# Petition for Writ of Certiorari — Marshall v. Nelson Electric

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1092

## Text

Roprems Cort, U8

93-662 FILED

OCT 2 7 1993

é rt (oer ate it se . J
Urewc OF THE CLERK

{

No. 93-___

In The

Supreme Court of the United States
October Term, 1993

+

DEBORAH S. MARSHALL,

Petitioner,
V.

NELSON ELECTRIC, a unit of
General Signal, and LUTHER NOAH,

Respondents.

+

Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Tenth Circuit

+

PETITION FOR A WRIT OF CERTIORARI

+

SANDRA L. TOLLIVER*
Substitute Counsel for
Mary W. Morris, Deceased
Morris & Morris

1616 S. Denver Ave.
Tulsa, OK 74119

(918) 587-5514

Attorneys for Petitioner
*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I. Whether a Title VII plaintiff’s co.;duct in a sexu-
ally charged group environment bars a claim for hostile
working environment sexual harassment based on
unwelcome sexual advances, requests for sexual favors,
and other verbal or physical conduct of a sexual nature
by foreman in private.

II. Whether under Title VII of the Civil Rights Act of
1964, sexual harassment by a “foreman” can create lia-
bility on the part of an employer for a hostile working
environment.

III. Whether the doctrine of the law of the case
prevents a second judge in a single lawsuit from taking
under advisement a statute of limitations defense pre-
sented on a repeated motion for summary judgment pre-
viously ruled on in a former motion for summary
judgment in favor of the petitioner by the first judge, then
inviting a motion for directed verdict on the same issue,
and thereafter granting a direct verdict and a judgment
notwithstanding the verdict.

IV. Whether the district court is required to follow
the jury’s factual findings when ruling on a Title VII cas:
although a j.n.o.v. is later granted on the grounds that the
case should not have gone to the jury.

li

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 666s cccserceccdvsstenuews i
TABLE OF AUTTHOOIRERSe

3A

under the applicable statute of limitations,’ 2) that the
district court’s factual findings are clearly erroneous, 3)
that the trial court erred in conditionally granting defen-
dants’ motion for new trial, and 4) that the court’s ruling
on the Title VII claim was in error.

We have carefully reviewed the appendices which the
parties have submitted. We have also conducted an
exhaustive review of the pertinent authorities. We con-
clude that the district court’s disposition was correct, and
we therefore affirm for substantially the reasons set forth
in that court’s lengthy and well-reasoned opinion. In light
of this disposition, we need not reach the issues raised in
the cross-appeal.

The judgment of the United States District Court for
the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Stephanie K. Seymour
Circuit Judge

1 In connection with this issue, plaintiff contends the trial
court erred in granting j.n.o.v. on the statute of limitations claim
after the court previously denied defendants’ motion for sum-
mary judgment on this issue. We have specifically held, how-
ever, that the denial of summary judgment does not rule out the
possibility of a directed verdict. See Catts Co. v. Gulf Ins. Co., 723
F.2d 1494, 1502 (10th Cir. 1983).

4A

si

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

DEBORAH S. MARSHALL,

Plaintiff, No. 88-C-1213-P

Vv.

)
)
)
)
NELSON ELECTRIC, a Unit?
of General Signal, et al.,

)

Defendants.

ORDER GRANTING DEFENDANTS’ MOTIONS FOR
JNOV ON THE INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS JURY CLAIM, FINDINGS
OF FACT AND CONCLUSIONS OF LAW ON TITLE
VII NON-JURY CLAIM, AND JUDGMENT

(Filed June 21, 1991)
I. INTRODUCTION

Plaintiff, Deborah Marshal! (“Marshall”), after being
laid off by her employer, Nelson Electric, filed the instant
action alleging violation of Title VII of the Civil Rights
Act of 1964, and intentional infliction of emotional dis-
tress. Defendants are Nelson Electric and Luther Noah
(“Noah”).

Marshall alleged Noah, an employee of Nelson Elec-
tric who served as a foreman during most of Marshall's
tenure there, engaged in continued sexual harassment at
the workplace, and further alleged Nelson Electric
ignored and acquiesced in that harassment. Marshall also
alleged defendants retaliated against her because she
refused to succumb to this harassment. Marshall alleged
these actions constituted extreme and outrageous conduct

5A

which caused her to suffer severe physical and emotional
distress.

Defendants denied Marshall’s claims and asserted
Marshall initiated and participated in much of the sexu-
ally-related conduct which occurred at the workplace.
Defendants further asserted Marshall’s layoff was not in
| retaliation for her actions but rather was a result of a
significant economic downturn at the Tulsa location.
Finally, defendants denied that any physical or emotional
distress suffered by Marshall was due to any conduct of
the defendants, but rather was due to conditions unre-
lated to Marshall’s employment at Nelson Electric,
including but not limited to Marshall’s prior suicide
attempt, physical abuse she was suffering at the hands of
her husband, an extramarital affair she was having while
employed at Nelson Electric, and other factors.

| The intentional infliction of emotional distress claim
was determined by the jury. The Title VII claim against
Nelson Electric was tried to the Court. Although both
claims were tried simultaneously, the Court heard some
. brief testimony outside the presence of the jury which
pertained only to the Title VII claim.! At the conclusion of

1 This testimony related to the arbitration hearing. The
| Arbitrator’s Decision and Award contains the following perti-
nent findings:

Finally, I find that there is not sufficient evidence in
the record to show that sexual harassment on the part
of Grievant's Supervisor played a role in selecting her
for layoff. I further find that there was an admitted
economic reason which justified the Company’s deci-
sion to call a layoff, and because it appears that Griev-
ant has the low seniority among Electricians in the

6A

the evidence, both defendants moved for a directed ver-
dictthe-€ourt took these motions under advisement. On
the intentional infliction of emotional distress claim, the
jury awarded Marshall $2,500 compensatory damages
against Noah, $93,000 compensatory damages against
Nelson Electric, $2,500 punitive damages against Noah,
and $62,000 punitive damages against Nelson Electric.
The Court entered a partial judgment based on the jury
award on October 26, 1990, and took the Title VII matter
under advisement. Both defendants subsequently filed
motions for judgment notwithstanding the verdict
(“jnov”) on the intentional infliction of emotional distress
claim and filed proposed findings of fact and conclusions
of law on the Title VII claim. Marshall filed a brief in
opposition to defendants’ motions for jnov on the emo-
tional distress claim, and also filed proposed findings of
fact and conclusions of law on the Title VII claim.

The Court grants the defendants’ motions for
directed verdict and jnov on the emotional distress claim,
finds in favor of Nelson Electric on the Title VII claim,
and renders judgment in favor of defendants.

Il. WITNESSES AND EXHIBITS

Marshall called the following witnesses at trial: Tom
Birmingham, John Bell, George T. (Terry) Camp, Bill

Department, I conclude that sufficient neutral reasons
have been shown to explain her selection for layoff.
There is no evidence at all to show Grievant was laid
off for complaining to the Company about being sex-
ually harassed. I conclude that Grievant was not
improperly laid off on August 15, 1986.

See Defendant’s Exhibit 18.

vO a?

7A

Coday, Bill Coleman, John Edwards, Randy Edwards,
John Fitzgerald, Thomas Goodman, M.D., Jerry Hollo-
man, Juanita Holloman, Jackie Howell, David Huettner,
Ph.D., Charles Marshall, Deborah Marshall, Metta McGee
(by deposition), Luther Noah, Wayne Schnee, Harold
Wallace, and Vicki Williams.

Defendants called the following witnesses at trial: Dr.
Jan Capehart, Dr. William Chop, Billy G. Coleman, Randy
L. Edwards, Patricia A. McDannald, Luther Noah, Doris
W. Skock, and Edward M. Wall.

The Court received into evidence numerous exhibits
at trial, introduced by both plaintiff and defendant. The
Court’s rulings on the offer of these documentary exhibits
are reflected in the trial transcript.

Ill. STIPULATIONS

The parties entered into the following factual stipula-
tions:

1. Plaintiff was employed at Nelson Elec-
tric from October 4, 1976 until July 2, 1987.

2. On August 16, 1986, plaintiff was laid
off from Department 411 and chose to bump
into Department 710.

3. Luther Noah’s employment with.
Nelson Electric ceased as of November 1,
1986.

4. On June 15, 1987, plaintiff voluntarily
chose to be laid off from Department 710
and chose to bump into Department 411.

8A

5. Effective July 2, 1987, plaintiff and
Jackie Howell were laid off from Depart-
ment 411.

6. Plaintiff filed a formal complaint of sex-
ual harassment with the Oklahoma Human
Rights Commission on December 16, 1987.

7. On September 12, 1988, plaintiff filed
this lawsuit.

See Jury Instruction No. 3 (Oct. 18, 1990). The Court
adopts these stipulations.

IV. SUMMARY OF KEY TESTIMONY

Although numerous witnesses testified in this matter,
the following testimony is pertinent to the pending
motions for jnov and provides an overview of the allega-
tions advanced by both sides.

Marshall testified that during her tenure at Nelson
Electric, Noah embarked on a course of conduct that
constituted sexual harassment. Marshall testified Noah
referred to the women who worked for him as his “little
harem”; asked Marshall if her jeans rubbed her crotch
and made it wet; asked her how far or deep a man could
“go inside” her; stated he wanted to marry her, wanted
her to lay around the house naked and put his face in her
“snatch”; and quoted repeatedly from the Bible in a way
that suggested it was proper for Noah to have sex with
her. He also allegedly told her that he would be very
“gentle” with her and cause her to have multiple
orgasms.

Marshall further testified Noah physically touched
her in a variety of ways; grabbed at her; deliberately

—— eee

9A

bumped into her rear and breasts; sneaked up behind her
when she was bent over; and showed her pictures from
Penthouse magazine. She described one occasion at work
when Noah touched her between the legs and on the
breast and then claimed “the devil made me do it.” She
also described several occasions when Noah fashioned
male penises out of putty, put them in his pants, and
pranced around the work area. He also allegedly threat-
ened her job if she did not “meet with him in private.”
Marshall testified she never succumbed to these
advances.

