Petition for Writ of Certiorari — Parten v. Ford Motor Co.

BO oa Sheet, us,

FILED

') 89-4 16 sep 7 1989

~~ wre

No. CLERK

JOSEPH F. SPANIOL, JR,

ee te ee

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1988

LINDA PARTEN,

Petitioner,

Vv.

FORD MOTOR COMPANY, a Delaware

Corporation, and UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA (UAW),

LOCAL NO. 1895,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

Petition for Certiorari

Earl W. Wolfe

Attorney for Petitioner

110 South Hartford, Suite 123

Tulsa, Oklahoma 74120-1834

Telephone: (918) 582-3168

Preliminary Matter

Questions Presented

Did the District Court and the

Court of Appeals err in holding that a

Single instance of the grabbing and

clinching of petitioner's buttocks by a

co-worker, verbal inquiries by a

Supervisor into _petitioner's sex life

with her former husband and exposure to

sex-related horseplay between other

fellow employees did not constitute a

hostile, intimidating and offensive

work environment in violation of Title

VII of the Civil Rights Act of 1964?

Did the District Court and the

Court of Appeals err in holding that

respondent, Ford Motor Company took

reasonable and immediate action to

discipline the co-worker who had

grabbed and clinched petitioner's

buttocks?*

*The co-worker, Joe Lundy, was a

party to this action in the District

Court. He was not a party in the Court

of Appeals.

TABLE OF CONTENTS

Opinions Below

Jurisdictional Grounds

in This Court

Statutory Provisions

Statement of the Case

Existence of Jurisdiction Below

Reasons for Granting the Writ

Conclusion

Appendix

Opinions Below

Related Decision Below

Judgment Appealed From

Statutes

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TABLE OF AUTHORITIES

Cases

Carrero v. New York Housing

Authority, 668 F.Supp.

(S.D.N.Y. 1987)

Hall v. Gus Construction Company

Inc., 842 F.2d 1010 (8th

Cir. 1988)

Henson v. City of Dundee, 682

F.2d 697 (llth Cir. 1982)

Hicks v. Gates Rubber Company

833 F.2d 1405 (10th Cir.

1987)

Katz v. Dole, 709 F.2d 251 (4th

Cir. 1983)

McKinney v. Dole, 765 F.2d

1129 (B.C. Cir. 1985)

Meritor Savings Bank v. Vinson,

106 S.Ct. 2399 (1986) 15

Moylan v. Maries County, 792

F.2d 746 (8th Cir. 1986)

Statutory Provisions

28 U.S.C. §1254(1)

28 U.S.C. §1291

28 U.S.C. §1331

28 U.S.C. §1343

42 U.S.C. §2000e

42 U.S.C. §2000e-2

42 U.S.C. §2000e-5(f) (1)

29 C.F.R. §1604.11

PAGE

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19

20

16

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18

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19

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Other Government Documents

PAGE

Rule 56, Fed.R.Civ.P. 12

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1988

LINDA PARTEN,

Petitioner,

Vv.

FORD MOTOR COMPANY, a Delaware

Corporation, and UNITED AUTOMOBILE,

AEROSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA (UAW)

LOCAL NO. 1895,

Respondents.

Petition for Certiorari

Opinion Below

The opinion of the Court of Appeals

(Appendix A, infra, pp A-1 to A-6) is

unreported. The order of the District

Court (Appendix B, infra, pp B-1 to

B-10) is unreported. The judgment of

the District Court appears in Appendix

C, infra, pp C-1l and C-2.

ote

Jurisdiction

The order and judgment of the

United States Court of Appeals for the

Tenth Circuit was entered on June 9,

1989. No rehearing was sought nor was

there any order granting an extension

of time within which to petition for

certiorari. The jurisdiction of this

Court is invoked under 28 U.S.C.

§1254(1).

Statutory Provision Involved

The pertinent provisions of the

Statutes and regulations involved are

set forth in Appendix D, infra, pp. D-1l

to D-21). They include 28 U.S.C.

§1254(1), 28 U.S.C. §1291, 28 U.S.C.

§1331, 28 U.S.C. §1343, 42 U.S.C.

§2000e, 42 U.S.C. §2000e-2, 42 U.S.C.

§2000e-5(£)(1) and 29 C.F.R. §1604.11.

Statement of the Case

l. Background:

pa es

-3-

Petitioner, Linda Parten is a

female who was, on December 5, 1986, of

the age of thirty-five years. She had

commenced her employment with respon-

dent, Ford Motor Company, on January

29, 1979 as a glass handler at the Ford

Motor Company Tulsa Glass Plant. At

the same time, she became a member of

United Automobile, Aerospace and

Agricultural Implement Workers of

America (UAW), Local No. 1895, the

exclusive bargaining representative at

the Ford Glass Plant. Joe Lundy, one

of petitioner's co-workers and a

defendant in the District Court has

worked at the Ford Glass Plant in Tulsa

for approximately fourteen years and is

also a member of the UAW.

On Friday, December 5, 1986,

petitioner reported for work on the

11:00 p.m. to 7:00 a.m. shift at the

-~4-

Ford Glass Plant. At that time she was

asked by her supervisor to report to a

different work station, being told she

was needed to inspect and clean glass.

While petitioner was at her work

Station talking with a co-worker, J.B.

Redus, who was taking a break from his

work, Lundy, who was working on the

same production line as a glass

handler, walked up behind Petitioner

and clinched her left buttocks.

Petitioner's testimony concerning the

incident was that "Joe Lundy walked up

behind me and grabbed me by my left

cheek, to the inside. If I hadn't had

jeans on, he would have --I-- his

fingers would have penetrated me."

