Petition for Writ of Certiorari — Burche v. Caterpillar Tractor Co.

Supreme Court brief1985

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m | Supreme Court, U.S,

. a \y | FILED

SEP LT 196g

JOSEPH F. SPANTOL, JR.

se CLERK

: IN THE "aaa

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No.

MAURA BURCHE,

Appellant,

Vv.

CATERPILLAR TRACTOR CO.,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

MAURA BURCHE

5210 Division Street

Davenport, IA 52806

Telephone: (319) 386-4736

Appellant Pro Se

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

No.

MAURA BURCHE,

Appellant,

Vv.

CATERPILLAR TRACTOR CO.,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS

MAURA BURCHE

5210 Division Street

Davenport, IA 52806

Telephone: (319) 386-4736

Appellant Pro Se

QGUESTICN PRESENTED

1. Were the rights of Maura Burche

under the Fourteenth Amendment to the Con-

stitution of United States violated by the

Trial Court's decision by not providing

equal protection of law, denying her case,

and accepting the employment discrimination?

2.In light of U.S. Court of Appeals Order

when first considered the case, No.81-2580,

of May 16, 1983 that:

"Judging Plaintiff's complaint by

less stringent standards, we find that

she has successfully pleaded a Title VII

claim,.."more informations necessary to

defend the claim may be determined

through discovery".."The District Court

erred in dismissing Plaintiff's com-

plaint;"

considering also that Appellant is fighting

in courts years long, illegal, perseverent,

ruthless discrimination in employment, which

caused Appellant substantial, irreparable

emotional sufferances and material damages,

did U.S. Court of Appeal erred in denying

ee GE oe 26 oe Be oe Pee

her "Motion to Reinstate Appeal" without

considering the evidence and circumstances .

of Appellant's discrimination?

3. Having knowledge: that Appellant's -

attorney, in fact is guilty of malpractice

abandoning Appellant's case without any no-

tice, that Appellant had no fault and that

she dismissed her attorney, as soon she

found out about such malpractice, did the

above court erred in allowing techricali-

ties to deprive Appellant of a judgement

on her Appeal, knowing also that through

such denial did encourage discrimination in

employment, because of sex and national

origin?

INDEX

QUESTIONS PRESENTED... cess seceees 2

TABLE OF AUTHORITIES... ..cceecceces 7

JURISDICTIONAL STATEMENT.......2.0. 10

OPINIONS BELOW... cc cevecererveveess 12

JURISDICTION... ccccecccerevecccvves 14

CONSTITUTIONAL PROVISIONS AND RULES 15

RAISING THE FEDERAL QUESTION....... 15

STATEMENT OF FACTS... ccceccccccccee 16

CONCLUSION... cc ccccccccccvcvecevecs 48

CERTIFICATE OF SERVICE... ce eeee 55

APPENDICES:

APPENDIX A (U.S.Supreme Court Order for Time

Extention to File Docket of Appeal) Al

APPENDIX B (Appellant's Credit Hours for

Computer Class) Bi

APPENDIX C (Denial of Action to Reinstate

the Appeal to U.S. Court of Appeal) Cl

APPENDIX D (Motion to Reinstate the Appeal

to U.S. Court of Appeals ) D1

—_—

APPENDIX E (Dismissal of Notice of Appeal -

by U.S.Court of Appeals) El

APPENDIX F (Notice of Appeal to U.S. Court

of Appeals) Fl

APPENDIX G (Dismissal of Case by U.S. Dis-

trict Court) GI

APPENDIX H (Attorney's Retainer Agreement) Hl]

APPENDIX I (U.S. Court of Appeals Order

Remanding the Case to the District

Court ) K]

APPENDIX L (Appellant's Letter Sent to

FEPC) Ll

APPENDIX M (FEPC Letter for Conciliation)Ml

APPENDIX N (Appellee's Letter Sent to

FEPC) Nl

APPENDIX O (FEPC Investigation Report) 01]

APPENDIX P (Appellee's Letter to Dismiss

Appellant After Her Refusal to Accept

the Job Class II Clerk) Pl

APPENDIX Q (Appellant Refusal to Accept

Job Cffer as Class II Clerk) 3

APPENDIX R (Appellee's Job Offer) Rl

Appendix S (Information Sent to FEFC by

Appellee About Some Employees Hired

Between 10/1978 to 3/1979 S$]

APPENDIX T (Appellant's Claim to FEPC) T1

APPENDIX U (Appellee's Letter to Various

Departments of Its Plants) ul

APPENDIX V (Appellant's Diploma in Chemi-

cal Engineering) vl

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wat

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eel

TABLE OF AUTHORITIES

I. CASES

Brunetti v Wall Mart Store, Inc., D.C.

Ark 1981, 525, F. Supp. 1363

Coble v Hot Spring School District No. 6,

C.A. Ark. 1982, 682, F2d, 721

Fisher v Procter and Gamble Manufacturing

Co., 613, F.2d., 527 / Sth Cir. 1980

Greve v Frostburg Nat. Bank, D.C. Md. 1982

549, F. Supp. 922

Henson v City of Dundee, C.A. Fla. 1982,

682 F.2d., 897

Katz v Dole, C.A. Va 1983, 709, F.2d., 251

Mack v W. R. Grace Co., D.C. Ga. 1983, 578,

F. Supp. 626

Meyers v I.T.T. Diversified Credit Corp.,

D.C. Mo 1981, 527 F. Supp. 1064

Muldrew v Anhenser - Bush Inc., D.C. Mo

1982, 554, F. Supp. affirmed 728 F.2d.

989

Paterson v Youngstown Sheet and Tube Co.,

C.A. Ind. 1981, 659, F.2d. 736, certio-

rari denied 102 S. Ct. 674, rehearing

denied 102 S. Ct. 1494.

Richardson v Restaurant Marketing Associates, 53

Inc., D.C. Col. 1981, 527 F. Supp. 690

Rimedio v Revlon Inc, D.C. Ohio, 1982, 528,

F. Supp. 1380.

Schulte v Wilson Ind., Inc., D.C. Tex. 1982,

547, F. Supp. 324

Scott v Oce Ind., Inc., D.C. Fl. 1982, 536,

F. Supp 141

Sorrells v Veterans Adm., D.C. Ohio, 1983,

576 F. Supp. 1254

Spagnuolo v Whirlpool Corp., D.C. N.C. 1982,

548 F. Supp. 104, Affirmed in part, re-

versed in part on other grounds 717 F.2d.

114

Thompson v Sawyer, 1982, 678, F.2d., 257,

219, U.S App. D.C. 393

United Airlines v Evans, 431 U.S. 553 (1977)

Whalley v Skaggs Companies, Inc., C.A. Colo.

1983, 707 F.2d 1129, certiorari denied

104 S. Ct. 349

Williams v Boorstin, 1980, 633, F.2d., 109,

213 U.S. App. D.C. . . . 345, certiorari

denied, 102 S. Ct. 2319, 451, U.S. 985,

68 L Ed. 2d. 842

‘Williams v Trans World Airline Inc.,

C.A. MO 1981,660, F.2d.1267..

Zabcovici v W. Bend Co.,D.C. Wis.

1984,589 F. Supp. 780.

SS -=- Ss SS eee:

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II. STATUTES

Title VII Civil Rights Act 1964

U.S.C.A. 28,1254 (27), (65), (66)

(73),(192), (206)

U.S.C.A. 28,2680 (14), (57)

U.S.C.A. 42, 2000e et seq.

III. CONSTITUTION

United States Constitution

ArticleIII, Section2

United States Constitution

Fourteen Amendment, Section 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

MAURA BURCHE, Appellant,

Vv.

CATERPILLAR TRACTOR CO., Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT, CHICAGO, ILLINOIS

JURISDICTIONAL STATEMENT

Maura Burche, the appellant pro-se, appeals

from the order of United States Court of Appeals

for the Seventh Circuit Chicago, Illinois, dated

May 22, 1985, denying appellant's "Motion to Rein-

state the Appeal" holding that the denial is not

== sS - - -ae

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constitutional as being violative of appellant's

rights under Title VII Civil Rights Act, 42

U.S.C.A. Sec. 2000e et seq. The Appeal 81-2580 was

dismissed on November 27, 1984 for lack of prose-

cution.

The Appellant's case, which is a poignant case

of employment discrimination, was poorly prosecut-

ed, ignored and finally abandoned by Appellant's

Attorney Paul Kuster of Peoria, who despite a writ-

ten agreement to pursue the case, letters, and

telephone calls, never contacted the Appellant from

the date "Notice of Appeal" was filed in U.S. Court

of Appeals on 5-12-1984. The Appellant's attorney

is guilty of lack of prosecution and malpractice.

Also in dismissing the case the court didn't take

in consideration the history of this cruel case of

discrimination and severe emotional and material

damages.

| U.S. Court of Appeal denying Appellant's "Mo-

tion to Reinstate the Appeal" deprived Appellant of

her constitutional rights to seek equal protection

of law guaranteed by Fourteenth Amendment, Section

1 of U.S. Constitution, by Article III, Section 2

U.S. Constitution, Title VII Civil Rights Act 1964,

42 U.S.C.A. 2000e et seq.

OPINION BELOW

1. The opinion of U.S. District Court at first

consideration of case on September 17, 1981, enter-

ed a Judgement dismissing the complaint of Plain-

tiff-Appellant, with prejudice on all grounds pre-

sented by Defendant-Appellee.

2. The opinion of U.S. Court of Appeal for the

Seventh Circuit Chicago, Illinois, at first consid-

eration of case on Mar 16, 1983 (Appx. I) remanded

the case to the U.S. District Court for reconsider-

ation concluding that Plaintiff-Appellant succeeded

in pleading a Title VII claim and that court erred

in dismissing the case.

3. Opinion of U.S. District Court at second

consideration of case on Apr. 12, 1984 "entered a

ae A oes Ol eee OO ee ee ee

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verdict in favor of Defendant and against Plain-

tiff" (Appx. G), was appealed on May 12, 1984 by

Appellant (Appx. F).

4. Opinion of U.S. Court of Appeal at second

consideration of case dismissed the appeal "for

lack of prosecution" on Nov. 27, 1984, (Appx. E).

Appellant contested the dismissal through "Motion

to Reinstate the Appeal" on 5-13-85 (Appx. D).

5. Opinion of U.S. States Court of Appeals for

the Seventh Circuit, Chicago, Illinois, of May 22,

1985 (Appx. C) denying Appellant's "Motion Rein-

state the Appeal", was contested by Appellant in

U.S. Supreme Court, October Term 1985, through "Ap-

plication For Extension to File a Notice of Appeal

and to Docket Appeal" on Jul. 9, 1985.

6. U.S. Supreme Court ordered on July25, 1985

* “that the*time to file Writ of Certiorari and/or for

Gocketing an appeal be extended to Sept 22, 1985

(Appx. A).

JURISDICTION

U.S. Court of Appeals for the Seventh

Circuit, Chicago, Illinois, denied Appel-

lant's " Motion to Reinstate the Appeal”

on May 22, 1985.

Appellant filed in U.S. Supreme Court on

July 3, 1985 an " Application for Extention

to File a Notice of Appeal and to Docket

Appeal ". Such application has been accep-

ted by the U.S. Supreme Court, establishing

Sept. 22, 1985, deadline for docketing of

appeal. |

The jurisdiction of this Court is in-

voked under 28 U.S.C.A. 1254 (27), ( 65),

(66), (73), (192), (206), and 28 U.S.C.A.

2680 (14), (57).

CONSTITUTIONAL PROVISIONS AND RULES

Constitution of U.S. Article III, Section 2:

"The judicial power of the federal courts

includes all cases of law, criminal cases,

Civil cases and cases of equity (cases con-

| cerning asking for court action to prevent

: Same wrong doing or end same wrong doing

done) mentioned in the constitution".

' 42 U.S.C.A. Sec. 2000e - 5 Note 746:

“Congress is enacting this subchapter out-

lawing discrimination by employer on basis

of race, sex, color, or national origin,

intended federal courts to have resort to

all of their traditional equity powers,

direct and incidental, in aid of enforce-

ment of this subchapter".

RAISING THE FEDERAL QUESTION

The decision of U.S. Court of Appeals for the

Seventh Circuit, Chicago, Illinois, dismissing Ap-

pellant's "Motion to Reinstate the Appeal" was in

fact an acceptance of Appellant's employment dis-

crimination and acceptance of malpractice commit-

ted by Appellant's attorney.

1 Through the above decision Appellant's consti-

tutional rights guaranteed by Article III, Section

2, and Fourteenth Amendment, Section 1 of U.S. Con-

stitution, have been infringed, therefore Appellant

prays U.S. Supreme Court to reinstate full consti-

tutional rights and dignity grossly infringed by

the Appellee, and disregarded by inferior courts

including U.S. Court of Appeal.

STATMENT OF FACTS

1. At the earlier stage of this claim Appel-

lant filed on 11-9-1978 with Fair Employment Prac-

tices Commission (FEPC) a charge of harassment and

discrimination in employment because of sex~femate

and national origin-Romanian, and failure to recall

from medical leave (Appx. T).

2. Appellant asked FEPC through a letter dated

11-1-1979 (Appx. L) that Appellee shoudl eliminate

any defamatory report~ attached to her file.

3. FEPC conciliatory letter, dated 10-23-1979,

(Appx. M) demanded Appellee to give Appellant a

good reference letter with the purpose of being

used exclusively when prospective employers reques-

ted information about her; also "Expungement from

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complainant's personnel file of material relating

to complainant's termination".

This was a constant demand throughout the en-

tire Appellant's claim. The concilatory efforts of

FEPC failed.

4. On 10-1-1979 FEPC issued an "Investigation

Report" (Appx. O) where it was found that Appellant

was harassed and discriminated because of sex-fe-

male and national origin-Romanian, but such harass-

ment lacked jurisdiction because Appellant's com

plaint was filed too late.

FEPC erred in dismissing Appellant's charge of

discrimination and harassment because of sex and

national origin due to technicalities.

5. On 11-30-1981 the administrative judge,

Linda Krueger MacLachlan, dismissed the case (Appx.

J). The judgement erred by not taking in consid-

eration FEPC findings, the considerable emotional

sufferances and material damages caused to Appel-

lant by not granting her relief, job and backpay.

In Judge’s Finding of Facts:J-6(3),J-7(4,5),

3-8(910), J-9( 13 )¢, J-10(16) are errors which

disregard the truth ‘Tire Development Lab, Build-

ing E is exclusively for rubber compounds testing

where could work only qualified people. No one

from other laboratories of Building E would have

knowledge to work in this lab, or vice versa. Test-

ing equipment for rubber was not scattered in all

of Building E but only in four rooms,from thirty to

forty rooms existent . Each of five to six labora-

tories had his own supervisor and technicians from

different lab did not interfere in work. Calton,

Kapraun, Clemens never worked at proving grounds

and Appellant could work in any of five to six labs

in Building E without having contact with them.

Statement J-8(9) is also false, Appellant wes

released to work in August, 1978.

]

6. On 11-17-1978, Equal Employment Opportun-

ity Commission (EEOC), notified Appellant that her

claim was found to be without reasonable cause.

7. On 5-4-1981, EEOC informed Appellant, pro-

se at that time, about her "Right to Sue".

8. Appellant filed within 90 days, on Aug. 30,

1981, under Title VII, 42 U.S.C.A. Sec. 2000e et

seq., a three counts complaint of: I) employment

discrimination and harassment because of sex and

national origin; II) failure to reinstate Appel-

lant, after medical leave, in an equivalent job to

her former job; III) preparation and dissemination

of false, defamatory reports about Appellant's

work, providing these reports to potential employ-

ers, preventing Appellant of finding any equivalent

job (Appx. K).

9. U.S. District Court Judge Robert Morgan

orally dismissed the case on 9/17/1981 after only

15 minutes of hearing. It was obvious that the |

Judge didn't intend to hear the case and his de-

| ON

cision to dismiss the case was made before he en-

tered the court room, from the way he rejected any

Appellant's attempt to plead her case. Appellant

was deprived of her civil rights by not according

her a relief.

10. On 9-24-1982 Appellant appealed her case

of employment discrimination and obstruction of her

constitutional rights to U.S. Court of Appeal. On

May 16, 1983 the above court reversed U.S. Dis-

trict's Court Judgement (Appx. I) in favor of Ap-

pellee on Appellant Title VII claims, remanding the

case for rehearing on two charges: A) Failure to

reinstate Appellant in an equivalent job to her

former job when she requested employment after her

medical leave; B) Preparation of false, defamatory

evaluations of Appellant's work by Appellee and

furnishing them to employers, preventing Appellant

from obtaining an equivalent employment to her old

job.

11. The above charges were dismissed on Apr.

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12, 1984, by U.S. District Court Judge Robert

Morgan, (Appx. G) who denied Appellant's constitu-

tional rights under Title VII and encouraged Appel-

lant's discrimination by supporting Appellee's pre-

texual explanations. )

12. “Notice of Appeal” (Appx. F) was filed on

May 12, 1984 in U.S. Court of Appeals which was

dismissed on Nov. 27, 1984, for "lack of prosecu-

tion" (Appx. E).

13. "Motion to Reinstate the Appeal" filed by

Appellant pro-se, on 5-13-1985 (Appx. D) showed a

flagrant malpractice done by Appellant's attorney,

was denied on May 22, 1985 (Appx. C).

14. U.S. Court of Appeal erred in denying Ap-

pellant's "Motion to Reinstate the Appeal" depriv-

ing Appellant of her constitutional rights, in a

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ruthless case of employment discrimination, under

Title VII, as is stated herein. A such denial

should not have been made unless all discriminating

charges, the totality of circumstances and Appel-

ilies

lee's history in discriminating Appellant have been

considered.

"Whether the harassment at work place is

sufficiently severe and persistent to af-

fect seriously pshychological well-being

of employees is question to be determined

with regard to totality of circumstances”.

Henson v. on Dundee, C. A Pla.,

1982, 682, F.2d. ‘

“(federal court) it properly might consid-

er any action which took place as evidence

of later discrimination" (Appx. I, p. 6).

"The question of admisibility of discrimi-

natory acts is left to the sound discretion

of the trail court". United Airlines v.

Evans, 431 U.S. 553 (1977); Fisher v. Procter

and Gamble Manufacturing Co., 613 F.2d.