On cross-examination, Marshall acknowledged she
also used “dirty talk” in the workplace; admitted from
time to time she had asked others at work whether they
had sex the night before; admitted she did not mention
sexual harassment in the union grievance she pursued in
connection with her layoff; conceded she was involved in
an incident when Noah’s pants were pulled down at
work; and acknowledged that despite this alleged harass-
ment at the hands of Noah, she repeatedly contacted
Nelson Electric management after her transfer to another
department asking to be transferred back into Noah's
department and placed under his supervision.

One of the key witnesses called by the defense was
Dr. William Chop, Marshall's treating physician. Psychia-
try is an integral part of Chop’s practice. Unlike other
expert witnesses specifically retained to render opinions
for this litigation, Chop began treating Marshall before
the lawyers on both sides of this lawsuit arrived on the
scene. Chop, however, was not called as a witness by
Marshall. Instead, Chop was called as a defense witness
by Nelson Electric.

10A

Chop began treating Marshall on January 14, 1988,
for pain, numbness and physical complaints. He last saw
her on March 29, 1988. Despite the fact that Chop treated
Marshall for two months, absent from Chop’s testimony
and medical records is any prelitigation reference by
Marshall to sexual harassment at her workplace. Instead,
Marshall blamed her symptoms on a workrelated injury
that occurred in March of 1987. According to Chop, Mar-
shall specifically attributed her weight gain problem to
the worker’s compensation accident. She also related to
Chop a suicide attempt which resulted from her husband
beating her. In Chop’s opinion, it was “almost impossi-
ble” to determine the source of Marshall’s many prob-
lems, including depression. Chop testified that sexual
harassment was an unlikely cause of Marshall’s emo-
tional problems.

Nelson Electric’s exhibit 54 contains Dr. Chop’s
notes, as well as several other papers. The third page of
the exhibit, bearing a page no. of 499, contains Chop’s
notes of the oral history given by Marshall to Chop
during Marshall’s initial visit. There is no reference to -
any sexual harassment. It states in part:

Patient presents with long, somewhat vague his-
tory of ten months of problems with pain in her
neck, back and numbness extending into the
arms and the hands with a very worried affect
about this .. . She has had a normal EMG on the
left upper extremity where she has experienced
most of her numbness and shooting pain a
month after the initial work accident which .
occurred 3/2/87, where she was spun around
by a machine...

11A

The next page of exhibit 54, bearing page no. 500, con-
tains Chop’s notes regarding Marshall’s visit of January
27, 1988. There is no reference to harassment. There is
mention, however, of Marshall’s suicide gesture, which
Chop described in part as follows:

In addition, patient has transverse scars on the
left wrist from a suicidal gesture about ten to 15
years ago that resulted when her husband was
beating her quite a bit.

Dr. Chop also noted that Marshall had a “[hlistory of
being abused by her current husband.” The notes regard-
ing Marshall's visits of February 25, 1988, and March 29,
1988, are shown on pages 503 and 504 of the exhibit.
There is no reference to any harassment. The only refer-
ence to any harassment in the entire exhibit is contained
on pages 505-506 which is the note Marshall gave to Chop
on April 5, 1988. The note, which was written for litiga-
tion purposes, states in part:

Dr. Chop my lawyer reeds a copy from you, & I
am also getting one from my pshyc., Dr. Farley.
He needs the date in Jan. that I first came in and
put me on med. & referred me to pshyc.

1. Date in Jan. temporarily disabled to work
due to harassment from work &/or injury.

* + *

My lawyer is putting me back on drawing work-
man’s comp. again & making them pay for my
pshyco. but he also needs the copy from you
that started temp. disabled to work starting
Jan...

during his testimony, Chop discussed this note and his
refusal to provide Marshall’s attorney the information

12A

requested by Marshall because, according to Chop, he
“wasn’t willing to try to make this appear to be a work-
related injury.”

Nelson Electric’s exhibit 55 contains eleven pages in
Marshall’s handwriting, explaining her problems. There
is no reference in the exhibit to any alleged harassment.
Marshall admitted during her cross-examination that she
prepared this document for Dr. Chop to describe the pain
that she was suffering.

V. THE JURY’S VERDICT AND ANSWERS TO SPE-
CIAL INTERROGATORIES

The jury was given the following instructions con-
cerning the intentional infliction of emotional distress
claim:

Elements of Liability — Intentional Infliction
of Emotional Distress

For the plaintiff, Deborah Marshall, to
recover from the defendants Nelson Electric and
Luther Noah on plaintiff’s claim of emotional
distress, you must find that plaintiff has estab-
lished by a preponderance of the evidence the
following essential elements:

1. A defendant intentionally injured
the plaintiff, or realized that plaintiff was
likely to suffer the injuries complained of,
or acted with willful disregard of injuries
that plaintiff might suffer;

2. A defendant's actions were extreme
and outrageous taking into consideration
the atmosphere and circumstances in which
such actions occurred; and

13A

3. The plaintiff suffered severe emo-
tional distress as a direct result of a defen-
dant’s conduct. Injuries to the nervous
system and mental pain are physical inju-
ries which also qualify as severe emotional
distress.

If you find plaintiff has proved each of the
above elements by a preponderance of the evi-
dence, then you must find in favor of the plain-
tiff.

On the other hand, if you find plaintiff has
failed to prove her claim, then you must return a
verdict in favor of the defendants.

See Jury Instruction. No. 18 (Oct. 18, 1990). These are the
elements of the tort of intentional infliction of emotional
distress under pertinent Tenth Circuit and Oklahoma
decisions. Baker v. Weyerhaeuser Co., 903 F.2d 1342 (10th
Cir. 1990); Guinn v. Church of Christ of Collinsville, 775 P.2d
766 (Okla. 1989); Eddy v. Brown, 715 P.2d 74 (Okla. 1986);
Williams v. Lee Way Motor Freight, Inc., 688 P.2d 1294
(Okla. 1984); Breeden v. League Services Corp., 575 P.2d 1374
(Okla. 1978); Floyd v. Dodson, 692 P.2d 77, 79-80 (Okla.
App. 1984) (discussing Oklahoma Uniform Jury Instruc-
tion — Civil, No. 19.1).

After returning a verdict in favor of Marshall and
against each defendant on this claim,? the jury answered
a series of special interrogatories as follows:

2 As noted in the introductory plaintiff compensatory dam-
ages in the amount of $2,500 against Noah and $93,000 against
Nelson Electric; and awarded plaintiff punitive damages in the
amount of $2,500 against Noah and $62,000 against Nelson Elec-
tric.

|

14A

[QUESTION #1 with JURY’S ANSWERS]

Question 1: Was Nelson Electric’s liability
based in whole or in part on the following:

A. Nelson ignoring the conduct of Noah after
it knew or should have known of the harass-
ment?

Yes X No _ (check one)

B. Nelson acquiescing in the conduct of Noah
after it knew or should have known of the
harassment?

Yes X No _ (check one)

C. Nelson failing to take prompt action after it
knew or should have known of the conduct of
Noah in sexually harassing plaintiff?

Yes X No _ (check one)
D. Loaning of employees into Dept. 411?

Yes X No _ (check one)

E. Plaintiff's layoff from Dept. 411 in July,
1987?

Yes X No _ (check one)

F. Employment of other individuals in Dept.
411 after September 12, 1988?

Yes X No _ (check one)

G. Conduct of Bill Hardee in March or April
1987?

Yes X No _ (check one)

H. Conduct of Nelson Electric after September
12, 1986?

Yes X No _ (check one)

15A

[QUESTION #1 continued]

If ves, briefly describe such conduct. You may
also refer to any of the above questions which
you may have answered “Yes” in responding to
this question. If you answer “No” to this ques-
tion, fill in nothing below.

[JURY’S ANSWER]

It was our feeling that Nelson was not con-
sistant [sic] with documented procedures in:

A. Layoffs
B. Bump Rights
C. Recall Procedures

It was also our feeling that Nelson had lim-
ited procedures on what identified sexual
harassment and no procedures on methods
of employees or management to deal with
this problem.

[QUESTION #2]

Question 2: Focusing on your compensatory dam-
age awards, why was the amount of compensa-
tory damages against Noah $2,500, whereas the
amount of compensatory damages against Nelson
$93,000? Briefly explain.

[JURY’S ANSWER]

Noah was under employment of Nelson
Electric who focused on production, not
employee relations. Had proper procedures
been documented for sexual harassment
and correction, more of the responsibility

16A

would have fallen on Noah. Refer to Ques-
tion — 1A, B, C.

October 19, 1990 /s/ Jack M. Hough
Foreperson

See Special Interrogatories (Oct. 19, 1990) (emphasis in
original).

VI. TO WHAT EXTENT ARE THE FINDINGS OF THE
JURY WITH RESPECT TO PLAINTIFF’S INTEN-
TIONAL INFLICTION OF EMOTIONAL DIS-
TRESS CLAIM BINDING UPON THE COURT IN
THE DETERMINATION OF THE NON-JURY
TITLE VII CLAIM?

When a case such as this involves both a jury
trial (on the emotional distress claim) and a bench trial
(on the Title VII claim) “any essential factual issues which
are central to both claims must be first tried to the jury, so
that the litigants’ Seventh Amendment jury trial rights
are not foreclosed on common factual issues.” Skinner v.
Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir. 1988)
(citing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472-73
(1962)). “Moreover, the court is bound by the jury’s deter-
mination of factual issues common to both the legal and
equitable claims.” Skinner, 859 F.2d at 1443.

However, to the extent the essential elements of the
legal and equitable claims are not the same, the court is
not bound by the jury’s verdict. Baker v. Weyerhacuser Co.,
903 F.2d 1342, 1345 (10th Cir. 1990). For example, in a case
similar to the instant case, where the plaintiff alleged
both a Title VII quid pro quo claim and a claim for inten-
tional infliction of emotionai distress, the jury found in
favor of plaintiff on the emotional distress claim and the

17A

district court found in favor of defendant on the Title VII
quid pro quo claim. Both findings were upheld on appeal.
Snider v. Circle K Corp., 923 F.2d 1404 (10th Cir. 1991)
(affirming the district court in part and reversing in part,
on other grounds).