Immediately prior to the incident,

Lundy indicated to J.B. Redus what he

intended to do. Redus had told Lundy

"Don't do it, Joe, Linda doesn't put up

-5-

with that shit, she'll knock the hell

out of you." After the incident,

petitioner turned and shoved or hit

Lundy and immediately reported the

incident to her supervisor Terry

Kirkland. RN

Petitioner requested that Kirkland

inform the UAW representative on duty

of the incident. Kirkland, however,

was unable to do so because there was

no union representative available at

that time. Petitioner then reported

the incident to Tom Sparks, a

Supervisor, press form operations, who

sought to calm her down and comfort her

and then attempted to have an

investigation conducted. After seating

Petitioner in his office, Sparks

attempted to locate Kay Wilson,

Superintendant of the No. 1 Shift

Operation, Fabrication. Wilson arrived

»G-

and interviewed petitioner regarding

the incident. Wilson then told

Petitioner that an investigation would

be conducted and that the proper

discipline would be carried out and

allowed her to go home because of her

emotional state following the incident.

Over the next few days management

conducted an investigation during which

time Lundy was represented by UAW

representatives. At the conclusion of

the investigation Lundy was given two

weeks off without pay for improper

conduct directed toward a fellow

employee but one week of that

Suspension was suspended in order that

Lundy could attend a one week workshop

that he had been scheduled to attend

during the disciplinary period.

Petitioner testified that after the

incident her supervisor harassed her by

=

constantly watching her. She contended

that it is the practice of Ford

management to ignore sexual harassment

and in fact condones harassment

inasmuch as Ford foremen themselves

participate in the sexual antics that

occur in the plant while they are on

duty.

. Those sexual antics include men

"hunching" women from behind in

simulated intercourse, a female

employee who grabs male employees in

the crotch, a male putting his face

down the _ front of the blouse worn by a

female employee, women employees

rubbing their breasts on male

employees, and numerous other sexually

oriented activities.

Petitioner testified that she did

not believe that Ford had properly

punished Lundy because other physical

-8-

conduct between employees at the plant

such as fighting resulted in 30 day

suspensions or in termination.

Also after the incident the

aiternate union representative, Les

Johnson sought out petitioner and

attempted to discourage her from

pursuing her complaint.

In a previous incident petitioner

had filed a written charge against

another supervisor, Doyle Simmons,

arising out of that supervisor saying

lewd things to her, asking about her

sex life with her former husband and

her divorce from her former husband.

Petitioner testified that she did

not know what had happened to her

complaint after it was filed but that

the supervisor was not disciplined and

is still employed at the Tulsa Glass

Plant.

oG-

Petitioner further contended that

the Union had assisted Lundy in

changing his description of the

incident during the course of the

investigation. Petitioner further

contended that the Union had assisted

Lundy in securing light punishment for

his harassment of petitioner and that

the Union had failed to properly

investigate the incident.

After the minimal punishment had

been imposed upon Lundy, Ford adjusted

the work schedule of Lundy and

Petitioner so that contact between the

two was a necessary job function for

the petitioner.

As a result of the sexual

harassment, petitioner incurred serious

emotional distress and mental

suffering. She testified that she had,

almost immediately following the

a}$-

incident, sought medical attention from

a family practitioner, Dr. Zulkey, and

in January or February of 1987 had

become a patient of Dr. Bruce Stanton,

a psychiatrist. who had been treating

her on a regular basis ever since. In

addition to the regtlar individual and

group psychiatric treatment, she has

been hospitalized for a period of forty

days in the psychiatric care unit of

St. Francis Hospital in 1987 and again

for a period of several weeks in the

summer of 1988. The psychiatric

treatment is attributable to the sexual

harassment of petitioner by Lundy.

2 Agency action:

Petitioner contacted the Oklahoma

Human Rights Commission, the Section

706 designated state agency of the

Equal Employment Opportunity Commission

and filed complaints against both

-ll-

respondents on December 27, 1986.

After the 180 day period for

investigation had expired, petitioner

requested Notices of Right to Sue. The

EEOC issued Notices of Right to Sue on

August 20, 1987, as to both

respondents.

Existence of Jurisdiction Below

Petitioner timely filed her Title

VII action in the United States

District Court for the Northern

District of Oklahoma on November 23,

1987. Jurisdiction was alleged under

42 U.S.C. §2000e-5(f)(1) and 28 U.S.C.

§§1331 and 1343. In her Title VII

claim petitioner sought to redress

violations of Title VII alleging that

she had been sexually harassed by

respondents and by Joe Lundy in

violation of Title VII and that the

sexual harassment had created a hostile

and offensive work environment.

«l2<

The respondents filed answers and

after discovery had been conducted both

defendants filed motions for summary

judgment under Rule 56, Federal Rules

of Civil Procedure. After being fully

briefed, the Court, on August 9, 1988,

entered its order sustaining

respondents motions for summary

judgment as to the Title VII claim only

and dimissed without prejudice the

pendent causes of action for lack of

subject matter jurisdiction. That

Order appears in Appendix B. On the

Same day the District Court entered its

judgment in favor of the respondents

and that judgment appears in Appendix

Cc.

Petitioner timely filed notice of

appeal and appealed the District

Court's Order and Judgment to the

United States Court of Appeals to the

-13-

Tenth Circuit as provided in 28 U.S.C.

§1291. After full briefing a panel of

the Tenth Circuit, in an unpublished

order affirmed the District Court.

That order and judgment dated June 9,

1989, appear in Appendix A.

Reasons for Granting the Writ

In this case the Court of Appeals

for the Tenth Circuit has held that the

sexual contact made by Lundy toward the

petitioner together with the previous

inquiries by a supervisor concerning

petitioner's sexual relationship with

her former husband and the exposure to

the sexual antics occurring within the

plant on a regular basis do not

constitute a hostile, intimidating and

offensive work environment in violation

of Title VII. In so doing the Court of

Appeals has not only found itself at

variance with its own leading decision

y

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in the field of hostile work environ-

ment resulting from sexual harassment

in Title VII but also finds itself at

variance with the holdings of other

circuits, this Court and the regula-

tions promulgated by the Equal

Employment Opportunity Commission for

the handling of sexual harassment

cases.

