Kirkland v. Brinias, CIV-3-87-417

• Decision Date: 28 August 1989
• Docket Number: No. CIV-3-87-417,CIV-3-87-418.,CIV-3-87-417
• Parties: Cheryl L. KIRKLAND v. Gus C. BRINIAS and Jim Regas, d/b/a The Original Louis Drive-In Restaurant. and Billie Jean LaRUE v. Gus C. BRINIAS and Jim Regas, d/b/a The Original Louis Drive-In Restaurant.
• Court: U.S. District Court — Eastern District of Tennessee

741 F. Supp. 692

Cheryl L. KIRKLAND v. Gus C. BRINIAS and Jim Regas, d/b/a The Original Louis Drive-In Restaurant. and Billie Jean LaRUE v. Gus C. BRINIAS and Jim Regas, d/b/a The Original Louis Drive-In Restaurant.

Nos. CIV-3-87-417, CIV-3-87-418.

United States District Court, E.D. Tennessee, N.D.

August 28, 1989.

W.P. Boone Dougherty, Knoxville, Tenn., for plaintiffs.

Joseph J. Levitt, Jr., Knoxville, Tenn., for defendants.

MEMORANDUM OPINION

HULL, Chief Judge.

These actions for sexual harassment in the workplace, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., came before the Court for trial, without intervention of a jury, on May 17, July 26, and July 27, 1989. Plaintiffs Cheryl L. Kirkland and Billie Jean LaRue both formerly worked as waitresses at The Original Louis' Drive-In Restaurant (Louis'). Both claim that due to the unwelcome sexual advances, propositions, threats, and physical contacts of a busboy named Ali Hijer, which were condoned and encouraged by the restaurant's owners, the working conditions at Louis' were offensive and intimidating. Both sought compensation in terms of back pay.

Title VII case law has recognized two basic variants of sexual harassment: harassment that creates an offensive environment and harassment in which a supervisor demands sexual consideration in exchange for job benefits. Rabidue v. Osceola Refining Co., 805 F.2d 611, 618 (6th Cir.1986). All of the claims at issue in this case fall into the first category. As the Court understands the Rabidue case, in order to prevail in their claim, plaintiffs Kirkland and LaRue have the burden of proving: (1) that they were subjected to unwelcomed sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (2) that the harassment complained of was based on sex; (3) that this harassment had the effect of unreasonably interfering with their work performance and creating an intimidating, hostile, or offensive working environment that affected seriously their psychological well being; and, (4) that their employers either knew or should have known of the sexual harassment and failed to implement prompt and appropriate corrective action. Moreover, in order to accord appropriate protection to both plaintiffs and defendants in a hostile work environment case, the trier of fact, when judging the totality of the circumstances, must adopt the perspective of a "reasonable person" reacting to a similar environment under essentially similar circumstances. Rabidue, 805 F.2d at 619-621.

The first step in establishing a claim based on offensive working conditions requires proof of unwelcomed sexual harassment in the form of sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.

Plaintiff LaRue testified that Mr. Hijer offered her $100.00 for sex; that after she had made it clear that she was a married woman and unavailable to him, he often whispered to her his desire to go to bed with her "for six months"; that at one time, when he apparently incorrectly believed she had accused him of stealing tips, he pointed his finger in her face, spoke to her in angry and threatening words, grabbed her painfully by the arm, and did not release her until Jeff Foster, the cook, broke up the encounter. She testified that, after that event, he started surreptitiously patting her on her rear end to annoy her; that he would do this and then run away laughing; that he spitefully persisted in this behavior long after she had instructed him to keep his hands off her; that he would come up behind her and snap her bra; that he was unwilling to take any instruction from women; that on two occasions threatened to kill her when she had asked him to do something such as clear a table or wipe off some chairs; and that he got into a physical fight with her on the day she quit because she had asked him to take the chairs down off the tables to have the restaurant ready for opening. On that final day, she testified that Mr. Hijer got very angry at her request; accused her of lying; backed her up while poking his finger in her face; grabbed her arm, causing her to drop a plate of lemons she had cut up for the day's tea; and kicked her in the shins when she slapped his face. Allegedly, this entire incident was played out in the full view of defendant Regas, who took no steps to protect her, showed no concern for her injury, and them blamed her for "picking on Ali."