In the instant case Marshall asserted a Title VII hos-
tile work environment claim and a claim for intentional
infliction of emotional distress. The essential elements of
each claim are set forth below.

In order to prevail on a claim for intentional infliction
of emotional distress plaintiff must prove:

1. Defendant intentionally injured the
plaintiff, or realized plaintiff was likely to suffer
the injuries complained of, or acted with willful
disregard of injuries plaintiff might suffer;

2. Defendant’s actions were extreme and
outrageous taking into consideration the atmo-
sphere and circumstances in which such actions
occurred; and

3. Plaintiff suffered severe emotional dis-
tress as a direct result of defendant’s conduct.
Injuries to the nervous system and mental pain
are physical injuries which also qualify as severe
emotional distress.

Eddy v. Brown, 715 P.2d 74 (Okla. 1986); Williams v. Lee
Way Motor Freight, Inc., 688 P.2d 1294 (Okla. 1984); Breeden
v. League Services Corp., 575 P.2d 1374 (Okla. 1978); Floyd v.
Dodson, 692 P.2d 77, 79-80 (Okla. App. 1984) (discussing
Oklahoma Uniform Jury Instruction - Civil, No. 19.1).

In order to prevail on a Title VII “hostile work envi-
ronment” claim, plaintiff must prove:

18A

1. Plaintiff belongs to a protected group;

2. Plaintiff was subject to unwelcome sex-
ual harassment;

3. the harassment was based on sex;

4. the harassment affected a ‘term, condi-
tion, or privilege’ of employment; and

5. the employer knew or should have
known of the harassment in question and failed
to take proper remedial action.

Jones v. Wesco Investments, Inc., 846 F.2d 1154, 1156 (8th
Cir. 1988). “For sexual harassment to be actionable, it
must be sufficiently severe or pervasive to ‘alter the
conditions of [the victim’s] employment and create an
abusive working environment.” Hicks v. Gates Rubber Co.,
833 F.2d 1406, 1414 (10th Cir. 1987) (quoting Meritor Sav.
Bank v. Vinson, 477 U.S. 57, 67 (1986)).

In the instant case the jury returned a general verdict
in favor of Marshall against each defendant on Marshall’s
intentional infliction of emotional distress claim. Thus,
the jury necessarily found Marshall proved each of the
essential elements of that claim with respect to each
defendant. Moreover, subsequent to receiving the jury’s
general verdict, the Court asked the jury to return to the
deliberation room and answer a series of questions to
help the Court interpret the verdict and to serve as an
advisory aid to the Court on the remaining Title VII
claim. The questions were prefaced with the following
note from the Court: “Ladies and Gentlemen of the Jury:
What follows is a series of questions known as special
interrogatories. Please answer these questions to help us

19A

interpret your verdict.” See Special Interrogatories (Oct.
19, 1990).

The jury’s answers to these special interrogatories
likewise constitute factual findings of the jury. Fed. R.
Civ. P. 49(b); 9 C. Wright & A. Miller, Federal Practice and
Procedure, § 2513 at 532 (1971) (a jury’s verdict, whether
general, special, or by special interrogatories accompany-
ing a general verdict, constitutes the definitive findings of
fact); 5A Moore’s Federal Practice, | 49.04 at 49-58 (2d Ed.
1991) (the jury’s answers to special interrogatories are the
jury’s “more specific findings of fact”).

However, if the intentional infliction of emotional
distress ciaim should not have been submitted to the jury
in the first place, the jury’s findings are viewed as an
academic exercise, a nullity, and nothing more than advi-
sory. Under such circumstances, the jury’s factual find-
ings would not be binding on the Court for purposes of
the Title VII claim. Castle v. Sangamo Weston, Inc., 837 F.2d
1550, 1560 (11th Cir. 1988) (trial court’s conditional rul-
ings concerning damages, in the event its ruling on the
motion for jnov was reversed, were “advisory” only and
were not binding); Williams v. Slade, 431 F.2d 605, 609 (5th
Cir. 1970) (courts have refused to grant a partial new trial
on liability alone where the damages issue had been
resolved in a “purely academic atmosphere”); O'Neill v.
United States, 411 F.2d 139, 146 (3rd Cir. 1969) (trial
court’s conditional assessment of damages, in the event
the defendant’s judgment was reversed on appeal, bore
the characteristic of an “advisory opinion,” was “purely
academic” when made, and did not pass through the
refining pressure of reality”); Romer v. Baldwin, 317 F.2d
919, 923 (3rd Cir. 1963) (when the jury assessed damages

20A

in favor of plaintiff despite finding no liability on the part
of defendant, the jury’s assessment was “merely an intel-
lectual exercise” and not binding on remand); Swentek v.
USAir, Inc., 830 F.2d 552, 559 (4th Cir. 1987) (Seventh
Amendment does not require the trial court to conform
its findings to a jury verdict that is infirm); see also Wil-
liams v. Cerberonics, Inc., 871 F.2d 452, 458, n.4 (4th Cir.
1989).

VII. DEFENDANTS’ MOTIONS FOR JUDGMENT
NOTWITHSTANDING THE VERDICT

A.. Standard of review for motions for jnov

“Motions for directed verdict and for judgment not-
withstanding the verdict are considered under the same
standard.” Hurd v. American Hoist & Derrick Co., 734 F.2d
495, 498 (10th Cir. 1984).> The standard was recently
summarized by the Tenth Circuit: the test is whether
there is evidence upon which the jury could properly find
a verdict for the party opposing the motion for directed
verdict or motion for jnov. Rajala v. Allied Corp., 919 F.2d
610, 615 (10th Cir. 1990). In making that determination
the court “may not weigh the evidence, pass on the
credibility of witnesses, or substitute its judgment for
that of the jury,” but rather “must view the evidence most

3 Here the defendants moved for a directed verdict at the
close of the plaintiff’s case and again at the close of the evi-
dence. The Court took these motions under advisement and
invited jnov motions after the return of the jury’s verdict in
favor of plaintiff. See Lucas v. Dover Corp., 857 F.2d 1397 (10th
Cir. 1988). The court now grants the motions for directed verdict
as well as the motions for jnov.

rc

21A

favorably to the nonmoving party and give that party the
benefit of all reasonable inferences from the evidence.”
Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir.
1984); see also Rajala, 919 F.2d at 615; Berry v. City of
Muskogee, Okla., 900 F.2d 1489, 1496 (10th Cir. 1990); Sand-
lin v. Texaco Refining & Mktg, Inc., 900 F.2d 1479, 1483 n.5
(10th Cir. 1990); Abercrombie v. City of Catoosa, Okla., 896
F.2d 1228, 1231 (10th Cir. 1990); Royal College Shop, Inc. v.
Northern Ins. Co. of N.Y., 895 F.2d 670, 677 (10th Cir. 1990);
Zimmerman v. First Fed. Sav. & Loan Ass'n, 848 F.2d 1047,
1051 (10th Cir. 1988).

The district court’s ruling on a motion for directed
verdict or for jnov is reviewed de novo by the Tenth
Circuit, applying the same standard as that used by the
district court. Rajala, 919 F.2d at 615; Sandlin, 900 F.2d at
1483 n.5; Brown, 736 F.2d at 613.

The Court notes that this standard of review has
recently become somewhat blurred. The following three
recent opinions of the Tenth Circuit that could be said to
stand for the proposition that a ruling on a motion for
directed verdict or for jnov is reviewed under a manifest
abuse of discretion standard: Snider v. Circle K Corp., 923
F.2d 1404, 1409 (10th Cir. 1991); Sil-Flo Inc. v. SFHC, Inc.,
917 F.2d 1507, 1519 (10th Cir. 1990); and Key v. Liquid
Energy Corp., 906 F.2d 500, 502 (10th Cir. 1990).

In Snider the district court apparently denied Circle K’s
motion for directed verdict. On appeal the Tenth Circuit
stated: “Circle K alternatively argues that the district court
should not have submitted Snider’s . . . claim to the jury. .
[W]e review the district court’s decision under an abuse of
discretion standard.” Snider, 923 F.2d at 1409.

22A

In Key the district court denied a motion for directed
verdict and a motion for jnov. The Tenth Circuit stated:
“In ruling on an appellant’s request to overturn a trial
court for failure to direct a verdict or grant a JNOV, the
appeals court must determine whether the trial court’s
refusal to set aside the jury verdict constituted a manifest
abuse of discretion.” Key, 906 F.2d at 502.

Both Snider and Key cited Karns v. Emerson Elec. Co.,
817 F.2d 1452, 1456 (10th Cir. 1987), to support the “abuse
of discretion” standard. However, Karns’ “manifest abuse
of discretion” language referred to the standard for
reviewing a district court’s ruling on a motion for new
trial, not a motion for directed verdict or for jnov. Karns,
817 F.2d at 1456. Key also cited Brown v. McGraw Edison
Co., 736 F.2d 609, 616 (10th Cir. 1984). Again, the Brown
“abuse of discretion” language referred to the standard
for reviewing a ruling on.a motion for new trial. Brown,
736 F.2d at 616.

Sil-Flo reviewed the district court’s denial of defen-
dant’s motion “for jnov or new trial” and used both
standards without distinguishing between them. Sil-Flo,
917 F.2d at 1519. For example, the paragraph discussing
the standard of review contains four sentences, each fol-
lowed by a case citation. First, for its “manifest abuse of
discretion” language, Sil-Flo cited Harvey ex rel. Harvey v.
General Motors Corp., 873 F.2d 1343, 1346 (10th Cir. 1989).
Harvey was a “new trial” case. Second, for its language
that “so long as a reasonable basis exists for the jury’s
verdict, we will not disturb the trial court’s ruling,” Sil-
Flo cited McAlester v. United Air Lines, Inc., 851 F.2d 1249,
1260 (10th Cir. 1988). McAlester used the quoted language
with reference to reviewing a ruling on a motion for new

23A

trial. Third, for its language that “our role is not to
determine anew whether in our judgment [defendant]
should have been liable on these claims,” Sil-Flo cited
Patty Precision Prods. v. Brown & Sharpe Mfg. Co., 846 F.2d
1247, 1251 (10th Cir. 1988). Patty Precision was also a “new
trial” case. And fourth, for its language that “we consider
only whether the evidence and all reasonable inferences
to be drawn therefrom so clearly mandates that [defen-
dant] could not be held liable that reasonable minds
could not differ on this result,” Sil-Flo cited Ryder v. City
of Topeka, 814 F.2d 1412, 1418 (10th Cir. 1987). Ryder was a
“jnov” case.

