made it clear that the conduct was very upsetting to her. So that the record is clear, the specific conduct that Ms. Flockhart is complaining of involves Mr. Wisecup putting his hand under Ms. Flockhart's shirt and bra and fondling her breasts, and, on at least one occasion, sticking his hand down her pants.

The first incident that Ms. Flockhart recalls occurred in August 1992 (this may not be the actual first incident since Ms. Flockhart only recalls three of the five or six incidents Mr. Wisecup testified to). Ms. Flockhart testified that she became extremely upset and emotional after this incident. She immediately reported the incident to her supervisor, Frank Eisermann, who then reported it to the plant engineer, Chris Truxel. Ms. Flockhart testified that she prepared a written report of the incident and it was investigated by Mr. Truxel. Ms. Flockhart claims that witness statements were taken from parties who were in the area at the time the incident occurred. Ms. Flockhart claims there was no follow-up and she never received any report back as to the results of the investigation. She also claims that Mr. Wisecup continued to make sexual comments after that.

The second incident Ms. Flockhart recalls occurred in February 1993. Mr. Wisecup put his hands down her pants and up her shirt. She again reported this to Frank Eisermann. Mr. Eisermann said he would take care of it. Ms. Flockhart heard nothing further about the incident. In the meantime, Mr. Wisecup was promoted to a supervisory position.

Before discussing the third incident, the Court will address one of the issues which caused considerable controversy during this litigation and is a matter of deep concern as it relates to the effectiveness of IBP's sexual harassment policy. That policy specifically provides that all complaints of sexual harassment are to be investigated, and that a file is to be maintained concerning the results of those investigations. The policy was routinely breached by IBP. Either complaints were not investigated or, if investigated, no records were maintained concerning the fact of the filing of the complaint or the results of any investigation. As an example, there is no dispute that the third incident was reported to Mr. Eisermann and Mr. Schwenneker, and that some sort of investigation was done. However, IBP has been unable to find, or provide, any records concerning that investigation. Consequently, the Court has no assurance, or confidence, that IBP's inability to locate any records from its investigation of the August 1992 or February 1993 incidents is in any way indicative that Ms. Flockhart did not give a statement or that the incidents were not reported. In fact, given the history of this case and Ms. Flockhart's strong reactions to the incidents, this Court concludes that, in fact, Ms. Flockhart's testimony is credible and she did report all three incidents to IBP management.

The third incident reported by Ms. Flockhart occurred in either 1994 or 1995. There is a dispute about when the incident actually happened. While Ms. Flockhart testified at trial and in deposition that the incident occurred in November 1995, this...