527 (5th Circ. 1980).

The U.S. Court of Appeal through its ruling

(Appx. I) inspite of its latitude to consider all

acts of discrimination during Appellant's employ-

ment, did choose to accept only those after April

1977, dismissing those prior April 1977. It would

be unjust to accept, due to technicalities, only

discriminatory acts after April 1977. The period

prior Apt il 1977 presented below in a succinct way

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and shown also in (Appx. K) did have a high contri-

bution to severe pshychological sufferences of Ap-

pellant. Consequently the Appellant prays the

court to take in consideration the Appellant's dis-

crimination for entire period of her employment and

the error of inferior courts by not considering

above discrimination.

I. Errors of Previous Courts in Disregarding

Appellant's Discrimination During Her Work. Appel-

lant states as follows: | ieee

1. The Appellant is a U.S. Citizen, resident _.

of State of Iowa, City of Davenport, female of

Romanian origin, entitled to protection from eploy-

ment discrimination under terms of Title VII of the

Civil Rights Act of 1964.

2. Appellant was hired on 3-10-1975 by Appel-

lee as Research Technician at Technical Center-Tire

Development Laboratory, Bldg. E, Mossville, Illi-

nois, with a pay of $287.20/week. Her duty was to

design experimental rubber compounds and test them.

3. Appellee has its principal office located

in Peoria, Illinois and has employees of such a

number and for such a pericd as to be an "employer"

within the meaning of Section 701(b) of the Act (42

U.S.C.A. Sec. 2000e-(b)).

4. The unlawful employment practices alleged

herein were commited by Appellee within State of Il-

linois.

5. ‘The Appellant during a six year law suit

against Appellee has followed all legal channels

allowed by U.S. Constitution, and that the claim is

now under the jurisdiction of this Court.

6. Appellant has therefore instituted this ac-

tion under Title VII, 42 U.S.C.A. Sec. 2000e et

seq. Viewing the above legislation concerning dis-

crimination, the decisions of federal courts are

very adamant to discourage wit practices and com-

pensate the victims for their sufferances and loss-

es.

"Courts are to be guided by complimentary

i a i a a ee

aims: discouraging employers from discri-

mination, and compensating discrimination's

victim as fully as possible". Thompson v.

Sawyer, 1982, 678, F.2d., 257, 219 U.S.

App. D.C. 393.

7. The unlawful discrimination practices and

harassment because of sex and national origin, com

mited by Appellant's boss Marion Calton and co-

workers Hank Kapraun and Larry Clemens, started a-

bout 4 - 5 months from Appellant's employment and _

augmented to the point that became a harmful, scar-

ing place to work as follows:

a. Kapraun and Clemens wrote sexual words like

"I fuck you" on the machines Appellant was working.

b. They called her "Moose" and "Here comes the

trouble".

c. Clemens drew a moose on Romania's map in

laboratory and on machines, and simulated moose's

sounds when she was passing by. They brought a

stuffed héad of a moose with a mortua.7 crown and

told her they will bury the moose.

dH.Kapraun menaced Appellant with fists

and screaming at her.

e.Clemens cold her to go back to Romania and

when she was passing by, he said: "Maybe I will

kill myself”.

f. Clemens made sexual, obscene comments to

Kapraun about Appellant's 11 a 15 year old daug-

ters without knowing them.

g. They spread rumors that — is a drug

and alcohol user, that she is a lesbian.

A Laboratory technician asked her if she is a

drug user when she took a medication for kidney and

bladder infection; Appellant received at home many

letters asking her to seek help against alcohol a-

buse and drugs. Telephone was ringing at 2 A.M.

and nobody was talking on the line scaring her

children. The Appellant's life in such conditions

was a nightmare.

h. Appellant's work was sabotaged continuously

to show that she is not able to work; The machines

were unset after Appellant qualibrated them to use

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee

them. Such acts have been reported to Connie

Fraser~Supervisor Personnel Department. Though the

machines continued to be unset by Kapraun and Clem-

ens, making Appellant's work almost impossible.

i. The tensile machine located upstairs of la-

boratory, had strong trepidations for months, only

when Appellant worked with it, making impossible to

read a diagram. Appellant informed Calton and Ka-

praun but they said that was nothing they could do

because probably Appellant was doing something

wrong and therefore she was not able to work.

After several months a technician, Ernest Steinert

fixed the paperroll which was travelling back and

froth horizontally because a bolt was missing. The

department had a repair shop for machines, Kapraun

was in charge with machine maintenance, though the

bolt has been taken away every time Appellant was

working with tensile machine and nobody seemed to

. notice it for months. More, Calton was very angry

when he found out Appellant was helped by Steinert.

j. It was very difficult for Appellant to ob-

tain a machine to work. Calton told Appellant to

write the date and hour when she needed the mach-

ine. When she complied with this demand and start-

ed to use the machine, Calton angerly told Appel-

lant that even though she was scheduled to work

with that machine, she had to give up always 4 mac-

‘ine when other co-workers needed it.

k. Clemens made out of rubber an excrement and

told Appellant "This is you". Nobody should be al-

lowed to wrk in such humiliating conditions. Other

examples of harassment and sabotage are presented

in (Appx. K).

1. While the above harassment was repeating

continuously, Clemens and Kapraun were praised by

Calton, given merit increases while Appellant was

demoted from research téchnician to the duties of

technician under Calton's explanation that "was too

much work or strain for Appellant". After 6 months

merit raise, Calton eliminated the Appellant from

ce eee ee oe ee ee eee es ee ee ee

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“—

any raise.

m. Appellant informed her boss M. Calton about

illegal ruthless harassment about 4 months from her

employment and since then very often, but he told

Appellant that co-workers are joking and she is the

one who troubles their work.

Appellant constructively informed Mr. Higgins,

Chief of Personnel, Connie Fraser-Supervisor Perso-

nnel, Manager Robert Untz and Grawey, through let-

ters, meetings, conversations, telephone calls,

confirmed by C. Fraser during trial. In his re-

ports Calton acknowledged Appellant's claims but

took them in a very light manner-as jokes. (Appx.

o - 18).

"Harassment that creates offensive work en-

vironment, plaintiff must -emonstrate that

employer had actual or constructive know-

ledge of existence of sexual hostile work

environment action and took no prompt and

adequate remedial action". Katz v. Dole,

C.A. Va 1983, 709, F.2d. 251.

n. The Appellee never took any step in erradi-

cating discrimination against Appellant, never dis-

cipled L. Clemens, H. Kapraun or her boss M. Cal-

ton, Appellee never investigated this discrimina-

tion. More it was encouraged by designating Kap-

raun to investigate Appellant's discrimination,

which gave him the opportunity to cover up the dis-

crimination and continue it.

"Female employee proved her claim of sexual

harassment in view of evidence of unreason-

able, sustained, malicious and brutal harass-

ment by male employees, showing that although

informed many times of the harassment, manage-

ment never conducted an investigation or dis-

ciplined a single employee until after repeat-

ed complaints". Zabkovici v. W. Bend Co.,

D.C. Wis. 1984, 589 F. Supp. 780.

©. Appellant asked federal courts (Appx.K-54)

for a full discovery of FEPC findings as: discus-

sions, declarations, notes, reports, tapes or any

other piece of evidence pertaining to Appellant's

discrimination obtained during FEPC investigation,

but it was refused by FEPC.

p. Inferior courts greatly erred in disre-

garding above cruel discrimination and letting tec-

hnicalities to deprive Appellants of its constitu-

ne nll ll mlLlrl ll ll

a a ee

tional rights. Previous courts made an injustice

and error against Appellant's civil rights by not

considering the severe harassment and emotional da-

mages that occurred during her work before April,

1977. The U.S. Court of Appeals erred also in dis-

missing "Motion to Reinstate the Appeal" (Appx. D)

by not considering the totality of circumstances.

II. Errors of Previous Courts in Dismissing

Appellant's Claim for Reinstatement in an Equiva-

lent Job to the Previous Job.

1. As consequence of persisted, harmful dis-

crimination, Appellant was under severe, emotional

pain.

2. Despite of totally abnormal, harmful condi-

tions at work Appellant wanted to continue to work,

hoping that Appellee would erradicate discrimina-

tion. She continued through sustained physical and

emotional efforts to give a good work, as affirmed

during FEPC investigation, her last two months sup-

ervisor Eng. Thomas Leonard and Frasier of Personnel.

3. Appellee instead of erradicating discrimin-

ation did continue it until the Appellant became

ill , being forced to medicai leave on 4-22-77

by Appellee's physician Dr. Ashbury who sent her to

Dr. Andri. Dr.'s Andri diagnosis was paranoia.

4. Appellant was under Dr. Andri's care at St.

Francis Hospital-Psychiatry Department for a month

until 5-22-1977. In the hospital Appellant start-

ed to present severe psychological reactions, she

couldn't keep eyes open, she couldn't speak and had

bladder infection. Such severe reactions were

caused by the inproper medication administered to

Appellant, based on Dr. James Brown's diagnosis.

Appellant remained in Dr. Andri's care, as outpa-

tient, until May 1978, when she changed her doctor

because of unbearable psychological reactions

caused by medication, with Dr. James Brown from

Iowa City.

5. Around Aug. 1978, Appellant was released to

go to work by several doctors: Dr. Andri Emmi, Dr.

== |= | | | | eee

2 oe

Ward James of Peoria, Illinois, Dr. James Brown and

Dr. Duffi Owen of Iowa City, Iowa, without any men-

tal or physical restriction in work, but only with

recommendation do not work in presence of the em

ployees she felt she was harassed, sabotaged and

discriminated; co-workers Hank Kapraun, Larry Cle-

mens and Marion Calton her boss (Appx. O -11 to 15).

6. Appellant demanded to return to work

through above physicians (Appx. O - 11/15) .She

made this demand to Connie Fraser-Personnel Depart-

ment, also by presenting herself ready to work in

Aug. 1978. As a result of Appellant's demands for

work C. Fraser sent a letter on 11-2-1978 (Appx. U)

to other Appellee's plants, inquiring for a job for

Appellant. Appellant called also Mr. Grawey, R.

Untz—Managers, Mr. Higgins-Personnel Chief demand-

ing a place to work anywhere at one of Appellee's

plants, but they referred her back to C. Fraser.

She invariably told Appellant that can't find any

job for Appellant.

7. Until 3-19-79, one month after FEPC Facts

Findings Conference on 2-23-79, when FEPC asked Ap-

pellee to find for Appellant a job equivalent to

her former job, Appelle never offered Appellant a

job.

8. The job offered to Appellant on 3-19-79

(Appx. R) was Class II Clerk Routine, requiring Ap-

pellant to deliver computer prints to various of-

fices, for a pay $251.20/week, lower than her pre-

vious pay $287.20/week.

9. Appellant refused Class II job (Appx. Q) as

being a continuity of her discrimination because of

sex and national origin, a demotion from Appellant's

former job, who has a degree in chemical engineering

and was employed by Appellee as Research Technician.

The job offered deprived Appellant of an equivalent

salary, pension, raise, promotion, social security,

equivalent to her old job and was not commensurate

to her education, work experience and capabilities.

Appellant's refusal is justified and can't be

r “as fe

—

cee I een cee cee ce ee ee ee ee

in... he UL Se ee ee Oe ll ee

considered as a quit, but a constructive dismissal

of Appellant.

"Position offered of national traveling

salesman was essentially different" from

Plaintiff's old job of regional super-

visor, and common law principle of miti-

gation, therefore did not require Plain-

tiff to accept offer of reinstatement."

sages v. Whirlpool Corp., D.C. N.C.

1982, 548 F. Supp. 104, affirmed in part,

reversed in part on other grounds 717

F.2d., 114.

"In order that she was constructively

disitharged by defendant in violation of

rignts protected under this subchapter,

employee doesn't have to prove it was

employer to force her to resign".

Schulte v. Wilson Ind., Inc., D.C. Tex.

1982, 547, F. Supp. 324.

"When an employer makes an employee's

work conditions so intolerable that the

employee is forced into an involuntary

resignation, the employer has effected

[ a constructive discharge". Rimedio v.

- Revion, Inc., D.C. Ohio 1982, 528,

F. Supp. 1380.

Offering to Appellant Class II job, Appellee

- was Only looking for a pretext to fire Appellant,

= and escape FEPC requirements.

10. Appellant was terminated by Appellee on

March 27, 1979 (Appx. P).

il. Appellant's Qualifications:

a. Appellant has a degree in Chemical Engi-

neering (Appx. V). Appellant took during 5 years

of college courses as follows: Calculus, Physics,

Resistance of Materials, Technology of Materials,

Electrical Circuits, Mechanics, Industrial Tech-

nology, Electronics, Physical-Chemistry, Organic

and Inorganic Chemistry, plus laboratories, Rub-

ber and Petroleum Technology, Electrochemistry,

Coal Gasification, etc. |

Appellant worked -as engineer in Romania,from

1955 to 1969. when she left Romania, in Tire Ind.

laboratory and Refinery laboratory wwhere she

worked in chemical analysis and mechanical

testing of products.She was research librarian.

Coming to U.S.A. in 1970 she worked at Akron

Equipment, Akron, Ohio, engraving metalic molds for

tire industry with electrical tools, in accordance

to the drawings. Appellant was also employed by

Bandag, Inc. R & D, Muscatine, Iowa, a retreading

[

{

| Fae =

SSE

‘

Gos: Geet - Git 3 ened

plant where she worked with testing machines and in

chemical laboratory.

_b. At the beginning of her employment, on

3-10-75 M. Calton wrote:

“There is no question that (Appellant) is

capable, hardworking, has excellent moti-

vation, and initiative and can benefit our

group. She is agressive and somewhat de-

manding. These qualities are of course,

laudable if properly controlled. If I had

only technicians working for me, (she)

might well be my choice."

Also on 8-25-75 Calton wrote:

"(Appellant) is perhaps the inmost devoted,

hardest working technician that I have

known. Her knowledge of work is impres-

sive. In view of her progress and her

excellent abilities and work output, I re-

commend the pay increase noted above".

(Appx. O - ( 15,16))

Therefore when Appellant was hired by Appellee,

her work experience, background were highly recog-

nized, but when she started to claim against dis-

crimination, M. Calton prepared false, defamatory

reports about Appellant's work, to the point that

Appellant was considered incapable to occupy any of

the positions for which people with no college or

at most 2 years college in biology, business, with

work experience in farm, food store, teaching, were

hired.

Appellant was considered only for Class II Clerk

"the only job she could perform without additional

training for which she was qualified". Mastronar-

di's letter 6-26-1979 (Appx. 0-21).

c. In Fall 1984 Appellant took 3 month com

puter operations course at Scott Community College

Davenport, Iowa (Appx. B) and a Real Estate course

at St. Mary's College, Davenport, Iowa where she

obtained license No. F19845 - 1982. Between 1979

to 1982 she made drawings to build four duplexes

and worked és general contractor for IJP, Inc. Pre-

sently she is studying computer programming.

12. The above qualification and work experience

show Appellant having technical versatility, work

capability, possibility of learning in different

fields due to her education and work experience.

Therefore Appellee's refusal to give her a job in

wn Ce en ee ee

baccateg

SS —_- = =

a different plant, equivalent to her old jab be-

cause "she has limited background to rubber test-

ing” is false, a pretextual explanation of Appel-

lee who hides discrimination and intention to con-

structively discharge Appellant. (Appx. S-3 to 5).

13. The list of 11 positions of employees hir-

ed by Appellee between Aug. 1978 to May 12, 1979,

presented to FEPC(Appx.021)and employment file of

people hired, (Appx. S) show that Appellee hired

people with less education and work experience than

Appellant, while Appellant was asking constantly

Appellee for work. Appellant could have occupied

any of the above positions due to her background.

14. Appellee's testimony presented tc FEPC,

showed that Appellee hired less than 10% femeles as

technicians therefore Appelle has a history in hir-

ing males excluding females, which explains the re-

jection of Appellant from all jobs available.( Appx 0-2¥11)

15. Appellee admitted that they have labora-

tories at other locations ( Appx.06]))where Appellant

would not be in contact with the 3 employees men-

tioned at paragraph 1(7) for example: General

Chemistry Lab, Power Plant Lab, Gas Turbine Lab,

Engine Testing Lab, also places of employment as

Tire Manufacturing, Geo Department, the new Cat-

erpillar Plarit in Davenport which started to hire

people only few weeks before Appellant was fired,

and two months from 5-12-79 the date Appellant

would end her employment by Appellee and many other

plants.

At technical Center, Building E, Appellant's

former place of work, there are at least 5 mechani-

cal testing laboratories and one for general chemi-

stry. For all of above, Appellent would have been

qualified and wouldn't have been in contact with

mentioned employees.

16. “Appellee refused to provide informations

about vacancies"( Appx 0-61) at places of employment

mentioned at paragraph 15 , pag.39.

"It is reasonable to infer, based on Appel-

ee ee ee oe El oe

lee's size that within the 221 days (in fact

_ 270 days between Appellant's release for work

' Aug. 1978, and her normal termination 5-12-79)

that there were vacancies in both Research

Technician and En Level Technician 8 Ap-

pellee's plants". (Appx. O-61 and 62).

| "where teacher established that she belonged

to protected group, applied for, was quali-

fied for job . . . despite her qualifications,

| she was rejected, and after her rejection,

employer filled position with persons of her

qualification, teacher establishes prima

facies case of sex discrimination”.

| v. Hot Spring Schocl District No. 6, C.A.

Ark. 1982, 682 F.2d, 721.

17. Appellee filled positions with people with

lesser qualification than Appellant, providing them

training for months and in some instances for more

than a year, while Appellee refused to train Appel-

lant not even one single day for an equivalent job

to her old job.

Appellee provided training for Glen Bart for ai

position "research compounder trainee” at Tire De-

velopment Laboratory more than a year, though the

= above technician didn't have any knowledge in rub-

q ber technology, compounding or testing also any

college education to support the training. L.

Clemens and H. Kapraun technicians with duty to

test rubber compounds, had no knowledge in testing

the rubber compounds, both had only two years of

college, latest in business and administration, was

promoted from janitor to research technician. Also

were trained: Bryant Gail for about two years to

Change her job from product assembler to laboratory

technician C; Carmody Teala © change her job from

stenographer to laboratory technician C; Berry

Thomas to change job from product assembler to

laboratory technician. None had any knowledge or

background for the new job or education to support

the training (Appx. S-3 to 5).

