# Petition for Writ of Certiorari — Parten v. Ford Motor Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0291%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 493 U.S. 936 ## Text 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 PAGE 13 25 - + “i - mn b Pi = " be — = ! ¢ “s Ye } ™ e a hea) = s 2 . = ‘ 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 18 19 20 16 19 18 , 16,20 19 PAGE eee He WwW -= = * NNN NN DN ND NY = ~ ~ 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 a ? ¥ -14- 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 RE ie rT WU aes o, ‘ 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 5 -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 a SS tes Tate Death ias Lea inl De a ae tithig irhathen 2 ce =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 % 4 & -2li- = 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 3 4 % = ‘ : 3 ot * 4 : PIAS 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. pe so “4, su 5 ES Bye sca oe Cate astm tne tig age eat 7, atiu 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 _ B-2 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 B-3 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 B-4 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 B-6 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 B-7 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 B-8 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. B-9 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. B-10 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 C-2 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 D-2 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 D-3 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 D-5 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}, D-7 (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; D-8 (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 D-9 (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 D-11 "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 D-12 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 D-15 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 D-16€ 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. D-20 (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0291%3A1. Public record. Not legal advice.