Howard v. Burns Bros., Inc.

• Decision Date: 14 July 1998
• Docket Number: No. 97-2135,97-2135
• Citation: 1998 WL 388673,149 F.3d 835
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 131, 73 Empl. Prac. Dec. P 45,460 Mary K. HOWARD, Plaintiff-Appellee, v. BURNS BROS., INC., an Oregon Corporation, doing business as Mrs. B's and Burns Brothers Truck Stop, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 835

149 F.3d 835

78 Fair Empl.Prac.Cas. (BNA) 131,

73 Empl. Prac. Dec. P 45,460

Mary K. HOWARD, Plaintiff-Appellee, v. BURNS BROS., INC., an Oregon Corporation, doing business as

Mrs. B's and Burns Brothers Truck Stop, Defendant-Appellant.

No. 97-2135.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 12, 1997.

Decided July 14, 1998.

Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Burns Brothers, Inc. appeals from the district court's entry of judgment against it after a jury verdict in favor of Mary Howard on her Title VII claims. Howard sued Burns Brothers for hostile environment sexual harassment and constructive discharge she allegedly suffered when she worked as assistant manager at a Burns Brothers truck stop in Overton, Nebraska. The jury returned a verdict for Howard of $25,000 actual and $75,000 punitive damages on the constructive discharge claim, and $1,000 actual and $2,000 punitive damages on the hostile environment claim. The district court denied Burns Brothers' motions for new trial, remittitur, and judgment as a matter of law on liability and on damages. Burns Brothers contends on appeal that the district court erred in denying its motions and in instructing the jury. We affirm on the hostile environment actual and punitive damages claims, and we reverse the denial of the motion for judgment as a matter of law as to the constructive discharge claim.

The facts stated in Burns Brothers' and Howard's briefs, respectively, are so different that they seem to describe entirely different trials and different chains of occurrences. Similarly, the testimony about the events at the truck stop varies wildly according to whether the plaintiff's or defendant's witnesses are testifying. We, of course, do not resolve these discordant accounts, but instead must view all the facts in the light most favorable to the party that prevailed before the jury, giving that party the benefit of all reasonable inferences that can be drawn from the evidence, see Tidwell v. Meyer's Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996), and resolving all credibility questions in that party's favor.

In July 1990 Mary Howard started working as a cashier at the Burns Brothers truck stop, which consisted of a restaurant and a fuel station. John Wood was the general manager of the whole operation, and his wife, Stephanie Wood, was the restaurant manager. After about a year and a half, Howard was promoted to assistant manager of the fuel station. Burns Brothers had posted at the truck stop a corporate policy prohibiting sexual harassment. The notice included the phone number of a contact person at the corporate headquarters in Portland, Oregon, for complaints that were not handled satisfactorily at the local level.

Howard's sexual harassment complaints stem from the conduct of Keith Daake, a co-employee. She testified that from the time she started working at Burns Brothers, Daake was "always saying sexual innuendos." She testified that Daake once told her she had nice legs and that he was "going to get [her]." She said that she reported this comment to John Wood, who said, "That's just Keith," and did nothing more. ¹ Howard said that Daake would often brush against her intentionally while the two of them were working in the narrow area behind the fuel counter. Once Daake brushed Howard's buttocks, and she kicked him. Howard and the assistant manager for the restaurant, Pat Kiger, complained to John Wood several times about Daake brushing against them.

Howard also testified that Daake said and did inappropriate things to other female employees. We have considered harassment of employees other than the plaintiff to be relevant to show pervasiveness of the hostile environment. See Hall v. Gus Const. Co., 842 F.2d 1010, 1015 (8th Cir.1988). Cathy Piska complained to Mary Howard and to John Wood that Daake would "touch [her] butt or put his arm around [her]" or "talk nasty." Linda Wolf complained to Howard that Daake was making sexual innuendos. Howard reported this complaint to John Wood. Additionally, Howard said that Burns Brothers' regional manager, Jack Fairfield, saw Daake "[rub] up next to" Wolf. Howard said Fairfield commented to her, "[T]hat's not very good ... John needs to do something about that."

In addition to the incidents recited above, there was also evidence of two jokes Daake told in which the punch line involved lewd gestures, in one instance, touching a woman's breast, and in the other, thrusting his hips into a woman from behind. The women who testified about the jokes said that one or both of the Woods were present for the jokes.