Monthly were sent from Pioneer Park technicians

with no knowledge or background or any college

education, to Tire Development Laboratory to be

ess SS Ss eS oe

trained in mixing and testing rubber compounds as:

Mel, Herb, Dick, Schoolman and others.

All information presented at paragr.12to18 above

were obtained from FEPC who gathered them from

Appellee, during investigation (Appx. 0).

“i oe ow a a

18. Appellee admitted that _in some exceptional

circumstances they have required plants to accept

employees from other locations -FEPC (Appx. O - 62)

Appellee found employment for M. Calton at Tire

Development Lab who was a mechanical engineer at

another plant. He didn't have any background or

knowledge in rubber technology-compounding or test-

ing and was practically doing no work, no supervis-

ing and wasn't capable of giving any technical ad-

vise, Calton relied entirely on Eng. Henry Guay.

It is right to infer that Calton had serious pro-

blems which were greater than "personality problems”

of which Appellant was accused, that he had to be

transferred in a place where he couldn't work. Ap-

pellant has seen Calton two times in impossibility

to talk, keep eyes open as he would have been under

alcohol influence and had to leave the work. Eng.

H. Guay joked that Calton received "a shot in the

mouth" and had to leave the work. H. Kapraun had

also "problems" which were hidden by Appellee, who

refused to give any explanation about the cause of

transferring Calton and Kapraun from other plant to

Tire Development Laboratory. Appelle determined M.

Calton to an early retirement only after the Appel-

lant did present so many cases of mismanagement

connected to him.

In Appellee's view, the cruel, humiliating ha-

rassment and discrimination, the hospitalization

and years of unbearable psychological pain was not

enough "exceptional circumstances” to reinstate her

in an equivalent jab to her old job, in the same

conditions which were offered to other employees,

It would be impossible if not dishonest to dis-

regard statements at paragraphs I and II based on

Appellee's information, statistics and testimonies

received by FEPC, and still conceive that Appellee

made any honest effort to eliminate discrimination

and reinstate Appellant in an adequate jab, or to

admit that Appellee acted in its business interest,

= = |= =| | | FF |S ee ell

a — — —y —— — a

. oe

i a a ee oe ee eee ee

without any discriminatory intent.

19. Appellant fully proved prima facie case of .

sex and origin discrimination, and pretextual offer

of a job to Appellant with intention to disguise

discrimination and constructive discharge Appellant.

"In regard to civil rights cases relating

to the discharge or failure to promote em

ployee who have fought discrimination, em

ployee must make out prima facie case of

retaliation . . . employee may than show

that employer’ reason is merely a "pretext"

covering up unlawful retaliation through

the guise of innocent business planning;

issue of qualifications is relevant at

each of the three stages of the analysis”.

Williams v. Boorstin, 1980, 663 F.2d,

109, 213 U.S. App. D.C. 345, certiorari

denied 102, S. Ct. 2319, 451 U.S. 985,

68 L. Ed. 2d 842.

"Generally, an employer is liable for vio-

lation resulting from the discriminatory

practices of its supervisory personnel un-

less the employer takes action to rectify

the situation, or plaintiff fails to avail

-herself of the internal procedure provided

by defendant corporation". Meyers v. ITT

Diversified Credit Corp., D.C. Mo. 1981,

527 F. Supp. 1064.

It was never any question of Appellant infring-

ing Appellees internal procedure in her claims

against discrimination. Same it is definitely no

evidence of Appellee erradicating discrimination,

but continuing it,therefore Appellee is liable for

violation of Appellant's Civil Rights and Constitu-

tional Rights.

III. Previous Courts Erred in Dismissing Apel-

lant's Claim Without Taking in Consideration that:

1. Appellee, through his supervisor M. Calton

prepared false evaluation reports of Appellant's

work, in retaliation against Appellant's claim to

management of discrimination, and furnished employ-

ers with these reports, preventing Appellant from

finding other job. These defamatory evaluations

were in contradiction to Calton's earlier excellent

quotations of Appellant's work. Calton's false

evaluation reports highly offensive and damaging to

Appellant's work, were attached to Appellant's per-

sonnel file and were distributed to other Appellee's

plants, confirming C. Fraser's testimony at FEPC( Appx

O -23;54) and her letter (Appx. U) to one of Appel-

lee's plants. Appellee's explanation that Fraser

looked to other plants for employment, by circulat-

ing Appellant's file is purely pretextual, to dis-

guise the intention to prevent Appellant from find-

ing any other job at Appellee's plant.

Every employer's "Application for Job", even

Appellee's "Application for Job" contains the ques-

tion: “Reason for leaving previous employment?"

Therefore each employer wants to know the circur-

stances in which Appellant worked and was dismissed.

No employer would hire Appellant who was quoted

falsely in Calton's later reports as "a sloppy wor-

ee ee ee ee ee

ker", “lack in cooperation", “personality problems",

"limited education and work experience to rubber

= testing", "offer of a job Clerk II which doesn't

* need any training, for which Appellant is quali-

fied", "necessity to receive psychiatric help".

| All the above statements are Appellee's false

accusations which made impossible for Appellant to

J find any job equivalent to her old job, despite to

ee ee

repeated job demands to more than 100 companies

from Quad City area and surrounding areas such as:

John Deere, Caterpillar Tractor Co., Servus Rubber

Co., Alcoa, Case, Rock Island Arsenal, Oscar Meyer,

Job Services - Davenport, Bendix, Blackhawk Foundry,

Ralston Purina, and others.

"Employees confronting his supervisors with

charge that, for discriminatory reasons, his

work was made to appear unsatisfactory, is

protected opposition to an unlawful employ-

ment practice". Mack v. W. R. Grace Co.,

D.C. Ga. 1983, 578, F. Supp. 626.

Appellee having constructive knowledge of severe,

harmful employment discrimination of Appellant, and

with the knowledge of her emotional sufferances and

material damages, never agreed to withdraw the

false defamatory reports from her file or restrain

from informing employers, but continued to harass

and discriminate Appellant.

CONCLUSIONS

1. Appellee had 4 years (1975 - 1979) time to

erradicate harassment and discrimination in employ-

SS aa | 6

ment of Appellant and 270 days to reinstate Appel-

lant in a job equivalent to her former jab. Appel-

lant asked Appellee in that period to work’

in a different laboratory in quality control, to

ee ee

take computer courses, as she already did in 1980,

if Appellant needed such qualificaon to be rein-

stated in another job, as Appellee claimed.

2. Appellee's excuses of Appellant's lack of

qualification for another job, impossibility to

find her a jab in other Appellee's facility, exist-

ence of only 7. entry level technician positions

available during 270 days in facilities of thou-

SS ee ee eee

sands of employees, refusal to provide any informa-

« tion about all technician entry level positions to

all Appellee's plants, were dishonest, pretextual

excuses, unworthy of credence, completely lacking a

legitimate business reason.

3. Appellant fully proved her prima facie

» Charge of employment illegal discrimination because

of sex and national origin, severe emotional and

EE —— —<«_ |

psychological abuse and sufferances, material dam-

ages which entitles her to relief wich should com

pensate her of material damages and emotional suf-

ferances to the present.

4. Previous courts including U.S. Court of Ap-

peals erred in dismissing Appellant ts case without

taking in consideration the facts and circumstan-

tial evidence from years long employment discrimi-

nation presented in paragraph I, II and III by not

according Appellant's relief as follows:

"In employment discrimination action, dis-

trict court did not abuse its discretion

in ordering plaintiff's reinstatement to

position equivalent to that from which he

was dismissed despite contention that

plaintiff's physical disability was ig-

nored in granting such relief, where

equitable relief could be provided even

if not sought in pleadings and where trial

court did consider facts pertaining to

disability in its decision". Whalley

v. Skaggs Companies, Irc.,

C.A. Colo. 1983, 707, F.2d, 1129, certiorari

denied, 104 S. Ct. 349.

"Damages for humiliation and emotional suf-

fering are recoverable and such an award

may be supported solely on Plaintiff's own

testimony". Muldrew v. Anhefser-Busch,

| ESN |

Inc., D.C. Mo. 1982, 554, F. Supp. af-

firmed 728 F.2d 989.

Appellant emotional and physical pain are prov-

ed by her hospitalization, the treatment which fol-

her qualification she can't find another job.

For material damages Appellant is entitled to

compensation similar to other cases accepted by

federal] courts as follows:

"Backpay which is designated to compensate

victim of unlawful discrimination is inte-

grai part of this case". Brunetti v. Wall

Mart Store Inc., D.C. Ark. 1981, 525,

F. Supp. 1363.

: "One purpose of an award under this sub-

Chapter is to make a person "whole" for in-

juries caused by illegal employment discri-

mination, and the award of compensatory

damages for humiliation or emotional suf-

. fering in an appropriate remedy for depri-

vation of a constitutional right". Williams

v. Trans World Airline, Inc., C.A. Mo.

1981, 660, F.2d 1267.

| lowed and also the emotional pain that despite of

"Veteran Administration employee who was

victim of retaliatory discharge was en-

titled to reinstatement, back pay, reduc-

ed by amounts earned by Plaintiff prior

to returning to duty, full retroactive

, seniority, sick leave, vacation pay, pen-

sion, benefits and other fringe benefits

in such fashion as though his employment

had continued uninterrupted”. Sorrels

v. Veterans Adm., D.C. Ohio, 1983, 576

F. Supp. 1254.

It is right to infer that for depriving Appel-

land of her constitutional rights under this chap-

ter, she is entitled to above compensation and also:

"In action against employer for violation(of rights)

- ° Back pay period did not end until em

ployees who were discriminated against,

were actually offered opportunity to par-

ticipate in mason apprenticeship opportun-

ities, inasmuch as prior discrimination

was not fully remedied until such time”.

Paterson v. Youngstown Sheet and Tube Co.,

C.A. Ind. 1981, 659, F.2d 736, certiorari

denied 102 S. Ct. 674, rehearing denied

102 S. Ct. 1494.

"In sex discrimination, Plaintiff was ern-

titled to an award of back pay for period

that commenced 2 years before filing of

charge and was also entitled to a salary

taking in account what she would earned

absent any discrimination, until she was

no longer available for other employment

reduced by some of her interim earnings".

Scott v. Oce Ind., Inc., D.C. Fl. 1982,

536, F. Supp. 141.

"Backpay award received in employment dis-

crimination case would be augmented by

interest on any such award calculated from

the end of each calendar quarter on the

—EE—

== = SS es eS eo

a ee ee ee

amount then due and owing 90% of the aver-

age prime rate for the year in which the

calendar quarter occurs". Richardson v.

Restaurant Marketing Associates, Inc.,

D.C. Cal. 1981, 527 F. Supp. 690.

Appellant successfully proved her case of en-

ployment discrimination therefore:

"Although court has discretion in deter-

mining what remedies are appropriate in

particulory sex discrimination cases when

Plaintiff has prevailed, there is not dis-

cretion to deny injunctive relief complet-

ely and very little discretion in awarding

backpay”. Grove v. Frostburg Nat. Bank,

D.C. Md. 1982, 549, F. Supp. 922.

Appellant points out that she never had psychia-

tric treatment before medical leave on April 19,

1977. FEPC has been misinformed through investiga-

tion (Appx. 0-40) about continuation of a treatment

In view of evidence presented by Appellant and

the above rulings, Appellant asks justice and re-

lief under Title VII Civil Rights Act, 42 U.S.C.A.

Sec. 2000e et seq. as follows:

a. Backpay from the day she had her last merit

increase Aug. 1975 to the present time, deducting

----+4

. nh

her earnings, payment of her merit increase, promo-

tion, rate of inflation increase, pension, social

| ed

security, interest and other fringe benefits up to

teal

date as she would not have been on medical leave ”

and fired. z

[

b. Compensation for irreparable emotional

damages during six years of suffering, caused by

discrimination and lack of job in amount of

$800,000.00. _

Maura Burche

Appellee

“Pyucte

* CERTIFICATE OF SERVICE :

I, Maura Burche, Appellant Fro Se, hereby

certifys that two copies of the foregoing

Appeal in the U.S. Supreme Court were duly

served, this day of September, 12, 1985,

by insured mail, United States Mail, pos-

tage prepaid, upon Appellee's attorney:

Thomas G. Harvei at the address:

1400 First National Bldg., Peoria, I11l.

61602.

Maura Burche oh

wl VA

Appellant Pro Se

5210 Division St.

Davenport, IA.52806

Ph. (319)-386-4736

Qed «20 ime) ii ie i le

Note: Two revise’ copies made in accordance

with Supreiie Court's requegf were

mailed to Appelee on Oct.]1

the above address.

,1985, to

ee ee ee oe ae oo re ee ee ee

A-1

SUPREME COURT OF THE UNITED STATES

No. A-70

MAURA BURCHE,

Applicant,

CATERPILLAR TRACTOR CO.

ORDER

UPON CONSIDERATION of the application of

petitioner,

IT IS ORDERED that the time for filing a

petition for writ of certiorari and/or for

docketing an appeal in the above-entitled cause

be, and the same is hereby, extended to and

including September 22, 1985.

/s/ John Paul Stevens

Associate Justice of the Supreme

Court of the United States

Dated this 25th

day of July, 1985.

B-1

ACADEMIC RECORD

EASTERN IOWA COMMUNITY COLLEGE DISTRICT

2804 EASTERN AVENUE

DAVENPORT, IOWA 52803

SCOTT COMMUNITY COLLEGE

BELMONT ROAD

BETTENDORF, IOWA 52722

=a Fe eS

—

BURCHE, MAURA

5210 DIVISION

DAVENPORT, IA 52806

SEMESTER/ COURSE/TITLE CATALOG SEMESTER

COMPUTER3 NUMBER HOURS GRADE

FALL 84 MAJOR-GENERAL STUDIES

14300 COMPUTER FUNDAMENTALS BCP 100 4.00 B

| TOTALS FOR SEMESTER GPA 3.000 4.90

SPRING 85 MAJOR-GENERAL STUDIES

14946 COBOL I BCP 130 4.00 W

TOTALS FOR SEMESTER

GPA 0.000 Q.00

ALL COURSES TAKEN AT SCOTT COMMUNITY COLLEGE

ACADEMIC RECORD SUMMARY

LL ES ell,

SEMESTER HOURS ATTEMPTED EARNED GRADE PTS. GPA

ee ee OE ce ce cee ee, Oe, es ee

EXAMINATION 0.00 0.00 0.000

TRANSFER 0.00 0.00 0.00 0.000

EICCD 4.00 4.00 12.00 3.000

TOTALS 4.00 4.00 12.00 3.000

CURRENT MAJOR 4.00 4.00 12.00 3.000

—— — a" — —_— — — — | a

C-1

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

May 22, 1985.

Before

Hon. Harlington Wood, Jr., Circuit Judge

Hon.

MAURA BURCHE, Appeal from the

Plaintiff-Appellant, United States District

Court for the Central

NO. 84-1807 District of Illinois,

vs. Peoria Division.

No. 81 C 1130

CATERPILLAR TRACTOR CO., Judge Robert D. Morgan

Defendant—Appellee.

On consideration of the "MOTION TO REINSTATE

THE APPEAL" filed herein on May 16, 1985, by pro

se plaintiff-appellant,

IT IS ORDERED that said motion is DENIED.

D-1

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT, CHICAGO, ILLINOIS

Maura Burche - Plaintiff - Appellant

be om ot ang

vs. Case No. 84-1807

Judge Morgan

borer cog

Caterpillar Tractor Co. - Defendant-Appellee

MOTION TO REINSTATE THE APPEAL

Comes now the Plaintiff-Appellant, Maura

——|

Burche and hereby files a Motion to Reinstate the

Appeal based on the following reasons:

1. Plaintiff has been misrepresented by her

attorney Paul S. Kuster, by not filling on time the

brief requested by Seventh Circuit Court of Appeal.

2. An attorney's Retainer Agreement has been

entered on May 31, 1983 between Plaintiff and

attorney Paul S. Kuster to represent the Plaintiff

“ee ce, OE ce, TE ees Ek ee es es ee, soe es es es Be ees ce

ere | T =. os = eed

for this law suit (Addendum No. 1). Attorney Paul

S. Kuster did not fulfill his obligations to file

on time a brief and did not informed the Plaintiff

that the Appeal has been denied for lack of

D-2

prosecution. Plaintiff found out about such

decision not from her attorney but from the

Seventh Circuit Court of Appeal, on May 10, 1985,

through a telephone call made by Plaintiff.

3. Plaintiff has been misrepresented by her

attorney and was deprieved of her legal right to

get a judgement of her case. Due to this misrepre-

sentation, the court denied the case depriving the

Plaintiff of the posibility of recuperate damages

Claimed in her law suit. Therefore Plaintiff from

now on is dismissing her attorney and will be

represented pro-se.

Plaintiff prays the Court to reinstate the

Appeal and get another date to file a brief as

requested by law.

Pro se

Maura Burche

oo | | Sard

‘CHICAGO, ILLINOIS 60604.- ~~

November 27, 198466. ONS

now eat

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A True Copy: SSS

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Testes: “i:-

“os. A. Strong,

--~--**-= Clerk of the United States Court

se ot. Of Appeals for the Seventh Circuit.

HON. “walter J. Cumin’ ef qudge"™

HON.. William J. Bauer, Circuit Judge=«-

HON. Harlington Wood, Jee Circuit Judge

pare per ee | re vienen. 4 | eZ, | Wi reg ee

MAURA BURCHE, saoeal from the United

Plaintiff-Appellant, States District Court

for the Catrall -

District of Illinois,

No. 84-1807 vs. Peoria Division.

; No. 81 C 11304 :

CATERPILLAR TRACTOR CO., #Judge Robert D. Morgan

Defendant-Appel lee. :

This court issued a Rule to Show Cause to

retained counsel for appellant on November 15, 1984.

No response has been filed. On consideration

“gn Ee TE ee 1 es es ee es ee

thereof,

IT IS ORDERED that this appeal is hereby

DISMISSED for lack of prosecution pursuant to

Circuit Rule 8(b) (1).

F-1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

. PEORIA DIVISION

MAURA BURCHE, Plaintiff-Appellant.

No. 81-1130

Judge Morgan

CATERPILLAR TRACTOR CO., Defendant-Appelee.

vs.