Plaintiff Kirkland's testimony was very similar. She too was offered $100.00 for sex; she also found Mr. Hijer unreasonably angry and threatening when asked to do routine, work-related jobs; and she too was subjected to apparently hostile pranks (or misguided playfulness) such as hiding her tips among the sugar packets. She also testified of unwelcome hugs and pats, and being constantly asked by Ali to try to get him the telephone numbers of attractive female customers.

Other former employees corroborated the plaintiffs' accounts. Waitress Beth Keller was also offered money for sex by Mr. Hijer. Waitress Betty Beal and cashier Shirley Dunn were both threatened with death after asking Mr. Hijer to clear tables. The Court is satisfied that unwelcome sexual advances, requests for sexual favors, and verbal and physical conduct of a kind likely to be offensive to any reasonable person working under similar circumstances, was at least occasionally a problem for women working at Louis' who came in contact with Mr. Hijer.

As indicated earlier, Rabidue requires that the plaintiffs prove that the harassment in question had the effect of unreasonably interfering with their work performance and creating an intimidating, hostile, or offensive working environment that seriously affected their psychological well being. Neither plaintiff testified to any psychological damage caused by their employment or that they were unable to carry on their work. Both waitresses were married women with years of waitressing experience who were quite able to take care of themselves. Both however, testified emphatically about their general outrage not only at Mr. Hijer's conduct, but at the insensitivity of the defendants themselves. While it is clear that both plaintiffs would have been better able to cope with Mr. Hijer's unwelcome conduct if they had felt that their personal dignity was respected and protected by the management, neither plaintiff proved any actual damages as a result of Mr. Hijer's behavior. Neither established a causal connection between the back pay being claimed and the sexual harassment.

Rabidue also requires that the employers, if they are to be held liable, must have known of the harassment, or reasonably should have known about it, and failed to take prompt and appropriate corrective action.

Neither plaintiff expressly complained of sexual harassment to their employers, but neither believed that the defendants would be sympathetic. Both felt that the defendants were fully aware of what was going on in the restaurant and were amused by it. Former busboy Mark Pinsley testified that Mr. Hijer's harassment of the waitresses was on "a day to day basis" and that it was hard not to notice. It was his impression that defendant Regas was aware of it all. "There wasn't a whole lot going on that Jimmy didn't know about." He specifically remembered seeing Mr. Hijer come up behind Mrs. Kirkland, push her up against the ice machine, and put his hands on her breasts. "She went hysterical.". He and several other witnesses also remember occasions when dishwasher Nancy Whittaker would scream at Mr. Hijer to keep his hands off her and that she could be heard all over the restaurant.

Mrs. LaRue testified that Mr. Regas was present the first time Mr. Hijer patted her on the rear; that she specifically told him not to do it again; and that she asked Mr. Regas to tell Ali to keep his hands off her. She says that Mr. Regas responded with "a silly grin;" did not reprimand Mr. Hijer; but started calling him "rooster" after that incident.

Mrs. LaRue, Betty Beal, and Shirley Dunn each testified that they reported to Mr. Regas the first time Mr. Hijer threatened to kill them. Penny Pate reported this to both managers and they acted as if they hadn't heard her. Shirley Dunn testified that Mr. Regas just walked away when she spoke to him. Betty Beal said that Mr. Regas simply said he would talk to Gus (Mr. Brinias) about it. None of the witnesses believed that any attempt was ever made to correct Mr. Hijer's threatening behavior.

Mrs. LaRue also testified that she told Mr. Brinias that Ali was pestering certain female customers, trying to go out with them, but that he simply ignored her and just walked off. Mrs. Kirkland testified that she told Mr. Regas that Mr. Hijer was trying to get the customers' telephone numbers. She claims that he responded, "Why don't you just give him Ali a little — he's horney." Beth Keller overheard this remark as did Betty Beal, who testified that Mrs. Kirkland was "visibly upset."

The defendants' first witness was Gus Ligdis, who apparently worked as an assistant manager of Louis' during some of Mrs. LaRue's tenure there although he did not overlap with plaintiff Kirkland. He testified as an eye witness to the scuffle between Mrs. LaRue and Ali, indicating that when he separated them, Ali was bleeding from his mouth. He said that Mrs. LaRue assumed she would be fired; said things like "I guess you're going to take up for him," and quit before the management even had time to investigate the incident. He also testified that no employee ever complained to him about improper sexual conduct on Mr. Hijer's part and that, if they had, Ali would have been fired on the spot. He claimed that he was unaware of Mr....