Petitioner submits that the Court

of Appeals for the Tenth Circuit has

rendered a decision in this case which

is in conflict with the decisions of

other federal courts of appeals on the

same matter and has decided an

important question of federal law which

has not been fully settled by this

Court and, in fact, is in conflict with

the applicable decisions of this

Court. For those reasons, which will

be more fully amplified in this

=) S-

section of this Petition for

Certiorari, the petitioner requests

that the Supreme Court grant Certiorari

and review the decision of the Tenth

Circuit in this case.

The leading decision of the Supreme

Court in the field of sexual harassment

is Meritor Savings Bank v. Vinson, 106

S.Ct. 2399 (1986). In that decision

this Court held that a claim of

"hostile environment” sexual harassment

is a form of sex discrimination that is

actionable under Title VII. This Court

further held that the Equal Employment

Opportunity Commission Guidelines fully

Support the view that sexual harassment

leading to non-economic injury can

violate Title VII and that Vinson's

allegations were sufficient to state a

Claim for hostile environment sexual

harassment. The Court agreed that the

o16<

case should be remanded for consider-

ation under the hostile environment

theory and held that the the proper

inguiry focuses on the unwelcomeness of

the conduct rather than the voluntar-

iness of the victim's participation.

This Court further held that the Court

of Appeals in that case had erred in

concluding that employers are always

automatically liable for sexual

harassment by their supervisor/

employees.

Curiously the Tenth Circuit cited

its decision in Hicks v. Gates Rubber

Company, 833 F.2d 1405 (10th Cir. 1987)

as authority for its decision in this

case in addition to this Court's

decision in Meritor Savings Bank vs.

Vinson, Supra. In Hicks the sexual

harassment complained of by Hicks was

that her supervisor, Gleason, squeezed

her buttocks one time and touched her

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on} Fen

breasts on another occasion. She also

produced evidence that a number of

other employees had been sexually

harassed by the same supervisor. That

evidence adduced by Hicks in her case

is not remarkably dissimilar to the

evidence introduced by the petitioner

in response to the motions for summary

judgment. Here petitioner had been

grabbed or clinched in the buttocks

area by Lundy, had been subjected to a

Supervisor's lewd remarks and inquiries

concerning her sex life with her iaidiieae

husband and had been exposed to a

pervasive atmosphere of sexual antics

within the Ford Glass Plant involving

other employees, including both

Supervisors and union members. There

is not a sufficient dissimilarity

between the facts in the Hicks case and

the facts in this case to warrant the

3

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-18-

finding of a hostile environment on the

one hand and the the finding of no

hostile environment on the other.

Other circuits have likewise found

similar conduct to be actionable under

Title VII as hostile environment sexual

harassment. Thus, the Court of Appeals

for the District of Columbia Circuit,

in McKinney v. Dole, 765 F.2d 1129

(B,¢. Car. 1985) found a hostile

environment where an FAA supervisor had

exposed himself to a female employee on

One occasion and on another occasion

had rubbed up against her and asked for

sexual favors.

In Carrero v. New York City Housing

Authority, 668 F.Supp. (S.D. N.Y. 1987)

the District Court found a hostile

environment where a supervisor had

fondled an employee's knee, kissed her

on the neck and attempted to kiss her

on the lips.

Nt! Cana ii Sa Ritalin oe laliad

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=19-

In Katz v. Dole, 709 F.2d. 251 (4th

Cir. 1983) the Court of Appeals found

evidence of sexual slurs, insult and

innuendo in the work place and verbal

sexual harassment sufficient to

constitute a hostile environment sexual

harassment under Title VII.

The Eighth Circuit in Hall v. Gus

Construction Company, Inc., 842 F.2d

1010 (8th Cir. 1988), found a hostile

environment where female traffic

controllers at a road construction site

had been subjected to verbal sexual

harassment by male employees’ and had

been subjected to physical touching and

other indignities in the work place

with knowledge of the supervisory

personnel. Also in the Eighth Circuit

case of Moylan v. Maries County, 792

F.2d 74€ (8th Cir. 1986), hostile

environment sexual harassment was found

=IRe

in sexual advances upon an ambulance

district employee by the county sheriff

including an alleged rape.

In Henson v. City of Dundee, 682

F.2d 697 (llth Cir. 1982), relied upon

by the trial court in its order

appearing at Appendix B and by this

Court in Meritor Savings Bank v.

Vinson, supra, the hostile environment

was held to be sufficient where the

evidence pevenied daily inquiries by

Supervisory personnel _ into the sexual

habits and proclivities of two female

employees.

The Court of Appeals in this. case

appeared to rely heavily upon the idea

that this was a Single isolated

incident that was dealt with swiftly,

reasonably and appropriately. The

Equal Employment Opportunity Commission

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issued Notice No. N-915.035 on October

25, 1988, under the subject "Policy

Guidance on Current Issues of Sexual

Harassment." At pages 14-16 the

commission said, in part, as follows:

"Isolated Instances of

Harassment- Unless the conduct

is quite severe, a single

incident or isolated incidents

of offensive sexual conduct or

remarks generally do not

create an abusive environ-

ment. As the Court noted in

Vinson "mere utterance of an

ethnic or racial epithet which

engenders offensive feelings

in the employee would not

affect the conditions of

employees to a sufficiently

Significant degree to violate

Title VII." 106 S.Ct. at 2406

(quoting Rogers _v. EEOC, 454

F.2d 234, 4&£E.P.D. 7597 (5th

Cir. 1971), cert denied, 406

U.S. 957, 4 E.P.D.

7838 (1972) ***,

But a single, unusually severe

incident of harassment may be

sufficient to constitute a

Title VII violation; the more

severe the harassment, the

less need to show a repetitive

series of incidents. This is

particularly true when the

harassment is physical. Thus,

in Barrett v. Omaha National

~22@

Bank, 584 F.Supp. 22, 35

F.E.P. cases 585 (D. Neb.

