Opposition Brief — OI-NEG TV Products, Inc. v. Durko

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MAR 18 1997

No. 96-1263

CLERK

In The

Supreme Court of the United States

“-

October Term, 1996

OI-NEG TV PRODUCTS, INC.,

Petitioner,

VS.

CARMELA F. DURKO,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

RESPONDENT?’S BRIEF IN OPPOSITION

KIMBERLY D. BORLAND

Counsel of Record

DAVID P. TOMASZEWSKI

BORLAND & BORLAND

Attorneys for Respondent

i100 PNC Bank Building

69 Public Square

Wilkes Barre, Pennsylvania 18701

(717) 822-3311

70322 be

(800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21

QUESTIONS PRESENTED

1, Whether the courts below properly upheld the factual

finding of the jury that the employer had actual and/or

constructive notice that Ms. Durko was being sexually harassed?

2. Whether the courts below properly upheld the factual

finding of the jury that the employer had an opportunity to

demonstrate the effectiveness of its grievance procedure, and

that such procedure was ineffective?

TABLE OF CONTENTS

Questions Presented ........--.eeeeeeeeeeeeceees

Table of ComteatS .. 2. ccccccccccccccctccccccsess

Table of COMORES co oc cc ccececcccctcesceusceseces

Statement of the Case ........... cc ecceececcccces

A. Procedural History ...........2eeeeeeeeees

B. Factual Background ..............-+-+-++:-

Reasons for Denying the Writ ..........-----++++:

Standard for Granting the Writ of Certiorari .......

I The Courts Below Properly Upheld The Factual

Finding Of the Jury That The Employer Had

Actual And/Or Constructive Notice That Ms.

Durko Was Being Sexually Harassed. ........

Il. The Evidence At Trial Did Not Establish That The

Employer Had An Effective Grievance Procedure,

That Such Procedure Was Known to Ms. Durko,

And That Ms. Durko Failed To Avail Herself Of

That Grievance Procedure. ............+++--

Dentin... oc ncncincedéwshebusescoensnseneans

ili

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Andrews v. City of Philadelphia, 895 F.2d 1469 (3rd Cir.

RE eS are re ee 9

Bouton v. BMW of North America, 29 F.3d 103 (3rd Cir.

Sr ee ee re 8, 9, 12, 13, 15

Davis v. United States, 417 U.S. 333 (1974) ........ 7

General Copy Pictures Corp. v. Western Electric Co., 304

U.S. 175, 82 L. Ed. 1273, 58 S. Ct. 849 (1938)... 6,7

Henson v. Dundee, 682 F.2d 897 (11th Cir. 1982) ... 11

Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) ......... 9

Layne & Bowler Corp. v. Western Well Works, 261 U.S.

EE ee tae Cesah Ee TNR eROCeheeeoese 7

Meritor Savings Bank, F.S.B., 477 U.S. 57 (1986) ... 9, 15

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498 (1951) ... 7

Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70

EE ee eee ee ee eee ee 7

Taylor v. United States, 493 U.S. 906 (1989) ........ 7

Wisniewski v. United States, 353 U.S. 901 (1957) .... 7

Contents

Page

Statutes Cited:

42 U.S.C. § 2000e-2(a), ef seg. ....... cece cee eee ]

SD Pe. Goa B Det, WO oo iss bon cv iccews sveees 1

Rules Cited:

Dupree Court Rule 10 ......0cccccwsesccvevcess ie ae

Supreme Court Rule 10(c) ...........cccccccccces 8

Other Authorities Cited:

Restatement (Second) of Torts § 219 ............... 9

13 James W. Moore, ed., Moore’s Federal Practice, para.

810.21, SC 10-23 (2d ed. 1995) ................ 7

STATEMENT OF THE CASE

A. Procedural History

This action was commenced by Complaint filed by Carmela

F. Durko on August 17, 1993, setting forth a cause of action

against OI-NEG TV Products, Inc., hereinafter “Employer,” for

discrimination in violation of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2(a), et seq., as well as a claim of

discrimination based on sex pursuant to the Pennsylvania Human

Relations Act, 43 Pa. C.S.A. § 951, et seq. (App. 12-94).'

