Phillips v. Smalley Maintenance Services, Inc., 81-7715

• Decision Date: 15 August 1983
• Docket Number: No. 81-7715,81-7715
• Citation: 711 F.2d 1524
• Parties: 32 Fair Empl.Prac.Cas. (BNA) 975, 32 Empl. Prac. Dec. P 33,802, 1 IER Cases 221, 13 Fed. R. Evid. Serv. 1847 Brenda PHILLIPS, Plaintiff-Appellee, v. SMALLEY MAINTENANCE SERVICES, INC., a corporation, and Ray Smalley, individually, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1524

711 F.2d 1524

32 Fair Empl.Prac.Cas. (BNA) 975,

32 Empl. Prac. Dec. P 33,802, 1 IER Cases 221,

13 Fed. R. Evid. Serv. 1847

Brenda PHILLIPS, Plaintiff-Appellee, v. SMALLEY MAINTENANCE SERVICES, INC., a corporation, and Ray

Smalley, individually, Defendants-Appellants.

No. 81-7715.

United States Court of Appeals, Eleventh Circuit.

Aug. 15, 1983.

Redden, Mills & Clark, William H. Mills, Birmingham, Ala., for defendants-appellants.

Floyd, Keener & Cusimano, Michael L. Roberts, Greg Cusimano, Gadsden, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before FAY and KRAVITCH, Circuit Judges, and YOUNG ^*, District Judge.

KRAVITCH, Circuit Judge:

This is an appeal from a judgment for appellee in an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and two pendent state law claims, battery and tortious invasion of the right of privacy. After having certified questions pertaining to the state law claims to the Supreme Court of Alabama, we affirm the district court judgment of liability on all claims.

Facts

Appellee, Brenda Phillips, was formerly employed by appellant, Smalley Maintenance Services, Inc. [SMS]. SMS and the president and principal owner of SMS, appellant Ray Smalley [Smalley], were found by the trial judge, after a special advisory verdict by the jury, to have wrongfully discharged appellee in violation of Title VII for her refusal to engage in sexual activities with Smalley. On this claim, appellee was awarded lost wages of $2,666.40. The Appellee began working as an "overhead cleaner" for appellants SMS and Smalley on July 30, 1979. SMS provided cleaning, janitorial and other miscellaneous services at a Monsanto plant in Marshall County, Alabama. Appellee was transferred between jobs of various descriptions, primarily on her request, to avoid sexually oriented discussions with male co-workers. Appellants introduced evidence that in fact appellee initiated these conversations. Other SMS employees were also moved from position to position by the employer.

                trial judge also found that Mrs. Phillips had been subjected to actionable sexual harassment prior to the wrongful discharge, but that no actual damages arose from this Title VII violation.   Pursuant to an exercise of pendent jurisdiction, the jury found that on one occasion Smalley had touched Phillips without her consent in an angry, hostile or offensive manner and awarded her $10.00 as nominal damages for common law battery.   The jury also found that Smalley had wrongfully intruded into Phillips' private activities so as to cause outrage or mental suffering, shame or humiliation to a person of ordinary sensibilities.   Compensatory damages of $25,000 were awarded on this Alabama state law "invasion of privacy" claim
                

At trial appellee testified that within a few weeks of beginning her job Smalley called her into his office and locked the door. He questioned her about how she was getting along with her husband and told her his wife was ill. The conversation ended when appellee said she must return to work. A few days later he again called her into his office, locked the door and this time inquired how often Phillips and her husband had sex and "what positions" they used. Appellee told appellant it was none of his business and left the office. This form of intrusive interrogation continued two to three times a week. On repeated occasions, calling appellee away from her work, into his office and locking the door, appellant asked her whether she had ever engaged in oral sex. At one time Smalley invited appellee to have a drink with him on a Saturday. She refused. In later conversations he insisted that she engage in oral sex with him on penalty of losing her job, upon which he knew she and her family were significantly, financially dependent. She consistently resisted his advances. Shortly before the termination of appellee's employment, she was again called into appellant's office. Appellant showed anger toward appellee, beating on his desk, and insisted that she engage in oral sex with him at least three times a week. He then began to cover the window in the office door with paper to prohibit anyone from seeing inside. Appellee forced her way out of the office. As she was leaving, appellant hit her "[a]cross the bottom" with the back of his hand. Appellee testified that this treatment made her nervous and unable adequately to perform her work.

