“On its face, [ 33 U.S.C. § 1323 (a)] acts to waive 15 sovereign immunity only where an arm of the federal government is an alleged 16 polluter. … There is no indication in the statute that Congress intended to waive sovereign 17 immunity with respect to agency enforcement decisions over third parties[.]”
How later courts described this case
- “On its face, [ 33 U.S.C. § 1323 (a)] acts to waive 15 sovereign immunity only where an arm of the federal government is an alleged 16 polluter. … There is no indication in the statute that Congress intended to waive sovereign 17 immunity with respect to agency enforcement decisions over third parties[.]”
- reaching the same conclusion for the same reasons
Written by the judges who cited it.
The opinion
AMENDED MEMORANDUM OPINION
BUCHMEYER, Chief Judge.
This case involves the severe and pervasive sexual harassment of the plaintiff, Therese Scribner, by some of the top officers and executives of the defendant, Waffle House, Inc.
1
It also involves the blatant lies, an egregious attempt to suborn perjury, and the reward of witnesses who gave false deposition and trial testimony, by the Waffle House
*878
officers, executives, supervisors and other witnesses discussed below.
2
Therese Scribner was employed by Waffle House for three and one-half years as a personnel recruiter. Because Scribner was a woman, during this entire period she was paid less than males who had the same duties and responsibilities that she did for Waffle House. In addition, Therese Scribner was sexually harassed by three male supervisors — who,. contrary to their perjured testimony during depositions and at trial — subjected Scribner to continued, abusive, and severe sexual harassment by conduct such as this:
... asking her,
“have you ever been eaten by a man with ice in his mouth?”
and
“do you want to sit on my face?”
...
telling her,
“if you ever fucked me, you would never be happy with another man"
and
“I’d like to eat the lining out of your pussy.”
...
calling her
“little Ms. Big Tits”
and
“our Dolly Parton, the girl with the big ... smile. ”
...
telling recruits being interviewed for jobs with Waffle House,
“Your signing bonus will be a weekend in a hotel with Therese
...
in a bikini ”
...
grabbing her blouse, pulling it out, and leering,
“It was driving me crazy to see what those were. ”
... sticking a Polaroid camera between her legs, and under her dress, and
taking a picture of her crotch.
...
telling other Waffle House employees that
“Therese got so hot and wet that you could throw her panties against the wall and they would stick. ”
... et cetera.
3
Although other Waffle House executives and officers
4
actually witnessed some of the perverse sexual harassment of Therese Scribner by these three male executives and supervisors, they never reprimanded the harasses or sanctioned them for their egregious misconduct. Instead, one of them, Area Manager
Steve Wright,
was later promoted to become a Senior Vice-President of Waffle House; and the other two harassers, Regional Manager
Steve Oswald
and Division Manager
Tim Mercer,
also received promotions or other rewards from Waffle House.
With the backdrop of this corporate environment, it was not too surprising that other Waffle House executives and supervisors joined in the sexual harassment of Therese Scribner. For example, when Division Manager
Tim Mercer
stuck the Polaroid between Therese’s legs, and snapped a picture under her dress, Area Vice-President
Larry Cannon
was present; although he witnessed this reprehensible conduct, Cannon did not take any action against Mercer.
5
Therese Scribner repeatedly pleaded with Steve Wright, Steve Oswald, and Tim Mercer to stop their repugnant conduct — because, despite it, Therese was doing a very good job, and she wanted and needed to continue her employment at Waffle House. Scribner threatened to report Wright and Oswald if they did not stop the sexual harassment, but it continued. Then, Scribner complained to other Waffle House executives
6
about the sexual harassment, but “nothing ever hap
*879
pened.” Finally, Scribner was driven to complain to Donald “Skip” Nau, the new Waffle House “Vice-President of People,” shortly after Nau had become her supervisor.
Skip Nau documented some of Therese Scribner’s complaints of sexual harassment, and he reported them directly to Joe Rogers, Jr., the President, CEO and 78% owner of Waffle House. At the next Executive Committee meeting (held shortly after Joe Rogers received Nau’s report), Rogers asked Steve Wright about Scribner’s complaints; however, Wright flatly denied that he had ever engaged in any improper conduct towards Therese Scribner — and the Waffle House President, CEO and major stockholder did nothing about Nau’s report or the plaintiffs complaints of sexual harassment.
7
Then,
as the direct result of her sexual harassment complaints, Therese Scribner was promptly terminated
— less than four months after she had first complained to Skip Nau.
Supposedly, Waffle House terminated the plaintiff because she had been a “poor employee” and a poor recruiter — a preposterous claim, particularly since Scribner had never received a single complaint, warning or reprimand about her performance; since she had received regular pay increases during her entire three and one-half years at Waffle House; and since — about one year before her termination — Scribner had been persuaded not to quit her job at Waffle House by Steve Wright and by John Robertson, a Waffle House Vice-President.
After she filed this sexual harassment-retaliatory discharge suit against Waffle House, Therese Scribner started her own personnel recruiting company, the plaintiff
Resource Recruiters, Inc.
Two years later, Waffle House maliciously and tortiously interfered with a significant recruiting contract that Resource Recruiters had with Grandes, Inc. In doing so, Waffle House executives defamed Scribner and Resource Recruiters, Inc. by lying about why Scribner had been terminated by Waffle House.
These are Therese Scribner’s legal claims against Waffle House: sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq.
and Tex.Rev.Civ.Stat.Ann. art. 5221k, § 5.01; unequal pay in violation of Title VII and the Equal Pay Act, 29 U.S.C. §§ 206 d(l) and 215; and common law claims of breach of contract, defamation, intentional infliction of emotional distress, and tortious interference with the Resource Recruiters— Grand/s contract. With the exception of the alleged breach of contract, all of Scribner’s claims are meritorious, and she is entitled to recover the actual and punitive damages that are discussed below. The Resource Recruiters common law claims against Waffle House are these: tortious interference with the Grandy’s recruiting contract, defamation, and intentional infliction of emotional distress; these claims are also valid, and Resource is entitled to the recovery of the actual and punitive damages discussed below.
This opinion will first discuss the applicable law concerning a sexual harassment “hostile work environment” claim.
8
Next, it will state this Court’s findings regarding the credibility of the witnesses who testified at the non-jury trial. Then, it will discuss the facts established by the credible testimony and exhibits — including (i) the severe and pervasive sexual harassment that was committed by some Waffle House officers, executives and supervisors (and ignored by others), (ii) the unsuccessful attempt by a Waffle House executive to suborn perjury, and (iii) the successful attempt by other executives to bribe two trial witnesses. Finally, the opinion will discuss the law and the credible evidence supporting the award of actual damages and punitive damages on each of the claims of Therese Scribner and Resource Recruiters.
*880
Because of the length of this opinion — due primarily to the number of valid legal claims made by the plaintiffs and to the incredible extent of the severe, unrelenting sexual harassment and the Waffle House lies in this case
9
— it will begin, for convenience, with an outline of the various matters to be covered,
Page
I. The Law Applicable To Sexual Harassment Claims 881
II. The Credibility Of The Witnesses 884
III. The Facts 885
A. The Plaintiffs Employment At Waffle House 885
B. The Plaintiffs Performance 889
C. The Severe, Pervasive Sexual Harassment Of The Plaintiff 891
D. Waffle House Does Not Want The Plaintiff To Quit 905
E. The Plaintiff Again Complains About The Sexual Harassment — And, As The Result, She Is Terminated 906
F. The Fabricated “Reasons” Concocted To “Justify” The Plaintiffs Termination 912
1.
Lie Number One:
Waffle House Terminated The Plaintiff Because Of Her Poor Performance 912
2.
Lie Number Two:
That’s Why The Lady Is A Tramp 915
3.
Lie Number Three:
No One Has Ever Violated the Waffle Houses Sexual Harassment Policy 916
G. After The Plaintiffs Termination 918
1. The Higher Paid male Replacement 918
2. The Plaintiffs Complaints To The TCHR
10
Result In More Lies By Waffle House 918
3. The Plaintiff Starts Her Own Recruiting Business 920
4. The Fictitious “Raid” Upon Waffle House 921
5. Waffle House Threats Cause Grandy’s To Terminate Its Contract With Resource Recruiters 922
H. The Attempt To Suborn Perjury 924
IV. Liability And Actual Damages 925
A. Willful Discrimination In Pay 925
B. Sexual Harassment 929
*881
Page
C.
Intentional Infliction Of Emotional Distress
932
D.
Intentional Interference With The Contract Between Resource Recruiters and Grandy’s
933
E.
Defamation
934
F. Breach Of Contract 936
G. Summary Of Actual Damages 936
V. Punitive Damage 937
A. The Applicable Law 937
B. Punitive Damages: Sexual Harassment 940
C. Punitive Damages: Defamation And Tortious Interference 944
VI. Summary Of Actual And Punitive Damages 946
VII. Conclusion 947
I.
THE LAW APPLICABLE TO SEXUAL HARASSMENT CLAIMS
The recent Fifth Circuit decision in
Farpella
—Crosby
v. Horizon Health Care,
97 F.3d 803 (5th Cir.1996),
(Higginbotham, Wiener and
Benavides)
11
contains an excellent, succinct analysis of the law applicable to the Title VII sexual harassment claims of Therese Scribner. In that ease, the plaintiff Farpella-Crosby began work at a Horizon Health Care nursing home in June 1993. In February 1994, Jose Blanco, Horizon’s director of nursing, began to sexually harass the plaintiff; his harassing conduct included:
... frequent comments attributing Farpel-la-Crosb/s large number of children to
her proclivity to engage in sexual activity;
...
repeated comments that
“he knew what she liked to do”
because she had seven children and that she “must not have a television”;
... “joked” before a group at the nursing home that “Farpella-Crosby
doesn’t know how to use condoms”;
...
inquired frequently about Farpella-Crosby’s
sexual activity;
and
... often questioned Farpella-Crosby and a female co-worker about
“where they had been on the night before (while off duty), whether they had taken men home, and whether they ‘got any. ’ ”
In addition, on one occasion, after Farpel-la-Crosby had lunch in her office with a boyfriend, Blanco said,
“when you open the door [to the office], the smell offish just hits you in the face. You shouldn’t be doing that kind of thing at work.”
Another employee heard “Blanco making this comment and told him that he should stop.”
12
The plaintiff and the female co-worker both testified that Jose Blanco “made similar comments two or three times a week” — and the plaintiff added that Blanco’s sexual comments “were so frequent that she could not possibly remember each instance.” Blanco also
“threatened Farpella-Crosby with her job on numerous occasions when she asked him to stop making these ‘sexual comments. ’
”
13
In his testimony, Blanco “essentially admitted that he did ask Farpella-Crosby about her personal life,” but claimed that he did so
“because he believed the lack of sleep resulting from sexual activity could affect
*882
her work
performance.”
14
With respect to the
“the smell of fish just hits you in the face”
remark, Blanco did not actually deny making this comment, but claimed “that he did not recall it.”
15
The
Parpella-Crosby
opinion holds that, in order to establish a “hostile work environment” sexual harassment claim, a plaintiff must prove that:
... (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) the harassment complained of affected a term, condition, or privilege of employment
(ie.,
that the sexual harassment was so pervasive or severe as to alter her conditions of employment and create an abusive working environment); and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action ...
16
To be actionable, the challenged conduct must create an environment that a reasonable person would find hostile or abusive ...
17
(i)
severe and pervasive harassment
Farpella-Crosby
then discusses (i) the elements of liability in a sexual harassment case based on verbal conduct, and (ii) the requirements for the imposition of liability
against the employer
for “the employee’s offensive conduct.” To be actionable under Title VII, the sexual harassment must be:
...
sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.
Sexually discriminatory verbal intimidation, ridicule, and insults may be sufficiently severe or pervasive as to alter the conditions of the victim’s employment
and create an abusive working environment that violates Title VII_But the mere utterance of an ... epithet which engenders offensive feelings in an employee is not alone sufficient to support Title VII liability.
18
The Fifth Circuit held that Parpella-Cros-by’s evidence did support the jury’s finding that the sexual harassment by her supervisor (Jose Blanco) had been so pervasive or severe that it affected a term, condition, or privilege of her employment. The Court noted the:
... substantial evidence from which the jury could have concluded that Blanco’s comments and questions were sufficiently severe and pervasive as to alter the conditions of her employment and create an abusive working environment. Both Far-pella-Crosby and her coworker testified that Blanco inquired about Farpella-Cros-by\s sexual activity or made comments similarly offensive two or three times a week.
The record reflects that Blanco made many egregious comments to Far-pella-Crosby, some in front of co-workers, that in combination with his frequent inquisition about her sexual activity were sufficiently severe and pervasive to create a hostile work environment.
19
*883
(ii)
the employer knew or should have known of the sexual harassment
Of course, an “employer is liable for the discriminatory acts of an employee only if it knew or should have known of the employee’s offensive conduct and failed to take steps to repudiate that conduct and eliminate the hostile environment.”
20
Although it felt this was “undoubtedly a close question” in
Farpella-Crosby,
the Fifth Circuit held that the plaintiff had met her burden of proving that Horizon Health Care “knew or should have known” that she was being subjected to a hostile work environment-primarily with evidence of Farpella-Crosby’s complaints to two of the company’s “human resource directors,” Belinda Callejo and Gigi Hopper.
21
Specifically, Farpella-Crosby testified that she frequently talked to Belinda Callejo about “her problems” with Jose Blanco, telling the human resource director:
[Tjhat Jose Blanco ‘was making comments into [her] personal life’ and that he made ‘personal comments’ that she did not like ...
Although she testified that she did not give Callejo any specific examples,
she did tell Callejo that she found Blanco’s comments to be offensive.
Callejo
agreed that Farpella-Crosby had told her of job-related problems, but
denied that Farpel-la-Crosby had ever mentioned sexual harassment. Callejo also testified,
however,
that an employee need not say explicitly ‘I am being sexually harassed’,
before Callejo would take action as human resources director. Callejo said that she would consider it sufficient notice if Far-pella-Crosby had said that ‘things are being said to me.’
22
Farpella-Crosby also testified that, after Callejo was replaced as human resource director by Gigi Hopper, she had also complained to Hopper “that Blanco was ‘making comments into [her] personal life’ and that she considered the comments to be,offensive or unwelcome.’ ” And, Farpella-Crosby testified that she “intentionally failed to report” specific instances of sexual harassment in a statement she gave to Hopper “because she ‘had told Belinda [Callejo]’ and thought somebody would do something about what I had told Belinda.’ ”
23
In addition, the
Farpella-Crosby
opinion discusses another factor “relevant to whether [the employer] knew or should have known of [the sexual harassment]:
whether the conduct ‘took place in public, under the eye of co-workers or supervisors’ ”
24
With respect to Farpella-Crosby, “on several occasions, Blanco made offensive comments in the presence of [the plaintiffs] co-worker Robert Martinez and Humberto Arriola, assistant director of nursing.”
25
(iii)
the employer’s failure to take prompt remedial action
Finally, in
Farpella-Crosby,
the Fifth Circuit rejected the claim that Horizon’s “remedial action” had been taken promptly or that it was adequate.
Substantial evidence also supports a finding that Horizon failed to take prompt remedial action.
Callejo’s uniform response to Farpella-Crosby’s complaints was ‘Hang in there. Something’s got to be done. ’ Nothing, however, was done.
Viewing the evidence in the light most favorable to Farpella-Crosby,
she endured nearly six months of Blanco’s abusive behavior before Horizon took any action.
*884
There is no evidence that Callejo performed any investigation of Farpella Crosby’s complaints
or that she took any steps to remedy the situation.
This was not prompt remedial action.
26
This summary of the law applicable to sexual harassment claims, as explained by the Fifth Circuit in
Farpella-Crosby,
sets the framework for the following discussion of the facts concerning the severe, pervasive and disgusting sexual harassment of Therese Scribner.
II.
THE CREDIBILITY OF THE WITNESSES
These are the Court’s credibility determinations concerning the witnesses who testified at the non-jury trial in this case.
27
1.
The plaintiff:
THERESE SCRIBNER was a very, very credible witness. Indeed, during her three days of testimony, Therese was one of the most truthful persons who has ever testified before this Court.
2.
The sexual harassers:
STEVE WRIGHT and STEVE OSWALD, the first two Waffle House executives who sexually harassed Therese Scribner,
are both liars
— indeed, OSWALD is one of the two worst liars that has ever testified before this Court.
28
Both WRIGHT and OSWALD knowingly gave false testimony during their depositions; they reluctantly admitted some of these lies at trial, but they told new falsehoods and repeated some of their deposition lies. TIM MERCER, who also sexually harassed Therese Scribner, was the second of the two worst liars who have ever appeared before this Court (along with OSWALD). Indeed, as discussed below, MERCER was “rewarded” — with the bribe of a waffle House franchise restaurant in Colorado — for his perjured deposition testimony. TIM MERCER’s testimony, and that of his wife, SHERRY MERCER, are discredited almost entirely by this Court.
29
3.
The attempt to suborn perjury:
As discussed below, two Waffle House executives — DAVE THEOBOLD and LARRY CANNON — attempted to suborn perjury by intimidating DAVID SMITH, a former Waffle House employee, shortly before the trial in this ease. The Court discredits the testimony and the repeated lies of THEOBOLD and CANNON.
30
It credits the entire testimony given by DAVID SMITH, a very credible witness.
4.