The Complaint further sets forth similar causes of action

against Glass, Molders, Pottery, Plastics & Allied Workers

International AFL-CIO, CLC No. 243, hereafter “Union” for

discrimination in violation of Title VII and the PHRA. (Jd.).

A jury trial commenced on September 20, 1994 and

concluded on September 26, 1994. With respect to the Employer,

the jury found that Ms. Durko proved by a preponderance of the

evidence that she was subjected to hostile environment sexual

harassment, and that the Employer was aware that she was being

subjected to a sexually hostile work environment and failed to

take appropriate corrective action (App. 132-135). The jury

awarded compensatory damages from Employer in the amount

of fifty thousand dollars ($50,000) (App. 133).

With respect to the Union, the jury found that Ms. Durko

proved by a preponderance of the evidence that she was

subjected to hostile environment sexual harassment and that the

Union discriminatorily failed to pursue sexual harassment

grievances on her behalf (App. 134). The jury awarded fifty

1. “App.” refers to the joint appendix filed with the Court of Appeals

for the Third Circuit.

thousand dollars ($50,000) in compensatory damages and twenty

five thousand dollars ($25,000) in punitive damages from the

Union (App. 134-135). Judgment was entered by the District

Court on September 28, 1994 (App. 423).

On or about October 12, 1994, both Employer and Union

filed post-trial motions (App. 428-438). The motions of the

Employer and Union were denied by the District Court by

Memoranda and Orders dated December 29, 1995 and December

31, 1995 respectively (App. 1653-1691, 1672-1694).

The Employer filed its appeal to this Honorable Court on

January 26, 1996 (App. 1695) with the Union filing its appeal

on January 29, 1996 (App. 1696).

The Employer and Union filed appeals to the Third Circuit

which were denied by Order dated November 12, 1996.

B. Factual Background

Carmela Durko became employed by Employer on or about

March 31, 1986 (App. 15). At all relevant times, Ms. Durko

was a member of Local 243 of the Glass, Molders, Pottery,

Plastic & Allied Workers International Union AFL-CIO-CLC,

hereinafter “Union” (App. 15).

The issues pertinent to the present Petitions arise from the

jury’s finding that Ms. Durko was subjected to hostile work

environment sexual harassment of which the Employer was

aware, and failed to take appropriate action, as well as the finding

that the Union discriminatorily failed to pursue sexual

harassment grievances on Ms. Durko’s behalf (App. 132-135).

The jury found for the Employer and Union with respect to

Ms. Durko’s claim that she was removed by the Employer from

her position as Assistant Furnace Operator because of her sex,

and that her gender was a determinative factor in the Union’s

decisions involving resolution of Ms. Durko’s grievances relative

to such removal. These verdicts in favor of the Employer and

Union relative to Ms. Durko’s claim of recall rights to the

Assistant Furnace Operator’s position have not been appealed

and therefore are not before this Honorable Court.

The sexual harassment of Ms. Durko began in June of 1991

when she began working in the Batch and Furnace Department

as an Assistant Furnace Operator (App. 16). Ms. Durko was

initially given a tour by her foreman, Ron Walsh, during which

Ms. Durko was made to crawl under the extremely hot furnace

and go to the batch house to a height of approximately five stories

(App. 541-545). The only protective equipment given to Ms.

Durko to wear during this tour was a pair of paper coveralls,

when the required safety equipment consisted of material

coveralls and a respirator to prevent the inhalation of dangerous

chemicals (App. 541-550).

Ms. Durko testified that from her observations of men being

taken on similar tours, none were taken underneath the furnace

(App. 675).