NOTICE OF APPEAL

: Comes now the Plaintiff-Appellant, MAURA

BURCHE, and hereby files her Notice of Appeal as

) follows:

1. This Appeal is taken from the ruling of the

Honorable Robert D. Morgan on the 12th of April,

] 1984, entering a directed verdict in favor of

Defedant-Appellant, CATERPILLAR TRACTOR CO., at the

conclusion of Plaintiff-Appellee's evidence in the

above-captioned matter.

; 2. The Clerk is hereby requested to prepare

the Record on Appeal as required.

eaten all

F-2

MAURA BURCHE

By: Paul S. Kuster

Her Attorney

Paul S. Kuster

1808 Savings Center Tower

Peoria, Illinois 61602

Telephone: (309)673-0168

Filed and delivered to CIC on 5-12-84

G-1

JUDGMENT IN A CIVIL CASE

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

MAURA BURCHE

Docket No. 81-1130

vs.

Judge Robert D. Morgan

LARRY CLEMENS, HANK V.

KAPRAUN, MARION CALTON

& CATERPILLAR TRACTOR

COMPANY.

Jury Verdict. This action came before the

Court and a jury with the judiciai officer named

above presiding. The issues have been tried and

the jury has rendered its verdict.

X Decision by Court. This action came to trial

before the Court with the judge (magistrate) named

above presiding. The issues have been tried and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED

that a directed verdict is hereby entered in favor

of Defendants, and againgst Plaintiff, Maura

Burche. Costs and attorney's fees to Defendants

G-2

Filed April 12, 1984

Robert J. Kauffman, Clerk

U.S. District Court

Central District of Illinois

Clerk

Robert J. Kauffman

(By) Deputy Clerk

Leonard D. Brown

[

_—— —— \

ws Se, ee Oe ee Se ts ee

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H-1

ATTORNEY'S RETAINER AGREEMENT

This Agreement made and entered between John

and Maura Burche designated as "Clients" and Paul

S. Kuster designated as Attorney at Law.

Clients retain Paul S. Kuster to represent

Maura Burche's claim against Caterpillar Tractor

Co., Calton et al., based on the fact that the

United States Court of Appeals reversed the

District Court's dismissal of Plaintiff's Title VII

Claims and the case has been remanded to the

District Court for consideration.

Attorney accepts said employment and agrees to

take such steps to enforce clients’ interest by

using the following steps:

-Arrangement of a settlement with Clients’

agreement regarding conditions.

Trial

-Appeal if the District Court decision did not

consider the Plaintiff's minimum loss.

Clients agree to pay a cash retainer of

H-2

$1000.00 which will be paid in two installments.

First installment of $500.00 will be paid at the

Signature of the Agreement and $500.00 if the case

[ ce |

has not been settled and it is decided to go to

trial. If the matter is concluded without trial on

a settlement accepted by Clients, the Attorney's

fee is ten percent (10%) of the recovery with

credit being given for the retainer paid in

advance.

iat | ret promnnng

If the case would proceed to trial, or the

Clients would consider necessary to appeal, the

Attorney fee, if Clients successful, would be set

by the Court and paid by the adverse party with

credit being given to Plaintiff or the one

thousand dollars ($1000.00) retainer.

If through trial and appeal Clients are not

successful, the Attorney's fee is limited to the

retainer paid in advance of one thousand dollars

($1000.00), plus expenses incurred in the trial of

LC @ ff ee

= = = SS = FS = = §- =| SS

case. Such expenses should be limited to meet

H-3

legal procedures only.

If Attorney desires to withdraw from the case

before finalization, he should reimburse the

retainer. Any fee from a potential recovery will

be lost and the entire file of case should be given

to Clients.

If Clients substitute the Attorney for very

justified reasons prior to finalization of case,

they will lose the retainer and will obtain

immediately the entire file from the Attorney in

order to continue the lawsuit.

CLIENTS: ATTORNEY :

MAURA BURCHE PAUL S. KUSTER

JOHN BURCHE

May 31, 1983

I=]

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

(SUBMITTED APRIL 20, 1983) *

MAY 16, 1983

UNPUBLISHED ORDER NOT TO BE CITED PER

CIRCUIT RULE 35

* After preliminary examination of the briefs, the

court notified the parties that it had tentatively

concluded that oral argument would not be helpful

to the court in this case. The notice provided

that any party might file a "Statement as to Need

for Oral Argument." See Rule 34(a), Fed. R. App.

P. (effective Aug. 1, 1979). Circuit Rule 14(f).

The plaintiff filed a statement requesting oral

argument. We conclude that oral argument will not

aid the court in deciding the case. Accordingly,

the case has been submitted on the briefs and

record.

ee ee ee eee eee ee ee oe a

—

I-2

Before

HON. WILBUR F. PELL, JR., CIRCUIT JUDGE

HON. RICHARD D. CUDAHY, CIRCUIT JUDGE

HON. JOHN L. COFFEY, CIRCUIT JUDGE

MAURA BURCHE, Appeal from the United

Plaintiff-Appellant, States District Court

for the Central

District of Illinois,

No. 81-2580 vs. Peoria Division.

LARRY CLEMENS, et al., No. 81 C 1130

Defendants—Appel lees. Robert D. Morgan,

Judge.

ORDER

Pro se plaintiff Maura Burche appeals the

district court's dismissal of her Title VII suit

against Caterpillar Tractor Company, plaintiff's

former employer, Larry Clemens and Hank Kapraun,

plaintiff's former co-workers; and Marion Calton,

plaintiff's former supervisor. For the reasons

which follow, we reverse the district court's

dismissal of plaintiff's Title VII claims and

affirm the district court's dismissal of

I-3

plaintiff's other claims.

Maura Burche was employed by Caterpillar

Tractor Company as a laboratory technician at the

Tire Development Laboratory in Mossville, Illinois.

Plaintiff holds a Masters Degree in Chemical

Engineering. She was hired in the spring of 1975

and worked at the plant until April, 1977, when she

was placed on medical leave. At the time she went

on medical leave she was earning $287.20 per week.

Plaintiff claims that she was forced to take a

leave because defendants Kapraun and Clemens

continually harrassed her on the basis of her sex

and Romanian national origin. Burche claims that

this harassement took place because, despite her

complaints, defendant Calton refused to take any

action to prevent such abuse.

Plaintiff wvs on a medical leave of absence

from April, 1977 due to a nervous iliness. In

August, 1978, Burche notified Caterpillar that she

| Wises | | fe ces |

= ee ee eee eee ee ee ee ee ee le

= a

I-4

was able to return to work. Her psychiatrist wrote

a letter informing Caterpillar of plaintiff's

ability to return to work. Her doctor recommended

that she work, but indicated that she should not

return to work with defendants Kapraun, Clemens or

Calton. Caterpillar did not offer Burche a job

until March 19, 1979. The job offered by the

employer was a Class II Clerk Routine position

which would require the plaintiff to deliver

computer printouts to various offices. The offered

position paid $251.20 per week. Plaintiff refused

to accept this job because it was not a suitable

position similar to the one she left and was

beneath her capabilities and qualifications. At

that time, Caterpillar claimed that the job that it

offered was commensurate with plaintiff's abilities

due to her mental condition. The company

terminated Burche on March 26, 1979 for refusing to

accept the job.1/

I-5

1/ On November 11, 1978, prior to her termination,

Burche filed a charge with the Illinois Fair

Employment Practices Commission alleging that she

had been a victim of discrimination because of her

sex and her Romanian national origin. Burche also

filed with the Equal Opportunties Employment

Commission which deferred consideration of her case

pending state agency adjudication. Burche amended

the charge in May, 1979, after her termination,

alleging discrimination based on a mental handicap.

Burche claimed that Caterpillar refused to

accomodate her handicap. The Fair Fmployment

Practices Commission did not consider Burche's

claim that she had been harassed on the job in 1977

based on her sex and national origin because the

charge was filed after the 180-day time limit for

filing. The Commission entered a finding of

Substantial Evidence on October 17, 1979. In

February, 1981, an Administrative Law Judge found

for the defendants after a hearing had been on

=e = =| SS S| |S |S OS SS el

aa =6) ii ieee ll ( i‘<‘i“‘iééié#(CNYU — ere ———

I-6

December 16, 1980.

(End of Footnote)

On April 16, 1979, Burche filed a four-count

civil complaint in the Circuit Court, Tenth

Judicial District of Illinois, against Kapraun,

Clemens, Calton and Caterpillar. Count I was a

claim against Kapraun and Clemens for intentional

infliction of emotional distress; Count II

presented a claim against Calton for willfully

allowing the behavior in Count I to occur; Count

III alleged a claim against Caterpillar Tractor

Company for negligently hiring the other

defendants or because Caterpillar was responsible

for the other defendants' actions; Count IV alleged

that Caterpillar engage in unlawful employment

discrimination in violation of the Illinois

Constitution. The Circuit Court dismissed Counts

I-III because the applicable two year statute of

limitations had run. The court did not consider

plaintiff's fourth count because that claim was

I-7

still pending at the Fair Employment Practices

Commission, whose deteination was subject to review

by the court. Plaintiff appealed the dismissal to

the Illinois Appellate Court, Third District, which

affirmed the dismissal.

In May, 1981, Burche received a "Right to Sue"

letter from the Equal Employment Opportunity

commission notifying her that she could file suit

within ninety days. Burche instituted the present

suit on August 3, 1981. In her complaint, in the

first of three counts, Burche alleged that

defendants Clemens and Kapraun were guilty of

intentional infliction of emotional distress

because of their harassment of her based on her sex

and national origin. In Count II, Burche claims

that Calton was liable to her for intentional

infliction of emotional distress for allowing the

harassement to continue, and for actually harassing

her. In Count III plaintiff alleged that defendant

Caterpillar was liable for the harassment by

I-8

Kapraun, Clemens and Calton. Also, plaintiff

alleged that defendant Caterpillar refused to

rehire her to an appropriate position upon the

termination of her illness because she was

handicapped. The company allegedly claimed she was

handicapped to cover up the discrimination based on

sex and national origin. Plaintiff alleged that

she was qualified for any rubber or mechanical

laboratory technician job at Caterpillar, and that

the defendant hired people less qualified than

Burche to fill those positions. Also, plaintiff

alleged that Caterpillar gave other employers false

recommendations preluding her from getting other

jobs in the area.

The defendants moved to dismiss plaintiff's

claim of intentional infliction of emotional harm

against Clemens, Kapraun and Calton because of the

doctrine of res judicata with respect to that

claim. Defendants argued that plaintiff raised the

same claim in state court and it was dismissed with

I-9

prejudice thereby barring the reinstitution of the

same Claim in another court. Defendants stated

that as for any claim under 42 U.S.C. 2000e, et

seq., the defendants Kapraun, Clemens and Calton

were not employers under the Act and therefore are

not liable under Title VII as a matter of law.

Also, defendant Calton moved to dismiss the claim

for lack of personal jurisdiction and becau's “©

was not properly served at his residence in

Missouri. The defendants also moved to dismiss

Burche's Title VII claims arising from any unlawful

employment practice occurring before March 14,

1978, arguing that the EEOC's jurisdiction is

Limited to the investigation of charges arising

within three hundred days of the filing date. In

addition, defendants moved to dismiss the complaint

insofar as it alleged that Caterpillar

discriminated against Burche on the basis of a

mental handicap. 42 U.S.C. 2000e et seq. does not

protect employees from discrimination on the basis

—

OTT OSS a ee ee ee ee ea ee ee eee

—

Bnd hae

ee ee ee

I-10

of a handicap. Therefore, defendants argued,

plaintiff did not state a claim for which relief

could be granted. Defendants moved to strike

plaintiff's complaint for violation of Rules 8(e)

and 11 of the Federal * ilies of Civil Procedure

because the claim was not short and concise and

because it contained scandalous matter. Defendants

moved to dismiss the complaint for failure to

ailege facts necessary to give the district court

jurisdiction. Finally, defendants requested that

the district court award them attorneys’ fees and

costs.

The distirct court issued an order of judgment

in favor of defendants "pursuant to all the grounds

asserted in Defendants' responses;" .. . and the

case was dismissed with prejudice. The record is

unclear as to whether the district court acted upon

defendants' request for attorneys’ fees and costs.

The plaintiff filed a timely notice of appeal.

I-11

The question presented for review is whether

the district court properly dismissed plaintiff's

claims on che pleadings. It is difficult to

determine exactly why the district court dismissed

her complaint because the district court did so in

a one line statement granting defendants’ motion to

dismiss for the reasons stated in their motion. We

must examine all grounds set forth in defendants’

motion to dismiss to determine if the motion

properly was granted. We will consider plaintiff's

non-Title VII claims and then review her Title VII

claims separately below.

A. Non-Title VII Claims

Defendants moved to dismiss the claims raised

in the complaint other than raised undei Title VII,

42 U.S.C. 2000e, et seq., because they were barred

by the doctrine of res judicata. Fora

determination of res judicata, a court must find

three essential elements: (1) a final judgment on

—

Ol Le.lCr lO ee ee Nn ee ee ae ae ee mr

=a SS [SS Za SSE SSS

I-12

the merits in an earlier action; (2) an identity of

the cause of action in both the earlier and later

suit; and (3) an identity of parties or their

privies in the two suits. Lee v. City of Peoria,

685 F.2d 196 (7th Cir. 1982). All three elements

are present in this case. Plaintiff made almost

the identical claims of intentional infliction of

ee ee ee ee ee ee

emotional distress in her state court suit as she

: did in the instant suit. The parties to the state

7 suit are identical to the ones named in the federal

suit: Kapraun, Clemens, Calton and Caterpillar.

] Although the prior action was not decided on the

actual "merits" of Burche'’s claim because the state

] court determined that the statute of limitations

: had run, that state court judgment is res judicata

as that issue was actually decided by the court.

The federal court is bound by the siate court

determination that the statute of limitations had

run. 1B Moore's Federal Practice 0.409[6] n. 8.

, See Angel v. Bullington, 330 U.S. 183 (1947). The

district court properly dismissed plaintiff's

ee Le

I-13

claims of intentional infliction of emotional

distress because they were barred by the doctrine

of res judicata.

The only claim that plaintiff had against both

defendants Kapraun and Clemens was one for

intentional infliction of emotional distress. As

discussed above, the statute of limitations has run

and, therefore, the complaint was properly

dismissed against these two defendants.

B. Title VII Claims

Defendants raise several objections to

plaintiff's claims arising under Title VII, 42

U.S.C. 2000e, et seg. Defendants object to the

inclusion of defendant Calton because he is not an

"employer" as defined under Title VII. Defendants

raise other objections to plaintiff's complaint,

Claiming that plaintiff failed to plead a basis for

federal jurisdiction, failed to raise pre-1978

violations in a timely manner, and failed to state

a Claim for which relief can be granted. We hold,

— | — — ee ——e —

ee ME eee EE aemees IE meee GE: ees coe: OE pees OE ee OE cree eee eee ee OE ee ee

I-14

for reasons stated below, that plaintiff has stated

claims for which relief could be granted.

Plaintiff essentially states two cognizable claims

of discrimination: that defendants refused to

rehire her and that defendants disseminated false

reports and recommendations to her potential

employers. We will discuss defendants’ objections

in light of these two cognizable claims.

Defendants moved to dismiss the complaint

against defendant Calton because he is not an

"employer" as defined in 42 U.S.C. 2000e-1. From

the record before us, it is unclear whether Calton

is an "employer" within the meaning of Title VII.

Calton may have had some control over Caterpillar's

decision not to rehire Burche to a similar

position. In addition, according to Burche, Calton

is responsible for writing false reports and giving

then to other potential employers for

discriminatory reasons. Either of these actions

may make Calton liable as an "employer" under Title

I-15

VII. We note, however, that Calton now resides in

Missouri and his attorney claims that he was not

personally served. This may be a reason to dismiss

the complaint against him. The record lacks

sufficient information to make a proper

determination of why the district court dismissed

plaintiff's claim against Calton. — remand, if

the district court finds the attorney's

representations to be true with respect to service

on defendant Calton, the claim against Calton must

be dismissed. If, however, Calton was served

properly, the district court should determine

whether Calton was an "employer" under Title VII.

The defendants moved to dismiss the plaintiff's

complaint for failure to set forth a basis of

jurisdiction. In her complaint, Burche did not

assert a jurisdictional basis for the action in

federal court. A plaintiff, especially one

proceeding pro se, is not required to cite a

statutory basis for jurisdiction if the facts

Ne BE cen EE een EE ee EE eee ee een nee en

PSstae |

Sl le |

I-16

alleged provide the basis for the court's

assumption of jurisdiction. Rohler v. TRW, Inc.,

576 F.2d 1260 (7th Cir. 1978). Plaintiff has

alleged facts which raise issues of discrimination

in failing to rehire her and unlawful employment

practices for giving false recommendations for

discriminatory reasons. The court clearly has

jurisdiction over claims arising under Title VII,

which prohibits such practices. Plaintiff's claims

fall within Title VII, and therefore the district

court had jurisdiction and could not properly grant

a motion to dismiss because plaintiff failed to

provide a statutory basis for jurisdiction.

Defendants, in their motion to dismiss, argued

that any claim by Burche alleging wnlawful

employment discrimination prior to approximately

March 1978 could not have been appropriately before

the EEOC and was not properly before the court. In

her complaint, Burche alleges instances of

employment discrimination that occurred at two

- =

= as

separate times: prior t« ner medical leave which

commended April, 1977 anc after she notified the

Company that she was ready to return to work in

August, 1978.

A charge of employment discrimination must ™

timely filed in order to be considered by the EEOC

and to establish federal court jurisdiction.

Burche's allegation of discrimination based on the

employer's actions before April of 1977 before she

took her leave of absence, would not be cognizable

in federal court because the actions occurred more

than three hundred days prior to Burche's filing

with the EEOC. Although the federal court could

not grant relief for any pre-leave of absence

discrimination which took place prior to April,

1977, it properly might consider any actions which

took place as evidence of later discrimination.

United Airlines Inc. v. Evans, 431 U.S. 553 (1977);

Fisher v. Procter & Gambie Manufacturing Company,

613 F.2d 527 (5th Cir. 1980). The question of

= = i= = = FS FS FS = | FES eS EUS

I-18

admissibility and relevance of prior acts is left

to the sound discretion of the trial court.

