Perkins v. Spivey

• Decision Date: 31 August 1990
• Docket Number: 89-2137WM,Nos. 89-1833W,89-2136W,s. 89-1833W
• Citation: 911 F.2d 22
• Parties: 53 Fair Empl.Prac.Cas. 973, 55 Empl. Prac. Dec. P 40,381, 5 Indiv.Empl.Rts.Cas. 1429 Melody PERKINS, Appellant, v. Thomas S. SPIVEY, Appellee. Melody PERKINS, Appellant, v. GENERAL MOTORS CORPORATION OF AMERICA, Appellee. Melody PERKINS, Appellant, v. GENERAL MOTORS CORPORATION OF AMERICA, Appellee. Melody PERKINS, Appellee, v. Thomas S. SPIVEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 22

911 F.2d 22

53 Fair Empl.Prac.Cas. 973,

55 Empl. Prac. Dec. P 40,381,

5 Indiv.Empl.Rts.Cas. 1429

Melody PERKINS, Appellant, v. Thomas S. SPIVEY, Appellee.

Melody PERKINS, Appellant, v. GENERAL MOTORS CORPORATION OF AMERICA, Appellee.

Melody PERKINS, Appellant, v. GENERAL MOTORS CORPORATION OF AMERICA, Appellee.

Melody PERKINS, Appellee, v. Thomas S. SPIVEY, Appellant.

Nos. 89-1833WM, 89-2136WM, 89-2137WM.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1990.

Decided July 24, 1990.

Rehearing and Rehearing En Banc Denied Aug. 29 and Aug. 31, 1990.

Gwen G. Caranchini, Kansas City, Mo., for appellant.

Michael J. Gallagher, Kansas City, for appellee Spivey.

Paul Scott Kelly, Jr., Kansas City, for appellee General Motors Corp. of America.

Before JOHN R. GIBSON and MAGILL, Circuit Judges, and DUMBAULD, ^* Senior District Judge.

MAGILL, Circuit Judge.

In these consolidated appeals, Melody Perkins challenges two orders of Judge Bartlett ¹ and one order of Chief Judge Wright. ² First, Perkins appeals Judge Bartlett's entry of summary judgment in favor of her employer, General Motors (GM), on her claim that GM breached its duty under Kansas common law to maintain a workplace free from sexual harassment. She alleges that GM negligently hired and retained employees, including a superintendent, who physically and/or psychologically assaulted her over a period of several years. ³ On appeal, she argues that Judge Bartlett erred (1) in finding that GM owed no common law duty to prevent sexual harassment in the workplace, and (2) in alternatively finding that she assumed the risk of harm. We affirm Judge Bartlett's entry of summary judgment to the extent that he found Kansas common law does not impose a duty on GM to provide a workplace free from the purely psychological harms of sexual harassment. However, we reverse the entry of summary judgment in favor of GM insofar as Perkins alleges that her emotional harm was accompanied by or resulted in physical injuries, and remand for further proceedings consistent with this opinion.

Second, Perkins appeals Judge Bartlett's entry of judgment following a thirty-day bench trial on her claim that GM violated Title VII. 709 F.Supp. 1487. At the conclusion of the trial, Judge Bartlett rejected as not credible her allegations of sexual assault and harassment. Three months later he issued his formal findings of fact and conclusions of law. On appeal, Perkins argues that Judge Bartlett erred when he denied her motion for recusal, which she filed nearly three months after the conclusion of the bench trial. Because we find that Judge Bartlett did not abuse his discretion when he denied her motion to recuse, we affirm his entry of judgment in favor of GM on Perkins' Title VII claim.

Perkins also appeals Chief Judge Wright's entry of summary judgment in favor of GM superintendent, Thomas Spivey, on her claim that Spivey was liable for battery, assault and intentional infliction of emotional distress. In granting Spivey's motion for summary judgment, Chief Judge Wright found that because of Judge Bartlett's factual findings, Perkins was collaterally estopped from relitigating whether Spivey had psychologically and physically attacked her. On appeal, Perkins argues that Chief Judge Wright erred in granting summary judgment in favor of Spivey on collateral estoppel grounds, and, in so doing, denied her right to a jury trial on her claim against Spivey. We affirm.

Finally, in his cross-appeal, Spivey argues that Chief Judge Wright erred when he refused to impose sanctions against Perkins and her attorney. We affirm.

I.

On July 24, 1978, GM hired Perkins as a sixth-level production supervisor in the body shop of its plant in Kansas City, Kansas. With a few exceptions, ⁴ her employment at this plant continued uninterrupted until January 1986 when she filed a charge with the Equal Employment Opportunity Commission (EEOC) and a claim for workers' compensation. Perkins alleged that while employed at the plant, she was subjected to sexual harassment. She testified that several GM employees told sexual jokes, and directed leering gestures and catcalls toward her and other women. She testified that despite her complaints, lodged early in her employment at the plant, the harassment grew worse and she gradually became immune to the conduct.