The Waffle House executives who witnessed acts of sexual harassment:
Other Waffle House officers and supervisors witnessed some of the sexual harassment of THERESE SCRIBNER by STEVE WRIGHT, STEVE OSWALD, TIM MERCER and others. These include LARRY
*885
CANNON, LIB JULIAN, SKIP NAU, JOHN ROBERTSON and DAVE THEO-BOLD.
31
The Court discounts either all or major portions of their testimony, as specifically noted in this opinion.
5.
The witnesses for the plaintiff:
The witnesses who testified on behalf of THERESE SCRIBNER included GLENDA ADAMS, MATTHEW BULLOCK, LISA CHAMBLESS, DAVID COLEMAN, FRAN DUBUISSON, MARGARET DAILEY, TONY FISH, DAN GAY, RODNEY Le-BRAUN, MICHAEL ROBARE, JOE THOMAS, BOB WESSON and STEVE WILLIAMS. The Court credits their testimony because it was true.
32
6.
The other Waffle House witnesses:
The Waffle House witnesses also included DAVID ADAMS, OLENE MAE BROWNING, RICK BROWNING, TONY FISH, LISA MERCER (Tim Mercer’s first wife), DELINDA PEREZ and others. Some of these witnesses lied, and some were mistaken; the Court credits their testimony only to the extent specified in this opinion.
7.
The Waffle House President:
As discussed below, JOE ROGERS, JR., the President, CEO and majority (78%) stockholder of Waffle House, was present when one of STEVE WRIGHT’s first acts of sexual harassment took place. Despite this, ROGERS took no action against WRIGHT, and he later promoted WRIGHT, who became one of the top Waffle House executives at the company headquarters in Atlanta. ROGERS also gave false testimony about several matters.
33
The Court, therefore, discounts the testimony of JOE ROGERS, JR. insofar as it conflicts with the findings of fact in this opinion.
III.
THE FACTS
Based upon the evidence presented at trial and upon the credibility determinations just made, these are the Court’s findings of fact, as required by Fed.R.Civ.P. 52.
A.
The Plaintiffs Employment At Waffle House
1.
The Plaintiff
Therese Scribner was 42 at the time of trial. Married since 1974, Therese and her husband have two children.
After she attended Junior college in Mississippi, Scribner worked for several different employers, first in Mississippi and then in Dallas, usually as a secretary or an administrative assistant. Among her employers was McDonald’s, where she worked for about one and one-half years in the personnel department.
In 1983, Scribner became a personnel recruiter for Diversified Human Resources Group (“Diversified”) in Dallas, and she remained there for about three and one-half years. Scribner was very successful in personnel recruiting for Diversified. She received a number of awards and recognitions, including “Rookie of the Year”; she was the top biller at Diversified for two years; and she was earning over $60,000 a year. Scribner was certified by the National Association of Personnel Consultants, and she received numerous production-based awards from that Association and from the Texas Association of Personnel Consultants.
Despite her success, Scribner decided to leave Diversified in April of 1986. She was “burned out” and felt the job was taking too
*886
much time away from her family. For the next few months, Scribner did not work.
2.
The Defendant Waffle House
Waffle House, Inc. was started in 1955 by two men, Joe Rogers, Sr. and Tom Forkner. Waffle House is a chain of short order restaurants that are open 24 hours a day, 365 days a year. Its corporate offices are located in Atlanta, Georgia. In 1973,
Joe Rogers, Jr.
— the son of one of the founders — became President and CEO of Waffle House (two years after he had obtained a Masters Degree at Harvard Business School). Then, in 1978,
Joe Rogers, Jr.
34
became the controlling stockholder when he acquired 78% of Waffle House stock.
35
At the time of trial, Waffle House owned and operated some 465 restaurants in five marketing areas: Metro East (eastern Georgia), Metro West (western Georgia), the Eastern Area (North and South Carolina), the Gulf Coast Area (some of the states bordering the Gulf of Mexico), and the Western Area
(Texas,
Oklahoma, Colorado, Arizona and -parts of Louisiana). In addition to its own restaurants, Waffle House also had about 470 “franchise restaurants” in its five marketing areas and elsewhere.
36
These are the “management positions” at Waffle House and the number of restaurants — also called “units” and “stores” in trial testimony — for which each level of “management” is responsible:
Unit Manager
37
1 restaurant
District Manager 2-4 restaurants
Division Manager 12-15 restaurants
Regional Manager
38
25-30 restaurants
Area Manager
&
Assistant Vice-President up to 120 restaurants
Each Area Manager-Assistant Vice-President reports to the Vice-President of Operations in Atlanta, who in turn reports to the President & CEO of Waffle House, Joe Rogers. As the top executive and 78% owner of Waffle House, Rogers personally approves every hiring, firing and compensation decision involving his company.
39
From its beginning, Waffle House has been directed exclusively by white males. Corporate management has never included any females, African-Americans, Hispanics, or other minorities. The testimony at trial established that:
(i)
perhaps
12-15 of Waffle House’s 140 District Managers and two of its 45 Division Managers were females, but that none of its 20 Regional Managers, or its Area Managers or its officers in Atlanta were female; and
(ii) that perhaps 17-18 of Waffle House’s 140 District Managers and two of its 45 Division Managers were black, but that none of its Regional Managers, Area Managers or its Atlanta officers were black.
40
*887
3.
The Plaintiffs Hiring By Waffle House
Therese Scribner and her family lived in Grapevine, a suburb north of Dallas. One of her Mends and neighbors was Mary Wright. After Mary learned that Therese had left her personnel recruiting job with Diversified, she mentioned that her husband, Steve Wright,— who was the Western Area Manager and Assistant Vice-President of Waffle House— was looking for a recruiter in Dallas.
Shortly after this, the Wrights invited the Scribners to have dinner with them and another couple.
41
That evening (in May or June of 1986), Steve Wright told Therese that Waffle House did have an opening for a recruiter, and they discussed her experience and Waffle House’s recruiting needs. Therese gave Steve Wright a copy of her resume
42
and Wright told her that the recruiting job would pay from “$30,000 to $40,-000 or $50,000 a year.”
43
Following this dinner, Therese Scribner had two meetings at Waffle House with Joe Renfro, a Waffle House executive (Assistant Vice-President, Training) in the Western Area office in Dallas. Renfro told Therese about the company’s history, it’s structure and their training program. Later, Steve Wright asked Therese Scribner to come to his home for another meeting. There, Steve Wright offered Therese the vacant recruiting job, at a salary of $28,000 per year, with a potential bonus of $8,000 (with this bonus being based on three factors: whether she met hiring quotas, what number of her recruiting hires were “retained,” and her “communication skills”).
la
response to this offer by Wright, Therese Scribner said: “You told me the salary was a lot higher” (i.e., from $30,000 to $40,000 or $50,000 a year). Steve Wright replied to Therese with these two blatant lies:
(i)
that she had misunderstood him, and that the starting salary was only $28,-000, hut that “she could be making as much as $i0-$50,000 within six months”; and
(ii)
that she would be receiving the same compensation as Rick Seal, the Waffle House recruiter that Scribner was replacing.
After Wright told Therese that her compensation would be “the same as Rick Seal’s,” he then said that this offer was “nonnegotiable.”
44
Therese Scribner accepted Wright’s offer. Wright gave Therese “a couple of boxes of Rick Seal’s files” for her to review. And, on July 29, 1986, the plaintiff started work for Waffle House, at a base salary of $28,000 per year, with a maximum yearly bonus of $8,000.
Within a month or so, Therese Scribner learned from documents in Rick Seal’s files “that Seal had actually been receiving a base salary of $38,000, with a potential bonus of $10,000 — i.e., $12,000 more in potential compensation (salary plus bonus) than the $36,000 maximum that the plaintiff could receive.” Therese was so angry that she immediately confronted Steve Wright and asked:
‘Why am I making less than Rick Seal? Why did you hire me?”
Steve Wright grinned and replied:
*888
“I hired you because I saw you in a halter top and shorts.
You’re making less because you’re not a bread winner. You don’t need to make as much as a man. Your’s is second
income.”
45
Although Therese Scribner was very upset, she thought she would like the recruiting job with Waffle House — so, despite these first lies and the first inappropriate sexual comments by Steve Wright, Therese decided to continue to work at Waffle House.
4.
The Plaintiff’s Supervisors
For the rest of 1986, Therese Scribner reported directly to Steve Wright, the Western Area Manager and Assistant Vice-President. From January 1987 through September or early October of 1989, Scribner’s supervision was divided between Steve Wright and John Robertson,
46
the Vice-President, Operations Control, in the Atlanta home office. During this period, Robertson was in charge of “administrative issues” concerning Therese Scribner (such as compensation), while Steve Wright set her performance quotas and was responsible for her day-to-day supervision.
In September (or early October) of 1989, Steve Wright was promoted to the Waffle House headquarters in Atlanta.
47
For the next several weeks, the Area Vice-President, Larry Cannon was Scribner’s supervisor. Then, on October 1, 1989, Donald “Skip” Nau, a Vice-President in Atlanta, became head of the newly-created “People Department” of Waffle House. All recruiting functions were transferred to this new department, and Skip Nau was Therese Scribner’s supervisor until March 1,1990, when she was abruptly and unjustly terminated.
5.
The Plaintiff’s Responsibilities
Therese Scribner’s primary duty was to recruit new trainees for the Unit Manager positions (one restaurant) in the Dallas-Fort Worth area and, to a lesser degree, in other parts of the Waffle House Western Area.
48
Her other responsibilities included an Hourly Employee Training Coordinator program, the preparation and completion of forms concerning the initial interviews of recruits and exit interviews for departing employees, and planning and running special Western Area functions, such as the Top Operator
“Top Ops”
Awards Banquet and the Santa’s Sleigh holiday program.
49
Scribner received her initial training from Steve Wright. There was no structured training program; instead, after Scribner had reviewed the “Rick Seal files,” Wright took her to a few Waffle House restaurants to meet the Unit Managers and to learn the manner in which Waffle House wanted its employees to operate. Next, Wright took Scribner to some competitive restaurants— e.g., Hardy’s, Taco Bell, Grandy’s, etc. — to teach her “how to try to find people who might be interested in working” for Waffle House as Unit Managers, and to leave business cards with any interested prospects. Wright also instructed Scribner on the use of “word of mouth” — i.e., references from Waffle House employees or others to find Unit Manager recruits.
Steve Wright was specific about the “targets” that Therese Scribner should try to
*889
find for Waffle House:
young men
in the late 20’s, who were ex-football players or “other athletes,” and who would be “movers and shakers” as Unit Managers.
Wright also told the 'plaintiff that he “pretty much wanted white males.”
50
Wright said that he wanted Scribner to try to “upgrade the quality of their Unit Managers and above,” and he told her that Waffle House “needed promotable employees as
well as some who would be content with the lower jobs”
(i.e., Unit Managers).
Wright also instructed Scribner about how she was to conduct the interviews and the initial screening of the applicants. Steve Wright specifically told Therese Scribner— and he repeated these instructions several times — that she had no authority to hire anyone, and that the hiring would be done
only
by the District, Division and Regional Managers and by Wright, the Western Area Manager and Assistant Vice-President.
In summary, the credible trial evidence clearly established: (i) that Therese Scribner was given specific instructions by Steve Wright with respect to how, and when, and whom she could recruit; (ii) that there were no differences between Scribner’s authority and responsibilities and those of her predecessor, Rick Seal; and (iii) that Therese Scribner had no authority to hire new employees or to affect the operations of the Waffle House restaurants in any way.
B.
The Plaintiff’s Performance
Therese Scribner was an outstanding employee for Waffle House! She was intelligent, organized, innovative and very personable. In addition to doing an excellent job as a recruiter, Scribner also rapidly assumed other responsibilities, including:
(i)
Proper Records
—Therese established procedures and developed new forms for hiring new employees (e.g., reference checks, credit checks, rating sheets, a recruiting log, employment contracts, exit interviews, etc.);
(ii)
Training
— Therese instituted a training program for hourly employees at the restaurants (using a “training coordinator” to assist the Unit Manager), which was designed to reduce turnover;
51
(iii)
Monthly Newsletter
— Therese started a monthly newsletter for the Waffle House restaurants to help improve the morale of the unit employees.
52
As mentioned above, Scribner’s responsibilities also included (iv)
Santa’s Sleigh,
a Christmas project in which toys were delivered by supervisors to several hundred children of the hourly employees of the Waffle House restaurants in the Dallas-Fort Worth Area; and (v) the
“Top-Op”
Awards, a dinner-dance at which the “Top Operator Awards” were given to the most outstanding Waffle House employees.
Therese Scribner learned,
very soon after her initial training by Steve Wright,
just how incredibly demanding, confining, and exhausting the working conditions were for the Unit Managers.
From the trial testimony of Scribner and other credible witnesses, this is a fair summary of the job of a Waffle House Unit Manager (1 restaurant):
The Unit Manager at each Waffle House restaurant is responsible for everything. From 7:00 a.m. to 2:00 p.m. (the
First
Shift), he
53
cooks all the meals. Then, he
*890
does office work on the
Second Shift,
and usually leaves the restaurant between 3:00 to 5:00 p.m.
unless his replacement,
the assistant cook, has not shown up for work. Once the replacement cook arrives, the Unit Manager gets some time off, but he must return during the
Third Shift
to lock up the money and leave supplies and some cash for the night shift. However, if the assistant cook does not show up, then the Unit Manager has to “work around the clock” unless his District Manager “agrees to cover for him.”
Because of these harsh working conditions, morale at the Unit Manager level is extremely poor (to
say the very
least). As Therese Scribner soon learned, the long hours and the demanding conditions were incredibly difficult on family and personal life; and, understandably, they result in a very high turnover at the
Unit Manager level.
Scribner began documenting these and other problems — i.e., lack of management support, inconsistent treatment of Unit Managers by their supervisors, etc. — in her exit interviews of Unit Managers who quit.
54
Therese was well liked by the unit employees, but she had no authority to change either the demanding working conditions of the Unit Managers or the other things that were causing the high employee turnover at the Waffle House restaurants.
In her interviews with prospective Unit Managers, Therese Scribner “tried to cover both
the pros and the cons”
of this entry level management position at Waffle House. The advantages included a fast advancement track, with excellent compensation and much better working conditions “as one rose up the management ladder,” from Unit Manager to District and Division Manager. The disadvantages included the long hours, sometimes 60 to 70 to 80 hours a week; work on every holiday; and, as Therese told her recruits, “the hardest job you will ever have.” Steve Wright, after observing one of Therese’s interviews, told her it was “an effective interview,” and said “Great.
Just great.”
After her initial interviews, Scribner brought any person “she felt was qualified” to the attention of the District, Division and Regional Managers — who then conducted second interviews of the recruits, and who made all hiring decisions. As discussed above, and as was made very clear to her by Steve Wright,
Therese Scribner did not have the authority to hire anyone or to offer any recruit a job with Waffle House.
55
Therese Scribner worked 40-50 hours each week. Although the number of interviews she conducted each month with new recruits varied, she probably averaged around 30 per month. Therese tried other methods of recruiting besides the “cold calls” to other restaurant chains and “networking” (referrals from current employees). These included “job fairs”; an “All Star Recruiting Team” composed of all of the District Managers and Scribner;
56
contacts with personnel agencies (Wright was opposed to this);
57
and advertisements in newspapers (Wright didn’t like these either).
58
The Court specifically credits the testimony of Therese Scribner that her recruiting efforts were “easily 85%” in the “cold-calling” at rival restaurants and “networking” with Waffle House employees and that, at most, 15% of her recruiting was done by personnel agencies and newspaper advertisements.
59
*891
No one ever told Therese Scribner that there were any problems with her interviewing style.
To the contrary, Steve Wright said “it was excellent”; and, Larry Cannon, her supervisor for a two-month period in 1989, gave Therese “high marks” for her interviewing methods.
60
Nor did anyone
— not Steve Wright, not Skip Nau, and not a single other supervi
sor
— ever
tell Therese Scribner that she was not doing a good job as a recruiter.
Therese received only one written performance evaluation, the one by Larry Cannon on January 26, 1988, and it was a very positive one.
61
Therese normally met, or came close to meeting, all hiring quotas set by her supervisors. And, of course, she received consistent, periodic increases in her pay.
Therese was recognized by Waffle House for her outstanding work in creating the training program for unit hourly employees. In October 1988, she was presented an “award of excellence” for her work in recruiting and training. And, in early 1989, when they learned that Therese was considering quitting her job, both Steve Wright and John Robertson encouraged Scribner and persuaded her to stay with Waffle House. Not one supervisor ever told Therese Scribner, “You are doing a poor job.”
62
However, the fact that Therese performed her recruiting and other responsibilities in an exceptional, dedicated and loyal manner is quite remarkable,
indeed
— because
during this entire period, she was being subjected to pervasive, demeaning and severe sexual harassment, first by Steve Wright, next by Steve Oswald, and then by Tim Mercer.
C.
The Severe, Pervasive Sexual Harassment Of The Plaintiff
Therese Scribner was subjected to unrelenting and unwelcome sexual harassment by Waffle House officers, executives and supervisors. This sexual harassment was pervasive, it was severe. The sex-based comments made
to her
— and
about hei
— were gross, lecherous and disgusting. This sexual harassment of the plaintiff was, without question, so severe and pervasive that it altered “the conditions of her employment” and created “an abusive working environment.”
63
The first person who sexually harassed Therese Scribner was
Steve Wright,
the Western Area Manager and Assistant Vice-President (who, despite his conduct, was later promoted to the position of Senior Vice-President of Waffle House). The next harassing supervisor, whose misconduct was even more egregious than Wright’s, was
Steve Oswald.