In their motion to dismiss, defendants

characterized piaintiff's timely filed claim as one

for discrimination on the basis of mental handicap.

Title VII does not protect employees from

discrimination on the basis of mental handicap;

therefore, defendants argued, plaintiff's complaint

must be ‘ismissed for failure to state a claim for

which relief could be granted. The district court

apparently granted the motion to dismiss for this

reason.

Initially, we note that plaintiff is proceeding

pro se. Her complaim must be construed liberally.

A pro se complaint is held to a less stringent

standard than a complaint drafted by a lawyer.

See, e.g., McDonald v. Hall, 610 F.2d 16 (list Cir.

1979); Sisbarro v. Warden Massachusetts State

Penitentiary, 592 F.2d 1 (lst Cir.), cert. denied,

444 U.S. 849 (1979). Judging plaintiff's complaint

I-19

by a less stringent standard, we find that she has

successfully pleaded a Title VII claim. Although

she has not pleaded it articulately or in the most

straight forward manner, she has pleaded a claim

and the district court should not have granted

defendants' motion to dismiss.

In order to plead a Title VII case

successfully, a plaintiff must allege the

following: (1) that she belongs to a class

protected by Title VII; (2) that she applied and

was qualified for a job for which the employer was

seeking applicants, (3) that, despite her

qualifications, she was eesecteds and (4) that,

after her rejection, the position remained open and

the employer continued to seek applicants from

persons of complainant's qualifications. Mcvonnell

Douglass Corporation v. Green, 411 U.S. 792 (1973).

Plaintiff has alleged this with respect to her

claim of unlawful refusal to hire from August, 1978

through March, 1979.

ee |

oe ee oe ee ee ee a lL

I-20

In her complaint plaintiff states that she is

female and that her national origin is Romanian.

Plaintiff is protected under Title VII for

discrimination on the basis of either her sex or

her national origin. In paragraph 53 of Count III

plaintiff alleges that she was qualified for any

number of jobs at Caterpillar. She states her

degree and job experience and alleges that she was

capable of working at any mechnaical or rubber

laboratory or plant at Caterpillar. Plaintiff

states that she has a degree in chemical

engineering. She has taken courses in

electrochemistry, general technology and

electricity. She has worked for twenty-five years

in the rubber and oil industries and in the

mechanical industry - tire engraving. Although

plaintiff was not specifically rejected from any

particular lab technician jobs, Caterpillar refused

to consider her for any of those jobs and offered

her a clerical job for which plaintiff alleges she

f-2.

was overqualified. In adc«:tion, plaintiff alleges

that from August, 1978, when she notified the

company that she was availabie to work in any

setting, except where the other defendants were

working, the company hired people who were less

qualifiec than she was and trained them for their

iobs (Complaint, Count III, Paragraph 55). Judging

her complaint by a less stringent standard, we

conclude that plaintiff has succeeded in pleading a

Title VII claim. 2/

2/ Defendants' motion to dismiss presented matters

outside the pleading. Under Rule 12 of Federal

Rules of Civil Procedure this might be treated as a

motion for summary judgment under Rule 56.

Defendants' motion did not present matters outside

the pleading with respect to plaintiff's timely

filed Title VII claim; therefore, the motion to

dismiss that claim could not have been treated as a

(footnote continued on next page)

— — Desaal i—i ts _—

I-22

Plaintiff also has alleged that defendant

Calton prepared false evaluations about her work

which prevented her from obtaining a job elsewhere

(Complaint, Count II, Paragraphs 24, 38). In

addition, plaintiff alleged that the defendant

Caterpillar has discriminated against her by

furnishing other potential employers with Calton's

2/ Continued

motion for summary judgment. In any event,

assuming arguendo that it was treated us a motion

for summary judgment, plaintiff was not given

notice of the consequences of failing to respond

with affidavits to the motion for summary judgment.

If the court had treated defendants’ motion as one

for summary judgment, the judgment would have to be

vacated. See Lewis v. Faulkner, 689 F.2d 100 (7th

Cir. 1982). For these reasons, we will treat

defendants' motion only as a motion to dismiss and

not as one for summary judgment.

I-23

reports which wre "unjust" and untrue (Complaint,

Count III, Paragraphs 49, 58). This states a claim

for relief under Title VII, if the employer gave

damaging referrals for discriminatory reasons.

Shehadeh v. Chesapeake and Potomic Telephone Co. of

Maryland, 595 F.2d 711 (D.C. Cir. 1978).

Plaintiff has stated a sufficient claim even

though she has neither pleaded specific available

positions for which she was not hired, nor cited

specific instances of improper recommendations made

by defendant to other potential employers.

Pleadings should be specific enough to give the

employer sufficient notice of the alleged

discrimination to formulate an answer. Any more

information necessary to defend the claim may be

determined through discovery. Steadman v. Hundley,

421 F. Supp. 53 (N.D.Ill1. 1976); Reyes v. Missouri-

Kansas-Texas R. Co., 53 F.R.D. 293 (D.C. Kansas

1971). Plaintiff has pleaded sufficient facts to

give the employer adequate notice. Caterpillar is

L ! f ’

. o!

I-24

well aware of the incident to which plaintiff

refers. Caterpillar may have a different version

of its refusal to call plaintiff back to a similar

position; however, that version is left for proof

at trial.3/ Caterpillar has enough notice of

plaintiff's claim to formulate a response,

especially with regard to the refusal to recall

her. As to her claim for that Caterpillar provided

other potential employers with false reports, the

district court might order her to plead that claim

more specifically by stating the names of the

employers and who gave the recommendations for

Caterpillar.

The district court erred in dismissing

plaintiff's complaint. We hold that plaintiff

sufficiently pleaded a claim under Title VII

3/ Up=. remand, the district court may find that

this caS<- is appropriate for disposition on a

summary judgment motion.

I-25

against the two remaining defendants, Caterpillar

and Calton. The complaint should not have been

dismissed because we cannot say that "it appears

that plaintiff can prove no set of facts in support

of (her) claim which would entitle (her) to

relief." Conley v. Gibson, 355 U.S. 41, 45-6

(1957). See also Davis v. Weidner, 421 F. Supp.

594 (E.D. Wisconsin 1976) .4/

4/ Plaintiff has alleged a prima facie case in her

pleadings. A prima facie case raises the inference

that the reasons for the employer's actions were

based on impermissible considerations. Furnco

Construction Co. v. Waters, 438 U.S. 567 (1978).

Therefore, this case cannot be dismissed at the

pleadings stage, but must proceed to the proof

stage where the employer must give a legitimate,

non-discriminatory reason for its decision not to

hire Burche in a technician position. A non-

(footnote continued on next page)

SS - - Se lh.

To. one a ee z= ——-

I-26

Defendants moved to dismiss plaintiff's

complaint for failure to comply with Federal Rules

of Civil Procedure 8(e) because her pleadings are

not concise. Although plaintiff's complaint is

confused and somewhat unclear, this does not

warrant a dismissal of the complaint. Dismissals

for failure to comply with Rule 8(e) are not

favored. Tarkowski v. Robert Bartlett Realty Co.,

644 F.2d 1204 (7th Cir. 1980). ‘The better practice

would be to allow plaintiff to amend the complaint

and replead her claim more specifically in order to

comply with Rule 8(e). Saad v. Burns International

Security Services, 456 F. Supp. 33 (D.D.C. 1978);

Marshall v. Electric Hose and Rubber Co., 65 F.R.D.

599 (D. Del. 1974); Van Hoomissen v. Xerox Corp.,

_—

4/ Continued

discriminatory reason for refusing to hire Burche

to her former position may be given at the summary

judgment stage. See note 3, supra.

I-27

368 F. Supp. 829 (N.D. Cal. 1973). If the district

court dismissed the case because the plaintiff's

failure to comply with Rule 8(e), this was error.

The district court should have ordered the

plaintiff to replead with more specificity.

Defendants have asked us to affirm the district

court's award of attorneys' fees and costs. Upon a

review of the district court's docket sheet and the

record on appeal, we see no award of attorneys'

fees and costs. The district court allowed the

defendants' motions to dismiss, but neither the

judgment, nor any other document in the record

contains any mention of any award of attorneys'

fees. However, in light of our decision today that

plaintiff successfully pleaded a Title VII claim,

defendants are no longer a "prevailing party” and

therefore would not be entitled to attorneys fees

under 42 U.S.C. 2000e-5(k).- Defendants also asked

for costs and attorneys’ fees on appeal. In light

of the outcome of this case, that request is

a ee ell lr]

I-28

denied.

For the foregoing reasons, the district court

judgment in favor of the defendants on plaintiff's

Title VII claims is reversed. The case is remanded

to the district court for consideration on the

merits. The district court's dismissal of

plaintiff's other claims is affirmed.

STATE OF ILLINOIS

HUMAN RIGHTS COMMISSION

IN THE MATTER OF:

| |

anne 7

MAURA BURCHE,

Complainant, l

CHARGE NO. 1979SF-0220

and ALS FILE NO. 357(L) [

CATERPILLAR TRACTOR

COMPANY ,

Respondent.

RECOMMENDED ORDER AND DECISION

This matter is before me for recommended order

and decision upon a Complaint issued October 23,

1979. That Complaint alleged, inter alia:

1. That Burche had been hired as a Research

Technician at Caterpillar's Technician 7

Center; W

2. That she worked there until going on |

medical leave for psychiatric care on | |

April 22, 1977; |

J=-2

3. That on several occasions between August,

1978, and March, 1979, several

psychiatrists who had evaluated her at her

own or respondent's request, released her

to work;

4. That her medical release restricted her to

positions in which she would not have to

work with any or all of three specific co-

workers one of mn wn her supervisor;

5. That there were vacancies for which Burche

was qualified which did not require working

with these three individuals.

At public hearing on December 16, 1980, at the

close of complainant's case, respondent moved for a

directed verdict on the ground that complainant (1)

had not shown herself to be a handicapped

individual within the meaning of the Fair

Employment Practices Act ("FEPA") and (2) had

presented no evidence in support of the paragraph

numbered five above.

J-3

I declined to rule upon the first part of

respondent's motion at that time because I had not

yet had an opportunity to read the medical

documents which had been introduced by complainant.

1/ With regard to the second point, however, I

asked complainant to point out the supporting

evidence and/or show me how she could maintain her

cause of action in the absence of such evidence

In response complainant contended that:

(1) considering the size of respondent, the

Act "clearly" does not intend that a

complainant seeking such accommodation

bear the burden of proving that there

1/ It now appears that respondent's argument, that

it could not have perceived her as mentally

handicapped because it would have not sought an

alternative position for her if it had, is, asa

1D, PRPs, 20 SP SOE

‘T]linois. See Chambers v. FEPC, 96 I11.App.3d 884,

422 N.E.2d 130 (1st Dist. 1981) (the Commission may

not assume that a person who is mentally ill, is of

nammnmnmniane stnahta +n maeSrnems hia eases Zhok tam) _

J-4

was a specific job that complainant was

trained to perform, but that was not

offered to her; and

(2) it is illogical to assume that a company

the size of respondent does not operate

laboratory facilities wherein complainant

could have been employed without coming

into contact with the three individuals

mentioned in the physician's reports, and

that dismissal is too harsh a sanction for

failure to produce such proof when

respondent had not fully complied with

Complainant's subpoena duces tecum.

Complainant did not then and does not now point

to any evidence of record which supports this

allegation.2/ Nor did or does complainant

2/ Complainant herself asserts in her pro se

motion forreconsiderations, that she could have

(footnote continued on next page)

J-5

contend that this paragraph of her complaint is

mere surplusage. I therefore held and now reaffirm

my conviction that a directed verdict should be

entered dismissing this Complaint.

FINDINGS OF FACT

Based upon the parties' stipulations and a

preponderance of the eviderce of record, I hereby

make the following findings of fact:

1. Complainant earned a college degree in

chemical engineering from Bucharest Polytechnical

Institute in Roumania in 1955; taking various

courses in chemistry, math, plastics, rubber,

2/ Continued

been offered a job in respondent's mechanical

department, as was one Bobby James. Complainant

should have relayed this information to her

attorney prior to hearing so that it could have

“been préserited at hearind and’ “‘Péspondent could have- Byiairbiesae

had an opportunity to respond to it.

mes Eo

[

J-6

electronics, mechanics, electricity, technology,

and the coal industry; and specializing in coal

gasification.

2. She was employed as a chemical engineer in

Roumania until 1969. In 1970 she entered the

United States and became employed in the rubber

industry. After 1971 she was hired as a rubber

technician at the Bandag Corporation and in 1975

she was hired by respondent to do similar work as a

rubber technician at respondent's Tire Development

Division in Building E at respondent's Mossville

Technical Center.

Ze Building E was respondent's applied

sciences lab for the Peoria area. Respondent

housed certain types of complex indoor testing

equipment only in that building and applied

scientists from many divisions of respondent,

including employees from both the Technical Center

and the Pioneer Park facilities who conducted

~ chemical experiments, were housed in Building E

J-7

specifically to share this equipment.

4. Complainant performed work testing various

rubber compounds. In performing this work

complainant had to utilize many testing devices

and pieces of equipment. These machines and

testing devices were scattered throughout various

locations on both floors of Building E. Numerous

other employees of respondent from the Tire

Development Division and the other divisions also

utilized this equipment and/or the laboratories or

rooms in Building E in which such equipment was/is

kept.

5. Respondent's Tire Development Division was

supervised by Marion Calton at Building E. Calton

and other Division employees also spent an

unspecified amount of time conducting tests at

respondent's proving grounds. No other evidence

was introduced to establish where in respondent's

Peoria facilities Calton and the other two

employees in question did or did not do their work. _

— |

=S = SF FF ee ew eS eS SS eS eS ele

ee, | ee 4

J-8

6. In April, 1977, complainant wes

hospitalized under the care of Dr. Emmy Andri,

M.D., who diagnosed complainant as evidencing a

paranoid state.

7. From April, 1977, to March, 1979,

complainant was on medical leave of absence from

respondent, which status provided that complainant

would receive disability payments during the period

of her medical leave.

8. That during the period she was on medical

leave, complainant was seen and/or treated and/or

evaluated by several different psychiatrists and

psychologists.

9. In March, 1979 when complainant's medical

benefits were about to run out, it was detemrined

that complainant could retwmn to work, but not in

or around the presence of Calton or two particular

former co-workers.

10. Respondent's personnel services supervisor

Fraser attempted to find an alternative position

J-9

for complainant which would utilize her knowledge

and skills without causing her to work around these

three people. Both complainant and respondent

believed this restriction to preclude complainant

from any job in Building E or in the Tire

Development Division.

11. At complainant's request, Fraser contaciu'

respondent's Davenport, Iowa facility and asked if

there were any positions available for a person of

complainant's education and experience. Fraser was

told there were not.

12. Frazer contacted respondent's Mossville

production facility and was told that the technical

jobs there for which complainant qualified were

filled by hourly employees on a seniority basis.

Fraser did not ask if there were appropriate

vacancies with the appropriate qualifications as to

which that facility was hiring applicants with no

- seniority.

13. Neither Frazer nor anyone else in

personnel at the Technical Center facility was

J-10

empowered to hire employees for any facility other

than the Technical Center.

14. Om or about March 19, 1979, complainant

was offered a position at respondent as a Class II

Clerk Routine which carried a lower salary and used

none of her technical skills and experience, but

which would insure that Burche would not be working

with or around the three individuals mentioned

above.

15. Complainant refused the position as Class

II Clerk Routine and, in accordance with

respondent's policy, complainant was separated from

employment effective March 26, 1979 as a voluntary

quit.

16. Between October 23, 1978 and March 22,

1979 severa) employees graded Class 9 Technician B

and Class 8 Technician C were hired by respondent

for salaried positions in the Peoria area outside

of Building E and the Tire Development Division.

AlL.of these-positions required skills, such:as...--.

J-11

statistical analysis or computer programming

ability, not possessed by complainant. Some also

required work at the proving grounds and might have

involved some contact with complainant's former

supervisor there.

DETERMINATIONS

Based upon a preponderance of the evidence and

for the reasons discussed below, I make the

following determinations:

1. The Fair Employment Practices Commission

("FEPC") was authorized to issue its Complaint on

OCtober 23, 1979, even though the Notice of

Substantial Evidence had been issued and served

only six days before and all of the FEPC's

—- 7 - P| T= TT SS Eh

endeavors to conciliate the charge had not yet

failed. See Order issued herein December 15, 1980,

attached hereto and incorporated herein by this

reference.3/. --*. | fig {

J-12

2. The Human Rights Commission ("HRC") has

jurisdiction over this cause and the parties

thereto pursuant to Article IX of the Illinois

Human Rights Act ("HRA"), I11.Rev.Stat., ch. 48,

par. 9-101 et seq. (1979 ed.), as amended by P.A.

81-1267, and is required thereby to apply the now-

repealed FEPA, I11.Rev.Stat., ch. 48, par. 850 et

seq. (1979 ed.) and the Guidelines on

Discrimination in Employment under the FEPA (1976)

in determination of the merits of this cause.

3. Maura Burche is a proper complainant within

the meaning of section 2(b) of the FEPA, having

. Charged on her own beha] = to have been personally

aggrieved by one or more unfair employment

3/ Continued

Respondent raised many other contested issues of

law and mixed issues of law and fact in its

prehearing memorandum, none of which have been

briefed and only some of which were ever plead.

J-13

practices. 4/

4. Caterpillar Tractor Company is a proper

employer within the meaning of section 2(d) (i) and

subject to the provisions of the FEPA.

5. Complainant has not established a prima

facie case of hanicap discrimination because she

has not shown that respondent refused to accomodate

her as requested.

6. A motion for a directed verdict may be

granted at the close of complainant's case when any

element of complainant's prima facie case is

totally unsupported by evidence of record.

4/ Complainant's initial charges of sex and

national origin discrimination were dismissed by

the FEPC in 1979 and no review was sought by

complainant. The only charge now under

consideration | is Lad a * bel Manele on

~ 2% a> «es

the wens at a poem nations.

¢.%° @ ne’ 4% --h oO -0 © abese eg o* Sets ao 6 6G A > Ri @s F de

ces ees ees ee ee ee

a |

. a | —— —— | as _— |

ANALYSIS

In a public hearing convened pursuant to the

FEPA or the HRA where the complainant has failed to

make out a prima facie case, i.e., where he has not

presented at least some evidence of every element

essential to his cause of action, the respondent is

entitled to judgment in his favor as a matter of

law. Jonathan Taylor and Illinois Gulf Central

R.R., Charge No. 1980SF-0249 (HRC, Aug. 27, 1981).