After carefully studying these authorities, there is no
question in this Court’s mind that a district court’s ruling
on a motion for directed verdict or for jnov is reviewed de
novo by the appellate court, and a ruling on a motion for
new trial is reviewed for manifest abuse of discretion.
These two standards were clearly described by Chief
Judge Holloway in Brown v. McGraw Edison Co., 736 F.2d
609 (10th Cir. 1984), and have been often repeated.
Accordingly, this Court is convinced the three recent
opinions discussed above do not properly state the law if,
and to the extent, they hold a district court’s ruling on a
motion for directed verdict or for jnov is reviewed under
an abuse of discretion standard.

B. Factual arguments directed toward sufficiency
of plaintiff’s evidence

Clearly, not every discrimination claim, whether it is
based on age, race, national origin, or gender, automatically

24A

supports a claim for intentional infliction of emotional dis-
tress. Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 384-85
and n.8 (10th Cir. 1988). Only if the manner of discrimination
is beyond all possible bounds of decency or is regarded as
utterly intolerable in a civilized community may plaintiff
reach the jury on an intentiona! infliction of emotional dis-
tress claim. Id. at n.8.

In the instant case, defendants make two arguments
that Marshall’s evidence was insufficient to warrant sub-
mission of the emotional distress claim to the jury. First,
both defendants argue Marshall failed to introduce suffi-
cient evidence of truly outrageous conduct on the part of
Noah. Second, defendant Nelson Electric argues that
because Marshall failed to introduce any evidence of
outrageous conduct other than the acts of Noah, Nelson
Electric cannot be held liable. For purposes of the instant
motion, the Court accepts Marshall’s testimony at face
value and views it in the light most favorable to her.

In that light, the Court rejects defendants’ first argu-
ment. Considering the evidence as summarized in Section
IV, supra, the Court finds there was sufficient evidence
from which the jury could find Noah engaged in extreme
and outrageous conduct causing Marshall emotional dis-
tress.

4 The Court submitted the intentional infliction of emo-
tiona! distress claim to the jury, but took under advisement the
statute of limitations issue discussed in Secion [sic] VII.C. of this
order. The defendants subsequently moved for directed verdicts
on the statute of limitations issue at the close of plaintiff's
evidence, and for jnov on the statute of limitations issue follow-
ing the return of the verdict.

25A

Defendant Nelson Electric’s next argument is that it
cannot be liable because Marshall introduced evidence of
Noah’s conduct only, and failed to introduce any evi-
dence of outrageous conduct on the part of Nelson Elec-
tric. In response, Marshall points out she advanced two
theories of liability with respect to Nelson Electric: (1)
that Nelson Electric is vicariously liable for the acts of
Noah, under the theory of respondeat superior, since Noah
was acting within the scope of his employment; and (2)
that Nelson Electric is directly liable as a result of its own
conduct in ignoring and acquiescing in Noah’s conduct.

As noted earlier, there was evidence regarding how
Nelson Electric responded to Noah’s conduct, and the
jury expressly found Nelson Electric ignored and acqui-
esced in Noah’s conduct and failed to take prompt correc-
tive action. Moreover, the Tenth Circuit has expressly
upheld an intentional infliction of emotional distress jury
award against an employer who ignored and acquiesced
in the conduct of one of its employees. Baker v.
Weyerhaeuser Co., 903 F.2d 1342, 1347 (10th Cir. 1990)
(“Baker’s action against Weyerhaeuser was based on
Weyerhaeuser’s own conduct, namely, its utter failure
through its officers and supervisors to take action against
[co-worker] Caldwell, a known sexual harasser of
females.”). Accordingly, the Court also rejects Nelson
Electric’s second argument.

Thus, defendants’ motions for jnov are denied to the
extent they argue Marshall’s evidence was insufficient to
submit the intentional infliction of emotional distress

claim to the jury

26A

This, however, does not end the inquiry because at
the time the Court submitted the emotional distress claim
to the jury it expressly reserved ruling on the statute of
limitations issue.

C. The statute of limitations issue

The Court expressed concern about the statute of
limitations issue at the time the emotional distress claim
was submitted to the jury. Now, after careful consider-
ation, the Court concludes the emotional distress claim
should not have been submitted to the jury.

The applicable statute of limitations for the claim of
intentional infliction of emotional distress is two years.
Chandler v. Denton, 741 P.2d 855 (Okla. 1987). Marshall
filed her complaint on September 12, 1988. Thus, absent
some exception to the general rule, her claim is barred to
the extent it is based on conduct that occurred before
September 12, 1986.

Viewing Marshall’s evidence in the light most favor-
able to her, Noah’s harassment began in 1985. However,
Marshall left Department 411 on August 12, 1986, and
thus was no longer in the same department as Noah.
Marshall testified Noah’s harassment “pretty much
stopped” at that time, and she acknowledged Noah's
conduct was less frequent and less explicit when com-
pared to his conduct while she was in Department 411.
Her testimony concerning Noah’s conduct after she left
Department 411 and entered Department 710 can be sum-
marized as follows: Noah wriggled his tongue at her in a
sexual way, brushed against her in the hallway, called her
supervisor in Department 710 to ask where she was,

« ~~ eae

27A

watched her working, and approached her in the new
department and touched her by pinching her on the arm.
See Plaintiff’s Second Proposed Findings of Fact and Con-
clusions of Law at 4-5 (Oct. 15, 1990).

“It is the trial court’s responsibility initially to deter-
mine whether the defendant’s conduct may reasonably be
regarded as sufficiently extreme and outrageous to meet
the §46 standards. Only when it is found that reasonable
[persons] would differ in an assessment of this critical
issue may the. . . claim be submitted to a jury.” Eddy v.
Brown, 715 ?.2d 74, 76-77 (Okla. 1986). Liability does not
extend to “mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.” Id. at 77 (quoting
Restatement of Torts (Second) §46, comment d). To be
actionable, the conduct must be beyond all possible
bounds of decency in the setting in which it occurred or
be regarded as utterly intolerable in a civilized commu-
nity. Id. at 77; Haynes v. South Community Hospital Manage-
ment, Inc., 793 P.2d 303, 306 (Okla. App. 1990); Bostwick v.
Atlas Iron Maters, Inc., 780 P.2d 1184, 1188 (Okla. App.
1988).

Since Marshall filed her Complaint on September 12,
1988, the applicable limitatins [sic] period begins on Sep-
tember 12, 1986. The Court finds as a matter of law the
conduct that occurred after September 12, 1986, was not
sufficiently extreme and outrageous to constitute inten-
tional infliction of emotional distress. Moreover, in oral
argument on this issue Marshall conceded as much.°

5 In oral argument on this issue on November 9, 1990,
Marshall’s counsel conceded Noah’s conduct after August 12,

28A

However, in a good faith attempt to defuse this conces-
sion, Marshall argues Noah’s conduct was a continuing
tort and the Court must therefore consider all of Noah’s
acts, no matter how long ago they occurred, since some
non-extreme/non-outrageous acts occurred after Septem-
ber 12, 1986.

This argument presents a difficult and close question
of law. However, after careful consideration and for the
reasons set forth below, the Court rejects Marshall's argu-
ment. The Court concludes that under the circumstances
of this case the statute of limitations requires the Court to
initially consider the conduct that occurred within the
limitations period. Unless the conduct that occurred
within the limitations period was sufficiently extreme
and outrageous to support an intentional infliction of
emotional distress claim, plaintiff’s claim is time-barred.®

1986 (when she transferred into a different department) was not
sufficiently extreme and outrageous to support a claim for
intentional infliction of emotional distress. Marshall indirectly
made the same concession in her brief. See Plaintiff’s Brief in
Response to Nelson Electric’s Motion for Directed Verdict at
13-14 (Oct. 12, 1990) (“Plaintiff only testified that the harass-
ment pretty much stopped after she left Department 411
because the conduct by Noah was less frequent and less explicit
when compared to his conduct in the Mod Center.”)

© During the trial of the case, the Court admitted evidence
of defendant's conduct outside the statute of limitations on the
assumption the continuing tort doctrine might apply, with the
understanding the matter would be reviewed at the close of the
evidence. The Court also believed evidence outside the statute
of limitations period would be admissible under Federal Rule of
Evidence 404(b) if defendants’ statute of limitations arguments

were overcome.

29A

While the continuing tort doctrine has long been
applied to a variety of actions, including trespass, nui-
sance, and false imprisonment, it has only in recent years
begun to be applied to claims for intentional infliction of
emotional distress.

There are no decisions from Oklahoma courts or from
the Tenth Circuit on this exact issue. However, the Tenth
Circuit addressed a strikingly similar issue in Manders v.
Oklahoma ex rel. Dept. of Mental Health, 875 F.2d 263 (10th
Cir. 1989), and other jurisdictions have addressed the
issue.

In Manders, plaintiffs raised sexual harassment claims
against their supervisor under Title VII and 42 U.S.C.
§ 1983. The statute of limitations on a section 1983 claim
is two years. Since the plaintiffs filed their complaint on
May 5, 1986, the Tenth Circuit looked at the evidence
concerning defendant’s conduct after May 5, 1984, and
found no acts or allegations sufficient to support plain-
tiffs’ claim. The plaintiffs argued defendant Haney con-
tinued to sexually harass them after May 5, 1984, by
acting vengefully in response to their rebuffs. Manders,
875 F.2d at 265. Plaintiffs contended Haney’s vengeful-
ness was a continuation of his earlier sexual harassment
because it was intended to punish them for not acquiesc-
ing to his sexual advances. Id. However, the Tenth Circuit
disagreed and affirmed the trial court’s decision to grant
summary judgment based on the statute of limitations.