Oswald was Scribner’s Regional Manager (who, despite his repugnant behavior, was promoted to the position of Assistant Vice-President and Area Manager, Western Region). On cross-examination and in questioning by the Court, both Steve Wright and Steve Oswald admitted that they had made various sexual comments, to Therese Scribner — and
Wright also admitted that this conduct was in violation of the Waffle House sexual harassment policy.
The next supervisor who sexually harassed the plaintiff was
Tim Mercer.
Mercer was first a District Manager, then a Division Manager, and then a District Manager again after demotion,
64
all in the Western Area. His sexual harassment of Therese Scribner was even more demeaning and severe than that of Steve Oswald. And, finally, the other Waffle House officers, executives and supervisors who are discussed below either witnessed — or participated in — some of the acts of sexual harassment of the plaintiff.
*892
Therese Scribner recorded some (but not all) of these acts of sexual harassment in
her 1987 day-timer
and in
her office calender.
Although these records are not a complete account (her day-timers for other years were lost) or a comprehensive list (she noted only some of the harassment), they are very credible records that illustrate the nature of the sex-based comments and conduct to which the plaintiff was subjected. Several months after her termination, Scribner prepared a
chronology
of some more (but still not all) of the acts of sexual harassment; this chronology
{Exhibit 166)
— which lists the date and substance of, and the persons involved in, the various acts of sexual harassment — is also very accurate.
65
Then, about three years after her termination by Waffle House, Scribner drafted a
list of the acts of sexual harassment by Steve Oswald
(Exhibit 167); this chronology, which was verified by the testimony of Scribner and other witnesses, is also very credible evidence, too.
66
1.
The Beginning: Sexual Harassment Of The Plaintiff By Steve Wright
Within two or three months after Therese Scribner was hired by Steve Wright, Therese learned that she was being paid $12,000 a year less than the male recruiter she had replaced (Rick Seal). She angrily confronted Steve Wright about this; and, he replied:
“I hired you because I saw you in a halter top and shoyts.
You’re making less because you’re not a bread winner. You don’t need to make as much as a man. Your’s is second income.”
67
This sexist remark by Steve Wright in the fall of 1986 was followed by an increasing level of sexual harassment by Wright. This pattern of sexual harassment, which quickly became much more severe and pervasive, was clearly established at trial by the very credible testimony of Therese Scribner and the other honest witnesses discussed below. It was confirmed by the repeated impeachment of Steve Wright. In addition, some of Therese’s sexual harassment by Wright was actually witnessed by other Waffle House officers, executives and supervisors.
“She’s our Dolly Parton”
In the summer of 1987, Waffle House held a
“Top Op”
party at Bear Creek in Dallas to honor the “Top Operators” in the Western Area. Therese Scribner was in charge of this function, and she made all the arrangements for it. When Steve Wright introduced Therese Scribner to the crowd, he made this leering reference to the size of Scribner’s breasts:
“Therese Scribner is our ‘Dolly Parton.’ The girl with the big
...
(pause) ... smile!”
Lib Julian, the Waffle House Senior Executive Vice-President, Operations — from the Waffle House headquarters in Atlanta — was present at this “Top Op” banquet. He did not reprimand Steve Wright, or say anything at all to him, about this inappropriate “Dolly Parton” comment. And, Lib Julian did not report this incident to anyone.
Later that night, Mary Wright (Steve’s wife) apologized to Therese Scribner for the
*893
conduct of her husband towards Therese who was very shocked and upset by this “Dolly Parton” remark. After a day or so, Therese did complain to Steve Wright, telling him that this comment about the size of her breasts offended her very much. In response, Wright only “shrugged it off, like it was no big deal.”
68
“a weekend with Therese in a bikini”
At a working meeting in Dallas at the Sheraton Hotel in August 1987 — where new recruits were being interviewed by Wright, Scribner and others — Steve Wright announced to the prospective Waffle House employees:
“Whoever agrees to join Waffle House will get a
‘sign-on bonus. ’ Therese will be your hostess in a hotel for a weekend
...
wearing a bikini.”
Again, Therese was shocked by this embarrassing, public comment. Later, she angrily confronted Steve Wright, telling him how humiliated it made her feel — and also telling Wright that one of the recruits had even asked her later,
“Are you really going to be wearing a bikini?”
Wright just ignored these complaints by Therese.
69
Joe Rogers, the President, CEO and 78% owner of Waffle House was present at this Sheraton Hotel meeting.
Although he witnessed the “sign-on bonus, weekend with Therese” statement by Steve Wright — as well as Scribner’s embarrassment — he said nothing at all to Wright about his improper conduct. If Joe Rogers had taken some prompt corrective action then — as, indeed, he should have — the subsequent sexual harassment of Therese Scribner by Steve Wright and other Waffle House officers, executives and supervisors probably would have been deterred. Instead, Rogers did nothing, and the sexual harassment of Therese not only continued, it escalated.
Steve Wright repeated this “sign-on bonus, weekend with Therese in a bikini” remark to new recruits on many other occasions. Each time, Therese Scribner was upset and angry. Each time, she complained to Wright, telling him (for example) that ‘Tour conduct is unprofessional.” In response, Wright would just laugh and tell Therese something like,
“It’s no big deal, just a clever comment.”
other sexual comments by Wright
Steve Wright made numerous other remarks about Therese Scribner’s breasts. For example, in front of other Waffle House employees (and Therese), he stated that
“Therese’s big boobs help her in recruiting. It’s an unfair advantage for her.”
In October 1988, Steve Wright also told Therese, “That’s a really nice outfit on a really nice body.” And, in December 1988, Wright — in the presence of Lib Julian (Senior Vice-President, Operations), at the Marriott Courtyard hotel in
Dallas
— “grabbed
Theres-es’ blouse, pulled it out, looked doum at her breasts, and smirked: It was driving me crazy to see what those were.”
70
Lib Julian did not reproach Wright about this sexually harassing conduct, nor did he report it to anyone else at Waffle House.
Therese Scribner gave other examples of the severe, pervasive acts of sexual harassment by Steve Wright. These included the following:
... before other Waffle House managers, Wright asked Therese, “Are you on the rag?” (and he repeated this numerous times).
... in February 1988, on a business trip to Phoenix, Wright suggested to Therese: “Let’s go out and paint the town.
Your husband is far enough away. ”
*894
... in June 1989, when Wright saw Therese in a black dress, he said:
“I’d like to jump your bones.”
... in May 1989, when they learned that
one of the Waffle House Unit Managers had been charged with raping a waitress, Wright
told Therese that
“he thought it was comical”
and
“he just laughed about it.”
71
In May of 1988, at a Waffle House meeting in the Sheraton Hotel in Dallas, Steve Wright actually told the Division Managers that they “should support” Therese Scribner and
“show more respect for her.”
Later, Therese told Wright that the Division Managers “were following your example.” In recording this incident, the plaintiff noted that Wright “said he was just being complimentary.”
And, Wright’s sexual harassment continued. For example, in March 1989, at a meeting of Division and District Managers at the Red Lobster Inn in Dallas, Wright again made the comment “that [Therese’s] big boobs assist [her] in [her] recruiting efforts.”
72
These are only examples.
Indeed, as Therese Scribner testified, they were by no means all of the perverse acts of sexual harassment by Steve Wright. On numerous occasions, Therese told Wright that she would report him if he did not stop the harassment — but Wright’s conduct toward her never changed. However, in August of 1989, Steve Wright was promoted and transferred to the Waffle House headquarters in Atlanta.
73
From then on, Wright had fewer direct contacts with Therese Scribner — although, as discussed below, his control over her employment at Waffle House did not cease.
Despite the sexual remarks he made about Therese Scribner in the presence of other Waffle House supervisors, employees, and recruits — her “big smile,” her “big boobs,” etc. — Steve Wright even testified that he had never been present when Waffle House supervisors “were engaging in guy talk” about Therese and other female employees.
This was false, absolutely false!
In addition, in response to the Court’s question about whether Wright had ever witnessed a violation of the company’s Sexual Harassment Policy,
Wright lied again:
“There are things that were said, I’m sure, among the guys in the restaurants. I feel positive about that.
But first hand information,
no.”
74
2.
The Sexual Harassment of The Plaintiff By Steve Oswald
The sexual harassment of Therese Scribner by Steve Wright was bad enough, but her sexual harassment by Steve Oswald— who had witnessed Wright’s misconduct towards Therese on many occasions — became even worse. Steve Oswald remained as Western Area Regional Manager after Wright’s promotion to Atlanta. Later, Oswald was promoted to the position of Western Area Manager and Assistant Vice-President.
75
Steve Oswald constantly repeated Wright’s “sign-on bonus, weekend with Therese in a bikini” comment while interviewing new recruits with Scribner.
76
He made incessant
*895
remarks about her breasts, almost routinely referring to Therese as
“little Ms. Big Tits.”
He literally bombarded Therese with vulgar remarks about her sex life, his sexual prowess, etc.
Some
of Steve Oswald’s harassing conduct is recorded in Exhibit 167,
77
a list prepared by Therese Scribner for her attorneys after this suit was filed. It reads:
“Comments Made By Steve Oswald To Therese Scribner
* Stacked well enough to be matching bookends.
* Referred to me as ‘little Ms. big tits.’
* Lots of filthy jokes using heavy four letter words.
*
Asked me several times if I wanted to sit on his face.
*
Asked about size of my husband’s penis
—said his own was ‘bigger than life,’ ‘a whopper,’ said
if I ever fucked him I would never be happy mth another man.
* Made references to
‘Mississippi women’ being good fucks and sucks.
*
Asked me if I ever sucked chrome off a bumper
or .sucked a golf ball through a straw — bet I could.
* Tallied about kinky sex with rubber tubing and ropes.
*
Asked if I had ever been eaten by a man with ice in his mouth.
* Constantly (every conversation) interjected filthy comments during a business conversation.
* Told three applicants during interviews that if they came on board with Waffle House there was a ‘sign-on’ bonus — a weekend with Therese.
* Asked me if I ever see my feet.
* After meeting Bob
78
for the first time he asked if I ever get tired of being on top— he would be happy to oblige me.
*
Said he would like to ‘eat the lining out of my pussy. ’ ”
Therese Scribner was asked when each one of these things took place. Her responses placed many of them at events where other Waffle House executives, supervisors and employees were present — specifically (1) at a company banquet
(matching bookends),
(2) “said on a regular basis”
(little Ms. big tits),
(3) “happened regularly”
(lots of filthy jokes),
(4) the first time, “after an Area Meeting at the Sheraton”
{want to sit on my face?),
(5) “can’t remember” (size of husband’s penis), (6) “at an Area Meeting”
(Mississippi women are good fucks and sucks),
(7) at an Arlington restaurant
(ever sucked chrome off a bumper?),
(8) on a trip to Shreveport with Tim Mercer
(kinky sex talk),
(9) at a Waffle House restaurant on Jupiter Road
(ever been eaten by a man with ice in his mouth?),
(10) “constantly”
(filthy comments),
(11) “many times”
(weekend with Therese in a bikini),
(12) “on occasion”
(ever see your
feet?), (13) in a car with Larry Cannon
(do you ever get tired of being on top?),
and (14) at a restaurant where Scribner “was helping behind the counter”
(I’d like to eat the lining out of your pussy).
79
Steve Oswald lied repeatedly,
80
both at his deposition and in his trial testimony, about these and his other acts of sexual harassment of Therese Scribner. For example, in his deposition, this was Oswald’s answer to a question by the plaintiffs’ attorney:
Q. During your tenure as an employee of Waffle House, have there ever been any allegations of a sexual harassment or sexual misconduct made against you by female Waffle House employees?
A.
No.
*896
This was a lie. At trial, Scribner’s attorney began his examination of Oswald by reading the very same question from the deposition; however, this time Oswald gave a different answer:
Q. During your tenure as an employee of Waffle House, have there ever been any allegations of a sexual harassment or sexual misconduct made against you by female Waffle House employees?
A.
Yes.
During his deposition, Steve Oswald lied when he denied making any sex-based comments to Therese Scribner, including the statements listed on Exhibit 167. But at trial, Oswald admitted to the plaintiffs’ attorney that he had, in fact, made the “sign-on bonus, weekend with Therese in a bikini” statement; and he, admitted to making the “matching bookend” comment.
81
However, in his deposition and initially in his trial testimony, Oswald flatly denied that any of the other entries on Exhibit 167 were true.
This, of course, was another blatant Oswald lie. During questioning by the Court, Steve Oswald finally admitted that he had actually said that the plaintiff had “big tits,” that he had told “lots of filthy jokes using heavy four-letter words,” and that he “could have” made some of the other remarks on the plaintiffs list “in a joking manner.” But each time he was impeached, Oswald would try to minimize his admissions and his conduct, as shown by the following examples.
82
“little Ms. big tits”
Q. You never referred to her [the plaintiff] — not just to her, but to anybody else, that she had big tits?
A. You know, I didn’t refer to her in person as that. You know, somebody would have asked me and, you know, describe Terez and
I would say she’s got big breasts ...
Q.
You probably said “big tits?”
A.
I could have, yes.
(Later)
Q. You’re positive that it (saying the plaintiff had big tits) only happened one time?
A. I wouldn’t
have
— if
it came up, it came up one time.
I don’t generally talk that way.
Q.
May not have ever happened?
A.
I’m sure it happened. I’m not saying it didn’t happen.
Q.
But you’re sure it only happened one time?
A.
I’m sure.
Q.
But you can’t tell me why you think it only happened one time?
A.
No, sir.
The “sign-on bonus: a weekend with Therese in a bikini” lies
Still lying, Steve Oswald swore that there were only two occasions when he made the “your sign-on bonus is a weekend in a hotel with Therese wearing a bikini” comment to recruits. Then, Oswald proceeded to tell additional lies:
Q.
You [made that remark because you] were trying to put the applicants at ease and that (sign-on bonus comment) was just a joke?
A.
Yes, sir.
Q. [Therese would] laugh?
A. She laughed. Everybody laughed. It was a joke.
Q.
But
...
[if] you thought that was a good interviewing technique,
“just to make the person feel at ease?” ... if it was, if it worked,
why didn’t you do it more than just two times?
A. Because after a while I’d gotten so— you know, with Terez, Terez and my
*897
relationship had soured quite a bit because I didn’t — I just quite frankly didn’t think she was doing the job that she was hired to do....
“filthy jokes and four-letter words”
Another Steve Oswald he was that, although he and Therese Scribner told “lots of filthy jokes” with “lots of four-letter words,” there was no use of “real heavy” profanity.
Q. Okay. What kind of four-letter words?
A. Just a joke.
You know, I wouldn’t say they were real heavy four-letter
words....
Q. She [the plaintiff] would use four-letter words?
A. Yes, sir.
Q.
Hell, damn?
A.
Yes, sir.
Q.
Fuck, shit?
A.
Yes, sir.
told filthy jokes, but never said “tits”
Ever a paragon of virtue, Steve Oswald gave this bizarre explanation for his incredible testimony that he and the plaintiff would tell jokes and use profanity, but they would never, ever joke about “her breasts.”
Q. So you probably said she had ‘big tits’?
A. Yes, sir.
Q. But not to her directly?
A. No, sir. No, sir.
Q.
Well, if y’all were joking around telling filthy jokes and she was brushing up against you
[with her breasts], why wouldn’t you say to her ... if it’s second nature to you to use the word “tits,”
why didn’t you say, you know, “Therese, get those big tits off of me?”
A. I wouldn’t have said that.
I would have said, “Terez, please watch those things. ”
Talking to the guys I might say something like that, but I wouldn’t say that to a woman. That’s just not things I would say.
83
Therese Scribner was also very credible in describing Steve Oswald’s repeated, unwelcome physical contact with her — e.g., backing into her and “accidentally” bumping her breasts; tickling her under her arms; rubbing his legs against her thighs; etc.
84
Oswald lied about these physical contacts he had with Therese, too.
85
The first two times that Steve Oswald made the “sign-on bonus/weekend with Therese in a bikini” remark to a recruit, Scribner angrily complained to him. However, Oswald just “thought it was humorous.” On the third time (October 12, 1989),
86
Therese Scribner was so upset that she warned Oswald:
“If you don’t stop, I will report you to Larry Cannon and to the EEOC.”
Oswald was not concerned by her complaint, and he replied:
“Hey, I just think it’s funny.”
Therese made other angry, bitter complaints to Steve Oswald about his conduct; however, just as in the case of Steve Wright, Oswald’s conduct never changed.
In summary, Therese Scribner’s testimony about the incredibly severe, pervasive and demeaning sexual harassment of her by Steve Oswald was very, very credible. Dur
*898
ing her direct examination, when her attorney was asking questions about each one of the entries on Exhibit 167,
Therese began crying
— obviously because she was remembering the shame, the humiliation, and the degradation she felt because of Oswald’s abuse. Seeing this, Scribner’s attorney quickly asked her one general question about all the remaining statements on Exhibit 167, and moved to other topics. At this point, the Court’s contemporaneous trial notes contain these remarks:
“PL crying while answering. Very credible. Humiliated. Embarrassed. Angry. Upset. So tired of it. Confused.
Couldn’t quit. Needed job.”
3.
The Sexual Harassment of the Plaintiff by Tim Mercer
— and
the Bribery of the Mercers
With the Western Area Manager and Assistant Vice-President (Steve Wright) and the Regional Manager (Steve Oswald) setting such sterling examples — by their open and pervasive sexual harassment of Therese Scribner
in the presence of anyone
(whether Waffle House officers,
87
executives, supervisors, employees, or recruits) — it was not surprising that Wright and Oswald were soon joined by other Waffle House managers, including Tim Mercer.