1883), aff'd, 726 F.2d 424, 33

E.P.D. 34,132 (8th Cir. 1984),

one incident consituted

actionable sexual harassment.

The harasser talked to the

plaintiff about sexual act-

ivities and touched her in an

offensive manner while they

were inside a vehicle from

which she could not escape.

The Commission will

presume that the unwelcome,

‘ intentional touching of a

5 charging parties intimate body

areas is sufficiently offen-

Sive to alter the condition of

: her working environment and

A constitute a violation of

: Title VII. More so than in

the case of verbal advances or

remarks, a single unwelcome

physical advance can seriously

poison the viccim's working

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environment. eek When the

victim is the target of both

verbal and non-intimate

physical conduct, the hosti-

lity of the environment is

exacerbated and a violation is

more likely to be found.

Similarly, incidents of sexual

harassment directed at other

employees in addition to the

charging parties are relevant

to a showing of hostile work

environment. ***"

The Court of Appeals found that the

petitioner's employer, Ford Motor

~23-

Company, further relocated plaintiff so

that she would not have to contact the

offending person. That finding is

directly and diametrically opposed to

the evidence that was presented which

indicated that after the period of

Lundy's punishment was over he had

indeed been placed in an area where

petitioner had to come in constant

contact with Lundy in the performance

of her duties.

While - recognizing that the contact

Lundy made upon petitioner was indeed

offensive, the Court of Appeals found

that Ford had acted reasonably and

immediately to protect the environment

in which plaintiff works and to insure

that such an incident would not be

repeated. That again is diametrically

opposed to the fact that petitioner was

watched by her supervisors, that she

was placed in a position where she was

-24-

to be in contact with Lundy in the

daily performance of her duties and

that Lundy got off with what could at

best be described as a slap on the

wrist.

Finally, the Court of Appeals

stated that Ford could not be said to

have condoned the activities of other

employees because Ford was unaware that

it occurred. The extensive and

pervasive activities described by J.B.

Redus and petitioner in their

deposition testimony which was called

to both the attention of the District

Court and the Court of Appeals clearly

show that Ford Motor Company could only

have been approaching its work place

with an ostrich-like attitude if it was

unaware of the sexual activities

occurring in its own plant and

participated in by its own supervisory

personnel.

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Petitioner therefore submits’ that

this Court should grant certiorari to

the United States Court of Appeals for

the Tenth Circuit and review the

decision of that Court in this case.

Upon such review petitioner suggests to

the Court that the Court will be able

to resolve the different approaches

being taken by the various circuit

courts and to some extent the district

courts in their determination of what

constitutes hostile environment sexual

harassment under Title VII of the Civil

Rights Act of 1964.

Conclusion

Petitioner submits that it is a

matter of substantial public importance

and concern that the protection

intended by the Congress in adopting

Title VII of the Civil Rights Act of

1964 insofar as it pertains to sexual

x

harassment and as set forth in the EEOC

guidelines as well as this Court's

decision in Meritor Savings Bank v.

Vinson, supra, not be eroded by

decisions of the lower courts that are

inconsistent therewith. For these

reasons it is respectfully submitted

that this petition for writ of

certiorari should be granted.

Earl W. Wolfe ,

Attorney for the Petitioner

Hartford Building, Suite 123

110 South Hartford *

Tulsa, Oklahoma 74120-1834

(918) 582-3168

CERTIFICATE OF MAILING

I hereby certify that on this 7th

day of September, 1989, a true and

correct copy of the above and foregoing

Petition for Writ of Certiorari was

deposited in the U.S. Mail First Class,

having postage prepaid to the following

attorney:

J. Ronald Petrikin

Attorney for Ford Motor Company

2000 4th National Bank Bldg.

Tulsa, Oklahoma 74119

and

a2F~

Joseph R. Farris

Attorney for UAW

525 South Main

Suite 1400

Tulsa, Oklahoma 74103

En» og—

Earl W. Wolfe

I

RESIS IRE NL os SGA RENE LS. CPPS CNIS te SIDER ae aaa

A-1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LINDA PARTEN,

)

)

Plaintiff- )

Appellant, )

)

vs. ) No. 88-2376

) (D.C. No. 87-C-

) 987-B)

)

(N.D. Oklahoma)

FORD MOTOR COMPANY, )

a Delaware Corpora-)

tion; UNITED AUTO- )

MOBILE, AEROSPACE )

AND AGRICULTURE )

IMPLEMENT WORKERS )

OF AMERICA (UWA), )

LOCAL 1895; JOE )

LUNDY, )

)

)

)

Defendants-

Appellees.

ORDER AND JUDGMENT*

Submitted on the Briefs:

*This order and judgment has no

precedential value and shall not be

cited, or used by any court within the

Tenth Circuit, except for purposes of

establishing the doctrines of the law

of the case, res judicata, or

eaten estoppel. 10th Cir. R.

6.3.

Before MOORE, ANDERSON, and _ BRORBY,

Circuit Judges.

After Z examining the briefs and

appellate pbaeel, this panel has

determined ‘unanimously that oral

argument would not materially assist

the determination of this appeal. See

Fed. R. App. P. 34(a); 10th Cir. R

34.1.3. The cause is therefore ordered

submitted without oral argument.

This is an appeal from the granting

of a motion for summary judgment.

Plaintiff contended defendants were

liable under Title VII for actions

resulting in- the creation of a hostile

working environment. Plaintiff

asserted an offensive touching of her

by a fellow employee constituting

sexual harassment was improperly

investigated and punished by the

defendants.

A-3

The trial court concluded plaintiff

could not establish, as a matter of

law, that the isolated instances of

which plaintiff complained were

sufficient to constitute an actionable

claim; therefore, the court granted

summary judgment for the defendants.

