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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1167

## Text

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

i
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?

il

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

ii

ili

12

16

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

iv

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

l
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.

2

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

3

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).

4

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).

5

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).

6

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

7

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).

8
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.

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

9

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

10

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

11

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

12

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

13

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.).

14

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

15

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.

16
CONCLUSION

For the foregoing reasons, the Petition of the Employer for
a Writ of Certiorari should be denied.

Respectfully submitted,

KIMBERLY D. BORLAND
Counsel of Record

DAVID P. TOMASZEWSKI
BORLAND & BORLAND
Attorneys for Respondent

1100 PNC Bank Building

69 Public Square

Wilkes Barre, Pennsylvania 18701
(717) 822-3311

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0240%3A2. Public record. Not legal advice.