Mercer was the only witness who told more lies at trial about Therese Scribner— and about his sexual harassment of her — as Steve Oswald did in his perjured testimony. Tim Mercer started with Waffle House as a Unit Manager (one restaurant). Within a year, Mercer was promoted, becoming a District Manager (2-4 restaurants). He was a Division Manager (12-15 restaurants) for a while, but was demoted in December 1990 and again became a District Manager.
88
“the plaintiff got so hot and wet” that her panties would “stick” against the wall
The very beginning of Tim Mercer’s testimony at trial was his admission to the plaintiffs attorney that, contrary to his deposition lies, he “may” have made a statement like this about Therese Scribner:
“She got
so
hot and wet that you could throw her panties against the wall and they would stick. ”
The truth, however, did not come easily to Tim Mercer. After his sworn deposition denial was followed by his sworn trial admission of this repulsive comment, Mercer “explained” that “he
may
have said this in jest, in a joking manner,”
but not in the presence
of Scribner
or other Waffle House employees ...
then, Mercer admitted that, well he “could have made this remark in front of Scribner” ... and, finally, Mercer conceded that “he could have made this statement in front of other employees of Waffle House.”
“sex banter and vulgar language”
Tim Mercer, of course, lied about the relationship he had with Therese Scribner. Mercer testified that Therese and I “had a great relationship”; that “we were really open with each other”; that “we enjoyed each other’s company” (and only had a “few spats”), and that “we spoke all the time on the phone after the plaintiff was fired.”
89
These lies were followed by Mercer’s “explanation” that he and Therese “cut up and told jokes”; that “anything went”; that “we used vulgar language” (but “not around others”); and, that it “was always a joke.” With
*899
this preamble, Tim Mercer proceeded to tell one blatant lie after another, including these:
... that Therese was always joking about her breasts, calling them
“big tits.”
...
that she made numerous other comments about “her tits,” like, “Therese and
The Boys
are here.”
... that they joked about
“a bulge in his pants”,
90
but there was “only a look” and “nothing was said,”
and Therese “was smiling about it. ”
“the sexual harassment by Steve Wright”
Similarly, when Tim Mercer was asked this
question
— “Did
you ever hear Steve Wright say that anyone who teams up mth Therese Scribner has an unfair advantage because of the size of her breasts?”
— Mercer gave this “evolving” answer: first, he flatly denied ever hearing Wright make this remark; then, he admitted that Wright had “made statements to this effect, possibly”; next, he claimed, “I can’t really say I heard [Wright] say that”; but then he admitted that he “had heard such comments about her large breasts”; and once again, he “didn’t recall” if he heard Wright make comments “about the plaintiffs breasts”; next, he claimed he didn’t “remember the exact comments” that Wright made; and ...
finally ...
Mercer said,
“I’m confused about the question, kind of.”
Mercer and the sexual harassment policy
The lies that Tim Mercer told about the Waffle House sexual harassment policy, and his lies about whether others were present during the “sexual banter and vulgar language” between he and Therese Scribner, were just as conflicting as his other lies. After Mercer testified that “he did not recall” reporting “anybody for violation of the Waffle House sexual harassment policy,” he gave this testimony:
“THE COURT: Then, you told ... both of the attorneys about the sex banter [and vulgar comments] between you and the plaintiff ... Was
that a violation of any company policy?”
MERCER: I mean, I have to answer again, I don’t feel I mean, I don’t feel like it was, but it was just that language that was used. That language was used, whether it was on the business or, you know, out at, you know, at a lunch ...
THE COURT: I want you to tell me any instance that you can think of where someone else was present when you and Therese were engaging in this sex banter ... [and making] jokes or comments about “her tits” or breasts or anything like that....
MERCER: When anybody else was around? ... I mean, it’s so hard to just kind of pinpoint that to a time, you know.
I want to say
— I mean, there were other people around. I don’t know if it was bosses, hourly associates or what. It’s hard to pinpoint that down....
THE COURT: So, there were or there were not other people present?
MERCER:
I mean, I want to say there was,
but I don’t know if it was hourly or
THE COURT: I mean,
it’s your answer. If you want to, go ahead and say it. Either yes or no.
MERCER: “I want to say there were other people around, yes.”
the Santa’s Sleigh/Polaroid “crotch shot”
Tim Mercer also lied about the disgusting incident that took place on a Winnebago being used by management employees for the annual “Santa’s Sleigh” program, where Christmas gifts were delivered to the children of the restaurant hourly employees in the Dallas-Fort Worth area.
Mercer was sitting next to (or across the aisle from) Therese Scribner. He suddenly
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stuck his Polaroid camera between her legs, put it up under her dress, and snapped a picture of Scribner’s crotch.
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Surprisingly, Tim Mercer admitted at trial that he did “something” with a Polaroid camera involving Therese; but, he then proceeded to lie repeatedly about the incident: he really “didn’t intend” to take a crotch picture, and he really just “put the camera down
at her leg, ” not under her dress.
According to his next batch of lies, Mercer claimed that
“Therese didn’t seem unhappy or offended or upset”;
that she just grabbed his camera and said,
“You nut”;
that “we were all taking pictures of each other”; that “it was not disrespect because it was done in a joking manner”; and that afterwards, “we had a blast, a fun time.”
The Court then reminded Tim Mercer that he had “told one of the attorneys that the incident with the Polaroid camera was not a violation of the Waffle House Sexual Harassment Policy.” Mercer was asked to explain this answer, and he replied:
“MERCER: It sounds real bad, I agree with that now, but it’s just at the time it was just a fun — it was just in fun. It was nothing.... We were all crunched up on the couch of a Winnebago and there’s not a lot of room in those. I just reached over and stuck it by her legs. I wouldn’t even say the camera was between her legs. It would have taken the front part of her knees.
THE COURT: I understand what you said happened. And I’m asking you ... to explain that answer, why was it not a violation of the sexual harassment policy?
MERCER: Well, I mean, I feel like if I had heard that from somebody else, it does not sound good. But I was there and, you know, I did it. I mean, I feel like it was wrong now.
It was just
— it
was just a joke....
THE COURT: Now, I want you to understand what I’m asking you. I want you to tell me why that wasn’t a violation of the sexual harassment policy.... Again, do you understand the question I’m asking you?
MERCER:
I mean, yes, I do. I don’t know how to answer it though.
THE COURT: Well, I’ll tell you what I’m wilting down here [in my notes] is that you think that did not violate the company sexual harassment policy because it was a joke, it wasn’t serious and it was just done in a fun way and therefore, it doesn’t violate the policy. Is that your answer?.
MERCER: I’m sorry, sir. I don’t know how else to answer it. I mean, it doesn’t sound good.”
Larry Cannon, the Area Vice-President, was on this Santa’s Sleigh ride and he witnessed this repulsive, demeaning conduct by Tim Mercer — and he also saw Therese Scribner’s anger and humiliation. Other Waffle House managers and supervisors were on the Winnebago, too. However, no one reprimanded Mercer or apologized to Therese Scribner, and no one reported Mercer’s misconduct to any superior
Mercer’s interview with Grandy’s
After Tim'Mercer was demoted from his Division Manager position at Waffle House in December 1990, he returned to a District Manager’s job in the Western Area. Sometime after this demotion, Mercer called Therese Scribner at Resource Recruiters,
92
and asked her to help him find another job. Therese arranged an interview for Mercer with Grandy’s.
93
At trial, Mercer testified he did go to Grandy’s and “interview for a change of position,” but that he decided to
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stay at Waffle House. However, as was his habit, Tim Mercer told lie after lie about his interview with Grandy’s, which began:
“Q. Did you ask her (the plaintiff to find another job for you?)
A. (No response at first, then ...
final
ly) I would have to way ‘yes’,
but she (Therese) mentioned it first.”
Then, Tim Mercer tried to embellish his lies: he swore (falsely) that Therese Scribner supposedly told Mercer the same Tim Mercer who had taken the Polaroid “crotch shot” of her on Santa’s Sleigh that made Therese so angry and humiliated that “We’re going to clean out Waffle House and you’re next. I can get you a good job.” And, of course, Tim Mercer proceeded to tell another string of lies:
... that it wasn’t really an “interview”;
... that he was “just checking out Gran-dy’s because we (Waffle House) had ‘lost so many employees to them’
... that his Grandy’s interview wasn’t really for a “change of position,” because he “just wanted to see what Grandy’s was offering” and give this information to Waffle House.
the reward for the Mercers’ perjury
Before his deposition in this case was taken on February 17, 1994, Tim Mercer was contacted by Area Manager Larry Cannon (who had been the plaintiffs supervisor for a few weeks in the fell of 1989). Cannon discussed with Tim Mercer the possibility of Mercer becoming the “Managing Partner” of a Waffle House “franchise restaurant” in Colorado. Although there “were no promises” (according to Tim Mercer), Cannon told Mercer that he would “have an opportunity for the franchise store” in Colorado
“if you continue to do a good job.”
In this same meeting, Cannon also talked with Tim Mercer about his forthcoming deposition in the Scribner case. Following this, Mercer’s deposition was taken; during it, he told numerous lies and made false and derogatory statements about Therese Scribner, including his testimony that:
... Therese made remarks about her breasts
(“Therese and the boys are here
”);
... she told Mercer that
“she couldn’t run because they (her breasts) would black both of her eyes
”;
... she said that “when I have sex with my husband,
I like it on top
”;
... she and Mercer would tell each other
“sex based jokes
”; and
... Therese told him that
“she was going to nail Steve Wright’s balls to the wall.”
The credible trial evidence established that Tim Mercer told these lies at his deposition, just as Larry Cannon (and Waffle House) wanted. As a result, even though Mercer
was
— at
the very best
—a marginal employee, he and his wife were rewarded with a franchise restaurant of their own in Colorado.
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4.
The Others Who Witnessed The Sexual Harassment Of The Plaintiff
Much of the sexual harassment of Therese Scribner by Steve Wright, Steve Oswald and Tim Mercer took place in the presence of other employees of Waffle House. For example, many of the Western Area managers (from Texas, Oklahoma, Colorado, Arizona and parts of Louisiana) were present at the Bear Creek banquet in the summer of 1987, when the “Top Operators” were receiving awards — and they heard Steve Wright’s “Dolly Parton” introduction of Therese.
95
In addition, other credible witnesses testified either that they heard Waffle House supervisors make sexual remarks about the plaintiff out of her presence, or that they had actually
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seen some of the severe and pervasive sexual harassment of Therese Scribner.
One of these witnesses was MICHAEL ROBARE, a former Unit Manager for Waffle House. When asked to give some specific examples of the sexual remarks made about Theresa, Robare replied: “I mean,
we can be here all day and tomorrow doing this.”
Then, Robare testified about incidents like these:
... Wright hung up the phone after talking to Scribner and told Robare,
“I know what she really needs, she needs a man like me. Boy, I’d like to see her tits.”
...
Wright told Robare, “I was with her (Therese) at the last restaurant and she was looking good today.
You wouldn’t believe that dress she had on.”
...
Wright said some “embarrassing” and “very graphic” things about Scribner “and her body parts,” and
“it was pretty much every time [Robare] saw him ... that things like this would transpire.”
...
After Wright made a sexual remark to Therese in front of Robare, he later asked Wright, ‘Why did you say that?” Wright replied,
“Oh, I say that stuff all the time. That’s just Terez.”
Robare’s supervisors were Steve Wright and Larry Cannon (the Western Area Vice-President). He described how both Cannon and Wright constantly made sexual remarks about Theresa Scribner and also about the female hourly employees at the Waffle House restaurants. For example, whenever Robare hired “a real good-looking waitress,” Wright would say something like,
“Hey, she’s awful nice. Get more like her. Nice butt. The customers mil like it.”
Larry Cannon made similar comments about female employees, and he told Robare that Therese
“needs a real man. I could give her what she needs.”
Although Michael Robare had been terminated by Waffle House “for having an affair with an Assistant Manager,”
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his testimony was
very, very credible!
DON KELLY was another former Unit Manager. When Kelly was first interviewed for employment by Steve Wright and Therese Scribner, Wright made his “standard
comment”
— “Your
signing bonus will be a weekend in a hotel with Therese ... in a bikini
” — while the plaintiff was in the rest room. Kelly gave these additional examples
... During this same interview, Kelly said “She (Scribner) is a nice lady.” Wright responded “out of the blue” with this: “Yeah,
she has nice breasts.”
When Scribner returned from the rest room, Wright asked her,
“Would you like to go get in a Jacuzzi?”
Kelly testified that Scribner was “shocked,” and that she quickly said, “I think this interview is concluded. I have another interview and I need to go.”
... On another occasion, Wright put his arm around Therese, looked down and said,
“I like the view from up here
...
oh, excuse me, I was just commenting on your cleavage.”
Scribner “was shocked”; she immediately left, telling Kelly she had “to go to another interview.”
... During Kelly’s training, Wright told him that Therese was “a nice lady.
I like the view from the back, but it’s a helleuva lot better from the front. Nice breasts.”
To this last remark by Steve Wright, Kelly simply replied, “I’m married. I didn’t notice.”
When he testified at trial about this last incident, Don Kelly explained to the Court,
“How do you respond to something like that, by somebody who is a Vice-President of the company ? ”
Two other ex-Waffle House Unit Managers also gave very credible testimony about , the sexually demeaning remarks made either to, or about, Therese Scribner in their presence. DAVID COLEMAN heard Steve Oswald make the “signing bonus/weekend with Therese” comment when Coleman was interviewed in Shreveport by Therese and Oswald. STEVE WILLIAMS said that “whenever Scribner was at his restaurant,” Steve
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Wright and Tim Mercer made comments about her breasts, a “weekend with her” and “the things (sexual) they would like to do with her.”
97
In her chronology of some of the acts of sexual harassment,
98
Therese listed 29 persons who were witnesses to various acts of sexual harassment. These names included Dan Kelly, Hans Spies, Kyle Coleman, Steve Bryant, Vic Neeley, Mike Robare, Roy Anderson, David Adams, David Smith, Dan Williams, Rusty Workman and Dan Gay. There was trial evidence from some of these, including:
...
Dan Kelly
and
Dan Gay
(who heard the “on the rag” and “signing bonus” remarks and who were at the “Top Op” Awards banquet at Bear Creek in 1987);
...
Vic Neeley
(who heard the “on the rag” remark);
...
Kyle Coleman
(who heard the “Jacuzzi,” “nice cleavage” and other “breast” comments); and
...
Hans Spies
and
Dino Bolero
(who also heard the “signing bonus/weekend with Therese” remarks).
The testimony of these ex-Waffle House employees was supported at trial by some witnesses who knew Steve Wright and Therese Scribner, even though they had never worked for Waffle House. These included:
Erma Cook,
a neighbor of the Scribners and the Wrights. In the spring of 1989, Therese came by Cook’s house and told her that Steve Wright had made a comment “about the size of her breasts in the presence of a number of men.” Cook testified that Therese Scribner was very angry, upset and frustrated by Wright’s conduct.
Margaret Dailey,
who worked for Theresa Scribner at Resource Recruiters, and who met Steve Wright and Larry Cannon at the Scribner’s Christmas party in 1987. Although Dailey gave no specific examples of sexual comments by Wright and Cannon, she described how both of them made “crude and crass remarks, offending people they didn’t even know.” Dailey also testified that these inappropriate comments “made you feel like you were tending bar,” and that “when the wives of Wright and Cannon tried to stop this misbehavior, they could not.”
Fran Dubuisson,
a neighbor of both the Scribners and the Wrights, who was later in business with Therese at Resource Recruiters (after her termination by Waffle House). At a party in front of Dubuisson’s home, she was talking to Therese Scribner and Steve Wright when Wright suddenly “said something about
Therese’s big tits.”
Therese was “very upset” and snapped at Wright, “Get a life.” Dubuisson also had discussions with Therese about how Steve Wright embarrassed her on many other occasions.
In addition, Fran Dubuisson supported Therese Scribner’s credible testimony that she (Scribner) did not “participate in” or “welcome” the “sexual banter” by Wright, Oswald and others. Specifically:
... this was Fran Dubuisson’s very credible description of Steve Wright: “He was very disrespectful toward the plaintiff and all women. He was arrogant, chauvinistic, always overstepped the boundaries.”
... Dubuisson also described an incident that took place when Dubuisson was working in her yard. Steve Wright came up behind her and said,
“You have a nice ass.”
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... Wright also tried to have discussions with Dubuisson about “the girls he met in bars on out-of-town trips,” and he told her,
“What my wife doesn’t know won’t hurt her.”
5.
The Waffle House Executives Who Saw The Acts of Sexual Harassment ... But Did Nothing
There were others at Waffle House — including several of the company’s top executives — who either witnessed or participated in some of the sexual harassment of Therese Scribner by Wright, Oswald and Mercer.
Not a single one of these Waffle House officers, executives and supervisors did anything about this sexual harassment.
They did not stop the harassment, they did not report it to anyone; and they certainly did not sanction any of the persons responsible for this sexual harassment of Therese Scribner.
Starting at the top,
Joe Rogers
(President, CEO and 78% owner of Waffle House) witnessed one of the very first acts of Steve Wright’s sexual harassment of Therese — i.e., the incident where Wright announced to the prospective recruits at the Sheraton Hotel meeting in August 1987:
“Whoever agrees to Join Waffle House will get a ‘sign-on bonus.’ Therese will be your hostess in a hotel for a weekend, wearing a bikini.”