During the course of such a hearing and at the

close of complainant's case, if the respondent

moves orally on the record for a directed verdict

the administrative law judge must first determine,

as a legal matter, whether the complainant has made

out a prima facie case. Id. If he has not, the

administrative law judge may, without more, grant

the motion, announce that dismissal will be

recommended, and close the hearing record without,

requiring that the respondent present a defense.

J-15

At my request respondent has now submitted its

motion in written form, along with proposed

findings of fact, determinations and legal

argument. See Commission Rule 7.6. Both the

complainant's attorney and the complainant herself

have filed written responses to this motion which

do not persuade me that my initial ruling from the

bench was erroneous.

The FEPA requires employers to reasonably

accomodate handicapped individuals upon request.

Mary DeCarlo and City of Chicago Bd. of Ed., Charge

No. 1978CN-0553 (HRC, June 19, 1981). Here the

nature of complainant's handicap caused her doctor

to ask that she be placed in a different job.

Complainant reasonably expected the alternative

position offered to be one which utilized her

significant technical education and experience to

the greatest extent possible. The clerical

positicn which respondent offered her did not

fete |

CT ee |

_ Which it can be inferred that respondent could have

offered her.a position which utilized her.

background more.

In an employment discrimination case alleging

failure to hire it is normally the complainant's

_ to make a prima facie showing that he met

the minimum qualifications for the job sought 5/

5/ Respondent contends that the U.S. Supreme Court

in Texas Department of Community Affairs v.

Burdine, U.S. , 49 U.S.L.W. 4214, (1981)

has imposed on Title VII complainants the

additional burden of showing that the person hired

was less qualified. I find nothing in Burdine to

support an inference that it modified the prima

facie burden of Title VII Complainants first

enunciated in McDonnell-Douglas v. Green, 411 U.S.

792 (1973). Accord, Aiken v. United States Postal

Services, F.2d , 26 FEP Cases 1151 (D.C.

Cir. 1981).

applied. International Bhd. of Teamsters v.United

“States,, 431 U.S. 324, n.44 (1977); A.P. Green |

Services Liv. of Bigelow-Liptak Corp., 19

I11.App.3d 375, 312 N.E. 2d 312 (1st Dist. 1974).

The same should be true for . protected employee

alleging failure to place in a suitable alternate

position pursuant to a request for accommodation.

Complainant failed to establish such a prima

facie case with regard to the salaried technicial

positions available at respondent's Peoria area

facilities prior to her discharge. Complainant's

attorney argues that dismissal is too harsh a

sanction where respondent did not fully comply with

his subpoena duces tecum; it seems clear, however,

that fuller compliance would not have produced any

more documentation of non-union vacancies in

technical positions at respondent's Peioria area

facilities during the time period in question.

Complainant herself argues that her attorney did

power i = aati 4

Permareng

prowteng

keane

prewe

oe ciate |

— EE ow HEL nen HEE soe HE soees SE soe HOR coms EE anes BE ee, oe EE con Ee ee ee

ST ll 0606060

J-18

Clear on this record, however, that this attorney

could have done better. only with anpatsonal

discovery time and that it was complainant heneeie

who insisted prior to hiring him that this hearing

proceed without it.

In view of the foregoing I hereby recommend

that this Complaint be dismissed with prejudice.

HUMAN RIGHTS COMMISSION

BY: LINDA KRUEGER MacLACHLAN

Administrative Law Judge

Administrative Law Section

ENTERED ON THIS 30TH DAY OF NOVEMBER, 1981.

” ° UNITED STATES DISTRICT COURT, FOR THE CENTRAL “~ °

MAURA BURCHE |. .:«Cy. Plaintiff .- pro se _

- Tractor Co. (or Cat) Defendants

K-1

DISTRICT OF ILLINOIS PEORIA DIVISION

vs. Case No. 81 C 1130

Larry Clemens, Hank Robert D. Morgan,

Kapraun, Marion Judge

Calton and Caterpillar

FILED AUG 3 1981

ROBERT J. KAUFFMAN, Clerk

U.S. DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

COMPLAINT

COUNT I

Comes Now Plaintiff, Maura Burche and for Count

I of her Complaint against Defendants, Larry

Clemens and Hank Kapraun, states as follows:

1. That a Complaint against Defendants, was

filed in Nov 9th, 1978 with Fair Employment

Practices Commission, No. 79SF0220.

2. That FEPC found: Lack of jurisdiction in

the Claim based on harassment because of sex and

8 a ES oe oo oe oo eo oe oe

K-2

' “national origin.’ Substantial evidence ‘for failure

to recall from medical leave the Plaintiff . because

: of . ‘SEX. and national as ars a also handicap. —

| ~substantial evidence in termination because of in

mental handicap.

However the case was unjustly dismissed by an

‘administrative law judge, in Feb 1981.

The Claim was forwarded to Equal Employment

Opportunity Commission, charge No. 051790455. The

Commission dismissed the Claim because "No

reasonable cause was found to believe that the

allegations made in Plaintiff's charge are true".

3. That Plaintiff received a NOTICE OF RIGHT

TO SUE, from EEOC on May 4th 1981, allowing her to

file a claim in US DISTRICT COURT, within 90 days

from the receipt of this Notice.

4. That at all times material hereto, the

Defendants Larry Clemens and Hank Kapraun were

employed as laboratory technicians by Caterpillar

Tractor Co. at Tire Development Laboratory-

K-3

“echnical Genter ‘Building £;, Mossvitie, fifinois.”” “

5. That Defendant Marion Calton, at all times

7 Sreewenenteenh ayes as. sapexeteny mare

~ - -*

of tire Develcouant Lebeuatenty, Bldg. E at

Technical Center, Caterpillar Tractor Co.,

Mossville, Illinois.

| 6. That Plaintiff Maura Burche was employed

from March 10, 1975 to Mar 22, 1979, as laboratory

technician at the Tire Development Laboratory,

Technical Center, Caterpillar Tractor Co. in

Mossville, Illinois, in the same Building E.

7. That Plaintiff is of the female sex, born

in Romania and actually a U.S. citizen.

8. That Plaintiff was forced against her will,

by Cat's doctor, to go to St. Francis Hospital for

nervous treatment, on April 22, 1977 where she

remained for almost a month, May 1977.

9. That from May 1977, the date she was

dismissed from hospital up to March 22 1979, the

day she was dismissed by Caterpillar, Plaintiff was

= =

a or or

on medical leave.

10, That during the period March 10th 1975 up

smear mod AptLL a2 A587 bya

_*. me" a) ~ 20 @e

go ‘to the hospital - Conemneaten s Qater, the

Defendants Larry Clemens and Hank Kapraun,

individually and jointly, were engaged in

‘outrageously, beyond any limit of decency

harassment and criminal conduct against the

Plaintiff. The harassment and the criminal conduct

of the Defendants against the Plaintiff, were

deliberately done with the purpose of damaging and

destroying Plaintiff's health and life, family

relationship, possibility to work by transforming

her in a handicap for the rest of her life.

Through their connections, the Defendants

damaged and disrupted the health and life of

Plaintiff's children causing Plaintiff severe

emotional stress, and severe suffering and

emotional stress to the children.

11. The Plaintiff alleges the following

K-5

by aforesaid Defendants:

ener mete oats PPE. PERE RIS ELINS pee ange Recess te. aes

“upstairs, aidan" t work correctly, which occured for

months, almost any time when the Plaintiff had to

o-~

use it. The machine was under a strong

| trepidation, that she couldn't read the results of

her tests. The Defendant Kapraun, who was in

charge with the maintenance and the repairing of

the machines in the laboratory, told Plaintiff that

he couldn't do anything about it. However, he

would fix the machine when other people needed it,

to show that the Defendant was not capable of

working with a machine.

Any time the Plaintiff worked with this

Instron, a bolt from the cylinder which holds the

diagram paper, was taken away. When the paper was

unrolling during the test, the paper would break

and it was imp-esible to use the machine. Both

Defendants Calton and Kapraun have been informed by

| Ks

' the Plaintiff, but they said that is nothing which

; they could do, and that it is something wrong with |

fo 08 RAR BLA RBELE Foch SS LDG- EDR MACHIDC gO. nome. a ae ~'4

Finally the Plaintiff got help from a technician

from the mechanical department. He just put a bolt

to stop the cylinder to travel horizontally, and

the paper didn't break anymore. Defendants Kapraun

and Calton were very upset that their trick, which

was set only when the Plaintiff had to work the

Instron, was discovered.

B. Other traps were set for Plaintiff,

very frequently, by Defendants Clemens and Kapraun.

They would take turns in using for several days the

Rheo and Mooney machines from upstairs, while Hank

Kapraun was saying that he couldn't fix the other

Rheo and Mooney machine downstairs. For this

circumstance they would manage to have both

| machines downstairs broken down.

During these daye Plaintiff would accumlate

samples which she should run on the Rheo and Mooney

K-7 -

ent CN ice NS URE HEE Eis? She WOOT wee Het em wi

name on a note, to reserve the Instron machine

downstairss. beacause the. .Qne .upstairs Aen: t E WOK: Par

When the Plaintiff was ready to work on the :

Instron, one of the Defendants, would come to the

Plaintiff to let her know that the Mooney and Rheo

“machines upstairs could be used because they did

not need them anymore. The Plaintiff having a lot

of samples to be tested, accumulated for more than

10 days, had to leave the Instron machine, and

Defendants would take the machines for other 10

days. In this time Defendant Kapraun would fix the

two machines Rheo and Mooney from downstairs.

After they arranged this trap, they would call

the peovle to show that the Plaintiff was lazy and

didn't do her work for days, also that she reserved

the Instron machine and didn't use it, stopping

them to work with it, that she is the one who

marry wp to catch up with the tests, before the ‘a

erased her name from the Instron note and changed be

]

K-8

the date, instead them, as is shown in subparagraph

C, that she is nervous ly sick and wants to isolate

_herslef upstaixs « dBSteag PRURFLSMSEALES., wath. oe ee

the Rheo and Mooney machines, which in fact were

broken down when the Plaintiff needed them.

When Plaintiff told Defendant Calton, her

‘former boss, about these traps, he said that these

are her imagination and that she should goto a

pyschiatrist because she troubles the people and

does not let them work. In fact Defendant Calton

was persuading her constantly, specially when the

Plaintiff was working upstairs in laboratory, that

she is nervously sick and that she should go to a

psychiatrist for treatment.

C. When Plaintiff needed the Instron, she

would write on a Note attached to the Instron, the

time and date when she needed it for example 2

o'clock. Clemens would change the time by adding

in frent of 2, the number one and the time would

become 12 o'clock. At 12 o'clock, Plaintiff by not

K-9

knowing anything about this change, did work with

.., another machine. Defendant Clemens complained to

.. Defendant Calton and to other: people that he needed

the machine and he couldn't work because the

it. When Plaintiff would want to use the machine

at 2 o'clock, the time she reserved the machine,

- someone else was working with it, because was no

——

reservation at that time. This happened daily,

with other machines, Mooney, Rheo, curing press.

As for ecs. Plaintiff's reservation for 1 o'clock

was changed in 11 o'clock or 10 o'clock or

viceversa. Defendant Clemens changed the

reservation dates also. A technician Goeppinger

from the mechanical department was the witness of a

such change.

When Plaintiff informed Defendant Calton about

this continuous harassment and traps, Defendant

Calton accused Plaintiff that she is imagining

things and that she is nervously sick, that she

K-10

troubles the people at work.

, D. The micrometer was broken down and.

didn't hold zero. .Plaintiff asked Defendant .

Kapraun to repair it, because it was his duty, iat

he said that he couldn't repair it and that she

should bump the little arm to bring it to zero.

The Plaintiff wouldn't agree to work in this manner

because is was not recommended, but the work was

pressing and she had to use it in this way. Also

she had to follow Kapraun's advice because

Defendant Calton pointed out that the Plaintiff had

the duty to do exactly what Defendant Kapraun said

when it came to the machines, because they were his

responsibility.

After Defendant trapped the Plaintiff in this

way, he called the Defendant Calton and other

people to show them that the Plaintiff doesn't know

to work with a machine or an apparatus and is

capable of deteriorating them.

When technician Goeppinger asked her why she

Kil

works in this manner, she explained him that —

_ Defendant Kapraun instructed her to wrk in_this _

way: ‘because the Micrometer -courdn't. be wepairedh.

| The sniewnasi traps and lies of Defendants

Clemens and Kapraun caused extreme emotional stress

to the Plaintiff because she was blamed and

ecitinte by her boss, Defendant Calton who wrote

blaming reports to the management, without

Plaintiff's knowledge. Also Plaintiff could never

get a machine when she needed one because Defendant

Clemens and Kapraun would manage, as in the

aforesaid cases, to stop Plaintiff in using any

machine. Consequently Plaintiff had to work many

times late at night to finish her work. The

aforesaid traps, and harassement caused Plaintiff

to be upset and cry every day, and to work under

severe emotional stress.

E. The Plaintiff received cured samples

from Defendant Clemens, to be pulled on the instron

for tensile test. The Defendant Clemens had not

K-12

" cured enough’ the samples. The tensile values were _

‘unusual low for these samples. which intrigued the .

cee < sPladniet / *Ghe hecrves: that -Plainvité: ‘Clemens +:

showed oatenten: exbeees other suphes which were

correctly cured, which had a much higher value of

tensile strength, complaining that Plaintiff made

* error. She informed Defendant Calton and he

seemed to have a very good time.

F. Any time Plaintiff made arrangements

to obtain a press for curing rubber compounds,

Defendant Clemens told the co-worker Herb, who was

working with the curing press, to not allow

Plaintiff to work with the press because she wants

to do her job first, and wants to show that she is

something. After Defendant's Clemens instigation,

Plaintiff couldn't obtain the press anymore, which

made it difficult and impossible for her to work.

Plaintiff told Defendant Clemens to go to his

own work, because it was not his business to

instigate the workers against her. He answered,

we. i

K-13

"Yes it is my business”.

G. The Defendant Calton told the 1

ies Plaineiee to. use 6. machine. only. if she reserved, ite te .

writing dow the dete end tine shun dhe aesteé it.

When the Plaintiff proceeded according Defendant's

Calton instructions, asking also every one if they

“needed the machine, the co-workers including

Defendant Clemens answered negative. The moment

Plaintiff started to work with the machine,

Defendant Clemens complained that Plaintiff took

from him the machine and he is disrupted in his

work by the Plaintiff. Defendant Calton would

angerly criticize Plai:.tiff telling her that he

doesn't care if she reserved the machine, that she

shouldn't use it, that she is troubling the people

at work. At the Plaintiff question how and when

could she use a machine without being blamed, both

Defendants left the room without answering.

Plaintiff was under severe stress because it

was impossible to work and was harassed every day

Beard

ee ee ee ee a

K-14

by Defendants which repeated continuously the

aforesaid harassment. She received criticisms from

engineer Henry Guay, that she should work faster.

H. Defendant Clemens worked with the

Instron downstairs. After a while he offered the

machine to the Plaintiff, because he said he was

‘tired and didn't want to work anymore. When

Plaintiff started to work with the machine, Clemens

came with Calton and complained that Plaintiff took

the machine from him.

I. Defendant Calton acused Plaintiff

continuously that she troubled the people. When

Plaintiff informed him about her harassment and the

impossibility to work, he told her that the boys

are only joking and that her complaint about her

outrageous harassment is imaginary. All the

harassment was going behind Plaintiff's back,

although Defendant Calton never mentioned how

precisely Plaintiff was troubling the workers. For

this reason Plaintiff asked to have a meeting with

K-15

“all the’ co-workers to find out how is she troubling

them at work. All the workers present, including

a .. ...Defendants.Clemens..and Kapraun. denied; that she. is, ..~.

troubling them and no one brought any complaint.

However the harassment continued and Defendant

Calton continued to harass the Plaintiff and

support the Defendants in their harassment against

the Plaintiff.

J. Plaintiff worked with the Instron

machine. When she left for few minutes, she found

the instron broke down. After the Instron was

repaired Defendant Kapraun started to work with it,

without allowing the Plaintiff to finish her work.

When Plaintiff asked Defendant Kapraun if he would

allow her to finish her work. he became angry and

complained to Defendant Calton. Defendant Calton

angerly criticized Plaintiff for daring to ask

Defendant Kapraun if she could have the machine to

finish her work.

K. Plaintiff's samples were continuously

= = = =

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‘ :

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—-

”

ee ee eee ee ee ee ee ee ee ee ee ee ee ee ee

K-16

thrown away. The samples for heat build up test,

were saved by Plaintiff in the machine. Defendant

Clemens threw the samples on the. floor and: spread

the rumor that Plaintiff was nervous, that she

didn't know what she was doing and that she threw

her samples on the floor. Next day he agreed in

front of Defendant Calton that he threw the samples

on the floor. This situation continued to be

repeated and amused Defendant Calton, who

considered it as a joke. This harassment caused

Plaintiff to work more. She had to lose other time

to cure other samples, and was blamed in the same

time that she was not capable of working.

L. Plaintiff was gauging almost 450

samples when Defendant Calton came with Defendant

Clemens to blame her that she was not working.

Defendants Clemens and Kapraun were continuously

supervising the Plaintiff accusing her that she

doesn't work, creating a tremendous pressure and

emotional stress for Plaintiff who was obliged to

K-17

oo Beas ag YB" OF LOSS PLN bo" EMish' har’ werk 7

: _ or to work home up to 2 or 3 A.M. to compensate the

..., ,outkageoys, harassment of the Defendants which made, ......

it impossible for her to work. |

M. Plaintiff asked Defendant Calton .

she could work in the second shift so she would not

‘be in contact with the Defendants and also to have

available the machines to work, but Defendant

Calton refused. He wanted to keep her to work

together with the Defendants, to be harassed beyond

any limit of decency, to blame her work and find an

excuse to fire her or send her in hospital for

nervous treatment.