Similarly, in Koster v. Chase Manhattan Bank, 609 F.
Supp. 1191 (S.D.N.Y. 1985), plaintiff sued for sex discrimi-
nation under Title VII and for intentional infliction of

30A

emotional distress. Applying the New York one-year stat-
ute of limitations for the emotional distress claim, the
court held “all acts occurring before the limitations
period are excluded from consideration.” Id. at 1198.
Since there was no evidence that any conduct occurring
within the limitations period “in and of itself [was] suffi-
ciently extreme, outrageous and uncivilized to be action-
able,” the court entered summary judgment in favor of
defendant. Id.

The Eighth Circuit appears to take the same approach
as that taken by the Tenth Circuit in Manders and by the
district court in Koster. In Gross v. United States, 676 F.2d
295 (8th Cir. 1982), a farmer sought damages for inten-
tional infliction of emotional distress allegedly resulting
from a government agency’s actions to thwart plaintiff’s
participation in the United States Department of Agricul-
ture’s feed grain program. The Eighth Circuit held the
statute of limitations for the claim of intentional infliction
of emotional distress “generally runs from the date of the
last tortious act.” Id. at 300. “[T]he focus should be on
when the last tortious act occurred.” Id. In Gross the
appellate court could not determine from the record
whether the last tortious act occurred within the limita-
tions period and accordingly remanded for a determina-
tion of that issue. Although the district court had made a
finding concerning an incident that occurred within the
limitations period, the district court had not made clear
whether the incident was an extreme and outrageous act
constituting intentional infliction of emotional distress.
Id. The Eighth Circuit stated that unless that incident
constituted tortious (i.e. extreme and outrageous) con-
duct, plaintiff’s action must be dismissed as outside the

31A

statute of limitations. Id. Here, there clearly was no tor-
tious (extreme and outrageous) conduct by Noah within
the two year statute of limitations.

The Ninth Circuit has taken a somewhat different
approach. Applying California law, the Ninth Circuit
focused on the severity of the harm done to the plaintiff,
holding that a cause of action for intentional infliction of
emotional distress accrues at the moment plaintiff’s
injury is “severe enough to constitute intentional inflic-
tion of emotional distress.” Eisenberg v. Insurance Co. of
North America, 815 F.2d 1285, 1292 (9th Cir. 1987). Even
applying this standard, however, plaintiff’s intentional
infliction claim arose well prior to September 12, 1986.

There are authorities apparently holding any continu-
ing act that occurs within the limitations period is suffi-
cient to bring with it all the previous acts that occurred
outside the limitations period. In Page v. United States, 729
F.2d 818 (D.C.Cir. 1984), a veteran sued the Veterans
Administration for injuries allegedly resulting from being
subjected to harmful drugs during a course of treatment
from 1961 to 1980. The Court of Appeals held “the cause
of action [based on] continuous drug treatment did not
accrue, and the statutory limitations did not come into
play, until the allegedly tortious conduct came to a halt in
1980.” Id. at 823. In Everly v. United Parcel Service, Inc.,
1989 WL 81961 (N.D.Ill. 1989) (not reported in F.Supp.),
the plaintiff alleged she was subjected to years of harass-
ment, insults and discriminatory treatment at the work-
place. The district court denied defendants’ motion to
dismiss the action, finding the cumulative effect of the
conduct stretching across the years was sufficiently outra-
geous to defeat the dismissal motion. On the statute of

32A

limitations issue, the court stated “the statute of limita-
tions does not begin to run on a continuing wrong until
the wrong is ‘over and done with’ . . . and [plaintiff's
claim] is not time barred by the statute of limitations.” Id.
The court focused on the last act of the defendant, appar-
ently without regard to whether that act was extreme and
outrageous. In Twyman v. Twyman, 790 S.W.2d 819 (Tex.
App. 1990), error granted, No. 3-88-095-CV (Dec. 19, 1990),
plaintiff sought damages for negligent infliction of emo-
tional distress based on her husband’s continued
attempts, over a period of years, to have her engage in
deviant sexual acts with him. The Texas appellate court
stated the statute of limitations on plaintiff's claim did
not begin to run “until the tortious acts [had] ceased.” Id.
at 821. Also, in Rochon v. FBI, 691 F.Supp. 1548 (D.D.C.
1988), involving raciai discrimination claims under Title
VIL, 42 U.S.C. § 1985, and a claim for intentional infliction
of emotional distress, the court applied the continuing
tort doctrine and held the statute of limitations did not
start running until the time the tortious conduct ceased.
Id. at 1563.

The Court recognizes this legal issue is a close one.
However, the Court believes it should follow the Tenth
Circuit’s approach in Manders as discussed above. Fur-
ther, the Court believes the reasoning underlying the
decisions in Manders, Koster, and Gross is sound. Any
other result would subject defendants to never-ending
liability for such claims, which could at any time be
triggered by non-extreme, non-outrageous, and non-tor-
tious acts. Merely alleging that such non-actionable con-
duct was an extension of actionable conduct would
resurrect stale time-barred conduct. Such a result would

33A

be fundamentally foreign to the purpose of statutes of
limitation.

“Statutes of limitation are vital te the welfare of
society and are favored in the law. They are found and
approved in all systems of enlightened jurisprudence.”
Wood v. Carpenter, 101 U.S. 135, 139 (1879). They balance
“the interests in favor of protecting valid claims” against
“the interests in prohibiting the prosecution of stale
ones.” Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 463-64 (1975).

Once the statutory period has passed, a party can
carry on its affairs with confidence that it need not worry
about contingent liabilities.

[Statutes of limitation] are statutes of repose;
and although affording plaintiffs what the legis-
lature deems a reasonable time to present their
claims, they protect defendants and the courts
from having to deal with cases in which the
search for truth may be seriously impaired by
the loss of evidence, whether by death or disap-
pearance of witnesses, fading memories, disap-
pearance of documents, or otherwise.

United States v. Kubrick, 444 U.S. 111, 117 (1979). Courts
recognize that the application of “statutes of limitation
result in hardship to plaintiffs in some cases.” Steele v.
United States, 599 F.2d 823, 828 (7th Cir. 1979). However,
“alleviation of that hardship is a matter of policy for the
Congress.” Kaltreider Const., Inc. v. United States, 303 F.2d
366, 368-69 (3d Cir.), cert. denied, 371 U.S. 877 (1962).

{Statutes of limitation] are by definition arbi-
trary, and their operation does not discriminate
between the just and the unjust claim, or the

34A

voidable and unavoidable delay. They have
come into the law not through the judicial pro-
cess but through legislation. They present a
public policy about the privilege to litigate.

Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314 (1945)
(footnote omitted). Legislatures enact a statute of limita-
tions to apply to all cases covered by the statute. Since the
legislature is the appropriate body to make such policy
decisions, the only task for the courts is to determine
whether the claim is within the coverage of the statute.

Here, faced with this limited task, the Court deter-
mines that Marshall’s claim is not within the coverage of
the statute.

In the instant case Marshall concedes, and the Court
finds as a matter of law, the alleged conduct that occurred
during the two-year period immediately preceding the
filing of the complaint, that is, the conduct that occurred
after September 12, 1986, was not sufficiently extreme
and outrageous to constitute intentional infliction of emo-
tional distress. Because no “extreme and outrageous”
conduct occurred within the statute of limitations period,
and because Marshall cannot use the continuing tort doc-
trine to resurrect the time-barred conduct under the cir-
cumstances of this case, Marshall’s claim is barred by the
statute of limitations.

Accordingly, defendants’ motions for directed verdict
and jnov on Marshall’s emotional distress claim are
granted based on the two-year statute of limitations.’

? Because the intentional infliction claim should not have
been submitted to the jury, the jury’s findings on this claim are
not binding on the Court. See Section VI, supra.

35A

D. If the Court’s grant of jnov is incorrect as a
matter of law, the Court conditionally grants
defendants’ motion for a new trial

Rule 50 of the Federal Rules of Civil procedure is
titled “Motion for a Directed Verdict and for Judgment
Notwithstanding the Verdict.” Rule 50(c)(l) provides, in
pertinent part:

(c) [Motion for Judgment Notwithstanding the
Verdict]: Conditional Rulings on Grant of
Motion.

(1) If the motion for judgment notwith-
standing the verdict . . . is granted, the court
shall also rule on the motion for new trial, if any,
by determining whether it should be granted if
the judgment is thereafter vacated or reversed,
and shall specify the grounds for granting or
denying the motion for the new trial... .

Fed. R. Civ. P. 50(c)(1).

The Eleventh Circuit has noted “the only conditional
ruling allowed by Fed. R. Civ. P. 50 is a conditional ruling
for a new trial should the trial court’s grant of a motion
for judgment n.o.v. be overruled.” Castle v. Sangamo
Weston, Inc., 837 F.2d 1550, 1561 (11th Cir. 1988).

As indicated previously, the statute of limitations
issue in this case is a difficult and close one. Recognizing
that the Court’s grant of defendants’ motion for judgment
notwithstanding the verdict on statute of limitations
grounds might be reversed on appeal given the split of
authority on the statute of limitations issue, the Court
next proceeds to determine whether the defendants’

36A

motion for new trial should be conditionally granted.
Fed. R. Civ. P. 50(c)(1); see also 9 C. Wright & A. Miller,
Federal Practice and Procedure § 2537-2540 (1971 & Supp.
1991).

In this case, the jury found Noah’s harassment was
extreme and outrageous and awarded compensatory
damages in the amount of $2,500 against Noah. The jury
also found Nelson Electric’s conduct was extreme and
outrageous and awarded compensatory damages in the
amount of $93,000 against Nelson Electric. Because of the
jury’s varying awards of compensatory damages against
Noah and Nelson Electric, and because these varying
awards are so contrary to the evidence, the Court finds
the jury’s verdict may not stand even if the statute of
limitations question was wrongly decided.