From the obvious deference that Rogers’ employees (including Steve Wright) showed to Joe Rogers — the forceful person who owns and runs Waffle House — it was apparent to this Court that most, if not all, of the subsequent acts of sexual harassment against Therese Scribner
would have never occurred
if Joe Rogers had not simply ignored this repugnant conduct by Steve Wright.
Next is
Lib Julian,
the Senior Vice-President, Operations, of Waffle House. Julian witnessed Wright’s initial acts of sexual harassment — the “Therese is our Dolly Par-ton. The girl with the big ... smile” remark — that Wright made to all of the Waffle House managers and supervisors (and others) at the “Top Op” Award banquet for the Western Area at Bear Creek in 1987. In addition, on a recruiting trip to Phoenix with Steve Wright and Therese Scribner in February 1988, Lib Julian “made a pass” at Therese in a “hotel room.”
99
And, Julian was present when Wright “grabbed Therese’s blouse, pulled it out, looked down at her breasts, and smirked: ‘It was driving me crazy to see what those were.’”
100
In December 1988, Therese Scribner complained again to Lib Julian about Steve Wright’s conduct; but all that Julian said was, “Hang in there. I’ll work with him.”
Following
Joe Rogers
and
Lib Julian
in the Waffle House chain of command were
Steve Wright, Steve Oswald,
and Area Vice-President Larry Cannon.
101
Cannon was actually on the “Santa’s Sleigh” ride and he saw Tim Mercer’s Polaroid “crotch shot” harassment of Therese Scribner — but Cannon did nothing about this disgusting conduct. Cannon also witnessed some of Steve Wright’s sexual misconduct towards the plaintiff; and Cannon once told Mike Robare: “Therese needs a real man.
I could give her what she wants.”
Finally, as is evident from the preceding discussions of the sexual harassment by Wright, Oswald and Mercer, their repugnant conduct took place before other executives, supervisors and hourly unit employees of Waffle House — for example, at functions such as the “Top Op” Award banquet, meetings of District and Division Managers, recruitment meetings in Dallas and elsewhere,
*905
out-of-town business trips, on “Santa’s Sleigh,” and even at numerous Waffle House restaurants in the Dallas — Fort Worth area.
Needless to say, not a single one of the other Waffle House officers and top executives — Senior Executive Vice-President Lib Julian, Area Vice-President (and later Senior Vice-President) Steve Wright, Area Vice-Presidents Steve Oswald and Larry Cannon, or Division Manager Tim Mercer — ever did anything about the sexual harassment of Therese Scribner that they either participated in or observed. Neither
did Joe Rogers, the President, CEO and 78% owner of Waffle House.
D.
Waffle House Does Not Want The Plaintiff To Quit (Dec.l988-Jan, 1989)
In late 1988 and early 1989, Therese Scribner began to give serious consideration to quitting her recruiting job with Waffle House. Therese had become increasingly upset about a number of things — including the fact that she had not received “a pro rata share of her second quarter bonus,” and the fact that Steve Wright had assigned her some menial tasks (such as the preparation of his expense accounts). Therese was also distraught about the continuing, pervasive sexual harassment by Wright and others.
On December 8, 1988, at a meeting with Lib Julian (Senior Executive Vice-President, Operations), Therese told Julian about her concerns and about
some
of the sexual harassment of her by Steve Wright.
102
Four days later, on December 12, 1988, Therese documented part of their discussions in a memo to Lib Julian confirming that, as Julian had told her, she:
(i) was “to discontinue doing Steve Wright’s expense reports,”
(ii) should “have received a pro rate portion of [her] 2nd quarter bonus,” and
(iii) was to become, in Julian’s words, a “defender of the people” in the western Area.
103
Her memo to Julian ended, “I sincerely hope that you will help me have more impact in this area
so I can do what I am best at doing
— hiring
and recruiting people.
”
Although this memo does not mention her sexual harassment by Steve Wright, the Court specifically credits the testimony of Therese Scribner that
she did tell Lib Julian about some (but not the specifics) of Wright’s sexual misconduct towards her.
Therese also testified that “once I told Lib Julian about some of the sexual harassment on December 12, 1988, I was hoping that maybe that part of it would disappear.” She added that, after her complaints to Lib Julian, Wright’s conduct “did get better for a while,” but then the sexual harassment “started again.”
Therese Scribner sent Steve Wright a copy of her December 12, 1988 memo to Lib Julian, along with her handwritten note to Wright (Exh. 18) — in which she discussed a number of “areas of concern that I have made you aware of,” including problems of six different Unit Managers and their need for a “training manager.” This memo then listed five items which Therese had “submitted or requested,” but as to which she had never received any response from Wright.
104
In this memo to Wright, Therese states:
“Steve, I disagree with your statement that T need to have more trust and belief in the district managers, division managers and you.’ It is not a lack of trust or faith, but a lack of reaction on the part of management in this market.... My biggest frustration is the lack of concern that is shown when a situation occurs [with a Unit Manager], regardless of whether we feel it is important to us — it is important to that individual, and the react time to handle it.
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We cannot continue to ignore things and hope they go away. We cannot continue to talk about taking care of people and not show it.... I will not bore you with what I think we should do — you’ve already heard it.”
Steve Wright was furious when he received his copy of Therese’s memo to Lib Julian. Wright was upset that she had made these complaints directly to Lib Julian (particularly her complaint “about doing Wright’s expense accounts”). This resulted, in turn, with Therese Scribner’s December 21, 1988 meeting with Lib Julian and with her January 18, 1989 meeting with Steve Wright and John Robertson, Vice-President, Operations Control.
105
At the January 18 meeting, both Wright and Robertson told Therese Scribner that they wanted her to stay with Waffle House.
She promised “to think about it,” and give them an answer in two days. Therese’s decision to stay with Waffle House came in her January 20, 1989 typewritten memo to Steve Wright, which begins: “As I indicated on Wednesday, January 18, I told you and John (Robertson) I would arrive at a decision today.
After a lot of thought, I have decided to stay with high expectations
of improvement” in six designated areas — including “consistent emphasis placed on retention and recruiting,” “increased sensitivity to individuals and their needs,” and “mutual respect and loyalty.”
When she made this decision, Therese Scribner had no way of knowing that she would be terminated about one year later—
on the pretense■ that she had never been a satisfactory recruiter for Waffle House
— even though Julian, Wright and Robertson had persuaded her not to quit in December 1988 and January 1989.
E.
The Plaintiff Again Complains About The Sexual Harassment
— And, As
The Result, She Is Terminate
As discussed above, Therese Scribner had repeatedly and bitterly complained to Steve Wright, Steve Oswald, Tim Mercer and others about the pervasive, demeaning sexual harassment. Indeed, some of this misconduct had been witnessed by the top officers and executives of Waffle House, including the President, CEO and 78% owner
{Joe Rogers
), the Senior Vice-President of Operations
{Lib
Julian), Area Vice-President
{Larry Cannon),
and others. In addition:
(i) in January 1989, Therese Scribner told
John Robertson,
Vice-President, Operations Control — who was her co-supervisor with Wright for a short period— about the constant sexual harassment she received from Steve Wright. Robertson never did anything about the plaintiffs complaint.
(ii) in late 1989, Therese complained to
Larry Cannon
about the sexual harassment by Steve Oswald.
106
When asked what he did about this complaint, Cannon lied — claiming that Scribner had never made such a complaint to him.
107
However, the next complaints that Therese Scribner made about this sexual harassment — the ones to Donald “Skip” Nau in October and November 1989 — were destined to be her final ones as an employee of Waffle House.
(1)
The Plaintiffs Complaints To Skip Nau
On October 1, 1989, Skip Nau became the head of the newly created “People Department” of Waffle House. All recruiting was placed under this department, and Nau became Therese Scribner’s supervisor. Skip Nau made a “fact finding” visit to Dallas from October 24-26, 1989 for meetings with
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Therese Scribner, Steve Oswald and others. During their meeting, Therese gave Nau a copy of her handwritten notes concerning some of the problems she had experienced during her employment at Waffle House.
In these notes (Exhibit 165), Therese first listed problems with her salary and bonuses, including the fact that her starting salary was $10,000 less than that of Rick Seal, the male recruiter she had replaced. Her notes also mentions
some
of the sexually harassing conduct of Steve Wright and Steve Oswald (and the names of some witnesses) — -including (i) the “Dolly Parton/big smile” comment Wright made at the Bear Creek “Top Op” awards (Neely and Oay were there), (ii) the December 1988 blouse incident with Wright (in the presence of Lib Julian), (iii) Wright’s “on the rag” comment (Neely was present, and objected), (iv) Wright’s June 1989 comment about “jumping my bones” (other supervisors were there), and (v) Oswald’s “signing bonus/weekend with Therese” statements to recruits (witnessed by Skip Nau, David Smith, Don Kelly, Kyle Coleman and others).
(2)
The “Bottom Line” On The Plaintiff
Following his meetings with Therese Scribner, Skip Nau prepared a report — his handwritten memo of October 26,1989 to Joe Rogers (President, CEO and 78% owner) and Robert Bowman (Executive Vice-Presi
dent)
— in
which Nau emphasized the need for Waffle House to keep Therese Scribner as a recruiter, and in which he told these two top executives about the sexual harassment by Steve Wright.
This Skip Nau memo (Exhibit 24) reads, in part:
Terez Scribner — Dallas 10/26
The bottom line on Terez is that we need to keep her
—
She has great people skills, is well thought of by the hourly and unit mgrs. Visited enough units to verify this. Great attitude. Knowledgeable about hrly and unit training. Very assertive. Bright and articulate — She can be a player with the proper leadership and direction.
Terez has gone through a difficult time in Dallas — particularly with Steve Wright.
(This is not news
— Lib
& John and prob. you two are well aware of this)
I’ve read the memos — in a nut shell, the problems resulted from a
lack of direction, a lack of leadership, and a lack of respect shown toward her. Frequent jesting about ‘Dolly Parton, ’ Dist. & Div. Mgr. Awards for the most recruits being a weekend with Terez
and statements like ‘you don’t understand, you’re not an operator’ were made at Division/Dist. Mgr. Meetings in Terez’s presence .... I realize that there are two sides here but
with the personalities being what they are logical conclusions can easily be drawn.
This October 26, 1989 Skip Nau memo to Rogers and Bowman also contains these remarks about Steve Oswald:
Oswald’s
problem was not w/Terez (I spent six hours talking and brainstorming with him — talking people and culture, at el.)
He thinks she’s [Therese] great w/lots of potential.
His problem — in essence — was her $40,000 salary hitting his P/L (profit & loss). He said — T can recruit 8 people a Qtr. in Dallas — -so why do I need Terez.’
I told him I thought his thinking was shortsighted in view of her potential and the kind of impact we were trying to make in
Dallas....
108
Skip Nau concluded his fateful October 26, 1989 memo with his “prospective plan for Terez”, including:
1. Speak by phone every week to get updated on status of trainees, terminations, new candidates, shift mgrs., etc.— update the pipeline.
2. She will provide me with her two week itinerary — which we’ll update every week.
3. Need to revise her current bonus structure from $31,000 + $10,000
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(2500/quarter) to 25,000 + 16,000 (up to 24,000 for [excellence] and have it more performance driven).
Terez is motivated and capable
— all
she needs is leadership and direction I can provide that.
Let’s all agree on the agenda and I will implement it — both to the operators and to Terez.
One month later, November 21-23, 1989, Skip Nau had more meetings in Dallas with Therese Scribner, Steve Wright and Larry Cannon. As recorded in her chronology,
109
there were discussions about Therese’s bonus and her “work on holidays.” Nau also told Therese that “he had written a memo to Joe Rogers” and that he had made “Rogers aware of the sexual misconduct against her” by Steve Wright.
110
Accordingly, at the end of November 1989, Therese Scribner — in Skip Nau’s own words — had “great people skills” and a “great attitude,” she was “knowledgeable” and “very assertive,” she was “bright and articulate,”
she should receive an increase in earning potential of 20%
(from $41,000 to $49,000), and
“the bottom line on Terez” was that Waffle House needed to keep her as a recruiter.
However, despite Skip Nau’s glowing assessments of Therese Scribner, Nau had also reported her complaints of sexual harassment to Joe Rogers — and
unth-in four months after her complaints to Nau, Therese Scribner would be terminated from her Waffle House position by Skip Nau (at the direction of Joe Rogers).
(3)
The Sexual Harassment Continues
Even after her complaints to Skip Nau, the sexual harassment of Therese Scribner by Steve Oswald continued. In her chronology,
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Therese recorded these additional incidents:
11/89 complained to lc (Larry Cannon) about Steve Oswald sexual harassment — per Maggie
12/19/89 Oswald ran hand up my thigh— liked my elf stockings — Santa’s Sleigh
1/90 Oswald making sexual comments all the time tickling me ‘accidentally’— bumping into me — makes comments in front of everyone
1/20/90 bookends comment at banquet— his date and myself — referring to size of breasts
2/1/90 tickled me — comments about breast size
3/1 terminated
(4)
The Waffle House President, The Executive Committee Meeting And Lib Julian’s Supposed “Investigation”
The Executive Committee of Waffle House was composed of Joe Rogers (President, CEO and 78% owner), Lib Julian (Senior Vice-President, Operations), Robert Bowman (Executive Vice-President) and J. Michael McCarthy (Executive Vice-President, Chief Financial Officer).
At an Executive Committee meeting in late October or early November of 1989, these four officers discussed Skip Nau’s October 26, 1989 memo and the reported “frequent jesting” by Steve Wright about “Dolly Par-ton,” the “weekend with Terez” comments, etc. This was Lib Julian’s description of what happened at the meeting:
It started with Joe (Rogers) saying that Skip had come back from Dallas and having a meeting with Terez and that there had been certain allegations made by Ter-ez toward Steve Wright. And
Skip feels like Terez is really capable of performing the job junctions of a recruiter now that he’s in town and can provide that direction.
And that we needed to get in touch with Steve and have him to review
*909
(the) contents of Skip’s message that he had written to Joe and to Bob Bowman.
Skip Nau was summoned to the Executive Committee Meeting. Joe Rogers was “very upset” at Nau, and told him,
“You have no facts. You dress up conclusions without any facts.”
112
Then, Steve Wright was brought into the meeting and his denials of any misconduct were described by Lib Julian:
“A. (Steve Wright) was given a copy of the notes that Mr. Nau had made, to read and asked to respond to the notes, and also, you know, did he agree or disagree with Mr. Nau’s notes that he had made.
Q. And he denied—
A.
He denied the sexual allegations part of it.
He didn’t necessarily deny the lack of leadership or lack of direction that had been given to Terez from him because he and I had discussed that on more than one occasion. This was not new news to him.... Basically he said that’s Skip’s interpretation. He’s new in town. He doesn’t know all that has gone on ...”
Joe Rogers ended this portion of the Executive Committee meeting by designating Julian to “get with Steve Wright and find out what’s going on.” Julian’s purported investigation consisted of a 15-20 minute discussion with Steve Wright that same afternoon. According to Julian, he told Wright that:
“A.... these are serious allegations. I’m aware of the lack of leadership and direction, but if these allegations are true
you get in touch with Steve Oswald
and you get these fixed now. An far as the sexual innuendoes or sexual harassment allegations ...
Q.
Why did you make the comment about Steve Oswald?
A.
Because it was Steve Oswald’s name was in there in direct relation to saying that Terez would spend a weekend with a contest winner.
And Steve Oswald worked for Steve Wright.”
113
The brief discussion between Lib Julian and Steve Wright ended with Julian telling Wright “to report back to him after he had talked” with Therese Scribner.
That night, Steve Wright did telephone Therese at her home. Wright was livid! He demanded to know “what she had told Skip Nau.” And, he threatened Therese,
“This will not advance your career.
We’ll talk about it later.” Scribner testified that she “was not too worried” about this threatening call from Steve Wright because she “thought that Skip Nau was a decent guy.”
In his so-called investigation, Lib Julian never contacted Therese Scribner (and neither did any other Waffle House officer). Instead, Julian called Wright after a few days, and then reported back to Joe Rogers.
“A.... it was a few days later I asked (Steve Wright) had he talked with Terez and he said, yes, and
Terez said Skip’s a damn liar.
114
Q.
Did you talk with the plaintiff about this?
A.
No, sir.
In fact, I don’t recall seeing much of Terez after Skip took over the People Department.
Q. Did you report back to Mr. Rogers?
A.
I told Mr. Rogers what Steve had said, that he denied the sexual harassment allegations or sexual innuendos. ...
My report to Joe was simply that Steve still denied that he had done anything wrong
and that Terez had claimed that Skip was lying about what he had put in his memo.
Q. And that was the report?
A. That was the extent of it, yes, sir.”
*910
This, then, was the full extent of Lib Julian’s purported “investigation” of the plaintiffs sexual harassment complaints against Steve Wright: a 15-20 minute discussion with Wright on the day of the Executive Committee meeting, and an even shorter conversation with Steve Wright “a few days after” Wright’s call to Scribner.
(5)
The So-Called “Investigation” By Joe Rogers
After the Executive Committee meeting, Joe Rogers did meet privately with Steve Wright, and asked him about the “Dolly Par-ton” joke. Wright admitted that he did make both that remark and the “signing bonus/weekend with Therese in a bikini” statement. Wright also told Rogers that Steve Oswald had said these same two things to Therese Scribner.
However, the
only thing that Joe Rogers did after this conversation was to “counsel”
Wright
115
“not to do things like that again.”