Howard also cites testimony of Pat Kiger and Barb Martin about Daake's conduct toward Barb Martin, a cook at the restaurant. The two witnesses said that Daake had called Martin a "fucking bitch" and had written a note on his meal order, "Don't kill it," apparently meaning not to burn his meal. Kiger reported Daake's behavior to the Woods. John Wood testified that he reprimanded Daake about the incidents.

On Sunday, January 9, 1994, a young waitress, Cameo Svavari, complained to Howard and Kiger about Daake's conduct. Howard and Kiger asked her to write up a list of what Daake had said and done. Svavari jotted down a list of seven examples of suggestive things Daake had said or done. The Woods were off-duty at the time, so Howard and Kiger drove over to their house to deliver the list. They told John Wood that "if something wasn't--wasn't done about this that we were going to go to Portland [Burns Brothers' corporate headquarters], we were going to go higher, that this was ridiculous." John Wood told Kiger and Howard to go back to the truck stop and get out the corporate policy on sexual harassment and that he would come down to the truck stop. About an hour later, Wood came to the truck stop, called Daake into the office, and gave him a "final warning." The warning was reduced to writing and signed by Wood and Daake. The document cited Daake for "Making unwanted sexual remarks to other company members. Also being too familiar and touching female company members." It said that the next disciplinary action against Daake would be "up to and including suspension and/or discharge."

Howard testified that John Wood's treatment of her changed from that day on. After the Svavari complaint, "John [Wood] wouldn't talk to me. If I--he had me or wanted me to do something, he'd write it down on a piece of paper." She testified that she got "dirty looks" from the people on the day shift, including John and Stephanie Wood. Howard said John Wood:

wouldn't talk to me, wouldn't even give me the time of day. He would say nothing. He'd walk the other way so as to not walk by me. If he did have to walk by me, he'd look me up and down like I was a nothing and a nobody. Him and Stevie [Stephanie Wood] and Keith and Susie [Daake's wife] would sit in a booth after they got off their shift right beside the fuel desk and laugh like you knew they were laughing about you....

She said that she received poor treatment from "anybody basically that worked on the day shift." Several witnesses corroborated Howard's testimony that John Wood was cool toward her. One witness said that after the Svavari complaint "things seemed tense" and "[i]t just didn't seem like John had any respect for Mary's position." Pat Kiger said that after the complaint John Wood treated Howard "very, very, very cold, very badly," and that he left her "rude, nasty note[s] ... such things as do this and do that." Another witness said that she observed that John Wood wouldn't speak to Howard.

Howard and her husband testified that Howard was upset by John Wood's treatment of her, and that she frequently cried about her working conditions.

After John Wood gave Daake his "final warning," Howard testified that she had no further trouble with Daake touching her. She agreed that "Daake pretty much stayed away from [her] ... after that." There was, however, a verbal exchange that took place after the warning that Howard considered further sexual harassment.

The incident occurred in the midst of a struggle over the truck stop's thermostat setting. Howard wanted the thermostat turned up high because she was cold in the office, where she worked. Other employees complained that the thermostat was set too high and they had adjusted the setting. Howard testified that she put a lock on the thermostat to keep other employees from lowering the setting, and she told the other employees to "leave the heat alone." She said Keith Daake replied, "[Y]ou don't need heat, I can warm you up." ²

Howard never complained about Daake to Burns Brothers' corporate office, though she was aware of Burns Brothers' anti-harassment policy.

Howard turned in her resignation at Burns Brothers on February 8, 1994. Her last day on the job was February 15, and she started a new job the next day.

Howard sued Burns Brothers under Title VII, for maintaining a sexually hostile environment, 42 U.S.C. § 2000e-2(a) (1994), and for constructively discharging her in retaliation for her role in the Cameo Svavari complaint. 42 U.S.C. § 2000e-3 (1994). The jury found for Howard. On the constructive discharge claim, the jury awarded Howard $4,400 in economic damages, $25,000 in compensatory damages, and $75,000 in punitive damages. The jury awarded Howard $1,000 compensatory and $2,000 punitive damages on the sexually hostile work environment claim.

Burns Brothers moved for judgment as a matter of law, new trial, and reduction or elimination of compensatory and punitive damages. The district court denied Burns Brothers' motions.

I.

Burns Brothers contends that the district court erred in denying it judgment as a matter of law. We review de novo the district court's denial of judgment as a matter of law, examining whether there is sufficient evidence to support the jury's verdict. Tidwell, 93 F.3d at 494. We view the...