Compensatory damages are meant to compensate 4
plaintiff for actual injuries. Moffett v. Gene B. Glick Co., 621
F. Supp. 244, 288 (N.D. Ind. 1985). Such damages are not
intended to provide a windfall to plaintiff. Corporate Air
Fleet of Tennessee, Inc. v. Gates Learjet, Inc., 589 F. Supp.
1076, 1082 (M.D. Tenn. 1984). Nor are they for the pur-
pose of punishing a defendant or deterring similar con-
duct in the future. In Re Klotz, 53 B.R. 148 (D.N.M. 1985).

The jury explained the differing amounts of actual

damages in their responses to special interrogatories. The
jury believed Nelson Electric did not act consistent with
its documented procedures regarding layoffs, “bump
rights,” and recalls. The jury also believed Nelson Electric
had limited procedures concerning the identification of
sexual harassment and had no procedures concerning
how its employees or management personnel were to

37A

deal with the problem. The jury believed Nelson Electric
focused on production rather than on employee relations.
Finally, the jury stated: “Had proper procedures been
documented for sexual harassment and correction, more
of the responsibility would have fallen on Noah.” Special
Interrogatories (Oct. 19, 1990) (Jury’s answer to question
#2).

While the jury clearly found fault with Nelson Elec-
tric’s conduct, which conduct they punished by way of
punitive damages, the varying awards of $93,000 com-
pensatory damages against Nelson Electric and $2,500
compensatory damages against Noah are irreconcilably
inconsistent and against the great weight of the evidence.
Swentek v. U.S. Air, Inc., 830 F.2d 552, 559 (4th Cir. 1987)
(Seventh Amendment does not require the trial court to
conform its findings to a jury verdict that is infirm); see
also Williams v. Cerberonics, Inc., 871 F.2d 452, 458, n.4 (4th
Cir. 1989).

While it is, of course, impossible to determine the
jury’s actual intention when it awarded such drastically
differing amounts of compensatory damages, it is more
likely than not that the awards arose out of the jury
instructions on compensatory damages, which permitted
jury confusion on the issue. Although the jury instruc-
tions may not have made it clear, the injury to Marshall
may not be reasonably or logically divided in the way the
jury attempted to do it. The jury apparently attempted to
apportion damages between the individual defendant
and the deep-pocket corporate defendant. But, if defen-
dants are liable to Marshall for tortious conduct, they are
jointly and severally liable, Bell v. Mickelson, 710 F.2d 611

38A

(10th Cir. 1983), and the jury’s attempted apportionment
of compensatory damages was improper.

Accordingly, the Court conditionally grants defen-
dants’ motion for a new trial pursuant to Federal Rule of
Civil Procedure 50 in the event the Court’s directed ver-
dict/jnov ruling is reversed.

VIII. FINDINGS OF FACT ON MARSHALL’S TITLE
VII CLAIM AGAINST NELSON ELECTRIC

If any finding of fact in this order should more prop-
erly be designated a conclusion of law, it is hereby
deemed a conclusion of law.

A. Stipulated Facts

1. Piaintiff was employed at Nelson Electric from
October 4, 1976 until July 2, 1987.

2. On August 16, 1986, plaintiff was laid off from
Department 411 and chose to bump into Department 710.

3. Luther Noah’s employment with Nelson Electric
ceased as of November 1, 1986.

4. On June 15, 1987, plaintiff voluntarily chose to be
laid off from Department 710 and chose to bump into
Department 411.

5. Effective July 2, 1987, plaintiff and Jackie Howell
were laid off from Department 411.

6. Plaintiff filed a formal complaint of sexual
harassment with the Oklahoma Human Rights Commis-
sion on December 16, 1987.

39A

7. On September 12, 1988, plaintiff filed this law-
suit.

B. Noah’s conduct and Marshall’s participation in
the sexually charged atmosphere

1. Marshall was an employee of Nelson Electric, a
Unit of General Signal Corporation, from October 4, 1976
to July 2, 1987. In 1978, Marshall transferred into the
Modification (“Mod”) Center of Department 411, Cast
Assembly. Approximately four women worked in the
Mod Center as regular employees in 1985 and 1986.
Department 636, Flame Seals or firestop putty, was added
to the workload of Department 411 in the mid-80’s. For
all accounting and labor reports, Department 636 work
was treated as part of Department 411. During the years
1985 and 1986, while employed with Nelson Electric and
working in Department 411 with foreman Noah, Marshall
was subjected to numerous specific instances of sexual
harassment. This harassment was not made a condition of
her continuing employment. She was the victim of offen-
sive touchings by Noah and was subjected to sexual
comments and innuendos by Noah.

2. Noah also subjected other women, including
Juanita Holloman, to similar harassments, but of less
magnitude.

3. Specifically, Noah would call Marshall up to his
~ desk and show her pornographic pictures, read sexual
acts from the Bible to her, comment about her body, tell
her that he would like to do specific sexual things to her.

40A

4. Marshall's version of the alleged harassment was
seriously called into question. Moreover, sexual harass-
ment was an unlikely source of Marshall’s emotional
problems. Her treating physician, Dr. Chop, credibly
demonstrated this point.

(a) Chop began treating Marshall on January
14, 1988, for pain, numbness and physical complaints. He
last saw her on March 29, 1988. Despite the fact the Chop
treated Marshall for two months, absent from Chop’s
testimony and medical records is any prelitigation refer-
ence by Marshall to sexual harassment at her workplace.
Instead, Marshall blamed her symptoms on a work-
related injury that occurred in March 1987.

(b) According to Chop, Marshall specifically
attributed her weight gain problem to the worker’s com-
pensation accident. She also related to Chop a suicide
attempt which resulted from her husband beating her. In
Chop’s opinion, it was “almost impossible” to determine
the source of Marshall’s many problems, including
depression. Chop credibly testified that sexual harass-
ment was an unlikely cause of Marshall’s emotional prob-
lems.

(c) Nelson Electric’s exhibit 54 contains Dr.
Chop’s notes as well as several other papers. The third
page of the exhibit, bearing a page number of 499, con-
tains Chop’s notes of the oral history given by Marshall
to Chop during Marshall's initial visit. There is no refer-
ence to any sexual harassment. It states in part:

Patient presents with long, somewhat vague his-
tpry of ten months of problems with pain in her
neck, back and numbness extending into the

41A

arms and the hands with a very worried affect
about this. .. . She has had a normal EMG on the
left upper extremity where she has experienced
most of her numbness and shooting pain a
month after the initial work accident which
occurred 3/2/87, where she was spun around
by a machine... .

(d) The next page of exhibit 54, bearing page
number 500, contains Chop’s notes regarding Marshall's
visit of January 27, 1988. There is no reference to harass-
ment. There is mention, however, of Marshall’s suicide
gesture, which Chop described in part as follows:

In addition, patient has transverse scars on the
left wrist from a suicidal gesture about ten to 15
years ago that resulted when her husband was
beating her quite a bit.

(e) Chop also noted that Marshall had a
“{hjistory of being abused by her current husband.” The
notes regarding Marshall’s visits of February 25, 1988,
and March 29, 1988, are shown on pages 503 and 504 of
the exhibit. There is no reference to any harassment. The
only reference to any harassment in the entire exhibit is
contained on pages 505-506 which is the note Marshall
gave to Chop on April 5, 1988.

(f) The note, which was written for litigation
purposes, states in part:

Dr. Chop my lawyer needs a copy from you, & |
am also getting one from my pshyc., Dr. Farley.
He needs the date in Jan. that I first came in and
put me on med. & referred me to pshyc.

1. Date in Jan. temporarily disabled to work
due to harassment from work &/or injury.

42A

My lawyer is putting me back on drawing work-
man’s comp. again & making them pay for my
pshyco. but he also needs the copy from you
that started temp. disabled to work starting
Jan. ...

During his testimony, Chop discussed this note and his
refusal to provide Marshall’s attorney the information
requested by Marshall because, according to Chop, he
“wasn’t willing to try to make this appear to be a work-
related injury.”

(g) Nelson Electric’s exhibit 55 contains eleven
pages in Marshall's handwriting, explaining her prob-
lems. There is no reference in the exhibit to any alleged
harassment. Marshall admitted during her cross-exam-
ination that she prepared this document for Chop to
describe the pain that she was suffering.

5. Noah was a poor witness as well. His testimony
was likewise impaired on cross-examination by plaintiff's
counsel. Moreover, it was clear to the Court that Noah
was, indeed, a “dirty old man.” Unfortunately, however,
many of Marshall’s claims regarding Noah were exagge-
rated, with the Court being left to sift through the tat-
tered remains of the credibility of these two witnesses.
The Court finds that the truth is somewhere between the
two versions advanced, but only as reflected in these
findings. Significantly, however, the Court finds that the
harassment and sexual atmosphere discussed in this
Order was not made known to Nelson Electric's manage-
ment until late in the game, and when it was, Nelson took

proper remedial action.

43A,

6. Marshall welcomed much of Noah’s conduct and
did not find it offensive on many occasions. On other
occasions she asked Noah to leave her alone.

on

7. On cross-examination, Marshall acknowledged
she also used “dirty talk” in the workplace; admitted —
from time to time she had asked others at work whether
they had sex the night before; admitted she did not
mention sexual harassment in the union grievance she
pursued in connection with her layoff; conceded she was
involved in an incident when Noah’s pants were pulled
down at work; and acknowledged that despite this
alleged harassment at the hands of Noah, she repeatedly
contacted Nelson Electric management after her transfer
to another department asking to be transferred back into
Noah’s department and placed under his supervision.
Several other witnesses corroborated Marshall’s central
role in the sexually charged atmosphere of Department
411.

8. While working in Department 411, Marshall
molded firestop putty, a product of Nelson Electric, into
penises and figures with large genitals. These molded
figures were proudly displayed by Marshall and by her
co-employees in Department 411, Metta McGee, Juanita
Holloman and Pat Souhrada McDannald. Marshall's co-
employees testified that Marshall made many of the pen-
ises, at least as many as the other employees, and seemed
to enjoy making them. This rebuts Marshall's testimony

that she only made one such penis in an attempt to
embarrass Noah so that he would quit making them.
Marshall’s rebutted testimony is rejected by the Court.