Neither Wright nor Oswald were sanctioned in any way. Indeed, no one even talked to Oswald about the sexual harassment complaints before Therese Scribner was terminated. And, the only “explanation” ever given for the fact that Joe Rogers never contacted Therese Scribner in his supposed “investigation” was made by his attorneys in a post-trial pleading:
Based on his discussions with Wright, Julian and Cannon (among others), Rogers concluded that Scribner participated in sex-based banter, had initiated the remarks regarding Dolly Parton and that the other alleged remarks were apparently not made by Wright.
was, however, counseled by Rogers and Julian that such jesting would not be condoned by the Company.
(6)
Skip Nau Saves His Waffle House Career By Terminating The Plaintiff
After Skip Nau was blistered by Joe Rogers at the Executive Committee meeting—
“You have no facts”
about Wright’s mistreatment of the plaintiff,
“You dress up conclusions without any facts”
— Nau began backtracking, very quickly. As described by Lib Julian:
“... Skip kept saying,
Terez said this is no problem,
you know, let’s get on with the business of recruiting and retention,
this is no problem
(referring to the sexual harassment allegations), and that she was ready to go to work and he said, I can — you know, I can manage Terez.”
On January 24,1990, Skip Nau returned to Dallas. This time, as Therese Scribner testified, Nau “was not as warm, and his attitude had changed.” This worried Therese and she asked Nau for a copy of his October 26, 1989 memo to Joe Rogers and Robert Bowman. Nau lied to Therese, telling her that he did not have a copy. When she later asked for a copy, Nau again lied, “I can’t get my hands on it.” Therese began to think that Nau really didn’t want to give her a copy of the memo (and she would not see it until after this memo was finally produced by Waffle House in this litigation).
Skip Nau was not about to stand up to Joe Rogers, or even to Steve Wright. Instead, Nau quickly began to distance himself from the favorable review he gave Therese Scribner in the October 26, 1989 memo. In February 1990, “Joe Rogers, Jr. and Skip Nau met and discussed” the recruiting efforts of Therese Scribner. After they reviewed her “continuing poor results and failure to follow Nau’s directions, Nau conceded [to Rogers] that Scribner was not meeting his expectations as a recruiter.”
116
And, realizing what was going to happen to the plaintiff,
Skip Nau even asked Rogers if he (Nau) “could make the decision to terminate her.
”
Nau returned to Dallas on March 1, 1990. Nau testified that it was “probably in mid-February” that “he made the decision to terminate Therese Scribner.” Later, Nau “clarified” this testimony by explaining that
“Joe Rogers let me make this decision.”
117
*911
At this last meeting (March 1, 1990) between the plaintiff and Skip Nau, Therese gave Nau an article about sexual harassment and also told him about another Oswald incident, the “matching bookends” comment.
118
Skip Nau told Therese “You are a good recruiter” and “you have accomplished so many things”; then, Nau “began apologizing” to her. Concerned by this, Therese finally asked,
“Skip, are you firing me?”
Nau’s only answer was something like, “I don’t want to put it that way. We’re just going to do something different.” This final meeting ended with the plaintiffs termination — but
Nau did not give Therese any reasons for her abrupt discharge.
Despite this, by letter dated March 6, 1990, Skip Nau wrote Therese Scribner claiming that he was documenting “the reasons behind your recent termination from Waffle House.” That letter states these additional lies:
You have been terminated because we have not been satisfied with the level and quality of the recruiting effort nor the recruiting results over the last 3 1/2 years, and more particularly, over the last 5 months. While your administrative skills have been adequate, your recruiting results have been unsatisfactory.
These supposed “reasons” for termination had not been discussed with Therese in Nau’s final meeting with her (March 1,1990). And, Therese Scribner replied to Nau by letter dated March 13,1990:
Dear Skip:
I do not agree with my termination for the following reasons:
1.My performance and contributions have been excellent.
2.
I have never received a negative review or reprimand.
3.
I consistently received an increase in salary.
4. I received an award for recognition of excellence.
5.
No one ever indicated to me there was a problem vnth my performance.
I don’t want to be terminated and would like to continue in my present position.
At trial, Skip Nau was given every opportunity — first by the plaintiffs’ attorney, then by this Court — to state each of the reasons for “his termination” of Therese Scribner. This is an accurate summary of the only so-called “reasons” that Nau could give:
Therese was not doing a good job recruiting. The retention rate of her recruits were inadequate. She did not follow directions very well. She was not providing the leadership (we) wanted. She was not professional because she used slang. She was not part of the team.
119
When questioned about each of the nebulous “reasons” he gave for terminating Therese Scribner, Nau admitted that he never wrote a memorandum to the plaintiff (or anyone else) “listing her defects” — and that he did not write a “termination memo” stating the reasons for her discharge. Then Skip Nau lied again, claiming that although there was nothing in writing, “he had talked to Therese about these problems” on three trips to Dallas (November 21,1989 and January 2 and 10, 1990).
120
Nor did Skip Nau ever write a memo retracting any of the glowing statements he made about Therese Scribner in his October 26,1989 memo to Joe Rogers and Robert Bowman:
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... she has
great people skills;
... she is
well thought of
by hourly and unit employees;
... she has a
great attitude;
... she is
knowledgeable
about hourly and unit employees;
... she is
very assertive, bright
and
articulate;
and
... she can be a player with the proper leadership.
121
F.
The Fabricated “Reasons” Concocted To “Justify” The Plaintiffs Termination
In their deposition and trial testimony, the Waffle House witnesses gave three supposed “reasons” for the termination of Therese Scribner. They were:
i) that the plaintiff was a poor, if not lousy employee during her entire three and one-half years with Waffle House;
ii) that she was a tramp, a “loose woman” who actually invited, initiated and participated in the gross and repugnant sexual misconduct discussed above; and
iii) that she was lying about Steve Oswald, Steve Wright, and Tim Mercer (and the others discussed above) — because no Waffle House executives, certainly not these three stellar employees, had ever violated the Waffle House sexual harassment policy with respect to Therese Scribner (or any other female employee).
Each one of the purported “justifications” for the plaintiffs discharge is false. The first, her supposed poor performance as a recruiter, was the sole reason belatedly given to Therese Scribner by Skip Nau, in his letter of March 6, 1990 — which stated only, “You have been terminated because we have not been satisfied with the level and quality” of your recruiting effort nor your recruiting results. In addition, each one of the three fictitious “reasons” for the plaintiffs discharge (i) are “supported” only by lies told by Wright, Oswald, Mercer and others, and (ii) are, without question, shown to be baseless by the credible witnesses discussed below. Each of these three blatant lies will be addressed separately.
1.
LIE NUMBER ONE: Waffle House Terminated The Plaintiff Because Of Her Poor Performance
Therese Scribner was an excellent employee for Waffle House: she never received any negative reviews from her supervisors.
122
Her only written performance review (that by Larry Cannon) was very favorable with Therese receiving “high marks” for her recruiting methods. She consistently received pay increases. She normally met, or came close to meeting, each hiring quota. And, she received one Waffle House award for excellence and another for outstanding achievement.
The credible witnesses who testified that Scribner “was an excellent, concerned employee” included these former Waffle House Unit Managers and employees:
David Coleman
(Therese was professional, concerned, never dressed inappropriately);
Michael Ro-bare
(she had a very good interview style, dressed professionally);
Dave Smith
(she did a good job, very professional, dressed professionally);
Joe Thomas
(she was professional, dressed in business attire); and
Steve Williams
(she was very competent, an outstanding recruiter). In contrast, Waffle House — -relying primarily upon the lies of Steve Wright, Steve Oswald, Tim Mercer, Larry Cannon, Skip Nau and Lib Julian— tried, unsuccessfully, to convince this Court that Scribner was fired because of her poor performance (and because of some other nebulous reasons which they could not explain).
*913
(a)
Plaintiff’s recruiting and her retention rate
Waffle House’s primary attack on Therese Scribner’s performance centered on two assertions:
first,
that she did not recruit viable candidates who were qualified for advancement from the Unit Manager level (1 restaurant) to the District (2-4 restaurants) and Division Manager (12-15 restaurants) positions; and
second,
that the “retention rate” of the managers she did recruit were totally unsatisfactory during her entire 3 1/2 years as a recruiter with Waffle House.
With respect to the first assertion, the credible evidence clearly established that the only “authority” Therese Scribner had as a recruiter was to “find and screen applicants” and bring them to the attention of management.
She had no authority to hire or fire anyone.
Indeed, the hiring and firing decisions were made exclusively by her supervisors, the Division and the Area managers
123
—who conducted their own interviews with the candidates Therese brought to them,
and who had the sole authority to hire new employees.
And, Waffle House had no satisfactory explanation as to why the plaintiffs supervisors continued to hire supposedly “inferior applicants” recruited by her — or why Therese should be fired for the hiring “mistakes” made by the Division and Area managers.
124
Indeed, although Skip Nau made the absurd claim that “at least one-half of Scribner’s problems were recruiting,” he admitted that:
... the plaintiffs authority as a recruiter was limited;
... she only had “screening” duties, and had no authority to hire or fire; and
... she had no authority to influence or improve the operations and working conditions at the Waffle House restaurants.
In addition, the overwhelming credible evidence established that the “lack of retention” — i.e., the high turnover rate for Unit Managers (1 restaurant) — was due (i). to the long existing working conditions for Unit Managers, that were beyond the plaintiffs control or authority, and (ii) not to the quality of the candidates she recruited. Specifically, this incredibly large turnover resulted from:
i)
the harsh working conditions
for Unit Managers — i.e., excessive hours, poor (if any) support from management, excessive turnover of hourly employees, mishandled pay issues, and the lack of day-to-day direction from District and Division Managers.
125
ii)
the severe management problems
in the Dallas-Fort Worth area — i.e., three of the Division Managers during Scribner’s 3 1/2 years with Waffle House were demoted for incompetence and for misconduct after Scribner’s termination; and three of her other supervisors in the Western Area (Tim Mercer, Terry Dill and David Adams) were all disciplined and demoted.
in)
the turnover rate
— even under the best of circumstances, the rate for turnover of Unit Managers was 1.6 managers per unit per year. This meant that, within 21 months from the date of hire,
there would be almost a 100% turnover of Unit Managers
— ir
respective of who recruited the applicant.
Indeed, of the 64 persons hired by Waffle House in the Dallas-Fort Worth area during the three year peri
*914
od from 1988-1990,
all but one had left Waffle House before
the trial in this case.
iv)
the lack of improvement
—if Scribner’s incompetence as a recruiter did have . some adverse effect on the retention rate, one would expect an improvement after her termination. However, by the time of trial the “long-term” retention rate (i.e., 21 months) had not improved to any measurable degree despite the discharge of Scribner four years earlier.
These long-existing miserable working-conditions were simply the accepted way of life (by management) for Unit Managers at Waffle House. Most of the people recruited just could not continue because of the demands on them and on their families, so they quit. The very small number who did “survive” were rewarded with rapid promotion and probably more money than they could have made with any other employer.
It was clearly established that Therese Scribner had no authority to control or change these conditions that were causing the high turnover; that she was certainly less able to improve these working conditions than her supervisors (Steve Wright, Steve Oswald, etc.); but that these supervisors received promotions and substantial pay increases — while Therese Scribner was terminated shortly after she had complained about their sexual harassment of her.
Finally, not one of Therese Scribner’s supervisors ever told her that they were dissatisfied with the quality of her recruits.
126
No one ever told Therese, “Your recruits are no good.”
127
And, the Waffle House witnesses could not even say “what was wrong with the plaintiffs recruits.” For example, David Adams, who testified that he hired “probably 5-10 of the people brought to him” by Therese Scribner, was asked, “What were the problems with them?”; and he could only respond:
“I don’t recall ... I just couldn’t be specific about their faults ... too many came from employment agencies ...,”
but Adams did not “recall if he told the plaintiff this, ” or if he told her that he was “dissatisfied with her performance.
”
(b)
Other supposed “reasons” for the termination
Waffle House witnesses also lied about some other purported “reasons” for Therese Scribner’s termination. Some of these border on the ridiculous — such as the claims that Therese Scribner was fired because she “was involved in too much
soap opera
and
nursemaiding
of unit employees,” that she did not “follow instructions,” and that she did not timely submit reports. Again, Therese Scribner was never warned or sanctioned about any of these things, and Skip Nau did not list any of them as the basis for “his” termination of Scribner.
The Waffle House witnesses made two other frivolous contentions: that Scribner was not willing “to get behind the counter” at the restaurants “to perform the duties of the people” she was recruiting; and that she refused to work on the Thanksgiving, Christmas and New Years holidays like other Waffle House employees.
Both of these complaints are false.
Therese did help out in the restaurants
128
as evidenced by the excellent rapport she had with the Unit Managers. And, as she documented in her calendar, Skip Nau actually gave Therese a
*915
reprieve from working on her last Thanksgiving and Christmas holidays; although she did not work on New Years Day of 1990, this was because the Unit Manager had asked her to work on New Years Eve, instead.
129
2.
LIE NUMBER TWO: That’s Why The Lady Is A Tramp
The evidence presented by the credible witnesses established that Therese Scribner was very professional, that she always dressed appropriately in business attire at work, that she did not wear “tight or clinging” clothes, that she did not tell “sexual or dirty jokes,” that she never made comments or jokes about her breasts, and that she did not “make sexual comments” or “talk freely about sex.”
130
The plaintiff and other witnesses truthfully testified that she did use slang frequently (such as “honey, baby, sweetie”); that she did cuss on occasion, that she would occasionally “hug employees or pat them on the shoulder”; and that she did engage in “girl talk” or use profanity (e.g., the word “fuck”) with some of her close female friends.
Contrary to the testimony of Therese Scribner and her credible witnesses, some who testified at trial — mostly Waffle House executives or supervisors (and three of their wives) — repeatedly:
i)lied about Therese Scribner’s supposed lack of professionalism — she was “vulgar and flirtatious” (Steve and Mary Wright), she discussed oral sex with Dave Smith (Rick Browning), she cut in to dance with Steve Wright (Delinda Perez);
ii) lied about the plaintiffs dress and appearance — she wore a halter-top and short shorts when we first went to dinner (Steve Wright), she wore “clinging, low-cut clothes” (Olene Mae Browning), she was showing her cleavage in the yard (Ms. Mallory);
131
iii) lied about Therese telling dirty jokes and using profanity — she told dirty jokes (Sherry Mercer), she asked me to tell dirty' jokes over and over (Steve Oswald), she used vulgar language (like “goddamn”) a lot when the woman’s group would go out and when we talked on the phone (Kathy Thornton), she cussed and was vulgar (Delinda Perez);
iv) lied about Scribner making jokes about her breasts — “the first time I met Therese,” she said “see my tits” (Kathy Thornton), she joked with males about her breasts (David Adams, Sherry Mercer), she made jokes about how big “her tits” were (Tim Mercer, Lisa Mercer, Kathy Thornton),
132
she told and invited “the Dolly Parton” jokes (Steve Wright), she said things like “Therese and the Boys are here” and “if I jogged, I’d black both of my eyes” (Tim Mercer), she fondled her breasts in front of Steve Wright (2-3 of the same witnesses), and she intentionally
*916
brushed her breasts against Steve Wright (Delinda Perez); and
v) lied about the plaintiff talking about sex — she said my husband is so fat that I have to let him be on top all the time (David Adams),
133
she said “I like sex like anyone else, getting head, giving head (Rick Browning).”
Although most of these liars were executives, supervisors or employees of Waffle House,
not a single one of them ever told Therese Scribner that her conduct was not appropriate
— and
not a one reported this supposed misconduct to higher management.
And, it was apparent to the Court, that some of these witnesses were lying either to protect their jobs (or those of their husbands), or — like Tim Mercer — to obtain benefits (a franchise restaurant) from Waffle House.
134
Accordingly, the Court discredits the testimony of these Waffle House witnesses.
3.
LIE NUMBER THREE: No One Has Ever Violated Our Sexual Harassment Policy
The conduct by Steve Wright, Steve Oswald, Tim Mercer and others discussed above — and their sexual harassment of Therese Scribner — clearly violated the Waffle House sexual harassment policy; and, so did the failure of the officers and executives who witnessed some act of harassment, but did not report this harassment or take some action to stop it.
This sexual harassment policy
135
distributed by Steve Wright to all Western Area employees in August 1989, provides:
Management employees of Waffle House, Inc., are responsible for maintaining a work environment that is free of any form of illegal discrimination and employee harassment, including sexual harassment. Sexual harassment is a violation of Title VII of the Civil Rights Act of 1964. Waffle House complies with all Equal Employment opportunity laws and guidelines and will not tolerate violations of the law on the part of its managers.
Sexual Harassment is defined to include unwelcomed sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when such conduct is made explicitly or implicitly for employment decisions, or has the purpose or effect of interfering with work performance or creating an otherwise hostile or offensive working environment (sic).
The Waffle House policy also states that an “investigation of all complaints will be undertaken immediately. Any action by a supervisor, agent, or other employee that constitutes harassment, including sexual harassment, will result in immediate disciplinary action up to and including termination.”
Although this language is clear, the Waffle House witnesses could not agree about it: some testified that “sexual jokes and comments”
made to female employees
(e.g., the size of Therese Scribner’s breasts, the “weekend with Therese in a bikini” comment) would violate the sexual harassment policy. However, other top executives claimed that such “sexual banter” would not be in violation of the policy unless it was really unwelcome by the female employee. The Waffle House witnesses also disagreed with each other as to whether or not the sexual harassment policy condemned such on-the-job “sexual jokes and comments” made about females
out of their presence.
