Helvering v. Union Pacific R. Co.

• Decision Date: 30 August 2005
• Docket Number: No. A-04-266.,A-04-266.
• Citation: 13 Neb. App. 818,703 N.W.2d 134
• Parties: Robert HELVERING, appellant, v. UNION PACIFIC RAILROAD COMPANY, appellee.
• Court: Nebraska Court of Appeals

703 N.W.2d 134

13 Neb. App. 818

Robert HELVERING, appellant, v. UNION PACIFIC RAILROAD COMPANY, appellee.

No. A-04-266.

Court of Appeals of Nebraska.

August 30, 2005.

Thomas F. Hoarty, Jr., and Scott A. Calkins, of Byam & Hoarty, Omaha, for appellant.

Marlon A. Polk, Margot J. Wickman, and Dana E. Christian, of Polk, Waldman, Wickman & Council, P.C., L.L.O., Omaha, for appellee.

IRWIN, SIEVERS, and CASSEL, Judges.

IRWIN, Judge.

I. INTRODUCTION

Robert Helvering appeals from an order of the district court granting summary judgment to Union Pacific Railroad Company (UP) on Helvering's amended petition alleging that his employment with UP was wrongfully terminated for discriminatory reasons, including retaliation, gender discrimination, and age discrimination. Helvering challenges the district court's grant of summary judgment as to each of his claims. We conclude that Helvering failed to satisfy his burden of proof with respect to each of the claims and that UP was therefore entitled to a judgment as a matter of law on each of the claims. Accordingly, we affirm the order of the district court granting UP summary judgment on each of Helvering's claims.

II. BACKGROUND

Helvering began his employment with UP in 1972. Helvering was transferred to Omaha in August 1990, at which time he was promoted from the position of dispatcher to the position of corridor manager, the direct supervisor of train dispatchers assigned to his area. Prior to 2000, there had been no complaints or disciplinary actions taken against Helvering.

On January 8, 2000, Don Murray, the director of human resources for UP's dispatching center in Omaha, received an electronic mail (e-mail) communication informing him of sexual harassment complaints made against Helvering. Murray was responsible for investigating complaints regarding alleged violations of UP's business conduct and equal employment opportunity (EEO) policies, and he initially investigated the complaints made against Helvering. As part of that investigation, a meeting was held on March 3, attended by Helvering, Murray, Mark Payne (Helvering's supervisor), and Dennis Jacobson (the vice president of UP's Omaha dispatching center).

During the meeting on March 3, 2000, the allegations in the complaint were explained to Helvering. Helvering was informed that he "had been seen touching, fondling, [or] caressing females in the workplace." The allegations against Helvering apparently also included "talking in a demeaning manner [and] belittling female train dispatchers," although Helvering denies that he was informed of such allegations. Helvering denied the allegations made against him. Helvering was counseled to make sure his behavior complied with UP's business conduct and EEO policies and warned that any conduct violating the policies would result in termination of his employment.

According to Helvering, he was directed to act in a professional manner with women and all employees at all times, not to be involved in any touching of any kind with any employees, to treat others as he would want to be treated, and not to become involved in meetings where just he and a female train dispatcher were present. Helvering testified in a deposition that he told the others at the meeting it was impossible for him, because of his job duties, not to be involved in meetings where just he and a female train dispatcher were present and that he was instructed to "try not to find [him]self in a compromising position." According to Payne, Helvering was instructed "not to touch other employees or meet privately with female employees." According to Jacobson, Helvering was told that "he needed to be very, very careful in his work"; that he should engage in no touching, only business; not to get into any personal issues with anybody; and to stay on business and "not put himself in a position where he [would be] alone with any female employees." Helvering acknowledged that he was told that any further complaints involving his conduct could result in his dismissal from UP.