Perkins further alleged that Spivey, superintendent of the body shop and/or acting general superintendent at the plant, raped her at least twice a month during much of the time she worked at the plant. The alleged rapes occurred at places other than the plant. She maintains that Spivey accomplished these rapes by threatening her with death or termination of employment and, on several occasions, by brandishing a knife or gun at her.

Perkins filed three separate suits. In the first suit, filed in federal court on May 27, 1986, she alleged that GM breached its Kansas common law duty to maintain a safe workplace free from sexual harassment by negligently hiring and retaining various employees whom GM knew or should have known would physically and/or psychologically injure her. After receiving her notice of right to sue from the EEOC, Perkins filed her second suit in federal court on May 29, 1986, alleging that GM had violated Title VII. Shortly thereafter, however, the negligence and Title VII claims were consolidated for discovery and trial. On October 28, 1988, Judge Bartlett granted GM's motion for summary judgment on Perkins' negligence claim, finding that no duty existed under Kansas common law for employers to provide a workplace free from sexual harassment. In the alternative, Judge Bartlett found that even if such a duty did exist, Perkins had assumed the risk of harm through her conduct.

The bench trial on Perkins' Title VII claim commenced on November 1, 1988. Three weeks later, Judge Bartlett informed the parties that his law clerk had just accepted employment to commence at the conclusion of her clerkship with a law firm occasionally retained by GM, but not involved in the case. Although Judge Bartlett offered to remove his law clerk from the case, counsel for both parties stated they had no objection to her continued participation.

On January 11, 1989, after a thirty-day bench trial, Judge Bartlett ruled in favor of GM on Perkins' Title VII claim. Formal entry of judgment was deferred pending consideration of proposed findings of fact and conclusions of law, which were ultimately issued on April 10, 1989. Judge Bartlett rejected as not credible Perkins' claims of sexual harassment and assault by Spivey and other employees. He also found that Perkins participated in a consensual relationship with Spivey in the hope of advancing her career and that her allegations of threats and violence were the result of a fertile and twisted imagination. He also found Perkins' allegation that the plant environment was sexually hostile to be more creative than factual. He found that she not only generally encouraged and welcomed such conduct but was an active and encouraging participant in the sexually explicit conversations. On the few occasions when Perkins did lodge a complaint, either the conduct ceased immediately or GM dealt with it appropriately. Perkins v. General Motors, 709 F.Supp. 1487, 1488-98 (W.D.Mo.1989) (findings of fact, conclusions of law and order granting judgment for GM). Perkins does not challenge these factual findings on appeal as clearly erroneous.

On February 9, 1989, nearly one month after the bench ruling, partners in the firm of Gage & Tucker, which represented GM in the Title VII action, and partners in the firm of Lathrop, Koontz & Norquist, were informed for the first time that their management committees were engaged in preliminary discussions concerning the possibility of a merger between the firms. ⁵ Judge Bartlett's wife, a labor attorney, was a partner in the firm of Lathrop, Koontz & Norquist. On April 3, 1989, Perkins filed a motion requesting Judge Bartlett recuse himself on three grounds: (1) the preliminary merger discussions between his wife's firm and Gage & Tucker; (2) the future employment of his law clerk with a firm which occasionally represents GM; and (3) his wife's position as a labor attorney. In rejecting Perkins' motion for recusal, Judge Bartlett found in part that her motion "was a last ditch, desperate attempt to delay the issuance of findings and conclusions in [the Title VII] case until after [Perkins'] case against Thomas Spivey [could] be tried in another division of this court." Perkins v. General Motors, 129 F.R.D. 655, 672 (W.D.Mo.1989) (order denying Perkins' motion to recuse).

In that case, filed originally in Missouri state court on May 29, 1986, Perkins alleged that Spivey assaulted, battered, and engaged in outrageous conduct against her. GM and Perkins conducted an extensive amount of discovery on her two claims against GM throughout most of 1987. With only a few exceptions, the depositions were not cross-noticed in the state and federal actions, and Spivey's counsel did not attend depositions in the federal case against GM. Furthermore, Perkins sought and obtained a protective order from the Missouri state court restricting Spivey from disclosing her medical and psychiatric records to GM, in order to prevent GM from using them against her in either the Title VII or negligence actions. Perkins' counsel subsequently wrote a letter to counsel for Spivey and GM warning them that violation of the state court order restricting disclosure of Perkins' medical records would force her to take strong steps. Finally, on numerous occasions, Perkins stated that no new parties would be added in the federal case against GM.

On November 27, 1987, Perkins moved to join her claim against Spivey with the negligence and Title VII claims asserted against GM which were pending in federal court. Judge Bartlett denied her motion citing undue delay and prejudice to GM and Spivey. He...