Zabkowicz v. West Bend Co., Div. of Dart Industries, Inc.
| Decision Date | 24 April 1986 |
| Docket Number | 85-1305,Nos. 84-3020,s. 84-3020 |
| Citation | 789 F.2d 540 |
| Parties | 40 Fair Empl.Prac.Cas. 1171, 40 Empl. Prac. Dec. P 36,089, 54 USLW 2599, 4 Fed.R.Serv.3d 1229 Carol and Stanley ZABKOWICZ, Plaintiffs-Appellants, v. The WEST BEND COMPANY, a DIVISION OF DART INDUSTRIES, INC., Larry Romans, Jeffrey Piotrowski, Frank Rozina, Rick Cyrulik, Robert Schommer, Wesley Fredericks and Jack DeBraal, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard Cates, Lawton & Cates, Madison, Wis., for plaintiffs-appellants.
Mary A. Moore, Muclahy & Wherry, S.C., Milwaukee, Wis., for defendants-appellees.
Percy L. Julian, Jr., Julian & Olson, S.C., Madison, Wis., NAACP amicus curiae.
Before BAUER, WOOD and ESCHBACH, Circuit Judges.
Plaintiff Carol Zabkowicz was successful in an action for back pay brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. ("Title VII"), and the Wisconsin Fair Employment Act, Wis Stat.Ann. Sec. 111.31 et seq. The district court, however, denied her motion for attorneys' fees, 601 F.Supp. 139. She appeals this denial. Mrs. Zabkowicz along with her husband Stanley (the "plaintiffs") have also moved for an order certifying a question to the Wisconsin Supreme Court. The plaintiffs contend that the district court erred in concluding that the Wisconsin Worker's Compensation Act, Wis.Stat.Ann. Sec. 102.01 et seq., barred several of their state tort claims for intentional infliction of emotional distress. As an alternative to certification, the plaintiffs seek reversal of the district court's ruling. In addition, the plaintiffs appeal the court's decision dismissing other state tort claims against Carol Zabkowicz's co-workers for lack of subject matter jurisdiction.
We deny the plaintiffs' motion for certification and affirm the decisions of the district court dismissing the state tort claims. With respect to the fee issue, however, we reverse the district court's denial of attorneys' fees and remand this case for a fee determination.
The present action arose out of the sexual harassment of Carol Zabkowicz during the time she was employed as a general warehouse worker at a West Bend facility in Oak Creek, Wisconsin. Mrs. Zabkowicz, who began working for West Bend in 1977, initially maintained a satisfactory working relationship with her co-employees. Once her brother-in-law began working at the facility, however, this relationship began to deteriorate. In fact, the district court found that a "campaign" of sexual harassment was waged against Carol Zabkowicz. 1 Eventually, Mrs. Zabkowicz sought and received permission to take a medical leave of absence beginning on April 26, 1982. She returned to work three weeks later only to have to take another leave for illness on June 17, 1982. Dr. Calvin Gillespie diagnosed Zabkowicz's illness as "psychophysiological gastro-intestinal disease due to harassment at work." Mrs. Zabkowicz once again returned to work on August 17, 1982.
Shortly after taking her first leave of absence, Mrs. Zabkowicz filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). An investigation by officials of the EEOC and West Bend was conducted in June 1982. As a result of this investigation, disciplinary action was taken against several of Mrs. Zabkowicz's co-workers who had been involved in the sexual harassment, including defendants Rick Cyrulik, Jeffrey Piotrowski, Larry Romans and Frank Rozina. After this action was taken, the sexual harassment ceased.
The plaintiffs commenced the present action on February 8, 1983, seeking relief on a variety of grounds. First, Carol Zabkowicz alleged that West Bend and three of its supervisory personnel, Robert Schommer, Wesley Fredericks and Jack DeBraal, had violated Title VII and the Wisconsin Fair Employment Act by failing to protect her from sexual harassment after she had notified them of its occurrence. Second, both Carol and Stanley Zabkowicz sought relief for intentional infliction of emotional distress against (1) co-workers Cyrulik, Piotrowski, Romans and Rozina, (2) West Bend and the three supervisory employees, and (3) the union to which Carol Zabkowicz belonged as well as the union's business agent. Finally, Mrs. Zabkowicz asserted labor claims against West Bend, the three supervisory employees, the union and the union's business agent alleging that these defendants had breached their duty of fair representation. The fair representation claims as well as the tort claims against the union and its agent were eventually dismissed in accordance with the parties' stipulation.
The parties also agreed that the state tort actions against the individual co-workers be severed for trial. In addition, the district court dismissed the plaintiffs' tort claims against West Bend and the supervisory employees on grounds that they were barred by the exclusive remedy provision of the Wisconsin Worker's Compensation Act. The plaintiffs' remaining claims against West Bend and the supervisory employees were tried to the court. The district court ruled that West Bend had violated both Title VII and the Wisconsin Fair Employment Act. Judgment was entered solely against West Bend and the court ordered the company to pay Carol Zabkowicz back pay in the amount of $2,763.20. After this judgment was entered, the only remaining claims yet to be litigated were the state tort claims against the defendant co-workers. Later, the court, on its own motion, dismissed these claims for lack of subject matter jurisdiction. The court concluded that it could not exercise pendent jurisdiction over these claims because there was no independent basis of federal jurisdiction with respect to the co-workers.