N. Plaintiff had to work continuously on

the adhesion tests, which means to determine the

force necessary to pull apart two plies of rubber

compound T204, B320, T207, V904, after they have

been curred together. She had to study the

decrease of the adhesion force, in time, after the

rubber plies were left exposed on the table to the

gy ME ae

K-13

light, air and air impurities for several days and

weeks.

_ To sabotage Plaintiff's work, the Defendants

cleaned with solvent the rubber plies, from time to

time, causing errors in determination of the

adhesion, and a higher adhesion force. Plaintiff

: spent months working late in laboratory and many

time working home till 3 AM, verifying the results.

She told Defendant Calton that someone was cleaning

with solvent the rubver plies and that she obtained

errors in determinations. All three Defendants

were laughing and seemed to be very happy when they

found out that she worked almost daily, late at

home. Defendant Calton accused her that she

falsified the results that she made errors in

determination and that she imagined the harassment.

To make even more wide the parody of his

management, Defendant Calton asked Defendant

Kapraun to investigate why she obtained high values

of the adhesion.

oe.

K-19 -

' “(he Deferidant Kapraun, in connection with’ ~

Defendant Clemens, would increase the pressure

. . during the Curing of the. samples, when the P os “*e% Te 4° Ye a8 cage bev x

Plaintiff was not present, and then would show the

people and Defendant Calton that the cause the :

Plaintiff had errors in the adhesion test was

because she had too high pressure during the

Plaintiff proved that if plies of mentioned

compounds were exposed to the air for 10-20 days, q

and cured at the highest pressure possible, the I

force of adhesion would be still so low that the

plies could be separated by hand instead the |

machine.

Though the Plaintiff proved that she was right, L

the sabotage of her work continued, while the |

Defendants had a very good time.

The severe emotional stress produced by |

outrageous harassment, the daily humiliations, the

lies, the traps, the sabotage of her work, the fear L

K-20

* +“S"""that she’ will ‘Tosé’the 445," that they will “Sudcéed’* “°°

in sending her to the hospital for nervous

nny pas debeqtpent,, the fear that,gbe, WELL nat be. able ts. oc cee. sas

find any job and couldn't support her two children

who were in her custody after her divorce, made her

to cry daily and lose sleep.

O. Defendants Clemens and Kapraun called

she came in the room and would say, "Here comes the

trouble, here comes the moose".

They brought the head of a moose, stuffed, and

hanged it on the Inston machine. They crowned it

with a mortuary crown and they said that they will

bury the moose. This explained why Defendant

Clemens said several times when he meet Plaintiff:

"May be I will kill my self", to give Plaintiff a

suggestion. Their expectations was to bring

Plaintiff to despair through harassment, to get her

nervously sick and maybe to lead her to suicide.

Defendant drew a moose on the Romania map which

]

] Patent enum, ante veleen asi moees doen, when

ities:

K-21 L

tae 2 mth “the laboratory.” ' CO“wOrket ‘Robert’ Schéolman "6 6 y=

Saw it and Plaintiff heard him saying to Defendant

aavrnn GUESS. AS ADE. popse, is on Romania pap". O& we 6-9,

Defendant Kapraun drew several times a moose on

different machines on Instron downstairs, under the a

paper for diagrams, behind the oven downstairs in

the Instron's room. Their conduct showed an

outrageous harassment because of national origin of

the Plaintiff.

P. Defendant Clemens made from a rubber =

compound, the form of an excrement, put it in the

door way in the downstair laboratory and told the

Plaintiff: "This is you".

This harassment was outrageous, cruel, beyond

any limit of decency, humiliating, and caused a

great enwtional stress to the Plaintiff.

R. Clemens told Plaintiff to go back to

Romania and Plaintiff answered that he should go to

Romania because his behavior fits exactly Romanian

regime.

ee eee |

K-22

S. Defendant Clemens was making sexual

suggestions to Kapraun in connection with the

. Plaintiff and her family which is a direct sexual

harassment.

Defendant Clemens suggested to Defendant

Kapraun that he should get together with Plaintiff,

also he said to Defendant Kapraun: "She is bringing

her daughters to Peoria, what do you say? and "She

wants to have grand childrens, what so you say?”

with an undoubted meaning and laughter.

If this is not enough to make anyone sick, they

wrote sexual words "I fuck you" on the machine

Plaintiff was using upstairs Mooney and Rheo chart,

and also downstairs on the heat build up machine.

T. Defendant Kapraun menaced the

Plaintiff with the fists two times, screaming at

her "Shut up or I will.”

Plaintiff was all the time under terror, fear,

humiliation, strong emotional stress, because of

this unhuman, cruel harassment, beyond any limit of

K-23

decency.

U. Due to the unhuman harassment,

. ve'.- Plaintiff started.t@ present symptoms.:which leads -.+ 4:5. -.

her to believe that Defendants were putting drugs

in her coffee and drinks, but no doctor confirmed

her beliefs. She had: unbearable stomach pain,

“ indleigestions, allergies, headaches, vomiting,

frequent urinary infections with blood in the

urine, intestinal bleeding, bone pains, flashes,

back pain, pulmonary infection, strong coughing,

chest pain, heart palpitations, dizziness,

confusion, forgetfulness and skin infections -

psoriasis and warts. She had also peeling of the

skin on the palms and nails deformed.

She went to 10-12 doctors who made a complete

physical check and they gave Plaintiff different

diagnosis.

Plaintiff informed Caterpillar management and

Defendant Calton that she believed that Defendants

Clemens and Kapraun put drugs and damaging

= 25 £5 FO ee ee eee

ae a ee eee See ee ee Pee

— GS ee ee

K-24

“” “tremiGals it het dof fée ‘and drinks! * Defendant’ 7

Calton told Plaintiff that was her imagination and —

naresoe 4-6 Albee FRR AA Add: hOB SRG, -ReGAUse SUE WAS...» ben oe

nervously sick.

V. Defendants Clemens and Kapraun jointly

and separately concurred with Defendant Calton and

‘Caterpillar to show that Plaintiff was nervously

sick and forced her to go to hospital for nervous

treatment. Through lies, traps and harassment they

that she troubled the people because she was nervous

sick. They succeeded in forcing her to go to the

hospital, though she was capable of workings she

was cooperative and polite toward the other people,

never disturbed them in their work as could testify

co-workers Robert Schoolman, Herbert, Goeppinger

and Eng. Thomas Leonard. She always gave up a

machine when a worker needed it, though she had her

work to do and had to work later co finish her

accused Defendant that she was not capable of working

| work.

K-25

ee, a ee ee te i a Se Gere wi Bete Fh me ay. -

In the hospital Plaintiff felt very sick, and

as a.result of, the treatment in the. hospital she

» 32

C ef _

vv *twas-tdi sabled andrincapable -of working-foremore than’ ~ we P

a year.

X. Defendants Clemens, Kapraun, Calton

and Cat. continued the same pattern of harassment

as their connections from Bandag, Inc., the former

employer of the Plaintiff, before Caterpillar. At

Bandag Inc. Plaintiff was harassed in the same

manner by co-workers Herman, John Maxwell and her

former boss Roger Clefman, through lies, traps,

sabotage of her work and had many of the symptoms

she presented at Caterpillar: flushes, hear

palpitations, vomiting, headaches, angryness, of

which she couldn't find out the cause. She was

fired by Bandag, Inc. because the company agreed

with Plaintiff's harassors, that she had a

personality problem, though the Plaintiff informed

Bandag's management about her outrageous

harassment, beyond any limit of decency.

— :

= .

TT TT TN ee ee ee a

K-26

Defendant Calton was fully informed by Bandag

Inc. and his connenctions at Bandag, about

Plaintiff's harassment at Bandag Inc. He accused

the Plaintiff verbally and in his reports that she

had similar problems at Bandag, because of her

personality problem. Defendant Calton continued to

harass Plaintiff using the same theme as Bandag:

the personality problem.

Y. Defendants spreaded the rumor in

laboratory that Plaintiff is a drug user, that she

hears telephone noises, that she can't find

anything because she is confused because of drugs.

The psychiatrist Dr. Ward and Caterpillar

employee Doris Logan asked Plaintiff if she heard

telephone noises and Plaintiff answered negative.

To trap the Plaintiff, Defendants would call her at

1 or 2 AM, disrupting Plaintiff's children sleep,

who would rum to pick up the telephone, then they

spread the rumor that she heard noises. Due to the

rumors that Plaintiff is a drug user, a technician

ok ee et eo oP eee ae ty roe

, oo

K-27

from the mechanical asked ty fer if she was

taking drugs, if she is a drug user..

Ap. shoe that. Plainti££é.was. confuged and .can' > te

find anything, Defendant Clemens hid very often the

dye to cut the rubber for tensile test, and the he

put it back. When the Plaintiff asked where the

dye was, he would show her that it was in the

drawer where she looked before but she was not

capable of finding it.

The secretary of the dentist Moon R. in Peoria,

told Plaintiff that she can't give Plaintiff any

appointment because Plaintiff had a personality

problem, which puzzled the Plaintiff.

The Defendants spread the rumors that Plaintiff

is a lesbian or has unnatural sexual drive, because

the ladies at the church, as Mrs. Leona Millen

looked horrified when Plaintiff would touch her

Children's hand or her hand.

12. Due to the aforesaid unhuman, outrageous

harassment, beyond any decency or human limit,

jee PR MING

C—Tc——a

> oe

K-28

'- “plaintiff was under sévere emotional stress, under

fear and horror that she might be beaten by the

-.» +, Defendants ,.. she. was, coptinuoysly-humiliated, she...,. ..

was under great worry and terror that the

Defendants would succeed through their criminal

acts and their connections to get Plaintiff ill and

handicapped, which they in fact succeeded. The

Plaintiff was under extreme worry, and emotional

stress that she might lose the job, that she will

be incapable of finding another one due to the

blames and lies which were spread by Defendants and

their connections to people and other companies.

13. Plaintiff suffered unbearable physical and

emotional pain due to her continuous illness.

14. She was under terror, fear, despair,

severe emotional stress when she saw that her

children had severe physical pain and symptoms: VOM-

itting,heart .Deating, flashes, indigestions,

pulmonary infections, skin infections, allergies,

eyes swollen, swollen fingers, sleepiness,

K-29

" “"~ péadachés, sé. sation to fly “" “ ° *

None of the many doctors who have seen the

. . Childrey.qowld Sind any, cause which, would. provoke . ... ;

all those illnesses.

15. She was under tremendous emotional stress,

pain, despair, that she cried and lost her sleep

‘because she had daily quarrels with her children

and parents, who couldn't understand that it was

possible to exist such a criminal harassment which

continued for years, and still Caterpillar didn't

make any serious ard honest attempt to eliminate

it. Her relationship with her children was

destroyed, the children lost their confidence in

their mother and they were convinced that she was

nervously sick, and all what she was telling them

were only her imagination.

16. She lost her job with Caterpillar, she was

incapable of finding any other jab because of the

blames spread by Defendants and their connections

to any people or company the Plaintiff would

= fo

ee ee ee ee ee ee ee ee ee ee ee eee

K-30

17. She was disabled and incapable of. working

. for mare.than one year. and. was through unbearable ..

sufferings due to the harassment and criminal

conduct of the Defendants and their connections.

18. Plaintiff lost a substantial amount of

money being unemployed, losing her job with

Caterpillar, spending money to care for her health

and her children's health, spending money with

lawyers in claims and law suits against Defendants,

in real estate business, in the period of time she

was incapable of working or taking any decision.

19. Damages in this case exceed the amount of

$950,000.00 for each Defendant.

20. That in addition to the foregoing

Defendants engaged in the aforesaid cruel and

unhuman harassment, wilfully and with the purpose

to destroy Plaintiff's health and life,her family

health and life, Plaintiff is entitled to punitive

damages in amount of $500,000.00.

K-31

‘vas "3" “Wherefdre Plaintiff prays for jlagment’ against” * ~~~

Defendants Clemens L. and Kapraun H. in the amount

bry er aforesaid. ta compensate.at. least.in,part the... ee 2 ee

damages, the injury and Plaintiff's sufferings

which in fact could never be compensated by any

amount of money.

COUNT II

Comes Now the Plaintiff Maura Burche, and for

Count II of her Complaint against Defendant Marion

Calton states as follows:

1. - . Plaintiff repeats and realleges

Paragraphs 1 through 18 of Count I as Paragraph 1 -

18 of Count II as though set forth herein in full.

19. That Plaintiff informed the Defendant

Marion Calton, her boss, very often, verbally and

in writing about the extreme outrageous harassment

and criminal conduct aforesaid, against Plaintiff

by the Defendants Clemens and Kapraun.

20. That Defendatn Calton didn't make any

K-32

harassment at work.

Q. teat Tha, he. did pot eliginate. “siden...

serious attempt to eliminate the harassment of

“

Defendant by Defendants co-workers.

22. That he kept Plaintiff permanently in

‘contact with her harassors, being informed that she

had severe physical pains, that she was under

severe emotional stress, that she was humiliated,

sabotaged, sexually harassed, menaced by Defendants

Clemens and Kapraun as aforesaid.

It was a permanent exchange between the workers

from the laboratory and Cat's Plants with other

location, but Defendant Calton never attempted to

exchange the Defendants Clemens and Kapraun or

Plaintiff, to eliminate Plaintiff's harassment.

Moreover, Plaintiff proposed to work in the

second shift, to be protected of the Defendants’

harassment and to have the possibility to work with

the machines. Defendant Calton refused, with the

mm SHGHESE” ESETGSTION” OF PIRIfeif rs Claim wbout her“

K-33

we ee ss at ee = = > i See Se Ae ee oe ee ke ae oe fo 2 o

intention’ to keep Plaintiff under the cruel and q

crminal harassment conducted by Defendants Clemens

7 ;

o~ ~ «and Kapraun, with the puxpose. to destroy:-her: +..* 6-0

health, and life, to transform her ina

handicapped.

23. He covered up the harassment against

‘plaintifé, by Defendants Clemens and Kapraun

telling her that the boys are joking and there

[

isn't any harassment but her imagination and [

nervous sickness.

24. Defendant Calton wrote behind Plaintiff's |

back reports to the management, without informing

the Plaintiff. In these reports he lied and L

unjustly blamed the Plaintiff that she was not

capable of working because of her nervous illness, ,

and that she troubled the people and do not iet {

them to work. That Defendant lied in his reports,

is the affirmation of the Engineer Thomas Leonard, L

who supervised Plaintiff's work in the last months

before she was forced to go to hospital, his

ee ee ee ee ee

K-34

testimony and others workers testimony that she

never troubled anyone at work.

In her effort to inform Defendant Calton about

the extreme outrageous harassment, Plaintiff asked

for a meeting with all the co-workers and Defendant

Calton, to find out if anybody had any complaint

against her. When she put this question at the

meeting, no one brought any complaint and the

answer was negative, including Defendants’ Clemens

Kapraun answer. However, the naresnniont continued

and became even worse.

25. That the entire harassment was hidden by

Defendant Calton from the management and Plaintiff

through his lies as follows:

He informed the Plaintiff, that the Manager R.

Untz wanted to have a meeting with Plaintiff and

Defendant Calton, to give her an assignment. At

the meeting Plaintiff noticed that the manager R.

Untz didn't have any intention of giving her any

assignment, but to discuss with her certain

K-35

complaints brought to him by the Defendants. The

manager started to give her advices about how to

behave at work and asked Defendant Calton if he

told anything to the Plaintiff. Defendant Calton

answered affirmative, which was a lie. The only

thing he told the Plaintiff was about an

assignment. Plaintiff was confused and couldn't

understand why she was receiving advices from the

manager about how to behave. The same lies were

repeated by Defendant Calton in other meetings with

Manager Untz in his office at Pioneer Park and at

Technical Center.

Another example of Defendant Calton lying and

covering up the cruel harassment and the criminal

activity of the Defendants, is the meeting which

had place several days before the Plaintiff was

forced to go to sitesi In the meeting was

* manager” ‘R. “Untz;" betendant Galton’ and pidintitt.

The meeting took glace: at Plaintiff's request,

trying to find out which were the complaints and

K-36

how it was possible that she troubled the people,

as Defendant Calton was blaming her. At her

question, Defendant Calton answered that no one

had any complaint against defendant and that no one

was harassing her, and he dismissed her. When the

Plaintiff was at the door, manager Untz asked the

Plaintiff if she was satisfied with the answer.

Plaintiff answered that she was not, because as

usually when she tried to find out which were the

complaints against her, Defendant Calton covered

them up.

26. That Defendant Calton used his position to

intimidate the Plaintiff, menacing her that he will

fire her if she will complain any mre. He told

her a lie, that the manager Untz was very angry

that she complained to him last time and that she

should not do it again, because she will be fired.

27. That Defendant Calton kept the Plaintiff ~

without any work for weeks and that Plaintiff had

to ask him repeatedly for work. Plaintiff had to

K-37

ask co-worker Schoolman to share his work with her

because she didn't have any assignment. In this

time Defendants Clemens, Kapraun and Calton were

supervising her, spreading the rumors that she

doesn't work because she can't.

Plaintiff informed Mrs. Conny Fraser, Personnel

Supervisor and Mr. Higgins, the Chief of the

Personnel at the Technical Center about her

harassment that the Defendant Calton doesn't give

her any work. The Personnel Supervisor told

Plaintiff to go back to Defendant Calton and ask

him for work, which Plaintiff did but without any

success.

28. That Defendant Clemens hid tensile samples.

for days in the drawer in the press room, and gave

them to the Plaintiff only when everyone had the

duty to clean the laboratory. In this way

at * @. ie Ae ae ee ee ee oe OL em hee: qo." *.. % w.. pO 2 PF:

‘ ‘Plaintiff either didn't have any work or had so

much that she couldn't finish and had to stay late

to finish her work. Also when she had to clean

— ey i) | iii} eee

> ,

—

—. eo

— —— ll |

‘

K-38

the laboratory, Engineer Henry Guay asked her to

test the samples which were hidded by Clemens, in

the same time Defendants Calton, Clemens and

Kapraun blamed her that she doesn't do her work and

that she doesn't clean the laboratory.

29. That Defendant Calton encouraged

Defendants Clemens and Kapraun giving them raises

praising them, while he proposed Picintiff to be

layed off because she troubled the people.

30. That Defendant Calton was seen by

Plaintiff at work when he couldn't talk or keep his

eyes open and he had to leave. Eng. Henry Guay

told Plaintiff laughing that Defendant Calton

received a shot in the mouth from the dentist and

he had to leave several times.