We agree with the trial court's

analysis.

There is no dispute that the

precipitating event was an isolated

incident. Defendant Ford Motor Company

dealt with the offending employee

swiftly and severely. Ford further

relocated plaintiff so that she would

not have to contact the offending

person.

Plaintiff argues, however, that

Placing this incident in context with

other circumstances shows there is a

genuine controversy over the nature of

the environment in the workplace. She

A-4

asserts that on an occasion prior to

the touching incident, another employee

made comments to her that had sexual

overtones. Plaintiff also asserts Ford

ignores sexual harassment because it

condones "sexual antics [between

employees] in the plant while on duty."

Whether the question of the

suggestive comments was presented in

the motion for summary judgment is

problematic. The trial court did not

specifically rule upon the issue, but

the record shows plaintiff's admission

she did not report the incident to her

employer, and that she "felt [the

incident) was over with.” The trial

court did hold, however, that plaintiff

was not personally involved in the

"sexual antics” other than as an

observer, and no one, including

Plaintiff or those directly involved,

complained to Ford about the conduct.

A-5

We agree with the district court

that to be actionable under Title VII,

sexual harassment must be “severe,”

“pervasive,” and it must result in the

alteration of the conditions of the

victim's working environment. Meritor

Savings Bank v. Vinson, 477 U.S. 57

(1986); Hicks v. Gates Rubber Co., 833

F.2d 1405 (10th Cir. 1987). Neither of

the incidents which personally involved

plaintiff could be described as

"pervasive," nor was plaintiff's

working environment adversely affected

as a consequence of offensive ‘conduct.

In the one instance in which the

employer was made aware of the offense,

it took immediate curative action. In

the other instance, plaintiff took no

steps to bring the offensive conduct to

the attention of her employer. Like

the instances of horseplay between

consenting persons, it cannot -be said

i

A-6

Ford "condoned" this activity because

Ford was unaware it occurred.

The touching which plaintiff

endured was without question

offensive. Notwithstanding, the

defendants took reasonable and

immediate action to protect the

environment within which plaintiff

works and to insure this or a similar

incident will not be repeated. Asa

consequence, plaintiff has no-

legitimate Title VII claim against her

employer or union, and the trial court

correctly granted summary judgment.

AFFIRMED.

Entered for the Court

John P. Moore

Circuit Judge

- PEO BS tae: AC OE AN

B-1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

LINDA PARTEN,

Plaintiff,

V- No. 87-C-987-B

eee ee ee ee ee

FORD MOTOR COMPANY,

a Delaware Corporation; )

UNITED AUTOMOBILE, )

AEROSPACE AND AGRICUL- )

TURAL IMPLEMENT WORKERS )

OF AMERICA (UAW), LOCAL)

#1985; and JOE LUNDY, )

)

Defendants. )

ORDER

This matter comes before the Court

on Defendants' Motion for Summary

Judgment, on Defendants’ Motion to

Strike, and on Defendants’ motion under

Local Rule 15(a) to enter summary

judgment based on Plaintiff's failure

to respond. Also before the Court is

Plaintiff's request to have the pendent

state claims remanded to the _ state

court if the Court grants Defendants'

Motion for Summary Judgment on

Plaintiff's Title VII cause of action.

—————L | = Re ee en a ee eo ee ee 2 a ° et ake tae _

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Because this Court finds that the

Motion for Summary Judgment on

Plaintiff's Title VII claim should be

granted on the merits, Defendants'

other two motions are moot.

Plaintiff Linda Parten began

working at Defendant Ford Motor Company

glass plant in Tulsa, Oklahoma, and

became a member of the Defendant United

Automobile Aerospace and Agricultural

Implement Workers of America (UAW) on

January 29, 1979. On Friday, December

S, 1986, Plaintiff reported for work on

the 11 P.M. to 7 A.M. shift at the

plant. Plaintiff contends that during

her shift and while she was working, a

co-worker, Defendant Lundy, came up

behind her and grabbed and clinched her

buttocks. Plaintiff shoved Defendant

Lundy and immediately reported the

incident to Supervisor Terry Kirkland.

Defendant Lundy contends his touching

ee ee

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was nothing more than a coach's pat to

get Plaintiff's attention to move out

of his way in the aisle. For the

purpose of this analysis, the

Plaintiff's description of the incident

will be considered true. Plaintiff was

told by supervisors that an

investigation would be conducted and

that proper discipline would follow.

In imposing discipline, management

considered that Lundy had been an

employee for thirteen years and had no

previous disciplinary record.

(Affidavit of Gene Hines, 415). Lundy

was disciplined by Management’ for

improper conduct concerning a_ fellow

employee with two weeks suspension

without pay. However, one week of the

Suspension, Lundy was permitted to

attend a job-related seminar away from

the Ford plant. Plaintiff is now

working in another division of the

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plant where she is not in close contact

with Defendant Lundy.

Plaintiff herein alleges (1) sexual

harassment in violation of Title VII of

the Civil Fights Act of 1964, 42 U.S.C.

§$2000e, (2) assault and battery, and

(3) intentional infliction of emotional

distress; counts (2) and (3) are

pendent claims.

Defendants have moved for summary

judgment on Plaintiff's Title VII

claim. Summary judgment pursuant to

Fed.R.Civ.P. 56 is appropriate where

"there is no genuine issue as to any

material fact and that the moving party

is entitled to judgment as a matter of

law.” Where there is an absence of

material issues of fact, then the

movant is entitled to judgment as a

matter of law. Celotex Corp. vy.

Catrett, 477 U.S. 317. 106 S.Ct. 2548,

91 L.£d.26 265, 274 (1986); Anderson v.

B-5

Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 L.E.2d 202 (1986);

Windon Third Oil and Gas vy. Federai

Deposit Insurance Corporation, 805 F.2d

342 (10th Cir. 1986); Commercial Iron &

Metal Co. v. Bache & Co., Inc., 478

F.2d 39, 41 (10th Cir. 1973); and Ando

v. Great Western Sugar Company, 475

F.2d 531, 535 (10th Cir. 1973).