During the time Ms. Durko worked as an Assisiant Furnace

Operator, Mr. Walsh, her foreman and a member of management,

would continually call Ms. Durko vile and disgusting names

containing references to her gender, such as “dumb cunt” and

“stupid bitch” (App. 564). Regarding the time it would take Ms.

Durko to qualify as an Assistant Furnace Operator, Mr. Walsh

stated that it would take her eighteen months to be qualified,

and if she would be “nice to him”, it would take her nine months

(App. 563). Ms. Durko immediately made Mr. Walsh aware of

her anger regarding such comment (App. 564).

On one of David Troutline’s tours, Ms. Durko was requested

to push a heavy charger to see if she could handle the job (App.

582). After Ms..Durko pushed the charger with all of her might,

and she could not do it, Mr. Troutline stated “Well, that’s part of

your job duties. If you can’t do that, well then you should turn

down the job” (App. 616). During this incident, Mr. Troutline

purposely neglected to tell Ms. Durko that the brake was on,

with Ms. Durko only finding out that the brake was engaged

when another worker approached her and took the brake off

(App. 582).

Ms. Durko was also sexually harassed by Tom Wozniak, a

Furnace Operator in the Batch and Furnace Department. During

her initial five day trial period at the position of Assistant Furnace

Operator, Mr. Wozniak would tell her that she “broke the barrier”

by being the first woman as an Assistant Furnace Operator, kept

taking her on tours of the “hot spots” of the department and

repeatedly told her “You’!l never do it. You’ll never make it”, as

well as telling her “It’s not a job for a woman” (App. 554-555).

While working with Ms. Durko, Mr. Wozniak would remark

that she was “flat chested” approximately once a day for the

eighteen month period Ms. Durko was in the Batch and Furnace

Department (App. 573).

Approximately three months after she had begun the

position in June of 1991, Mr. Wozniak began throwing hard cover

books at her whenever he would get angry, striking her on one

occasion (App. 570, 684).

Walter Snopeck, who was tasked with training Ms. Durko

as an Assistant Furnace Operator, also called her crude names

containing references to her gender, such as “dumb cunt” and

“stupid bitch,” plenty of times during the period of time she

worked in the Batch and Furnace Department (App. 567-568).

Regarding the incidents of sexual harassment, Ms. Durko

made reports to Union Stewards Randy Robbins, Mike Lieback,

Joe Thomson, Gene Warnick, and Tom Yankey, as well as Union

President Peter Moska and Union Business Agent Joseph Lutecki

(App. 565-571, 574-585). Although certain Union

Representatives fiied grievances regarding Ms. Durko’s recall

rights, no Union Representative would submit a sexual

harassment charge, despite repeated requests by Ms. Durko

(App. 583).

Ms. Durko filed a Complaint with the Pennsylvania Human

Relations Commission on August 4, 1992, containing, inter alia

allegations of a sexually hostile work environment by. both

Employer and Union (App. 279).

Margaret Guffrovich, a witness for Employer, stated that

such complaint was served on Employer as early as September,

1992 (App. 1439).

Further, at trial, it was Stipulated as fact by the Employer

and all other parties that the Employer had actual notice of Ms.

Durko’s complaints of sexual harassment by Mr. Walsh, a

member of management. The stipulation of fact was as follows:

Union President, Peter Moska, asked

Margaret Guffrovich, from personnel, to

investigate Ms. Durko’s complaints of

harassment against Mr. Walsh. After speaking

with Mr. Walsh, Ms. Guffrovich reported

back to Mr. Moska that there was no basis

for Ms. Durko’s complaints.

(App. 525).

Mr. Moska also confirmed the reports of sexual harassment

to the Personnel Department (App. 1325-1335).

Mr. Walsh testified that he attended a meeting with Margaret

Guffrovich and Mary Reynolds, another member of

management, regarding the allegations of harassment, after

which he did not hear back from either member of management

and was not disciplined (App. 991-996).