Payne testified in a deposition that Murray had told him that the allegations against Helvering were "not substantiated in [the] investigation." Similarly, Jacobson testified in a deposition that Murray had told him that the allegations against Helvering could not be substantiated. Kathleen Vance, UP's director of EEO and affirmative action, however, testified in a deposition that she did not agree that none of the allegations could be substantiated. Vance testified that what was found was that "there was only one woman who was willing to at that time meet with the EEO manager to follow up on sort of vague allegations." Vance stated, "It was more of personality issues and perhaps some racial insensitivity [concerning that woman, rather than a substantiation of sexual misconduct], but . . . as far as [that woman] went, she repeated complaints that she heard from other people, but she herself did not have any sexual harassment complaints. . . ." Vance further testified that "there were certainly a lot of allegations floating around that were difficult to prove, because people were unwilling to come forward and give their names and give their details." According to Vance, however, "there was certainly enough that was being said that was disturbing and was worrisome in terms of the behavior of a person in charge of supervising train dispatchers." Christine Hampton was hired by UP in September 1999. Hampton was a train dispatcher. Hampton testified in a deposition that in January or February 2000, Hampton was warned by a manager of train dispatchers that Helvering "would probably make a pass at [her]" and that Helvering would retaliate against her when she rejected him. The manager also told Hampton about "other females that [Helvering] had approached, that [he] had touched," and told Hampton about an incident where Helvering allegedly "put his hand on [a woman's] breast" when posing for a photograph.

Hampton testified in a deposition that Helvering told a story during a UP safety meeting in March 2000. Helvering testified in a deposition that he believed the safety meeting occurred in February 2000. According to Hampton, Helvering prefaced the story by saying that it was a story Hampton "would like." According to Hampton, the story told by Helvering referenced Helvering's "being a referee and seeing a female in the stands wearing a short skirt with no undergarments. He said her legs were spread apart and he couldn't take his attention away from that particular situation." According to Helvering, the story was about a woman in the stands wearing a short skirt, but Helvering specifically denied having said that the story was for Hampton's benefit. Additionally, Vance testified in a deposition that she thought the version of the story she heard from Helvering while investigating this case did not include a "lack of underwear." Helvering testified in a deposition that he told the story as an illustration of the importance of staying focused while working and "just simply . . . keep[ing] your mind on what you're doing."

Hampton testified in a deposition that she had been required to "go on a road trip" for UP in March 2000 "to . . . visit and ride trains, ride with track inspectors and see the territories of your area that you're dispatching." Hampton testified that it was brought to her attention that Helvering "was telling the corridor managers and directors . . . that [Hampton] wanted him to attend this road trip with [her]." Hampton denied ever making such a request, and she informed a director that she "under no circumstances want[ed] to go on a road trip with. . . Helvering." Helvering did not accompany Hampton on the trip. Helvering testified in a deposition that he never asked to accompany Hampton on the trip.

Hampton testified in a deposition that on May 25, 2000, as she was preparing to leave work for the day, Helvering asked her whether she had "a few minutes to talk." Hampton testified that she told Helvering she did not have time to talk, but that after Helvering asked a second time, she said, "[O]kay." According to Hampton, Helvering asked to talk "on the patio" or "by the security desk, or out front." According to Hampton, Helvering met her outside the building and asked, "[W]hat do you think of me?" Hampton testified that she answered Helvering by commenting on his capabilities as a "trainman," but that he asked her again what she thought of him and that her impression was that "he wanted something personal." Hampton testified that she again answered Helvering by commenting on his capabilities as a "trainman." According to Hampton, Helvering continued the conversation by telling Hampton about a female employee who had filed "an [Equal Employment Opportunity Commission] complaint" against him, the allegations of which could not be proven. Hampton recalled that "without taking a breath," Helvering then said to Hampton, "[A]ny red-blooded male would want to touch, I would want to touch you, would you consider meeting me outside of work[?]" Hampton testified that Helvering repeated the comment and again asked her whether they could "meet outside of work." Hampton testified that she said "absolutely not" and walked off.

Helvering testified in a deposition that when he was asked why he met with Hampton alone "after [being] told . . . not to," he answered, "I just plain forgot." Helvering testified that Hampton had approached him and asked to talk about something and that they had walked out of the building together. Helvering specifically denied having asked Hampton whether he could touch her or whether they could meet outside of work. The record indicates that there were other employees walking past Helvering and Hampton during this encounter.

Hampton testified in a deposition that she asked "to be moved out of the . . . region" where Helvering was corridor manager. Hampton also called Murray and left a voice mail...