Plaintiff alleges that Defenda it Calton had a

drug or drinking problem which was the reason of

leg ale obew. es see west tote Se beta C - bt ed ay Bee 4

his transfer from the mechanical Department to Gn

rubber testing laboratory at Tire Development

- without having ‘any ‘background or expertence in the

K-39

rubber technology.

Any time when Plaintiff asked for technical

advice,Defendant Calton would send her to Engineer

H. Guay because he didn't have any knowledge to

make a decision.

31. That Plaintiff wrote a letter on Apr. 21st

1977 to Caterpillar's management and to Defendant

Calton that she was drugged by criminal people from

laboratory. Next day, Defendant Calton wrote a

report to the management that Plaintiff is

nervously sick and that she can't work any longer.

He sent her to Cat.'s Dr. Ashbury telling her that

the doctor wanted to see her for a reason the

Defendant Calton would not know.

32. Dr. Ashbury recommended that Plaintiff

should go to the Dr. pSychiatric Emmi Andri. He

gave her the name of the doctor, the address and

ay sie ly bates s galt 2 Gh. meet ote OR ap! det Bee Tt, OR Ie Fie.

the time of the appointment

Plaintiff reported to Dr. Andri the harassment

-. and. the. illnesses Plaintiff: had. continuously. .

-————»

‘ere Ke"

ee ee ee eee

SS ee ee ee ee ee ee ee

K-40

Without making any investigations about the

Plaintiff's conditions at work and her allegations,

or any laboratory test or psychiatric test, Dr.

Andri decided that Plaintiff was nervously sick,

paranoid and told her to go to hospital for nervous

treatment, which the Plaintiff refused, and

returned to work.

Defendant Calton sent Plaintiff, the same day,

again to Dr. Ashbury. Doctor Ashbury told

Plaintiff that she had to go to hospital and got

angry at Plaintiff's refusal. He told her that he

would put her on medical leave and take away her

identification card so she couldn't enter Technical

Center and come to work.

Plaintiff didn't have any choice but to accept

going to hospital.

33. That when the Plaintiff went to hospital,

¢* 4.4 “QP tory

the was capable “of working and performing ‘all ‘her’

duties. That during the treatment at St. Francis

Hospital, . Plaintiff. became extremely sick. She

soe 9: wee.

K-41

couldn't speak and keep her eyes open, she had

urinary infection and blood in the urine, she

started to walk for hours in the hospital's hall,

because she couldn't sit still on a chair and she

was very tense also and couldn't see very well.

She was seen in this condition when she had

difficulty of talking and in the impossibility of

keeping her eyes open by Caterpillar's employee

Doris Johnson and brother Eugene Phillips.

34. As a result of the harassment at Cat. and

of the medication, Plaintiff was disable for more

than a year and in impossibility of working. She

became afraid of the knife, her muscles were very

tense, when she sat on a Chair she had to move

continuously her legs, she walked for hours in the

room not being able to sit still on a chair, she

threw herself on the floor screaming anu scratching

ee 81 0%4 pa t .¢¢ % are

the floor’ with th Her Tails. Her psychological” and a on

emotional eutferings were unbearable.

..... 35. As a result of .the cruel: and unhuman.

~~;

ey ey PP . mae

K-42

harassment at work by Defendant Calton who

encouraged, covered up and joined in harassment

also, the Defendants Clemens and Kapraun against

Plaintiff, she had severe emotional stress, severe

physical suffering. She had to work while her knee

was painful, her back was painful, she couldn't cut

samples because her elbow was painful, she had to

run 20 times a day to the restroom because of her

extremely shell wirliiess' tabietion, she was

coughing and had severe chest pain, though she

didn't miss work and stood late to work up to 9

P.M. and then up to 2-3 A.M. at home, very often,

to finish her work. Her life was a long torture.

She was scared of the harassment at her work,

she was worried and horrified that she would become

permanently sick as a result of the criminal

harassment by Defendant Calton, she was

continuously humiliated, ‘and persecuted by ce re

Defendant Calton.

]

- 36. Plaintiff was sent to-the hospital against ...

K-43

her will, by Caterpillar's doctor in connection

with Defendants Calton, Clemens and Kapraun,

without any laboratory or psychological test or any

investigation.

37. She became disabled and very sick for more

than a year due to the treatment in the hospital,

as a result of forcing her to go to hospital by

Defendant.

38. She lost her job with Caterpillar because

was considered as a handicapped by Caterpillar, and

couldn't find any other job or keep a job because

of the humiliating, unjust reports of Defendant

Calton and because of the lies he spread in

connection with the other Defendants»when a company

would ask information about the Plaintiff.

39. Plaintiff lost a great amount of money,

being without job for more than four years,

arden Qe BRAK. o2 atha oe’ a8 th ‘the’ do@tors" to°& : eA) oat har ‘Pee es

health and children's health, spending money with

_ attorneys for.her claim against Defendant, and...

losing money in the real estate because of her

disablement.

40. Plaintiff had severe emotional stress,

worry, despair because her relationship with her

family and specially with her children were

destroyed. They didn't have any trust in their

mother and considered her as a sick person. They

couldn't believe that it was possible that a such

criminal harassment to go on for years and no one

would attempt to eliminate it.

$950,000.00.

42. That in addition to the foregoing

Defendant engaged in the aforesaid cruel beyond any

decency, unhuman harassment, wilfully and with

purpose to destroy Plaintiff's health and life, her

family health and life, Plaintiff is entitled to

Cowie weaee oi Eee Canbges in amount SE°SS00 000-007 St

Wherefore Plaintiff prays for judgement against

-- =». Defendant. Marion. Calton, inthe amount. aforesaid to .

]

| 41. Damages in this case are in amount of

]

K-45

compensate the Plaintiff for her suffering, damages

and injuries.

— —— eee “personnes oe ==

COUNT III

Comes Now the Plaintiff Maura Burche and for

Count III of her Complaint against Caterpillar

Tractor Co. states as follows: t

1. Plaintiff repeats and realleges Paragraphs

1 - 18 of Count I, as Paragraphs 1 - 18 of Count a

III as though set forth herein in full.

19. Plaintiff repeats and realleges Paragraphs :

19 to 40 of Count II as Paragraphs 19 to 40 of =

Count II as though set forth herein in full. - |

41. That during the aforesaid acts of the ad

Defendants employees aforesaid, Defendant hada L

duty to the Plaintiff as its employee to honestly :

investigate and eliminate aforesaid outrageous, L

tenia teeeienieaaaeienmanemm em enaantemimmenall

was destroying Plaintiff's health and life, her . ‘og

possibility to work in the future, her children's §

ey 3 Sere SE qeee Pte Se we le ye Meee BEM et WR A Peewee tee. vo *s" me

—

“2.6 Ks

K-46

health and life and her family relationship,

causing the Plaintiff severe emotional stress,

pain, despair, worry for health of her children.

Defendant failed its duty to eliminate the

outrageous harassment.

42. Defendant was fully informed by Plaintiff,

about the cruel] and criminal harassment by the

aforesaid employees, verbally, in meetings and

through letters sent to the Manager Grawey, Untz,

Defendant Calton, Personnel Department Supervisor

Fraser and Chief of the Personnel Higgins. From

her hospital bed Plaintiff called Manager Grawey

and told him that she believed that she was drugged

at work and that she believed that she was drugged —

continuously in the hsopital, by the medical

personnel, the nurse who gave her the medication at

noon.

"gee Gee ee ata #t

3. ‘Defendant harassed Plaintiff by keepiig”

> _*

he in wank with Deteninets eiphenuee, instead of

-eliminating- the harassment by transferring: to.

sas*?

saedeaet pacer never pone i disabled nn a,

K-47

another place of work, the Defendants or the

Plaintiff.

44. Defendant knew that Defendant Calton had

problems with drugs or drinking, and despite

Plaintiff's claim Defendant continued to keep him

as chief of laboratory.

45. Defendant knew about serious problems

Defendant Kapraun had at his former employment, and

was expected to continue to have the same problems

and still Defendant allowed him to work in the same

place with Plaintiff despite her complaint.

46. Defendant told Plaintiff to go to

hospital, abusing its power. Following this

harassment, Plaintiff was disabled for more than a

year because of the medical treatment she received

in the hospital. If the Defendant would have

insured to Plaintiff normal conditions of work

Se Oe. Be were ‘

“Instead of forcing f her to = bed “hospital, the”

» would, never: suffered-~for. years. horror,.fear,--. .....--

oe | a. So:

ee SOO

K-48

humiliation, harassment which caused her strong

emotional stress.

47. Defendant refused to receive the Plaintiff

back to work after the doctors released her to work

and continued to consider her as a handicapped,

incapable of working in the same position or in a

Similar position.

48. Defendant failed to require an other

Caterpillar Plant to hire the Plaintiff. Defendant

can require in special cases as they did in

Defendant's Calton case, to hire the Plaintiff,

because Plaintiff was a special case created by the

Defendants themselves.

49. Defendant released informations about

Plaintiff's work and behavior which were unjust and

were derived from Defendant's Calton reports, to

all the companies who were contacted for a possible

employment of the Plaintiff. As a result of these

informations, the Plaintiff couldn't find a job up

to the present time.

K-49

50. Defendant refused to offer Plaintiff a

technical job, on probation basis, to investigate

if Plaintiff was capable of working, after she was

released by the doctors to work without any

restriction. The only restriction the doctors

recommended was the Plaintiff should never work

again together with Defendants Calton, Clemens and

Kapraun.

51. That Defendant offered Plaintiff a clerk

II position in Mar 1979, considering that Plaintiff

= = = eel

was a handicap incapable of doing any technical

job, and that the only job she could perform was to

carry the mail and the prints to different offices.

Plaintiff refused the job which constituted a moral in

degradation and a continuance of her harassment. a

52. Defendant used Plaintiff's refusal as an

excuse to fire her on Mar 22, 1979, only several |

, fe. ty 2 we lee “en. ¢ gO= ‘5 0°"

weeks before the new Caterpillar 1 Plant” in "Davenport

atexted to hire —— of vaaianninie er had a

-s large laboratory... Defendant-..continued.to harass.-. -. - 5k ~T4

K-50

Plaintiff, by avoiding its obligation to find a job

for the Plaintiff at the new Caterpillar plant in

Davenport, which had large possibilities of

employment.

53. Defendant's argument that they couldn't

find any job for the Plaintiff because she has a

limited speciality, rubber testing, had no ground.

coal gazeification speciality. She had courses of

chemistry, rubber technology, mechanics,

mathematics, coal distillation, eletrochemistry,

general technology, and electricity. She worked

more than 25 years in different industries: rubber

industry, oil industry, mechanical industry - tire | |

engraving. Plaintiff's background and work shows

that she could work in any rubber or mechanical

le eiocen- sei or plant at Caterpillar.

Ph ae Soe

‘. Defendant refused Ay disclose the “list of

J paste ten ‘tapi in cannon engtnoectan,

]

» Jo we fO o%s te * 2 he o “®t 98H, Pgte.0% ® & fe Fo. 40%, *®

1 all ‘the pacino hired ie catensi Tide, atver

kit <- te Pladntd fe. was-released te-works! = 6-0 BRL Om a es

> . of

K-51

Defendant hired people with lower education

thatn the Plaintiff who were trained while they

were working, though Defendant refused to offer

Plaintiff any job.

56. Plaintiff has several laboratories in

building E, including a chemical laboratory. The

people whowOrkKin these laboratory have absolutely

no connection or contact with the people who work

in the rubber testing laboratory - Tire

Development. Plaintiff could work in any of these

laboratory, without having any contact with the

Defemiants Clemens, Calton and Kapraun. Besides

the laboratory at Technical Center Tire Development

is an exclusive a rubber testing laboratory. Only

—

very few people with special assignments co to

work from another department in this laboratory.

- &, Bo. fe eee eae. ee ee ee eee

The chances that Defendant would have been in

ieee ContaCE LE Detendants ff she Swag have”? nai | |

al o.° ff °sae.4

“worked in ‘en F que hewn aiden sauieaeee,

iow. She yDefendant-had possibélitées fry «2 dee my toys - i.

[

K-52

Plaintiff's employment at its rubber testing

laboratory at downtown Plant in Peoria, at East

Peoria Plant, Water treatment Plant, and mainly at

the new Davenport Plant. Defendant continued to

harass the Plaintiff by refusing her any of these

places of employment, considering Plaintiff as a

handicapped.

58. That as a result of aforesaid harassment,

allowed and conducted through its employees,

Caterpillar caused Plaintiff severe emotional

stress, fear, horror, humiliations, and a great

concern about her health and her impossibility to

work.

Also Caterpillar made impossible for the

Plaintiff to find any job or to keep a job, causing

her to lose a big amount of money.

Caterpillar refused to offer Plaintiff any job

and than dismissed her causing also a"loss of ~

As a result of .the unhuman, outrageous

—————oOww ooo eereeorerrrrrr-rrrrereoereorereeeeeeeeeeee

K-53

harassment Defendant was frequently sick, and

disable for more than a year causing her severe

sufferances and loss of money that she spent with

the doctors.

Plaintiff lost money spending for the lawsuit

she had against Defendant and also while she was

disabled and in impossibility to make any decision

she lost money in the real estate business.

Defendant caused great emotional stress, worry

and despair to Plaintiff because of the damage of

her relationship with her family and the daily

quarrells she had with her family.

59. Damages in this case are $950,000.00.

60. That in addition to the foregoing,

Defendant engaged in the aforesaid cruel and

unhuman harassment, willfuly and with the purpose

of damaging Plaintiff's health and life and her

eee ee ee ee ee, Cae oe |) ee Oe Fe ile ~f

family's life. | e, |

Plaintiff is entitled to punitive damages in

min. “@MOUNt OE-$500,000.002-6 5 dk tet eee

K-54

Wherefore Plaintiff prays for judgement against

Defendant Caterpillar Tractor Co. in the amount

aforesaid to compensate the damages, the injury and

Plaintiff's sufferings.

Plaintiff prays also the Court to supoena FEPC

to present the cases of outrageous harassment

because of sex and origin which they found during

their investigaiton of Plaintiff's conditions of

work at Caterpillar. The investigator Blaser from

FEPC found more than 24 cases of harassment against

Plaintiff, by the Defendants which can be disclosed

only on the Court's Order.

M. Burche

Pro se

| 1* ee ee ee eee. Te Pk et Et Oe me A oe ere

d <"- oy , en * c_s o* “e ore - ers fi” a ae tw. ge Ge-. “oe f. “ee ee ae hero,” By» & es "4. . $°~.

I-l

Fair Employment Practices Commission

11-1-1979

Dear Mrs. Kuhr,

I ask Caterpillar Tractor Co. to release the

following letter, not because I want to prise

myself, but te reject all the accusations which

have been thrown at me for almost four years, and I

did not deserve them at all.

As we discussed on the telephone regarding a

———

settlement with Caterpillar, I would like to have a

letter from Caterpillar, which should be also

attached to my work dossier and signed by the

Chief the Tire Development and the Chief of

Personnel stating:

"That Caterpillar Tractor Co. had a

labor dispute with Mrs. Burche, and

following a thorough search and analysis

of this situation by the Fair = gp

— «, fo er eR RR RE aS a. eee

unfairjy. tresked; harassed na Aiecriminated . <*

against during her work at Caterpillar

Tractor Co. Research Laboratory Tire |

-. #3,

os, : ,.eDevelopment,..by her. boss Marion, Calton. ac. 6 oon

en ee ee ee ee ee ee ee eee ee ee ee ee ee ae

Ie2

and two co-workers L. Clemens and Hank

Kapraun and that Caterpillar had not

taken an effective action to eliminate

on time the harassment and the

discriminatory behavior of the three

mentioned employees of Caterpillar

Tractor Co.

As a result of this treatment, Mrs.

M. Burche became nervously sick and

Caterpillar had to refer her toa

psychiatrist.

We disapprove and reject any blame

or report attached to her work

dossier written by Marion Calton, her

former boss, regarding her work, her

personality, her behavior toward

other people and co-workers.

We are convinced that Mrs. Maura

Burche is a very hard working person,

that her work was correct and of good

quality, that she was very efficient

in her work and attached to our

company. Also she did not have any

personality problems but contrary she

is very cooperative, polite and

friendly toward other people she

worked with.

As a result of these findings we

agree to repair the damage caused to

her health and reputation, by ag

reinstating her in a technician job

Similar to the one she holded before

her illness, in the city of Davenport

where she relocated after it was

clear for her that Caterpillar

L-3

refused to offer her any job when

she became capable of work.

The salary for the technician

position we intend to offer her, will

be brought up to date by taking in

consideration the increased salary

she would have had if she would have

had work continuously at Caterpillar

and also the cost of living. She

will be considered as an employee of

Caterpillar without interruption,

preventing her to lose her seniority

at Caterpillar or other benefits in

connection with the continuity of the

work.

We also agree to repay her the

loss of money due to absence from

work, and the suffering and the

trauma due to the harassment at her

work and her illness caused by the

harassment, as well as legal fees

and medical expenses in connection

with this matter.

The amount to cover all the above

mentioned items and drop any claim

against Caterpillar is $25,000."

I do not really think that Caterpillar would

entirely make up to me by accepting my proposal,

because for any amount of money existing in the

world I would not agree to pass again through all

SE ee ee ee

y — aie

treat of arta and _ hsend — reason bend

L-4

treatment I had during my work at Caterpillar

Tractor Co., but I would accept this compromise if

Caterpillar decides not to go to Court. Only God

would know what meant for me all these last years.

Regarding the work reports M. Calton wrote, I

would like to be rejected from my work dossier all

those written starting with the one dated 4-2-1976

(which in fact I didn't receive from Mr. Blaser)

together with any other reports he might have

written. The papers you have from Cat do not

contain all M. Calton's reports. For ex. is

ndieien one in which he proposed me to be lay-off

without any payment also two other reports Mr. Kolb

(from Cat.) read at the meeting with Fair

Employment on Feb. 23, 1979. In these reports M.

Calton stated that my work is incorrect and sloppy

and also he affirmed that I refused once to take a

, ee ee x “Re ff-* » ee st - cr ae te he ‘o “2¥.)-

7 referred me ~ doctor eine as a person aeeeae

“dlle:. Mr, Blaser confirmed: that he doesn

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