On October 23, 1979, Smalley once more called appellee into his office and asked her if she was going to show her gratitude to him for hiring her by engaging in the aforesuggested sexual acts. Appellee again refused. She testified that she was already upset by virtue of having learned the day before that she was possibly going to have surgery. Returning to her work after the incident with Smalley she "tried to work, and I got so upset that I couldn't." She told her supervisor and Smalley that she was going home early. Smalley asked for her gate pass; she would not give it to him and said she was not quitting the job. The next day her gate pass would no longer work to admit her to the plant. She then went to see an attorney, returned to the plant, talked to Smalley on the phone and he brought her pay check to her. At that time appellee asked Smalley why she had been fired. He said she had not been fired but was "laid off" because the work for which she was hired was completed. When testifying at trial, appellant made it clear that even if appellee were only "laid off" he had no intention of calling her back if more work were available. The distinction between Evidence in the record indicates that all other persons hired at the same time and for the same job as appellee, except one who voluntarily left, were kept on the payroll in various capacities until May, 1980 when the Monsanto plant closed. Other persons were hired soon after Phillips' termination for positions she was qualified to fill and for which she had indicated an interest. Smalley admitted at trial that Phillips was not terminated because of any allegedly poor work performance but contended that appellee's position had been designated temporary from the beginning and the work for which she was hired was then completed.

"laying off" and "firing" in his mind was relevant only to the terminated employee's ability to collect unemployment benefits.

The testimony of a family practice physician and of a psychiatrist was introduced at trial, to the effect that Phillips experienced chronic anxiety in the months following her termination from SMS. She underwent treatment and was placed on medication. According to her husband, she had contemplated suicide and her relationships with family and friends were disrupted. In addition, she experienced physical problems, basically unrelated to her termination, resulting in surgery. The medical experts treating appellee testified that the anxiety was, in their expert opinion, related to the events surrounding her termination and was not caused by her physical problems.

During this post-termination period, appellee filed a complaint with the Equal Employment Opportunity Commission [EEOC], alleging that her termination constituted sex discrimination in violation of Title VII because it resulted from her refusal to engage in oral sex with Smalley. She alleged that the treatment to which she was subjected prior to termination had also violated Title VII. On July 30, 1980 the EEOC issued a "Notice of Right to Sue." This lawsuit was timely filed in the Northern District of Alabama.

A. Non-Pendent Claims

Appellants claim that "sexual harassment" does not constitute an unlawful employment practice in violation of 42 U.S.C. § 2000e-2 and, thus, that the facts of this case do not support a cause of action under Title VII. Appellants also claim that there was insufficient evidence to support a finding that appellee was discharged for sexually discriminatory reasons rather than for the reason asserted by appellant: that the job was temporary and had terminated. An additional contention is that the complaint filed in this case varied from the EEOC complaint to such an extent that the condition precedent to suit, issuance of a "Notice of Right to Sue," technically was not satisfied.

Appellants contend, too, that the award of attorneys' fees, pursuant to 42 U.S.C. § 2000e-5(k), of $7,500 was excessive and unsupported by the evidence.

Next it is argued that the district court abused its discretion in exercising pendent jurisdiction over the state law claims. In addition, appellants assert that the trial court erred in allowing a female former employee to testify that she had been subjected to treatment from Smalley quite similar to that alleged by appellee.

Appellants raise other miscellaneous evidentiary claims and contend that, overall, they were denied a fair trial.

We will address each of the arguments in turn.

Title VII Cause of Action

Appellants argue that "sexual harassment" of a female employee by a male employer does not constitute discrimination based on sex and is not an unlawful employment practice under 42 U.S.C. § 2000e-2. This argument is now conclusively foreclosed by this court's recent decision in Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1981).

In Henson the court held that where sexual harassment is "sufficiently pervasive so Where there is tangible job detriment, such as wrongful "discharge of any individual," 42 U.S.C. § 2000e-2(a)(1), a Title VII cause of action based on sexual harassment is made out when a plaintiff proves the first three elements of a sexual harassment claim, stated above, and also pleads and proves that she applied for and was qualified for a position which the employer was seeking to fill; despite her qualifications she was rejected for the position; and, after her rejection, the position remained open and the employer accepted applications from...