44A

9. The Court also rejects Marshall’s claim that on
Friday, August 8, 1986, Noah pressured her to meet him
at his church to have sex. The Court further rejects the
notion that a heated argument ensued when Marshall
refused, that Noah threatened to lay her off, and that in
retaliation Noah informed Marshall on the next Monday
that she was being iaid off. The Court finds this testi-
mony unworthy of belief.

10. Marshall was not subjected to continuous and
relentless instances of sexual harassment by Noah, as she
alleges, especially when viewed in light of her own con-
duct, the indications she gave to her co-workers regard-
ing such conduct, the totality of circumstances and the
context and environment of Department 411. Acquies-
cence in sexual harassment was not a condition of her
continuing employment. Marshall was a leading partici-
pant, if not the leader, in the sexually charged environ-
ment, according to the credible testimony of her co-
workers, witnesses Metta McGee, Pat Sourhada, Juanita
Holloman, and of Noah.

11. Noah did not keep Marshall out of Department
411 in retaliation for her refusal to have sex with him.

12. After Marshall left Department 411 and began
working in Department 710, Noah did not continue to
harass her. As Marshall testified, the harassment “pretty

much stopped” at that time. The Court finds it stopped
altogether after Marshall left Department 411.

45A

C. Additional findings regarding liability of
Nelson Electric.

1. On June 30, 1986, John Fitzgerald, the Union
Shop Steward, told Bill Coleman, Human Resources Spe-
cialist for Nelson Electric, that there was a problem with
“dirty talk” in Department 411 but that he believed he
had solved the problem, that Coleman did not need to
take any action, and that if he needed assistance from
Coleman in the future he would notify Coleman.

2. As the Union Shop Steward, Fitzgerald was
responsible for handling Marshall’s complaints and Cole-
man was justified in relying upon Fitzgerald’s representa-
tions that he believed he had the problem concerning
“dirty talk” in Department 411 solved. Both Fitzgerald
and Coleman thereafter checked the Department 411
work area on occasion and observed no problem. After
June 30 and until October 20, 1986, Marshall did not
complain again. Indeed, in September of 1986, after she
had been laid off from Department 411 and bumped into
Department 710, she filed a grievance seeking to return.to
Department 411. These circumstances were further indi-
cations to Nelson Electric that Marshall did not object to
the environment in Department 411. On October 20, 1986,
Marshall complained directly to Nelson Electric for the
first time.

3. On August 16, 1986, Marshall was laid off from
Department 411 solely due to economic conditions.
Orders for products im ‘te Marshall's product group
decreased significantly tor four to six weeks before Mar-
shall was laid off. Labor hours in Marshall’s product
group also decreased at the time Marshall was laid off.

46A

4. After her layoff from Department 411, and while
Noah still worked in that department, Marshall continu-
ously attempted to return to the department. Marshall
testified at her arbitration hearing: “[I] was continuously
trying to get back into Department 411.”

5. Ultimately, on October 20, 1986, Marshall com-
plained about the harassment to the President of Nelson
Electric, Ivan Ellsworth, and also filed her complaint with
the EEOC thereafter. Ellsworth instructed the Human
Resources Department to conduct an investigation, which
it did. Bill Coleman, the Human Resources Manager for
Nelson Electric, took recorded statements of the
employees in the Mod Center.

6. Nelson Electric took immediate action after
receiving Marshall’s written complaint. An investigation
was conducted and Marshall’s coworkers were inter-
viewed. Upon completion of the investigation Noah was
notified that he would no longer work at Nelson Electric
effective November 1, 1986. After November 1, 1986,
Marshall had no contact with Noah until she filed this
lawsuit.

7. On July 2, 1987, Marshall and a male coworker
were laid off from Department 411. Upon being notified
of this layoff, Marshall read and signed a form indicating
she did not wish to bump into any other position.

8. During 1986 and 1987 the non-salaried work-
force at the plant where Marshall worked decreased from
198 to 115 employees. The economic downturn in Depart-
ment 411 merely reflected the continuing decrease in the
overall work force at Nelson Electric during these years.

47A

9. Marshall's layoffs were accomplished pursuant to
and in compliance with the terms of the Collective Bar-
gaining Agreement.

10. Moreover, Noah was not acting within the scope
of his authority as a foreman at Nelson Electric when he
sexually harassed Marshall.

11. Nelson Electric had established an effective
means for employees to voice complaints of harassment
without having to go through the alleged harasser, and
had a policy against sexual harassment.

D. Other factual findings

1. The Court finds Marshall belongs to a protected
group.

2. The Court finds Marshall was subject to
unwanted sexual harassment by Noah between 1985 and
August 12, 1986.

3. However, the Court also finds that although
Noah was a foreman, he was not a supervisory employee
within the meaning of Title VII. Thus, Nelson Electric is
not automatically liable for the acts of Noah under Title
VII. Rather, Nelson Electric is liable for the acts of Noah
only if it knew or should have known of the harassment
and failed to take appropriate remedial action.

4. The Court finds Nelson Electric, through its offi-
cers and supervisors, neither knew nor should have
known of the sexual harassment by Noah until October
1986.

48A

5. Moreover, the Court finds that once Nelson Elec-
tric was made aware of the harassment, Nelson took
proper Temedial action. Nelson did not ignore the con-
duct of Noah, nor did Nelson acquiesce in the conduct of
Noah.

6. The Court finds that none of the layoffs of Mar-
shall were due to sexual discrimination. Rather the lay-
offs were due solely to economic motives concerning the
business turndown at Nelson Electric and/or the lack of
work in Department 411.

7. The Court concludes Marshall was not laid off in
retaliation for her complaint about harassment.

IX. CONCLUSIONS OF LAW ON MARSHALL’S
TITLE VII CLAIM AGAINST NELSON ELECTRIC

If any conclusion of law in this order should more
properly be designated a finding of fact, it is hereby
deemed a finding of fact.

1. 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 or
her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color,
religien, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
The phrase “terms, conditions, or privileges of employ-
ment” encompasses the entire spectrum of disparate
treatment of men and women in employment. Meritor
Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986).

2. Sexual harassment is a form of employment dis-
crimination prohibited by Title VII: Id. at 65; Jones v.

49A

Flagship Int’l., 793 F.2d 714, 719 (5th Cir. 1986), cert. denied,
479 U.S. 1065 (1987).

3. Circuit courts have expressed their strong con-
cern for the “menace of sexual harassment in the work-
place.” See, e.g., Starett v. Wadley, 876 F.2d 808, 815 n.9
(10th Cir. 1989); see also Williams v. Maremont Corp., 875
F.2d 1476, 1477 and 1485 (10th Cir. 1989) (employer had
legal right to terminate supervisory employee based in
part on evidence that he pulled down his zipper and told
female employee “if you want.it here it is”).

4. Two distinct forms of sexual harassment are
actionable under Title VII: (a) quid pro quo and (b) hos-
tile work environment. Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). See also Meritor, 477 U.S. at 66.

5. In this case Marshall sought relief under the hos-
tile work environment theory.

6. In order to state a prima facie case under the
hostile work environment theory Marshall must prove:

a. she belongs to a protected group;

b. she was subject to unwelcome sexual
harassment;

c. the harassment was based on sex;

d. the harassment affected a “term, condi-
tion, or privilege” of employment; and

e. Nelson Electric knew or should have
known of the harassment in question and failed
to take proper remedial action.

Jones v. Wesco Investments, Inc., 846 F.2d 1154, 1156 (8th
Cir. 1988).

50A

7. “[N]jot all workplace conduct that may be
described as “harassment” affects a ‘term, condition, or
privilege’ of employment within the meaning of Title
VII.” Meritor, 477 U.S. at 67. “For sexual harassment to be
actionable, it musi be sufficiently severe or pervasive ‘to
alter the conditions of employment and create an abusive
working environment.’” Id. (quoting Henson v. City of
Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). “[T]Jhe trier of
fact must determine the existence of sexual harassment in
light of ‘the record as a whole and ‘the totality of circum-
stances, such as the nature of the sexual advances had the
context in which the alleged incidents occurred.’ ” Meri-
tor, 477 U.S. at 69 (quoting 29 C.F.R. § 1604.11(b) (1985)).

8. Courts may properly resort to EEOC guidelines
for guidance in sexual harassment cases. Meritor, 477 U.S.
at 65.

9. Title 29 C.F.R. § 1604.11 sets forth the EEOC
guidelines defining sexual harassment.

(a) Harassment on the basis of sex is a viola-
tion of Sec. 703 of Title VII. Unwelcomed sexual
advances, requests for sexual favors, and other
verbal or physical conduct of a sexual nature con-
stitute sexual harassment when .. . (3) such con-
duct has the purpose or effect of unreasonably
interfering with an individual’s work performance
or creating an intimidating, hostile, or offensive
working environment.

* * *

(c) Applying general Title VII principles,
an employer . . . is responsible for its acts and
those of its agents and supervisory employees with
respect to sexual harassment regardless of

51A

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 occurrence. . . .

(d) With respect to conduct between fellow
employees, an employer is responsible for acts of
sexual harassment 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 immedi-
ate and appropriate corrective action.

29 C.F.R. § 1604.11 (a),(c),(d) (1988) (emphasis added).

10. In Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986),
the United State Supreme Court rejected the standard of
strict liabiiity of an employer for sexual harassment by its
supervisors in a hostile work environment claim.®

11. Title VII defines “employer” to include any
“agent” of the employer. Thus, the determination
depends on agency principles. In Meritor, the Supreme
Court discussed the issue of employer liability for the
acts of its employees, but “decline[d] to issue a definitive
rule on employer liability.” Meritor, 477 U.S. at 72.

The trial court in Meritor had determined that the
bank (employer) was not liable because it did not have
notice of the alleged conduct, finding that notice to the
alleged harasser (who was the vice president of the bank

® Prior to Meritor the EEOC and some cases held the
employer strictly liable for the acts of its supervisors, regardless
of knowledge; other courts held that the employer was liable
only if it knew or should have known of the harassment and
failed to take prompt remedial action. Henson, supra; Katz v.
Dole, 709 F.2d 251 (4th Cir. 1983).

