Hathaway v. Runyon

• Decision Date: 12 March 1998
• Docket Number: No. 96-4241,96-4241
• Citation: 132 F.3d 1214
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 194, 72 Empl. Prac. Dec. P 45,132 Mary Jane HATHAWAY, Plaintiff--Appellant, v. Marvin RUNYON, Postmaster General, Defendant--Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1214

132 F.3d 1214

76 Fair Empl.Prac.Cas. (BNA) 194,

72 Empl. Prac. Dec. P 45,132

Mary Jane HATHAWAY, Plaintiff--Appellant, v. Marvin RUNYON, Postmaster General, Defendant--Appellee.

No. 96-4241.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 9, 1997.

Decided Dec. 29, 1997.

Rehearing Denied March 12, 1998.

Judy K. Hoffman, Omaha, NE, argued, for plaintiff-appellant.

SaraBeth Donovan, Omaha, NE, argued (Thomas J. Monaghan, United States Attorney, on the brief), for defendant-appellee.

Before McMILLIAN, HANSEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Mary Jane Hathaway sued her employer, Marvin Runyon, Postmaster General, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., claiming sexual harassment and discriminatory retaliation. The jury found for Hathaway on the sexual harassment claim and awarded her $75,000 in compensatory damages, but it found for Runyon on the retaliation claim. The district court then granted Runyon's motion for judgment as a matter of law on the harassment claim and ordered that judgment be entered in his favor in all respects. Hathaway appeals from only that portion of the judgment that deprives her of the jury verdict on her sexual harassment claim. We reverse.

I.

We state the facts in the light most favorable to Hathaway, as we must when deciding whether the jury verdict was properly overturned. See Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997).

Hathaway had been employed by the postal service for twelve years at the main postal facility in Omaha, Nebraska when the events about which she complains took place. She worked both as a distribution clerk and a relief expediter on a shift from 2:30 p.m. to 11:00 p.m. She received a higher level of pay for the expediting work. Her work generally involved labeling mail on the flat sorter and dispatching mail from it for pickup by mail trucks. The flat sorter is an automated machine that sorts pieces of mail that are larger than a standard letter envelope and labels them according to destination.

Hathaway alleged that she suffered from a hostile work environment based on sex that began with several incidents involving her coworker, Neal Norris. Norris began to act differently towards her in August of 1992, while he was training her for expediting duties. He started getting physically close and making peculiar comments, telling her that other workers believed they were romantically involved. This change in his behavior made her uncomfortable, and she tried to respond in a way that made it clear that his sexual interest in her was unwelcome. She told him that they both knew that any rumors about them would be untrue.

His conduct became more aggressive, however, and he made physical sexual advances. During the Christmas rush in December of 1992, he hit her on the buttocks with a clipboard while they were together in an enclosed stairwell. She turned around and gave him a look that she thought would put an end to such behavior. About a week later, he again approached her from behind and squeezed her buttocks while she was waiting for an elevator. A short time later Hathaway told Norris not to touch her again because it made her feel uncomfortable and she did not like it. Norris looked displeased and responded by saying "well" and laughing. Hathaway stopped working with Norris and avoided talking or interacting with him.

After Hathaway rebuffed Norris' advances, he began to snicker and laugh at her, making guttural noises when she walked by him. He also stared at her with a menacing look. Starting in January of 1993, a coworker and friend of Norris, Dennis Wynn, began to act similarly whenever he saw Hathaway. At four different points in her trial testimony Hathaway imitated for the jury the sounds made at her by Norris and Wynn. The sounds could not be captured in the trial transcript, but at oral argument her counsel described one as a purring or growling noise made in the throat and defense counsel described another as a clicking of the tongue. Norris and Wynn continued to leer, snicker, laugh, and make insinuating noises for the next eight months.