"Title VII of the Civil Rights Act

of 1964 makes it ‘an unlawful

employment practice for an employer. .

° to discriminate against any

individual with respect to his

compensation, terms, conditions, or

privileges of employment, because of

such individual's race, color,

religion, sex, or National origin.’ 42

U.S.C. §2000e(a)(1).* Meritor Savings

Bank, FSB v. Vinson, 106 S.Ct. 2399

(1986). Although there may be many

forms of sexual harassment, the courts

a

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seem to classify two categories: (1)

harassment in which a supervisor

demands sexual favors in exchange for

job benefits (quid pro quo), and (2)

harassment that creates an offensive

environment. Katz v. Dole, 709 F.2d

251 (4th Cir. 1983); Henson v. City of

Dundee, 682 F.2d 897 (llth Cit. 1982),

and Meritor Savings Bank, FSB vy.

Vinson, supra.

Plaintiff contends that she falls

within the second category because she

was required to work in “an abusive

environment.” Plaintiff cites several

references to depositions which

reflects that she was visually exposed

to certain co-workers, both male and

female, occasionally engaging in

incidents of sex-related horseplay such

as: Fellow union employees, often on

the instigation of particular female

employees, would grab each other's

| i

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crotches (James B- Redus deposition, p.

57; Linda Parten deposition, p. 157).

The employees who participated in such

conduct did so without complaint and

Plaintiff made no complaint nor was she

Girectly involved prior to the Lundy

incident.

Occasional crude sex-related

behavior which creates an unpleasant,

if not disruptive work environment,

does not necessarily constitute a

violation of Title VII. The facts and

circumstances of each case must be

examined because the hostile work

environment which creates a violation

of Title VII must exist because of

Giscrimination. Barnes v. Costle, 561

F.2d 983 (9.¢.Cifc. 1977); Meritor

Savings Bank, FSB v. Vinson, supra.

The harassment which creates the

abusive environment must be for the

purpose of singling out a particular

NN ff ET

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person or group of persons for adverse

treatment based on their sex. Henson

v. City of Dundee, supra. The Henson

case asks the question, but for her

sex, would plaintiff have been singled

out? In her seven years of employment

with Ford Motor Company, except for two

possible isolated instances, she was

not singled out for sexual harassment.*

The Court has examined the _ two

alleged instances where Plaintiff

contends she was singled out and

harassed based on her sex. The Court

holds these two instances do not rise

to "an intimidating, hostile and

offensive working environment.” Katz

v. ~Dole, 709 F.2d 251 (4th Cir. 1983).

*The two alleged instances are _ the

grabbing incident concerning this suit

and a prior incident when a supervisor

asked her about her sex life with her

ex-husband.

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These instances, although offensive,

were isolated and not sufficiently

pervasive and persistent to

unreasonably interfere with an

individual's performance. Arnold v.

City of Seminole, 614 F.Supp. 853 (N.D.

Okla. 1985); Henson v. Dundee, supra.

Defendants' Motion for Summary Judgment

on Plaintiff's Title VII claim is

hereby granted.

Plaintiff has requested the Court

to "remand" the pendant claims to the

state court. Plaintiff cites no

authority for this Court to transfer a

case to the state court which was

originally filed in federal court. The

request is denied. See, McLaughlin v.

Arco, 721 F.2d 426 (3rd Cit. 1983).

Plaintiff's pendent state claims are

dismissed without prejudice for lack of

subject matter jurisdiction.

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DATED this 8th day of August, 1988.

s/Thomas R. Brett

THOMAS R. BRETT

UNITED STATES DISTRICT JUDGE

C-1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

LINDA PARTEN,

Plaintiff,

FORD MOTOR COMPANY, a

Delaware Corporation;

UNITED AUTOMOBILE

_AEROSPACE AND AGRICUL-

TURAL IMPLEMENT WORKERS )

OF AMERICA (UAW), LOCAL)

#1895, and JOE LUNDY, )

)

)

)

)

Vv. ) No. 87-C-987-B

)

)

)

)

)

)

Defendants. )

JUDGMENT

Pursuant to the Order Sustaining

the Motions for Summary Judgment on

Plaintiff's Title VII claim entered

this date, Judgment is hereby entered

in favor of. Defendants, Ford Motor

Company, _ a Delaware corporation, United

Automobile, Aerospace and Agricultural

Implement Workers of American (UAW),

Local #1895, and JOE LUNDY, and against

Plaintiff, Linda Parten, on the Title

VII claim. The pendent state claims

are dismissed without prejudice for

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want of subject matter jurisdiction.

The parties are directed to pay

their own respective costs and attorney

fees.

DATED this 8th day of August, 1988.

s/Thomas R. Brett

THOMAS R. BRETT

UNITED STATES DISTRICT JUDGE

28 U.S.C. §1254:

Cases in the courts of appeals may

be reviewed by the Supreme Court by the

following methods:

(1) By writ of certiorari granted

upon the petition of any party to

any civil or criminal case, before

or after rendition of judgment or

decree;

ek

28 U.S.C. §1291:

The courts of appeals (other than

the United States Court of Appeals for

the Federal Circuit) shall have

jurisdiction of appeals from all final

decisions of the district courts of the

United States, the United States

District Court for the District of the

Canal Zone, the District Court of Guam,

and the District Court of the Virgin

Islands, except where a direct review

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may be had in the Supreme Court. The

jurisdiction of the United States Court

of Appeals for the Federal Circuit

shall be limited to the jurisdiction

described in sections 129l(c) and (d)

and 1295 of this title.

28 U.S.C. §1331:

The district courts shall have

original jurisdiction of all -civil

actions arising under the Constitution,

laws, Or treaties of the United States.