52A

and the manager of the branch office where the conduct
occurred) was not the equivalent of notice to the bank.
The Court of Appeals took the opposite view and held
the bank strictly liable for the manager’s conduct even
though the bank did not know and could not reasonably
have known of the alleged misconduct. The Court of
Appeals held that “a supervisor, whether or not he pos-
sesses the authority to hire, fire, or promote, is neces-
sarily an ‘agent’ of his employer for all Title VII purposes,
since ‘even the appearance’ of such authority may enable
him to impose himself on his subordinates.” Id. at 69-70.

The Supreme Court rejected the strict liability view
adopted by the Court of Appeals. The Supreme Court
described the varying positions taken by the plaintiff, the
defendant, and the EEOC (amicus curiae), but declined to
adopt any of those positions. Instead, the Court said:

We do agree that Congress wanted courts to
look to agency principles for guidance in this
area... . Congress’ decision to define ‘employer’
to include any ‘agent’ of the employer surely
evinces an intent to place some limits on the acts
of employees for which employers under Title
VII are to be held responsible. For this reason,
we hold that the Court of Appeals erred in
concluding that employers are always automat-
ically liable for sexual harassment by their
supervisors. See generally Restatement (Second)
of Agency §§ 219-237 (1958). For the same rea-
son, absence of notice to an employer does not
necessarily insulate that employer from liability.
Id.

in addition, the Supreme Court rejected the view that the
mere existence of a policy against discrimination and a

53A

grievance procedure coupled with the plaintiff’s failure
to invoke the procedure, necessarily insulates the
employer. In Meritor the policy was a general one and did
not address sexual harassment in particular; moreover,
the grievance procedure required the complainant to
complain first to the direct supervisor who, in this case,
was the alleged harasser. Meritor, 447 U.S. at 72-73.

12. In Hicks v. Gates Rubber Co., 833 F.2d 1406,
1417-18 (10th Cir. 1987), the Tenth Circuit described its
application of the agency principles suggested by the
Supreme Court in Meritor. The Tenth Circuit said:

We find guidance in the Restatement (Sec-
ond) of Agency § 219 (1958). Under § 219(1), an
employer is liable for any tort committed by an
employee “while acting in the scope of . . . em-
ployment.” Id. However, as one commentator
noted, ‘a sexual harassment simply is not within
the job description of any supervisor or any
other worker in any reputable business.’ Thus,
‘confining liability . . . to situations in which a
supervisor acted within the scope of his author-
ity conceivably could lead to the ludicrous
result that employers would become account-
able only if they explicitly require or con-
sciously allow their supervisors to molest
women employees.

Although § 219(1) . . . provides scant assis-
tance in assessing employer liability under Title
VII, § 219(2) is more helpful. In particular,
§ 219(2) creates employer liability when (1) the
master was negligent or reckless, and (2) where
the servant purported to act or to speak on
behalf of the principal and there was reliance on

54A

apparent authority, or he was aided in accom-
plishing the tort by the existence of the agency
relation.

Hicks, 833 F.2d at 1418 (citations omitted). With those
principles in mind, the Tenth Circuit remanded, noting
that “Gates might be liable for the acts of sexual harass-
ment of Gleason.” Id. at 1418. (Gleason was a supervisor
at Gates Rubber Company.)

13. The following factors, though not exclusive, are
relevant to determining employer liability for its own
conduct in allowing a hostile environment situation to
occur:

a) notice to the employer and the employer’s
failure to take prompt remedial action;

b) the lack of any policy against sexual harass-
ment;

c) the lack of an established or effective means
for employees to voice complaints of harass-
ment without having to go through the alleged
harasser;

d) pervasive and long continuing harassment
which would constitute constructive knowledge
to the employer.

14. Unlike the quid pro quo case, a hostile work
environment claim may arise from the harassing conduct
of co-employees. Where non-supervisors are involved, the
general rule is that the employer is liable only when it
has actual or constructive knowledge of the harassment
and fails to take immediate and appropriate remedial
action. Baker v. Weyerhaeuser Co., 903 F.2d 1342 (10th Cir.
1990); Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir.

55A

1986); Barrett v. Omaha National Bank, 726 F.2d 424, 427
(8th Cir. 1984).

15. The Court concludes Marshall belongs to a pro-
tected group.

16. The Court concludes Marshall was subject to
unwanted sexual harassment by Noah between 1985 and
August 12, 1986.

17. However, the Court also concludes that
although Noah was a foreman, he was not a supervisory
employee within the meaning of Title VII. Thus, Nelson
Electric is not automatically liable for the acts of Noah
under Title VII. Rather, Nelson Electric is liable for the
acts of Noah only if it knew or should have known of the
harassment and failed to take appropriate remedial
action.

18. The Court concludes Nelson Electric, through its
officers and supervisors, neither knew nor should have
known of the sexual harassment by Noah until October
1986.

19. Moreover, the Court concludes that once Nelson
Electric was made aware of the harassment, Nelson took
proper remedial action. Nelson did not ignore the con-
duct of Noah, nor did Nelson acquiesce in the conduct of
Noah. Unlike Baker v. Weyerhaeuser, 903 F.2d 1342, 1347
(10th Cir. 1990), here the employer, Nelson Electric, did
not engage in an “utter failure through its officers and
supervisors to take action against [co-worker] Caldwell, a
known sexual harasser of females.” Here, Nelson did not
ignore or acquiesce in the conduct of its employee Noah.

56A

To the contrary, Nelson investigated the matter and Noah
was removed.

20. The Court concludes that none of the layoffs of
Marshall were due to sexual discrimination. Rather the
layoffs were due solely to economic motives concerning
the business turndown at Nelson Electric and the lack of
work in Department 411.

21. The Court concludes Marshall was not laid off
in retaliation for her complaint about harassment.

22. Marshall is not claiming in this lawsuit that her
layoff from Department 411 in August, 1986, and the
subsequent denials of recall to Department 411, were
violations of Title VII.

23. Nelson Electric committed no acts toward Mar-
shall which constitute sexual harassment or which cre-
ated a hostile work environment, either when analyzed
subjectively or objectively, in light of Marshall’s own
conduct and the work atmosphere in Department 411.
Marshall’s conduct indicates that the work environment
at Nelson Electric was not offensive or unwelcome to her.

24. Nelson Electric is not responsible or liable under
Title VII for the improper conduct of Noah. Nelson Elec-
tric was not negligent or reckless in handling Marshall’s
complaints, and Marshall has not proven that Noah, in
engaging in the offensive conduct, purported to speak or
act on behalf of Nelson Electric, relied upon apparent
authority from Nelson Electric, or that his offensive con-
duct was aided by the existence of an agency relationship
with Nelson Electric.

57A

25. Marshall has not satisfied her burden of proving
that a discriminatory motive played a part in her layoff
on July 2, 1987.

26. Nelson Electric established a proper non-dis-
criminatory economic motive for laying Marshall off in
August, 1986 and June, 1987. Marshall has not satisfied
her burden of showing that such motive was mere pretext
for discrimination.

27. Marshall was laid off pursuant ot [sic] the terms
of the valid and binding collective bargaining agreement
in effect at Nelson Electric.

28. The Arbitrator’s decision rendered as a result of
Marshall's grievances is entitled to substantial weight.

X. BILL OF COSTS

Marshall filed a bill of costs to which defendants
objected. In light of this Order, Marshall's bill of costs is
DENIED and defendants’ objections are deemed MOOT.

XI. ATTORNEY’S FEES

Title 42 U.S.C. § 2000e-5(k) grants the Court discre-
tion to award attorney’s fees to the prevailing party in a
Title VII action and the Supreme Court has clearly
defined the standard for making such an award to a
prevailing defendant. A defendant is entitled to recover
attorney’s fees in a Title VII action only if the Court
makes a finding that the action was brought in bad faith
or was frivolous, unreasonable, or without foundation.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978);

58A

EEOC v. St. Louis-San Francisco R.R., 743 F.2d. 739, 744
(10th Cir. 1984).

In the instant case, the Court is not able to make such
findings. The issues were both novel and complex and there
were numerous close legal and factual questions. Indeed, the
statute of limitations question was sufficiently close that the
Court took the matter under advisement.

While counsel for both sides were contentious at
times and the case was hard fought by both sides, the
Court finds Marshall's Title VII action was not brought in
bad faith and cannot be characterized as frivolous, unrea-
sonable or without foundation.

Accordingly, defendants are not entitled to recover
their attorney fees as the prevailing party in this matter.

XII. JUDGMENT

A judgment in favor of defendants accompanies this
Order, and is filed separately. The Court’s previous par-
tial judgment entered on October 29, 1990, in favor of
Marshall on the intentional infliction of emotional dis-
tress claim is now withdrawn. The accompanying judg-
ment represents the final judgment of this Court in this
matter.

IT IS SO ORDERED THIS 21st DAY OF JUNE 1991.
/s/ Layn R. Phillips
LAYN R. PHILLIPS
UNITED STATES
DISTRICT JUDGE

59A

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

DEBORAH S. )
MARSHALL,

Plaintiff, No. 88-C-1213-P
v.

NELSON ELECTRIC, a
Unit of General Signal, et
al.,

eee eee ee”

Defendants.

JUDGMENT
(Filed June 21, 1991)

In accordance with the Court's order granting defen-
dants’ motions for judgment notwithstanding the verdict
on plaintiff’s intentional infliction of emotional distress
claim, together with findings of fact and conclusions of
law on plaintiff’s Title VII non-jury claim, entered this
same date, the Court hereby enters JUDGMENT in favor
of defendants Luther Noah and Nelson Electric and
against plaintiff Deborah S. Marshall on plaintiff’s claim
of intentional infliction of emotional distress, and JUDG-
MENT in favor of defendant Nelson Electric and against
plaintiff Deborah S. Marshall on plaintiff's Title VII claim.

DATED THIS 21st DAY OF JUNE 1991.

/s/ Layn R. Phillips
LAYN R. PHILLIPS
UNITED STATES
DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0632%3A1. Public record. Not legal advice.