As a result of her success with the sexual discrimination action, Mrs. Zabkowicz sought attorneys' fees of $127,515, plus expenses of $20,785, pursuant to 42 U.S.C. Sec. 2000e-5(k) and the Wisconsin Fair Employment Act. The district court refused to make a fee award noting that, among other things, her fee request was highly exaggerated and failed to distinguish between the hours spent on the Title VII claim and the hours spent on "noncompensable" claims. The court did, however, award Mrs. Zabkowicz $10,000 for expenses incurred in prosecuting the Title VII action.
After the district court's decision dismissing both the state tort claims against the co-workers for lack of subject matter jurisdiction and the tort claims against West Bend and the supervisory employees, the plaintiffs filed a notice of appeal with this court (No. 84-3020). Subsequently, a second notice of appeal was filed seeking review of the district court's denial of attorneys' fees (No. 85-1305). To facilitate our review, these two appeals have been consolidated.
The plaintiffs first argue that the district court erred in dismissing their tort claims against defendants West Bend, Schommer, Fredericks and DeBraal. The court ruled from the bench that the plaintiffs' tort claims were barred by the exclusivity provision of the Wisconsin Worker's Compensation Act (the "WCA"). The plaintiffs have moved that we certify this question to the Wisconsin Supreme Court or, in the alternative, reverse the decision of the district court.
Where permitted by the highest court of the state, Circuit Rule 13 provides for the certification of state law questions which control the outcome of a pending case. Wisconsin law provides that the Wisconsin Supreme Court may accept certified questions of state law from this court. Wis.Stat.Ann. Sec. 821.01 et seq. Nonetheless, because we find that the Wisconsin Supreme Court has already reached the issue before us, we deny the plaintiffs' motion for certification. See Wis.Stat.Ann. Sec. 821.01 (West 1985 Supp.).
In pertinent part, Wis.Stat.Ann. Sec. 102.03(1) (West 1973) provides that liability under the WCA will only exist against an employer where the following conditions are satisfied:
(a) Where the employe sustains an injury.
(b) Where, at the time of the injury, both the employer and employe are subject to the provisions of [the WCA].
(c)1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his or her employment....
(d) Where the injury is not self-inflicted.
When these conditions are met, the WCA is "the exclusive remedy against the employer, any other employe of the same employer and the worker's compensation insurance carrier." Wis.Stat.Ann. Sec. 102.03(2) (West 1985 Supp.).
The only issue the parties contest is whether Mrs. Zabkowicz's alleged emotional distress is an injury compensable under the WCA. If it is, then the plaintiffs' tort claims are barred by the exclusivity provision. See Coleman v. American Universal Insurance Co., 86 Wis.2d 615, 273 N.W.2d 220, 222 (1979). If Mrs. Zabkowicz's alleged injury is not compensable, however, then the district court erred in dismissing the tort actions.
A covered injury under the WCA is defined as
mental or physical harm to an employe caused by accident or disease ... [including] mental harm or emotional stress or strain without physical trauma, if it arises from exposure to conditions or circumstances beyond those common to occupational or nonoccupational life.
Wis.Stat.Ann. Sec. 102.01(2)(c) (West 1985 Supp.). Relying on this definition, the plaintiffs argue that emotional stress caused by sexual harassment is not an accidental injury and is therefore not compensable under the WCA. The district court disagreed. The court first noted that "[w]hile intentional injury by an employer is generally considered to be not accidental," the plaintiffs' complaint does not allege any intentional acts of sexual harassment either by West Bend or the supervisory employees; rather, the plaintiffs' tort actions were based on the defendants' failure to prevent the harassment. The court,...
To continue reading
Request your trial
-
Blum v. Witco Chemical Corp.
...v. J.I. Case Co., 793 F.2d 909, 923 (8th Cir.1986); Jones v. Board of Governors, 790 F.2d 1120 (4th Cir.1986); Zabkowicz v. West Bend Co., 789 F.2d 540, 549 (7th Cir.1986); Jones v. Continental Corp., 789 F.2d 1225, 1229 (6th Cir.1986); Ursic v. Bethlehem Mines, 719 F.2d 670, 674-75 (3d Cir......
-
US Football League v. National Football League
...that plaintiff prevailed upon. USFL, 644 F.Supp. 1040, 1056-58.8Cf., Hensley, 461 U.S. at 435, 103 S.Ct. at 1940; Zabkowicz v. West Bend Co., 789 F.2d 540, 551 (7th Cir.1986) (claims unrelated where "entirely distinct and separate" courses of conduct involved). The USFL's television evidenc......
-
Alumax Mill Products, Inc. v. Congress Financial Corp.
... ... fabrication company, Northern Aluminum Co. (Northern). Northern molded and formed ... at 18, 96 S.Ct. at 2422; see, e.g., Zabkowicz v. West Bend Co., 789 F.2d 540, 546 (7th ... Armstrong World Industries, Inc., 715 F.Supp. 126, 127 (E.D.Pa.1989) ... ...
-
Skelton v. General Motors Corp.
...Circuit recently discussed Hensley's limitation of fees to those reasonably expended on "prevailing" claims in Zabkowicz v. West Bend Co., 789 F.2d 540 (7th Cir.1986). In Zabkowicz, the plaintiff filed a sexual harassment suit under Title VII which also contained pendent tort claims stemmin......