28 U.S.C. §1343:

(a) The district‘courts shall have

original jurisdiction of any civil

action authorized by law to be

commenced by any person:

(1) To recover damages for injury

to his person or property, or because

of the deprivation of any right or

privilege of a citizen of the United

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States, by any act ae furtherance

of any conspiracy mentioned in section

1985 of Title 42;

| (2) To recover damages from any

person who fails to prevent or to aid

in preventing any wrongs mentioned in

section 1985 of Title 42 which he had

knowledge were about to occur and power

to prevent;

(3) To redress the deprivation,

under color of any State law, statute,

ordinance, regulation, custom /or usage,

of any right, privilege or immunity

secured by the Constitution of the

United States or by any Act of Congress

providing for equal rights of citizens

or of all persons within the

jurisdiction of the United States;

(4) To recover damages or to secure

equitable or other relief under any Act

of Congress providing for the

D-4

protection of civil rights, including

the right to vote.

(b) For purposes of this section -

(1) the District of Columbia shall

be considered to be a State; and

(2) any Act of Congress applicable

exclusively to the District of Columbia

shall be considered to be a statute of

the District of Columbia.

42 U.S.C. §2000e:

(a) The term “person" includes one

Or more individuals, governments,

governmental agencies, political sub-

divisions, labor unions, partnerships,

associations, corporations, legal

representative, mutual companies,

joint-stock companies, trusts, un-

incorporated Organizations, trustees,

trustees in cases under Title ll, or

receivers.

(b) The term “employer” means a

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person engaged in an industry affecting

commerce who has fifteen or more

employees for each working day in each

of twenty or more calendar weeks in the

current or preceding calendar year, and

any agent of such a person, but such

term does not include (1) the United

States, a corporation wholly owned by

the Government of the United States, an

Indian tribe, or any department or

agency of the District of Columbia

subject by statute to procedures of the

competitive service (as defined in

section 2102 of Title 5), or (2) a bona

fide private membership club (other

than a labor organization) which is

exempt from taxation under. section

50l(c) of Title 26, except that during

the first year after March 24, 1972,

persons having fewer than twenty-five

employees (and their agents) shall not

be considered employers.

kkk

(d) The term "“labor organization"

means a labor organization engaged in

an industry affecting commerce, and any

agent of such an organization, and

includes any organization of any kind,

any agency, or employee representation

committee, group, association, or plan

so engaged in which employees

participate and which exists for the

purpose, in whole or in part, of

dealing with employers concerning

grievances, labor disputes, wages,

rates of pay, hours, or other terms or

conditions of employment, and any

conference,’ general committee, joint or

system board, Or joint council so

engaged which is subordinate to a

national Or international labor

Organization.

i},

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(e) A labor organization shall be

deemed to be engaged in all industry

affecting commerce if (1) it maintains

Or operates a hiring hall or hiring

office which procures employees for an

employer or procures for employees

opportunities to work for an employer,

or (2) the number of its member (or,

where it is a labor organization

composed of other labor organizations

or their representatives, if the

aggregate number of the members of such

other labor organization) is (A)

twenty-five or more during the first

year after March 24, 1972, or (8B)

fifteen or more thereafter, and such

labor organization -

(1) is the certified representative

of employees under the provisions of

the National Labor Relations Act, as

amended, or the Railway Labor Act, as

amended;

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(2) although not certified, isa

national Or international labor

Organization or a local labor

Organization recognized or acting as

the representative of employees of an

employer or employers engaged in an

industry affecting commerce; or

(3) has chartered a local labor

Organization or subsidiary body which

is representing or actively seeking to

represent employees of employers within

the meaning of paragraph (1) or (2); or

(4) has been chartered by a labor

Organization representing or actively

seeking to represent employees within

the meaning of paragraph (1) or (2) as

the local or subordinate body through

which such employees may enjoy

membership or become affiliated with

such labor organization; or

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(5) is a conference, general

committee, joint or system board, or

joint council subordinate to a national

or international labor organization,

which includes a labor organization

engaged in an industry affecting

commerce within the meaning of any, of

the preceding paragraphs of this

subsection.

(f) The term "employee" means an

individual employed by an employer,

except that the term "employee" shall

not include any person elected to

public office in any State or political

subdivision of any State by the

qualified voters thereof, or any person >

chosen by such officer to be on such

officer's personal staff, or an

appointee on the policy making level or

an immediate adviser with respect to

the exercise of the constitutional or

~~.

D-10

legal powers of the office. The

exemption set forth in the preceding

sentence shall _not include employees

subject to the civil service laws of a

State government, governmental agency

Or political subdivision.

(g) The term : "commerce" means

trade, traffic, commerce, transporta-

tion, transmission, or communication

among the several States; or between a

State and any place outside thereof; or

within the District of Columbia, or a

possession of the United States; or

between points in the same State but

through a point outside thereof.

(h) The term "“irddustry affecting

commerce" means any activity, business,

Or industry in plone ox in which a

labor dispute would hinder or obstruct

commerce or the free flow of commerce

and includes any activity or industry

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"affecting commerce” within the meaning

of the Labor-Management Reporting and

Disclosure Act of 1959, and ‘further

includes any governmental industry,

business, or activity.

eke

(k) The terms “because of sex" or

"on the basis of sex" include, but are

not limited to, because of or on the

basis of pregnancy, childbirth, or

related medical conditions shall be

treated the same for all employment-

related purposes, including receipt of

benefits under fringe benefit programs,

as other persons not. so affected but

Similar in their ability or inability

to work, and nothing in section

2000e-2(h) of this title shall be

interpreted to permit otherwise. This

subsection shall not require an

employer to pay for health insurance

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benefits for abortion, except where the

life of the mother would be endangered

if the fetus were carried to term, or

except where medical complications have

arisen from an abortion: Provided,

That nothing herein shall preclude an

employer from ‘providing abortion

benefits or otherwise affect bargaining

agreements in regard to abortion.