On January 13, 1993, Ms. Durko was transferred to the

Forming and Selecting Department because her temporary bid

as Assistant Furnace Operator had expired (App. 588). Ms.

Durko was subjected to being called a variety of vulgar names

over the public address system, accompanied by loud moaning,

with her name being loudly screamed (App. 593). It was Ms.

Durko’s unrebutted testimony that she told her foreman, Lenny

Brown, about this (id.), as well as Union President Peter Moska.

Further, Ms. Durko and Mr. Moska both reported the harassment

to William Konopasek, Human Resource Supervisor, a member

of management (id.) After meeting with Mr. Konopasek,

speakers were allegedly put in his office, but Ms. Durko testified

that the harassment continued until she left the Forming and

Selecting Department (id.) At trial, Mr. Konopasek

acknowledged that he did not investigate the matter, as Ms.

Durko did not provide him information as to who was

responsible for the noises (App. 906-909).

REASONS FOR DENYING THE WRIT

Standard for Granting Writ of Certiorari

The rules of this Court state that a Petition for Writ of

Certiorari “will be granted only for compelling reasons.” Sup.

Ct. R. 10.

In general, the Supreme Court will not grant a Writ of

Certiorari merely to review evidence or inferences drawn from

it. General Copy Pictures Corp. v. Western Electric Co., 304

U.S. 175, 82 L. Ed. 1273, 58 S. Ct. 849 (1938). Certiorari will

also be denied if the case involves circumstances or issues which

are not likely to be repeated, see Rice v. Sioux City Memorial

Park Cemetery, 349 U.S. 70, 74 (1955) (noting that the Court

reviews issues that are “beyond the academic or the mere

episodic”); 13 James W. Moore, ed., Moore's Federal Practice,

para. 810.21 at SC 10-23 (2d ed. 1995) (stating that the Court

will not be inclined to review “an issue that is unlikely to recur”

or “results from a unique factual situation”), or if “the asserted

error consists of . . . the misapplication of a properly stated rule

of law.” Sup. Ct. R. 10.

Moreover, certiorari will be granted “only in cases involving

principles, the settlemerit of which is of importance to the public,

as distinguished from that of the parties, and in cases where

there is a real and embarrassing conflict of opinion and

authority” between the Courts of Appeals. NLRB v. Pittsburgh

S.S. Co., 340 U.S. 498, 502 (1951) (quoting Layne & Bowler

Corp. v. Western Well Works, 261 U.S. 387, 393 (1923)).

Finally, the Court has refrained from resolving conflicts that

arise between panels within the same circuit, on the grounds

that such conflicts should be resolved by the Court of Appeals

internally. See, e.g., Taylor v. United States, 493 U.S. 906 (1989);

Davis v. United States, 417 U.S. 333, 340 (1974); Wisniewski v.

United States, 353 U.S. 901, 902 (1957).

THE COURTS BELOW PROPERLY UPHELD THE

FACTUAL FINDING OF THE JURY THAT THE

EMPLOYER HAD ACTUAL AND/OR CONSTRUCTIVE

NOTICE THAT MS. DURKO WAS BEING SEXUALLY

HARASSED.

The Employer’s Petition for Writ of Certiorari with regard

to the issue of whether the Employer had actual and/or

constructive notice that Ms. Durko was being sexually harassed

must be denied as Employer merely asserts that the court below

misapplied a properly stated rule of law, or that erroneous factual

findings were made by the jury.

Supreme Court Rule 10(c), states in pertinent part:

A petition for Writ of Certiorari is rarely

granted when the asserted error consists of

erroneous factual findings or the

misapplication of a properly stated rule of

law.

Employer asserts that Ms. Durko failed to prove that

management-level employees had actual or constructive notice

about the existence of a sexually hostile work environment.