Steve Wright, the first executive to harass Therese Scribner, gave this testimony in response to questions by the Court:
“Q. If you had a couple of employees, male employees,
not in the presence of a female
who were making jokes, sexual jokes, about one of the fe
*917
male employees, would that violate
this (sexual harassment) policy ?
A. Yes, it would.”
David Smith also testified that “Oswald’s comments would violate anyone’s sexual harassment policy.”
Steve Oswald, the second harasser, disagreed; he testified that there was nothing wrong with on-the-job
“guy talk”
among supervisors about the plaintiff, her breasts, her sex life, etc.:
“Q. When you were talking about Therese Scribner and referring to her breasts as “tits,” with these other guys
... in your mind set, was that something that was okay to do?
A. We
always talk about other people, but that was not okay to do.
Q. What did you do it for then?
A. Like I said,
I was just talking to guys.
It wasn’t around Terez, wasn’t around any hourly associates.
Just guy talk.
Q. You’re ... now telling the Judge, these are senior people you’re talking to, District and Division managers, talking about ...
“she’s got good tits. ”
A. Like I said, it was said — it was said one time and that is it.
Q.
Just one time?
A. I’m not sure.”
Joe Rogers, the Waffle House President, CEO and 78% owner, also disagreed with Steve Wright about the sexual harassment policy. According to his testimony, unless the conduct involves some “unwelcomed” conduct — whether sexual advances, requests for sexual favors, or other verbal or physical conduct — there is simply no violation.
“Q. (Court refers Rogers to Exh. 167, the Scribner list of some of the sexually demeaning conduct by Steve Oswald)
Let’s assume that somebody referred to a female employee as
‘Little Ms. Big Tits’
and if you would tell me, in the context of that, what you mean by ‘sincerely unwelcomed’ and in what context that would be okay or not.
Rogers: If two people,
even if it were against our policy,
had a personal relationship with each other and that got said between them
or frankly anything else on that list,
to me that’s their business.
Court: I’m sorry?
Rogers: If they had a personal relationship that was sexual or indulged in sexual jokes and they had that mutual pattern of behavior between them,
then I would not consider that sincerely un-welcomed if that spilled over and somebody else heard it ... ”
According to this incredible testimony of the top executive of Waffle House,
136
the company’s rather remarkable sexual harassment policy does not prevent a male supervisor from making sexual comments to a female
subordinate
— even
in the presence of others at offices or restaurants of Waffle House
—such as asking if she “wanted to sit on his face,” or if she “had even been eaten by a man with ice in his mouth,” of if “Mississippi women were good fucks and sucks,” etc.
After this testimony, the Court asked Rogers if he realized that his “personal relationship” interpretation of the sexual harassment policy was asking “for a swearing match” between the male supervisors and a female employee just “like we’re having here” in this case. Joe Rogers answered “Yes,” and this was followed by:
“Court: I cannot believe you wouldn’t be concerned that remarks like that would be made in the work place under any circumstances ... because of the danger that you might be sitting up here testifying under oath and be in court two or three weeks when I’m sure you would rather be some other place.
*918
Rogers: I certainly would. But I’m trying also to distinguish between someone having a purely personal relationship and I’m not going to condemn them for that if nobody else heard it.”
In view of this interpretation of the Waffle House sexual harassment policy by the top officer and majority owner of Waffle House, it became apparent to this Court why neither the officers, executives or supervisors who
witnessed
the sexual harassment of Therese Scribner ever reported it — and why the ones who
-participated
in that harassment were never reprimanded or sanctioned for them misconduct.
G.
After The Plaintiff’s Termination
During the period immediately following Waffle House’s abrupt termination of Therese Scribner, (1) Waffle House hired a male employee to replace the plaintiff as the Western Area recruiter, (2) Scribner filed charges of sexual harassment/retaliatory discharge against Waffle House with the Texas Commission on Human Rights (“TCHR”), and (3) Scribner started her own personnel recruiting business.
1.
The Higher Paid Male Replacement
On April 3, 1990, Waffle House hired a male, Paul Smith, to replace Therese Scribner as the recruiter for the Western Area. Despite the fact that Paul Smith had no prior recruiting experience, his starting salary was $30,000 a year — i.e., $2,000 more than the plaintiffs starting base salary when she was hired on July 29,1986.
However, after only two months, Smith’s yearly compensation was increased to $49,-260 — i.e., $21,000 in salary plus a potential $24,000 performance bonus and a $4,260 car allowance. This was $4,355 a year more than Therese Scribner had been making on March 1, 1990, when she was terminated — and it was $13,260 a year more than her beginning compensation on July 29,1986.
Waffle House makes the baseless claim that Paul Smith was paid more money as a recruiter than Therese Scribner “because his responsibilities were a little different.” This is not supported by any credible evidence. In fact, Smith was paid more by Waffle House than Therese Scribner had ever received for one simple reason: Paul Smith was a male recruiter — just like the plaintiffs predecessor, Rick Seal, was paid more than she received because Seal was “the bread winner” and because, according to Steve Wright, Therese just “didn’t need to make as much as a man.”
Paul Smith lasted less than eight months as a Waffle House recruiter, and he “resigned” — just before Waffle House could fire him for incompetence.
2.
The Plaintiffs Complaints To The TCHR Result In More Lies By Waffle House
On May 3, 1990, two months after her termination, Therese Scribner filed charges of discrimination against Waffle House with the Texas Commission On Human Rights (“TCHR”). In her complaint, Scribner swore under oath that she had been denied equal compensation by Waffle House — and that she had been “sexually harassed by two male supervisors, Mr. Steve Wright, from the fall of 1986 through the fall of 1989; and, Mr. Steve Oswald, from the summer of 1989 through February, 1990.” Scribner’s TCHR charges give these details concerning the sexual harassment:
1) I was treated differently than male Corporate Recruiters in that two individuals, Steve Wright, and Steve Oswald, made sexually suggestive statements concerning my breasts, and sexually derogatory statements in front of potential clients. Additionally, Mr. Steve Wright made sexually unwanted touching by pulling at my blouse; and Mr. Steve Oswald made sexually unwanted touching by tickling me under my arms and near my breasts.
2) In October, 1989,1 threatened to report Mr. Steve Oswald’s derogatory statements to Respondent’s Area Vice-President, Mr. Larry Cannon; and the Equal Employment Opportunity Commission.
*919
3) In November, 1989,1 spoke with Larry Cannon about Mr. Oswald’s sexually harassing behavior.
4) Mr. Skip Nau, Vice-President of People, was made aware of the sexual harassment, even witnessing some of these individuals’ comments.
5) In November, 1989, I was informed by Skip Nau that he had written a memo to Joe Rogers, Jr., about Steve Wright’s sexually harassing comments. Steve Wright told me later that day that no action was taken against him.
6) I have requested a copy of Skip Nau’s memo to Joe Rogers, Jr., on several occasions but the company has refused to give me one.
7) On March 1, 1990, Mr. Skip Nau terminated me.
As discussed above (in Section III C), each one of these charges — -and statement concerning the plaintiffs complaints to Larry Cannon and Skip Nau — were true, and they were clearly established by the credible evidence at trial.
The Waffle House response to the plaintiffs TCHR charges was prepared by J. Michael Upton, Vice-President/Seeretary and General Counsel. This response, according to Upton’s statement to the TCHR, was prepared after his “consulting with Steve Wright, Steve Oswald, Donald (Skip) Nau, Larry Cannon, John Robertson and Joe Ren-fro (Assistant Vice-President, Training).” At trial, Upton also claimed that the response was supported by information he obtained from Mary Wright, Tim and Sherry Mercer, and Terry Deal — although he had no satisfactory explanation for his failure to include their names in the Waffle House response.
This response consisted of still more lies by Waffle House and by the officers, executives and employees (and others) who talked to Upton. It first denied any equal pay violation; next, it claimed that Therese Scribner had been terminated for not “satisfactorily performing her job”; and, then it denied that the plaintiff had ever complained about sexual harassment or that Wright or Oswald have ever “made sexually suggestive statements or sexually derogatory statements to Ms. Scribner” or that they “ever touched Ms. Scribner in a sexually suggestive way.”
The Waffle House answers to Scribner’s TCHR
charges
— which
was based upon the lies of Wright, Oswald, Nau, Cannon, Robertson
and the other discussed above (in section III C and E) — were also false. Indeed, it further demeaned Therese Scribner by reporting new lies about her:
... In fact,
Waffle House was very surprised that such complaints would be made by Ms. Scribner.
Ms. Scribner had a very “colorful” sense of humor and engaged in some off-color teasing and joking with Waffle House personnel. This was mutual “horseplay”, however, and it was not directed toward Ms. Scribner in any type of sexually abusive manner. In fact, in most eases, if there were any remarks of any kind directed at Ms. Scribner by any Waffle House employee, they were invited due to the conduct and language used by Ms. Scribner. During her employment, Ms. Scribner made remarks to Waffle House personnel to the effect of:
—I have enough to go around for everyone.
—She made several joking remarks to a number of people about being unable to see her feet.
—-She discussed with several persons
her need to obtain a breast reduction.
Again, this was done in a joking manner rather than a serious manner.
—She made remarks about her breasts getting in the way all the time [and] when someone would sit close to her or brush against her, she would make comments about her breasts being mashed.
—On one occasion, (sic) she made the comment to Waffle House management person that
“everything they had heard about short people was true.
” ...
—At one point, she was describing to the undersigned how to recognize her if she were to pick the undersigned up at the airport, and her comment was
“I am short and real top heavy.
”
*920
In keeping with the performance of other Waffle House witnesses at trial — i.e., Therese told me she was “short and real top heavy” — J. Michael Upton (Vice-Presi-denVSecretary & General Counsel) repeated this lie in his trial testimony. In fact, as the plaintiffs testimony established, Upton called Therese Scribner and asked her to meet him at the airport. When he asked what she looked like (so he would recognize her), Therese said she was about “five feet tall, with dark hair,” and that she would be wearing a Waffle House name tag. Then, it was Upton who remarked,
“I hear you have another outstanding feature
— that
you’re top heavy.”
The Court discounts both Upton’s testimony the response he prepared to the TCHR charge — which were, without question, proven to be false by the credible evidence.
3.
The Plaintiff Starts Her Oum Recruiting Business
Immediately after her termination by Waffle House, Therese Scribner began looking for a new job. She felt that the fact she had been fired by Waffle House would make this very difficult — but Therese needed a job to help support her family (particularly since her husband’s employer “was laying off people”). In the next few weeks, Therese had some interviews, but no offers of employment.
This caused Therese Scribner to begin thinking about starting her own recruiting business. To Therese, this had real advantages: she would have “no need to explain her termination by Waffle House” or her pending TCHR discrimination charges; she would have more flexibility with her schedule, and she liked the idea “of working for myself.” So, Therese began making contacts to see if she could generate business for her own recruiting agency. In March and April of 1990, she contacted some prior employers, some companies in the fast food business (Wendy’s, Grandy’s, etc.), and others.
While she was at Waffle House, Therese Scribner had become friends with Debbie Shelton (who had been a recruiter for Gran-dy’s for several years).
137
Shelton had first called Therese in the fall of 1988 to check the references of Mike Robare, who had been terminated by Waffle House. After this, according to Debbie Shelton, she liked Therese and they “became friends.” Shelton found Therese to be “very honest, upbeat, and a lot of fun.”
Debbie Shelton had learned that Therese Scribner had left Waffle House and “set up her own recruiting business” shortly before she received a telephone call from Therese. They then met for the first time, at Shelton’s office. Therese told Debbie Shelton that she was starting her own recruiting service. They toured Grandy’s and discussed its recruiting needs. And, this meeting resulted in Shelton giving Therese Scribner her first business: a “job offer” for Grandy’s on April 20,1990.
138
Following this, Fran Dubuisson — a friend and neighbor of the plaintiff (who witnessed some of Steve Wright’s sexual harassment)joined Therese Scribner’s recruiting agency. Originally doing business as “Resource Associates,” Scribner incorporated “Resource Recruiters, Inc.” in September 1990. She was the President and the sole shareholder.
The business of Resource Recruiters quickly began to grow. On October 11,1990, Resource entered into a written agreement with Grandy’s, under which it was to be paid between $500-$750 for each new employee it placed at Grandy’s. Over the next two years, Grandy’s would pay approximately $9,000 to Resource Recruiters for its recruiting services.
However, Grandy’s was not her sole client;
Therese and Resource Re
*921
cruiters placed employees with many different companies.
Just as she had done for Waffle House, Therese Scribner did an excellent job in recruiting for Grandy’s. Debbie Shelton testified that Therese “had a great way with people,” that she was a good “source” for Grandy’s, that “people were naturally drawn to her,” that she knew how to recruit “great restaurant managers;” and that this was “confirmed by her applicants,” many of whom “went on to become higher managers” at Grandy’s.
Over the next two years, Therese Scribner brought a number of recruits to Debbie Shelton, who hired them for Grandy’s. Of these recruits, only a relatively small number— between 15 and 20 — had been Waffle House employees or were still employed there. The credible evidence established that, contrary to the assertions of Waffle House, Therese Scribner
did not “raid" Waffle House to get recruits for Grandy’s.
Indeed, as a matter of policy, Scribner and Resource Recruiters did not make the initial contact with
any
Waffle House employee. However, they did receive calls from some Waffle House employees who asked Therese (and Resource Recruiters) to help them find jobs with another employer.
Debbie Shelton testified that she saw nothing unusual in the relatively small number of the Resource recruits who were employees of Waffle House.
139
According to Shelton, it is common for restaurants in the “fast food industry” to have “a higher turnover” than other businesses. Indeed, during her employment at Grandy’s — and before she began using Therese Scribner and Resource Recruiters — Shelton had, in fact, interviewed a number of Waffle House employees herself. Shelton found that the Waffle House restaurant managers were disgruntled with “the working conditions,” with the long hours and poor management, and with “abusive supervisors” (who had called some of these managers “stupid”, etc. in front of other employees). Indeed,
Debbie Shelton said she “never heard stories like this from the employees of any other company.
”
These complaints about Waffle House were some of the same reasons that, as discussed above, other credible witnesses gave for the very high turnover of unit employees and managers at Waffle House.
140
4.
The Fictitious “Raid” Upon Waffle House
Waffle House makes the baseless claim that Therese Scribner and Resource Recruiters “raided” its restaurants, from May 1990 through May 1992, to find new recruits for Grandy’s. This fictitious “raid” supposedly occurred in this manner:
i) ‘Within a month of plaintiffs termination, seven Waffle House managers ... had been scheduled by plaintiff and interviewed by Grandy’s”;
ii) “Between May 1990 and the early spring of 1992, plaintiff and her company placed approximately 5 more Waffle House employees with Grandy’s”; and
iii) “Then, in May 1992, an avalanche of recruiting and placement of Waffle House employees to Grandy’s occurred during a short period of time.”
It was solely because of this, Waffle House pretends, that a decision was made “to inform Grandy’s of the situation in an attempt to halt the apparent pirating of their employees.”
141
This Waffle House scenario — that Scribner “raided” its restaurants to find recruits for Grandy’s — is false. It was not supported by any credible evidence at trial. Indeed, the evidence clearly established that neither the plaintiff nor her two recruiters, Fran Dubuis-son and Margaret Dailey, had any contacts with Waffle House employees
unless those employees had first called Resource Recruiters to ask for help in finding another job.
The Court credits this testimony by Therese Scribner, Fran Dubuisson
142
and Margaret
*922
Dailey,
143
— which was supported by other credible witnesses at trial, including:
... Matthew Bullock, Rodney LeBrun and David Adams, who testified that they “had contacted the plaintiff first” to get her help “in finding a new job,” and that
the plaintiff “did not call first. ”
... Glenda Adams and James Douglas, who testified that Tony Fish had told them to call the plaintiff and they did.
... Tony Fish, who first testified that he “called the plaintiff in early 1992
or she called me,”
but then testified that
“it was his idea to call the plaintiff’
and that “she never tried to recruit (him) away from Waffle House.”
... Dave Smith, who testified that Waffle House employees “were upset when the plaintiff got fired and they were calling her”
144
and that he knew that Unit Managers Matt Bullock, Tony Fish and James Akins had all made the first contact with the plaintiff.
In contrast, the Waffle House witnesses lied once again, this time about the supposed “raiding” by Therese Scribner and Resource Recruiters. For example, Doug Eekhoff— who did not know that James Williams had already testified about how “he had put Eek-hoff in touch with the plaintiff’ — said that Margaret Dailey had first contacted him and arranged an interview with both Dailey and Scribner.
145
And, of course, both of the Mercers lied repeatedly: Sherry Mercer said the plaintiff “made a job offer” to her; Tim Mercer, adding his usual touch of class, said that in recruiting him, Therese said,
“I’m going to nail Steve Wright’s halls to the wall. ”
However, this fabrication of “raiding” — the supposed “avalanche of recruiting and placement of Waffle House employees to Gran-dy’s” in May of 1992 — laid the stage for Waffle House to retaliate once again against Therese Scribner.
5.
Waffle House Threats Causes Gran-dy’s To Terminate Its Contract With Resource Recruiters
It took only two threatening telephone calls for Waffle House executives, using the fabricated “raiding” story, to cause the loss of the written agreement that Resource Recruiters had with Grandy’s.