42 U.S.C. §2000e-2:

(a) It shail be an unlawful

employment practice for an employer -

(1) to fail or refuse to hire or to

discharge any individual, or otherwise

to / discriminate against any individual

with respect to his compensation,

terms, conditions, or privileges of

employment, because of such

individual's race, color, religion,

sex, Or national origin; or

(2) to limit, segregate, or

D-13

Classify his employees or applicants

for employment in any way which would

deprive or tend to deprive any

individual of employment opportunities

or otherwise adversely affect his

status as an employee, because of such

individual's race, color, religion,

sex, or national origin.

(c) It shall be an unlawful

employment practice for a labor

Organization -

kkk

(3) to cause or attempt to cause an

employer to discriminate against an

individual in violation of this

section.

42 U.S.C. §2000e-5(f)(1): -

If within thirty days after a

charge is filed with the Commission or

within thirty days after expiration of

any period of reference under. sub-

D-14

section (c) or (d) of this section, the

Commission has been unable to secure

from the respondent a conciliation

agreement acceptable to the Commission,

the Commission may bring a civil action

against any respondent not a govern-

ment, governmental agency, or political

subdivision, named in the charge. In

the case of a respondent which is a

government, governmental agency, or

political subdivision, if the

Commission has been unable to secure

from the respondent a conciliation

agreement acceptable to the Commission,

the Commission shall take no further

action and shall refer the case to the

Attorney General who may bring a civil

action against such respondent in the

appropriate United States district

court. The person or persons aggrieved

shall have the right to intervene ina

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civil action brought by the Commission

or the Attorney General in a case

involving a government, governmental

agency, or political subdivision. If a

charge filed with the Commission

pursuant to subsection (b) of this

section is dismissed by the Commission,

or if within one hundred and eighty

days from the filing of such charge or

the expiration of any period of

reference under subsection (c) or (d)

of this section, whichever is later,

the Commission has not filed a civil

action under this section or _the

Attorney General has not filed a civil

action in a case involving a

government, governmental agency, or

political subdivision, Or the

Commission has not entered into a

conciliation agreement to which the

person aggrieved is a party, the

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Commission or the Attorney General in a

case involving a government, govern-

mental agency, or political subdivi-

sion, shall so notify the person

aggrieved and within ninety days after

the giving of such notice a civil

action may be brought against the

respondent named in the charge (A) by

the person claiming to be aggrieved or

(B) if such charge was filed by a

member of the Commission, by any person

whom the charge alleges was aggrieved

by the alleged unlawful employment

practice. Upon application by the

complainant and in such circumstances

as the court may deem just, the court

may appoint an attorney for such

complainant and may authorize the

commencement of the action without the

payment of fees, costs, or security.

Upon timely application, the court may,

D-17

in its discretion, permit the

Commission, or the Attorney General in

a case involving a government,

governmental agency, or political

subdivision, to intervene in such civil

action upon certification that the case

is of general public importance. Upon

request, the court may, in its

discretion, stay further proceedings

for not more than sixty days, pending

the termination of State or local

proceedings described in subsection (c)

or (d) of this section or further

efforts of the Commission to obtain

voluntary compliance.

29 C.F.R. §1604.11:

(a) Harassment on the basis of sex

is a violation of Sec. 703 of Title

VII.* Unwelcomed sexual advances,

requests, for sexual favors, and other

verbal or physical conduct of a sexual

nature constitute sexual harassment

D-18

when (1) submission to such conduct is

made either explicitly or implicitly a

term or condition of an individual's

employment, (2) submission to or

rejection of such conduct by an

individual is used as the basis for

employment decisions affecting such

individual, or (3) such conduct has the

purpose or effect of unreasonably

interfering with an individual's work

performance or creating an intimi-

dating, hostile, or offensive working

environment.

(b) In determining whether alleged

conduct constitutes sexual harassment,

the Commission will look at the record

as a whole and at the totality of the

circumstances, such as the nature of

the sexual advances and the context in

which the alleged incidents occurred.

The determination of the legality of a

S cesiihies D-19

particular action will be made from the

facts, on a case by case basis.

(c) Applying general Title VII

principles, an employer, employment

agency, joint apprenticeship committee

Or labor organization (hereinafter

collectively referred to as "“employer")

is responsible for its acts and those

of its agents and supervisory employees

with respect to sexual harassment

regardless of whether the specific acts

complained of were authorized or even

forbidden by the employer and

regardless of whether the employer knew

or should have known of their

occurence. The Commission will examine

the circumstances of the particular

employment relationship and the job

functions performed by the individual

acts in either a supervisory or agency

capacity.

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(d) With respect to conduct between

fellow employees, an employer is

responsible for ects of sexual harass-

ment in the workplace where the

employer (or its agents or supervisory

employees) knows or should have known

of the conduct. Unless it can show

that it took-immediate and appropriate

corrective action.

(e) An employer may also be

responsible for the acts of

non-employees, with respect to sexual

harassment of employees in the

workplace, where the employer (or its

agents or supervisory employees) knows

or should have known of the conduct and

fails to take immediate and appropriate

corrective action. In reviewing these

cases the Commission will consider the

extent of the employer's control and

any other legal responsibility which

D-21

the employer may have with respect to

the conduct of such non-employees.

(£) Prevention is the best tool for

the elimination of sexual harassment.

An employer should take all steps

necessary to prevent sexual harassment

from occurring, such as affirmatively

raising the subject, expressing strong

disapproval, developing appropriate

sanctions, informing employees of their

right to raise and how to raise the

issue of harassment under Title VII,

and developing methods to sensitize all

concerned.

(g) Other related practices: Where

employment opportunities or benefits

are granted because of an individual’s

submission to the employer's’ sexual

advances or requests for sexual favors,

the employer may be held liable for

unlawful sex discrimination against

D-22

other persons who were qualified for

but denied

or benefit.

that employment opportunity