Regarding the merits of the Employer’s claim, the testimony

at trial, as well as the Employer’s own Stipulation of Fact, clearly

establishes both actual and constructive notice to the Employer

of the sexual harassment Ms. Durko was enduring.

Agency principles are employed when deciding employer

liability for sexually hostile work environments. Bouton v. BMW

of North America, 29 F.3d 103, 106 (3rd Cir. 1994), citing

Meritor Savings Bank, F.S.B., 477 U.S. at 72. Three potential

bases for holding employers liable for sexual harassment

perpetrated by their employees under § 219 of the Restatement

(Second) of the Agency are as follows: (1) torts committed by

employees within the scope of their employment; (2) an

employer’s negligent failure to discipline or fire, or failure to

take remedial action upon notice of harassment; and (3) actions

taken by employees in reliance upon apparent authority or if

they were aided by their agency relationship. Bouton, 29 F.3d at

106.

The above agency principles direct that liability exists where

the defendant knew or should have known of the harassment

and failed to take prompt remedial action. Andrews v. City of

Philadelphia, 895 F.2d 1469, 1486 (3rd Cir. 1990). Thus, if the

evidence permits an inference that management level employees

had actual or constructive knowledge about the existence of a

sexually hostile environment and failed to take prompt and

adequate remedial action, the employer’s post-trial motions must

be denied. See Andrews, supra; Katz v. Dole, 709 F.2d 251, 255

(4th Cir. 1983).

Employer then goes on to quote a very narrow passage of

Ms. Durko’s testimony which indicates that although Ms. Durko

made complaints of sexual harassment to Union Stewards

Thomson and Warnick, as well as Union Business Agent Joseph

Lutecki and Union President Peter Moska, that she never made

such complaints directly to management (Employer’s Petition

7-11). Such citation ignores vast amounts of testimony indicating

that the Employer had actual notice, some of which was from

the Employer’s own witnesses. Also ignored is the Employer's

stipulation to the fact of actual notice which was presented to

the jury (App. 525).

Obviously, the cited passage of Ms. Durko’s testimony deals

with actual notice of the sexual harassment to the Employer

and does not deal with the constructive notice provided due to

the pervasiveness of such contact.

Regarding actual notice, management personnel were

indeed aware that Ms. Durko was being sexually harassed, as

Ron Walsh, her foreman, was actually performing the harassment

through his plant tours given to Ms. Durko without providing

her with the required safety equipment, as well as his gender-

specific name-calling performed on a regular basis from June

of 1991 until Ms. Durko left the department in January of 1993

(App. 564). Also, as stated previously, Ms. Durko directly

complained to Mr. Walsh about his comment about the length

of time it would take her to be qualified as an Assistant Furnace

Operator if “she was nice” to him (App. 564). Further, Emplcyer

acknowledges receiving a PHRC Complaint on September 30,

1992, regarding the sexual harassment allegations (App. 1439).

Further, the Employer stipulated to the fact of having actual

notice of Ms. Durko’s complaints of sexual harassment as

follows:

Union President, Peter Moska, asked

Margaret Guffrovich, from personnel, to

investigate Ms. Durko’s complaints of

harassment against Mr. Walsh. After speaking

with Mr. Walsh, Ms. Guffrovich reported

back to Mr. Moska that there was no basis

for Ms. Durko’s complaints.

(App. 525).

The Employer’s own witness, Margaret Guffrovich,

Assistant Human Resource Supervisor, admitted that she was

aware of Ms. Durko’s allegations of sexual harassment through

Ms. Durko’s complaint to the PHRC as well as through a meeting

with Union President Peter Moska, and further admits that an

investigation subsequently ensued (App. 1439). Ms. Durko also

provided unrebutted testimony that she reported the sexual

harassment occurring over the loudspeaker to her foreman,

Lenny Brown, and William Konopasek, the Human Resource

Manager, both members of management (App. 594). Ms.