Hathaway described for the jury how she felt every day when she went to work and what it was like for her to carry out her duties under these conditions. She was very upset and afraid because she believed that Norris intended to retaliate against her for turning down his sexual overtures. Hathaway explained that her fear was based on what she felt was a connection between Norris' advances and physical touchings and the sounds he and Wynn made whenever they saw her. She was intimidated by the snickers and noises and became very anxious, avoiding Norris and Wynn by hiding in the bathroom and worrying about what they would do next. Hathaway testified that she was depressed and lost interest in doing anything outside of work. She was unable to sleep at night and found that she did not care whether she got out of bed in the morning. She was tired all the time and no longer cared about her job. She felt that her job performance was deteriorating because of her feelings of anxiety, depression, and indifference.

On January 19 Norris and Wynn reported Hathaway to a supervisor for mislabeling mail, and she believed that their report was further retaliation for rejecting Norris. There was conflicting evidence at trial about the mislabeling incident. The evidence in Hathaway's favor indicated that incorrect labels had been put in the flat sorter by other clerks and that she was replacing them when Wynn walked by. He summoned Norris and they reported the incorrect labels to her supervisor. Norris acknowledged at trial that Wynn did not need to check with him about the labels. Wynn was unable to identify the incorrect labels when he tried to talk with Hathaway about the situation, and later that day he snickered and laughed as he walked by her work station.

When Hathaway was forced to work near Norris and Wynn, her anxiety level increased. On one occasion in early February of 1993, she was in the small label room on the mezzanine manually stamping labels. The room was a narrow one, just wide enough for a table running the length of the room with three chairs behind it. She was working from a chair against the wall opposite the entrance when Wynn came in and sat in the closest chair between her and the door, followed by Norris who entered and seated himself on a ledge directly behind her after plugging in his portable television. Hathaway testified that she was scared to death and did not dare to move or leave the room because that would involve passing very close to both men. She stayed where she was until her boyfriend, Chuck Prestito, arrived and the other two left. Later in February, Hathaway's duties on the flat sorter were given to Wynn, and she was required to do manual flat sorting in close proximity to him.

Hathaway reported the harassment to the equal employment opportunity (EEO) office at the postal facility on January 20, 1993. The previous day she had received a written statement from John Gladfelter who had seen Norris hit her on the buttocks in December. His statement described what he had seen and supported her claim. She reported that Norris had touched her twice on the buttocks and that he and Wynn had been leering at her, making strange noises, and snickering. She told the EEO counselor/investigator, Nikki Neagu, that she wanted the harassing behavior to stop. Neagu told Hathaway she needed to discuss the incidents with John Wacha, the supervisor of Norris and Wynn, before EEO could take any action. The postal service sexual harassment policy states that employees may report sexual harassment to an impartial supervisor, but not that they must do so. Hathaway agreed to talk to Wacha, but indicated to Neagu that she did not think he would assist her because he was a friend of Norris. Neagu did not explain to Hathaway the process for filing a complaint, nor did she give her any brochures on sexual harassment or on postal service policy for handling these kinds of complaints.

Hathaway took complaints of sexual harassment to supervisor Wacha on two occasions--on January 20 after talking to EEO and again in February after she was crowded in the label room. She informed him that she had a witness to one of the physical incidents and requested that Norris and Wynn be kept away from her or that something be done to stop their harassment of her. Wacha did not ask to see the witness statement or even ask for the name of the witness. Hathaway asked Wacha to sign a statement verifying that she had reported her allegations to him in order to let the EEO office know that she had followed its directions. Wacha refused to sign the statement that she had drafted and did not offer to write or otherwise alert EEO that she had contacted him about her concerns.

Wacha testified at trial about his normal procedure in investigating a complaint of sexual harassment. He said he would interview the parties involved and any witnesses and then make a written report of his investigation and conclusions. In response to Hathaway's complaint he discussed her allegations with Norris and Wynn who both denied that they had engaged in any harassing conduct. He never attempted to identify or speak to Hathaway's witness and did not interview her again before completing his investigation. Wacha testified that he instructed Norris and Wynn to stay away from Hathaway after her first complaint in January, but he did not reprimand them for disobeying that instruction after she reported that they had crowded into the small label room with her in February. Wacha said no one had witnessed any of the incidents and he had concluded that Hathaway's allegations were untrue. He thus ignored the existence of a corroborating witness and never made a written report of his investigation or...