(i)
the first call: by Skip Nau
The first call was on May 8, 1992. Skip Nau, still Viee-PresidenMPeople of Waffle House, contacted Robert McGregor, the Director of Human Resources, at the Grandy’s offices in Dallas. According to McGregor’s testimony, Nau called from the Waffle House offices in Atlanta; he told McGregor that Waffle House was very concerned that Gran-dy’s “was singling out Waffle House in recruiting”; that “some” or “several” — Nau did not give any specific numbers — of the Waffle House restaurant managers “had been coming to work for Grandy’s.” McGregor responded to these complaints by telling Skip Nau that he would “investigate to see if Waffle House was being targeted” by anyone connected with Grandy’s. Then, Nau said:
“Do you guys use Therese Scribner?
Waffle House terminated her because of performance problems. Now, she’s vindictive and is targeting our managers to get them to leave Waffle House and go to Grandy’s.”
Skip Nau reported to Joe Rogers, the Waffle House President, CEO and 78% owner, that he had made this call to Robert McGre-gor of Grandy’s, and he told Rogers about
*923
the conversation. At trial, however, Nau lied about his call to McGregor; specifically, Nau denied telling McGregor that Therese Scribner “had been terminated for poor performance” or that she “was vindictive towards Waffle House.” When he told these lies, Skip Nau did not realize that McGregor had actually recorded Nau’s comments on a note pad dated May 8,1992, which read:
5/8/92
Skip Now (sic) — Waffle House 404-729-5700
Terez hiring their mgrs. & referring them to Grandy’s
Larry Cannon — Area Mgr. H817-481-4130 Dave Theobold — Reg. Mgr. H817-837-6817
She was recruiter for them for 3 1/2 yrs, term’d for perf. Problems. She’s now vindictive & trying to get Waffle House mgrs.
McGregor also thought that Nau’s “performance comments” were to “dissuade Gran-dy’s from using” Therese Scribner as a recruiter.
Robert McGregor, who was Debbie Shelton’s supervisor at Grandy’s, called her shortly after he had talked with Skip Nau. According to Shelton, McGregor was “very disturbed,” and told her that he had just received Skip Nau’s call; that Nau said that Scribner “was going into Waffle House restaurants — and was ‘calling Waffle House employees’” to attempt to “hire them away from Waffle House”; and that Nau also told him that Scribner “is vindictive” because Waffle House had “fired her for poor performance.”
Debbie Shelton responded to the Skip Nau accusations by telling McGregor that “this was not true” and that “people at Waffle House had been contacting Scribner first.” McGregor then instructed Shelton to make sure that Scribner “was not singling out one company” — and, “if she was, he wanted it stopped.”
Debbie Shelton promptly contacted Therese Scribner. Therese denied Nau’s accusations; she told Shelton that she “was not targeting Waffle House employees”; that the Waffle House employees knew her (and liked her); and that the employees had “made the first contacts with her.” Shelton was “satisfied” and felt that Therese’s “explanation was fine.” Shelton then reported to McGregor that “his recruiting standards had not been violated” by Therese Scribner. Therese also called McGregor to assure him personally that she had not done anything wrong with respect to the Waffle House employees she had presented to Grandy’s.
(ii)
the second call: Dave Theobold
The second Waffle House call was on May 18, 1992, less than two weeks later.
146
This time, it was Dave Theobold, Assistant Vice-President and Regional Manager, who called Robert McGregor. Theobold’s call was much stronger than Nau’s. He told McGregor that two more Waffle House managers had moved to Grandy’s since Skip Nau had talked to him.
147
Theobold also made the same remark as Nau, that Therese Scribner “had been discharged” and this was “why she had a vendetta against Waffle House and was targeting Waffle House.”
Then, Dave Theobold threatened McGre-gor:
“If you don’t stop hiring Waffle House employees” through Therese Scribner, “we’re going to set a bounty” and “pay a signing bonus” for “hiring away Grandy’s employees.” McGregor replied that he was going to check with Debbie Shelton, Therese Scribner, and the “Waffle House people they had hired.”
*924
McGregor did talk to both Debbie Shelton and Therese Scribner about these renewed Waffle House accusations of “raiding.” Therese told
McGregor
— truthfully —that she “didn’t single anyone out” and that all of the ex-Waffle House employees she brought to Grandy’s had first contacted Resource Recruiters. Debbie Shelton also told McGregor that these Waffle House allegations were false. At the direction of McGregor, Shelton checked with “the new managers” at Gran-dy’s who had been with Waffle House; each of these new managers “confirmed that they had contacted Therese first.”
148
However, although Shelton was satisfied that “there was nothing wrong” with the recruiting that the plaintiffs were doing for Grandy’s, McGregor was still extremely concerned by the threats of Cannon and Nau. Shelton, in particular, felt like Grandy’s had to avoid a “recruiting war” with Waffle House, that “would escalate.” And, although Debbie Shelton was “very angry” about what “she had to do,” Shelton called Therese Scribner and “reluctantly” canceled the Grandy’s contract with Resource Recruiters. The plaintiffs never did any more work for Grandy’s.
Of course, neither Skip Nau nor Dave Theobold told Robert McGregor, or anyone else at Grandy’s, that by May 1992,
Therese Scribner had not worked for Waffle House for over two years
■ — since her termination by Nau on March 1, 1990. If McGregor had known this, then the “raiding story” fabricated by Waffle House would not have worked because McGregor testified:
If I’d known that she [Scribner] had been gone for two years and there was still a concern on their part, it seems to me it would have lessened the impact in my eyes a little bit because if she had been gone for two years and they were just now calling to say we feel like there’s a problem here, I don’t know that I would have given it as much weight as I did.
H.
The Attempt To Suborn Perjury
Shortly before trial, Waffle House made an egregious attempt to suborn perjury by David Smith, a part-time Waffle House employee. At one time, Smith had been the Unit Manager of a Waffle House restaurant. However, Smith stopped when he started college classes again, but then later returned to work part-time as a cook. Eventually, David Smith decided that he wanted to return full-time, as a Unit Manager again. Smith met with Larry Cannon, Area Manager and Assistant Vice-President,
149
who told Smith that he should talk to Steve Oswald, the Regional Manager and Assistant Vice-President.
The following week, David Smith met with Steve Oswald, who told Smith that there was “no problem” with him coming back as a Unit Manager. Oswald also told Smith that he could be the Unit Manager at a new Waffle House restaurant being opened in Mansfield. Oswald also said he would “confirm this” with Larry Cannon.
However, the next person David Smith heard from was Dave Adams, who called and said that Larry Cannon wanted to meet with Smith.
This meeting with Cannon took place exactly one week before David Smith took the stand at trial and testified on behalf of Therese Scribner.
Smith gave very credible testimony about this meeting.
Cannon, of course, lied about it.
The Cannon-Smith meeting took place at another new Waffle House restaurant, which was being completed in Arlington. Inside, Larry Cannon told David Smith that the new restaurant in Mansfield was “not available” for Smith. When David Smith protested that “Steve Oswald had said Smith could have the Mansfield store,” Larry Cannon said “Steve had no right to tell you that.” And, Cannon told Smith “it’s not going to happen” because the new Mansfield restau
*925
rant was “right on the line” between Oswald’s territory and that of another Regional Manager.
Larry Cannon then asked David Smith to go outside with him to look at the parking lot “that needed to be repaired.” After they left the restaurant and were alone,
Cannon said to Smith, “I saw your name on a list of witnesses for the plaintiff’ in the Scribner case. “What is you name doing on her witness list?” ■
David Smith, who had not been subpoenaed for trial' — and who was surprised to learn he had been listed as a witness — honestly told Cannon, “I don’t know.” Cannon persisted,
“I want to know what you know” and why “you are to be a witness” for the plaintiff.
David Smith replied, “Larry, you should know me. My business is my business. You should know I don’t stick my nose in other people’s business.” And, this was Larry Cannon’s response to this statement by David Smith:
I wouldn’t (if I were you). I couldn’t think why you would be a witness.
Let’s not do anything to jeopardize our situation here. I’d really hate to see you jeopardize your opportunities with Waffle House
and if there was something you knew, then I wanted to know.
150
On the way home, David Smith kept thinking about Larry Cannon’s remarks. The more Smith thought about them, “the madder he got.” Smith realized — correctly so— that Cannon was threatening Smith if he did testify at trial on behalf of Therese Scribner. And, early the next morning, David Smith drove to Fort Worth to confront Larry Cannon. When Smith found Cannon at another Waffle House restaurant, he angrily told Cannon:
Larry, I’m just amazed. The conversation we had yesterday really bothers me. I want to talk to you about this.
I can’t believe that you would ask me to jeopardize my ethics or my morals to do anything different or any anything different than the truth.
And it’s just bothered me all day.
Larry Cannon did not deny making any of those comments to David Smith. Instead, Cannon just told some more lies: “It wasn’t meant like that. It was meant that
I didn’t want to be sitting in court across from Joe (Rogers), Jr. and have egg on my face by something that you might say or know.”
Larry Cannon told David Smith that he would “talk to Steve Oswald and they would contact him (about the restaurant).” Throughout that day, Smith kept worrying about Larry Cannon’s threats to keep him from testifying. Finally, David Smith decided to contact Therese Scribner and her lawyers. He soon did that — and, of course, Smith never heard from Cannon or Oswald about the new Waffle House restaurant in Mansfield — that was miraculously located right on the dividing line between two Regional Managers.
In view of the numerous other acts of misconduct discussed above — by the top officers, executives and supervisors of Waffle House — this attempt by Larry Cannon to eliminate David Smith as a trial witness for Therese Scribner was really not surprising at all, certainly not to this Court (since it witnessed Cannon’s lies at trial).
IV.
LIABILITY AND ACTUAL DAMAGES
The law applicable to each of the
liability
claims of Therese Scribner and Resource Recruiters, and the
actual damages
they are entitled to recover under each theory, are both discussed in this section. The law concerning the plaintiffs’
punitive damage
claims, and the amounts of their punitive damages recovery, are discussed next, in Section V.
A.
Willful Discrimination In Pay
1.
Liability
To recover damages under the Equal Pay Act, Therese Scribner was required to prove that Waffle House paid her less compensation than it paid to male employees for work that required equal skill, effort and responsibility and that was performed under the same or similar circumstances.
151
Under Ti-
*926
tie VII, Scribner was also required to prove that Waffle House intended to discriminate on the basis of sex.
152
And, if the evidence established that Waffle House’s wrongful conduct in this pay discrimination was willful, then the plaintiff is entitled to recover double the back pay award as liquidated damages.
153
2.
Actual Damages
From the credible evidence discussed above (sections III A 3-5, B and D), it is clear that Waffle House acted willfully, with the intent to discriminate against Therese Scribner, in paying her substantially less than these male recruiters who performed the same work under the same or similar conditions: Rick Seal, Paul Smith, John Bra-zelton and Rusty Whaley.
Therese Scribner
These are the four different levels of compensation that the plaintiff received
154
during her employment as a recruiter for Waffle House:
Salary Bonus Car Allowance Total
7/29/86 28,000 2,000-8,000 -0- 30,000-36,000
6/29/87 30,040 2,500-8,000 -0- 32,540-38,040
6/3/88 31,090 2,500-8,000 4,260 37,850-43,350
6/1/89 32,405 2,500-8,000 4,260 39,165-44,665
3/1/90
termination of the plaintiff
As shown by the following comparison, during each of these periods, Therese Scribner was being paid substantially less than Waffle House paid the four male recruiters— including the one that Therese replaced (Rick Seal) and the one who replaced her (Paul Smith). This pay discrimination was intentional and willful: Initially, Steve Wright lied to Therese Scribner, telling her that she was receiving the same compensation as Rick Seal, her predecessor. Then, when Therese discovered that this was false—after she reviewed Seal’s files—and angrily confronted Wright about it, Wright just “laughed” and told Therese that “her’s was second income” since she was married and “was not the family bread winner .” Wright added: “J
hired you because I saw you in a halter top and shorts.
”
The compensation figures in the following compensation comparison are Therese Scribner’s salary and maximum bonus during each period of her Waffle House employment; this is because of these reasons: the plaintiffs credible testimony that she regularly earned the highest performance bonus; the evidence establishing that, if she did not reach the top level, her performance—unlike that of the male recruiters—was certainly affected by the severe, pervasive sexual harassment of her,
155
and by the addition non-recruiting jobs (e .g., preparation of Steve Wright’s expense accounts) Scribner was required to perform; and the proven facts that Waffle House often miscalculated the amount of, or delayed payment of, the bonus which Scribner had earned.
This comparison is also based upon this Court’s total rejection of the claims by Waffle House that Rick Seal and the other male recruiters were paid more compensation than Scribner because they
supposedly
had “some additional duties and responsibilities.” These claims—for example, the frivolous assertion that Rick Seal also recruited hourly employees for the Waffle House restaurants—were clearly pretexual. Indeed, during Steve Wright’s deposition, he could not describe a single difference between Seal’s job description and that of Therese Scribner.
156
*927
First Period: Rick Seal (7/29/86 - 6/29/87)
On July 29, 1986, Therese Scribner was hired to replace Rick Seal as the recruiter for the Waffle House Western Area. Her starting salary was $28,000 a year with a potential performance bonus of $2,000 to $8,000
(total: $30-36,000).
In contrast, Rick Seal’s yearly compensation had been $38,000 in salary, a minimum $2,000 bonus, plus an additional $10,000 performance bonus
(total: $40-50,000).
157
However, the evidence established that Rick Seal, despite his poor performance,
158
actually made $6,250 of his potential bonus during the year before Scribner replaced him
(total: $4-6,250 of the potential
$50,000).
159
Since the plaintiff regularly earned her maximum performance bonus, the annual discrimination in pay between Seal’s maximum ($50,000) and Scribner’s maximum ($36,000) was
$14,000
during this first comparison pe
riod
— which
lasted 11 months,
until June 29, 1987, when the plaintiff received her first raise. Accordingly, during this 11-month period, the discriminatory unequal pay of Therese Scribner was $1167 per month, for
a total of $12,833.
Second Period: Rick Seal (6/29/87
-
6/3/88)
On June 29,1987, Therese Scribner’s compensation was increased to a yearly salary of $30,040, with a performance bonus of $2,500 to $8,000
(total: $32,540 - 38,040).
Therefore, after a year of employment as the Waffle House Western Area recruiter, Scribner was — despite this raise — still making less than Rick Seal actually made in the same position in 1985
(total: $44,250)
and less than Seal’s maximum ($50,000).
160
Because the plaintiff regularly earned her maximum performance bonus, the discrimination in pay between Seal ($50,000 maximum) and Scribner ($38,040) was $11,960 a year.
However, since a male recruiter in Seal’s position would no doubt have received at least the same $2,540 a year pay raise that the plaintiff did on June 29, 1987
(total:
$52,540),
161
the adjusted discrimination in pay for this period would be $14,500 a year. This unequal compensation lasted for 11 months (6/29/87 - 6/3/88). Accordingly, during this second 11-month period, the discriminatory unequal pay of Therese Scribner was $1318 per month, for
a total of $14,450.
First and Second Periods: John Brazelton (8/22/86-6/3/88)
On August 22,
1986
— less
than one month
after Therese Scribner started as the recruiter in the Western Area — John Brazelton became the recruiter for the Waffle House Metro East Area in Atlanta.
162
Brazelton had absolutely no prior recruiting experience; previously,
he had been operating a Colorado ranch owned by Waffle House.
Nevertheless, his starting compensation was $37,500, a fixed performance bonus of $6,000,
163
and a $4,260 car allowance
(total: $47,760).
Brazelton continued at this level until June 3, 1988, where his performance bonus was increased to $8,455 a year
(total: $50,215).
From July 29, 1986 to June 29, 1987 (12 months), Therese Scribner’s compensation was (as discussed above) only $36,000 — that
*928
is, $11,760 less than Brazelton was paid during this period
(an average of $980 per month).
The total pay discrimination during these 12 months was $11,760.
On June 29, 1987, Scribner’s maximum compensation was increased to $38,040; she continued at this level until June 3, 1988— that is, $9,720 less than Brazelton
(an average of $810 per month).
The total pay discrimination during these 12 months was $9,720.
Third Period: John Brazelton (6/3/88-8110/89)
On June 3, 1988, both John Brazelton and Therese Scribner received raises. Brazelton was increased to $50,215 (salary $37,500 plus $8,455 bonus plus $4,260 car allowance). Scribner, who had continually complained about not receiving a car allowance like the other recruiters, was finally given one
164
— and this increased her compensation to $43,-350 ($31,090 salary plus $8,000 bonus plus $4,260 car allowance).
165
This discrimination in pay (an average of $572 per month) continued until March 10, 1989, a period of 9 months; accordingly, it totaled
$5,148 for this third period.
The credible evidence established, without question, that Therese Scribner’s duties and responsibilities as the recruiter in the Western Area were the same as those of John Brazelton as a recruiter in the Metro East Area in Atlanta. The claim by Waffle House •that Brazelton had responsibilities “for more restaurants” — supposedly he had some 100 restaurants, while Waffle House claims that Scribner only had 27 in Dallas and Fort Worth — is misleading, and it is rejected. The plaintiffs recruiting responsibilities were for the entire Western Area, not just Dallas-Fort Worth.
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Similarly, the Waffle House contention that Brazelton’s compensation also included $7,500 a year for providing certain “administrative services” to executives in the Atlanta office in also misleading; Therese Scribner performed other duties besides recruiting in the Western Area — e.g., the preparation of Steve Wright’s expense accounts, the “Top Op” awards banquet, “Santa’s Sleigh”, etc. — but she never received additional compensation for these non-recruiting responsibilities.
Fourth Period: Rusty Whaley (3/10/89-3/1/90)
When John Brazelton left Atl
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