Durko’s complaints of sexual harassment were also reiterated

in her Amended PHRC Complaint served on management in

February of 1993 (App. 705). Again, the company stipulated to

the fact of actual notice at trial (App. 525).

In the present case, no prompt and effective remedial action

was taken by the Employer as no employee was disciplined for

such harassment, and the harassment by Mr. Walsh, Mr. Snopeck,

and Mr. Wozniak continued on a regular basis from June of 1991

until January of 1993, a period after the actual notice provided

by the PHRC Complaint (App. 574). Further, the harassment

occurring over the loudspeaker, which began when Ms. Durko

was transferred to the Forming and Selecting Department in

January of 1993, continued even after Ms. Durko’s meeting with

William Konopasek (App. 594) who further admitted that he

did not investigate Ms. Durko’s complaints (App. 905-909).

Even after directly notifying Mr. Konopasek and Ms.

Guffrovich, Ms. Durko testified that there was never a time when

the sexual harassment diminished and that the harassment

actually got worse after the meeting with Mr. Konopasek (App.

696-699).

In addition to the actual knowledge of the harassment as

indicated above, the Employer also had constructive knowledge

of the harassment through its pervasiveness. See Henson v.

Dundee, 682 F.2d 897, 905 (11th Cir. 1982). In fact, the jury

was instructed, without objection, that the Respondent can

demonstrate that the Employer knew of the harassment by

showing the pervasiveness of such harassment (Docket Entry

67). The jury subsequently found in Ms. Durko’s favor.

Based on the above discussion, it is asserted that the

Employer had actual notice of the allegations of sexual

harassment on repeated occasions as well as constructive notice

through the pervasiveness of such harassment carried out by

numerous employees, including members of management.

II.

THE EVIDENCE AT TRIAL DID NOT ESTABLISH

THAT THE EMPLOYER HAD AN EFFECTIVE

GRIEVANCE PROCEDURE, THAT SUCH PROCEDURE

WAS KNOWN TO MS. DURKO, AND THAT MS. DURKO

FAILED TO AVAIL HERSELF OF THAT GRIEVANCE

PROCEDURE.

Employer’s Petition for Writ of Certiorari regarding the

existence of a grievance procedure and Ms. Durko’s alleged

failure to use such procedure, should be denied as a mere

allegation of error with regard to a factual finding, or a

misapplication of the properly stated rule of law. Sup. Ct. R.

10.

Regarding the merits of the Employer’s claim, Employer

asserts that the evidence at trial established that OI-NEG had

an effective grievance procedure, that it was known to Ms. Durko

and that she failed to avaii herself of that procedure, thereby

absolving it from liability for hostile environment sexual

harassment.

Employer cites Bouton v. BMW of North America, Inc., 29

F.3d 103 (3rd Cir. 1994) in which the Third Circuit held that the

existence of an effective grievance procedure known to the

victim and that timely stops the harassment, shields the

Employer from Title VII liability for a hostile environment. /d.

at 110. A review of the record indicates “hat none of the above

elements are satisfied.

There exists evidence of record that Employer had a

grievance procedure in effect (App. 624, 806-807, 909-912,

1440-1442). However, Ms. Durko stated that she did not read

any such policy until after the fact (App. 624). However, even

assuming Ms. Durko knew about the sexual harassment policy

in effect, the record shows that Ms. Durko did report incidents

of sexual harassment to the proper management personnel. This

is contrary to Employer’s assertion that Ms. Durko never

apprised OI-NEG management that she was being sexually

harassed.

Although Employer cites a very narrow passage of Ms.

Durko’s testimony, which, ignoring all other testimony in the

case, tends to indicate that Ms. Durko did not report being

sexually harassed to management, there was a multitude of

testimony, including that of Employer’s own witnesses that

indicates that Ms. Durko, either herself or through a Union

Representative did make management aware of such complaints.

Ms. Durko testified that she was subjected to being called a

variety of vulgar names over the public address system,

accompanied by loud moaning with her name being loudly

screamed (App. 594). It was Ms. Durko’s unrebutted testimony

that she told her foreman, Lenny Brown, about this, as well as

Union President Peter Moska (id.). Further, Ms. Durko and Mr.

Moska both reported the harassment to William Konopasek,

Human Resource Supervisor, a member of management (id.).

After meeting with Mr. Konopasek, speakers were allegedly put

in his office, but Ms. Durko testified that the harassment

continued until after she left the Forming and Selecting

Department (id.).

Mr. Konopasek acknowledged in his testimony that a

meeting between himself, Ms. Durko, and Mr. Moska occurred,

but stated that Ms. Durko allegedly did not inform him that the

~omplaints were directed toward her. Mr. Konopasek further

acknowledged that he did not investigate the matter, as Ms.

Durko did not provide him information as to specifically who

was responsible for the noises (App. 906-909).

Further, it was stipulated as fact between counsel and agreed

by all parties that Union President Peter Moska asked Margaret

Guffrovich, the Assistant Human Resource Manager, to

investigate Ms. Durko’s complaints of sexual harassment against

Mr. Walsh, consisting of him repeatedly calling her crude and

degrading names. After speaking with Mr. Walsh, Ms. Guffrovich

reported back to Mr. Moska that there was no basis for Ms.

Durko’s complaints (App. 525). Such stipulation was also

corroborated by the testimony of Peter Moska and Margaret

Guffrovich (App. 1057-1058, 1325-1335).

Further, management of OI-NEG acknowledged that the

company was in receipt of a complaint alleging sexual

harassment against the Employer, filed by Ms. Durko with the

Pennsylvania Human Relations Commission, served on the

company as early as September of 1992 (App. 1439). Margaret

Guffrovich testified that an investigation regarding the sexual

harassment did ensue, consisting of her asking different

managers if they had any information regarding the harassment

(App. 1439). Mr. Walsh testified that he attended a meeting with

Margaret Guffrovich and Mary Reynolds, another member of

management, regarding the sexual harassment, and after such a

meeting did not hear back from either member of management

(App. 991-996). There is no evidence of record that anyone ever

received any discipline because of Ms. Durko’s allegations.

From the above discussion, the Employer’s “grievance

procedure” was put into effect on at least two occasions, one

dealing with the report of sexual harassment by Ronald Walsh

to Margaret Guffrovich, and the other occasion being the report

of sexual harassment over the intercom system to Mr.

Konopasek. When Ms. Durko provided the name of her harasser,

Ronald Walsh, to Ms. Guffrovich, the “grievance procedure”

consisted of Ms. Guffrovich asking the harasser whether he

committed the harassment, followed by his denial of such

harassment, thus concluding the “grievance procedure”. When

Ms. Durko could not provide the name of her harasser via the

intercom system, Mr. Konopasek decided that no further

investigation was necessary. Such grievance procedure can

hardly be labelled as “effective”.

As stated earlier, a grievance procedure which is effective,

i.e. one that is known to the victim and timely stops the

harassment, shields the employer from Title VII liability for a

hostile environment. Bouton, supra, at 110 (emphasis added).

Ms. Durko testified that even after she made the complaints as

enumerated above, such harassment continued (App. 594, 614,

642-645).

It is also important to note that the Employer did not present

any evidence, such as statistical data, to substantiate its assertion

that the grievance procedure was effective. The mere existence

of a grievance process does not insulate an employer from

liability under Title VII. See Meritor Savings Bank, F-S.B. v.

Vinson, 477 U.S. 57, 72 (1986).

Thus, although management knew of Ms. Durko’s sexual

harassment complaints, whatever grievance procedure put in

effect was obviously ineffective, thereby subjecting the

Employer to liability for a hostile work environment based on

sexual harassment.

CONCLUSION

For the foregoing reasons, the Petition of the Employer for

a Writ of Certiorari should be denied.

Respectfully submitted,