Petition for Writ of Certiorari — Black v. Zaring Homes, Inc.
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\ Supreme Court, U.S.
3 FILED
'
97-159 JUL 2 4 1997
NO. _igerce—ut IME CLERK
In The
Supreme Court of the United States
October Term, 1996
a a
DEBRA BLACK,
Petitioner,
ZARING HOMES, INC.,
Respondent.
¢
Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
¢
Dona.p B. Horpes
Counsel of Record
SCHWARTZ, Manes & Rusy
2900 Carew Tower
441 Vine Street
Cincinnati, Ohio 45202-3090
(513) 579-1414
Attorney for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
AO
1.
QUESTIONS PRESENTED FOR REVIEW
WHERE AN EMPLOYEE IN A TITLE VII SEXUAL
HARASSMENT CASE ADDUCES SUBSTANTIAL
EVIDENCE OF GENDER-BASED VERBAL SEXUAL
HARASSMENT DIRECTED TOWARD HER BY VAR-
IOUS MALE EMPLOYEES IN THE SUPERVISORY
HIERARCHY OF HER EMPLOYER, WHAT CRITE-
RIA SHOULD FEDERAL COURTS EMPLOY IN
DETERMINING WHETHER THE CONDUCT
ALLEGED AGAINST THE EMPLOYER WAS SUFFI-
CIENTLY DE MINIMIS SO AS TO RENDER THE
EMPLOYEE’S SEXUAL HARASSMENT ALLEGA-
TIONS NON-ACTIONABLE?
WHERE A TITLE VII PLAINTIFF HAS ADDUCED
EVIDENCE AT TRIAL THAT SEVERAL GENDER-
BASED HOSTILE REMARKS WERE DIRECTED TO
HER BY VARIOUS MEMBERS OF THE ALL-MALE
SUPERVISORY HIERARCHY OF HER EMPLOYER,
INCLUDING ITS PRESIDENT, AND THE PLAIN-
TIFF’S COMPLAINT TO THE EMPLOYER’S GEN-
ERAL COUNSEL ABOUT THE HARASSMENT WAS
IGNORED, TO WHAT EXTENT MAY THE REVIEW-
ING COURT SUBSTITUTE ITS OWN JUDGMENT
FOR THAT OF A JURY AND SET ASIDE A JURY
VERDICT TO THE EFFECT THAT THE EMPLOYER’S
CONDUCT TOWARD PLAINTIFF WAS SUFFI-
CIENTLY SEVERE AND PERVASIVE SO AS TO CRE-
ATE AN OBJECTIVELY HOSTILE WORK
ENVIRONMENT?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........... i
pe Res Bae SI et nee ii
TAGER GP ASTER ID o oo iis ioe kcucdedsnciees iv
CP RNN Ae I ek vag aden bhug see amamercues 1
ae ere eee ae ree earn 2
STATUTES TROVGIVEDD oon oi cnc cic vccccscnacocsa Z
STATEMENT OF THE CASE....................... 2
REARS, soe nnktadenshiane eee eee i
I. QUESTIONS PRESENTED FOR REVIEW........ 7
1. WHERE AN EMPLOYEE IN A TITLE VII
SEXUAL HARASSMENT CASE ADDUCES
SUBSTANTIAL EVIDENCE OF GENDER-
BASED VERBAL SEXUAL HARASSMENT
DIRECTED TOWARD HER BY VARIOUS
MALE EMPLOYEES IN THE SUPERVISORY
HIERARCHY OF HER EMPLOYER, WHAT
CRITERIA SHOULD FEDERAL COURTS
EMPLOY IN DETERMINING WHETHER
THE CONDUCT ALLEGED AGAINST THE
EMPLOYER WAS SUFFICIENTLY DE MIN-
IMIS SO AS TO RENDER THE EMPLOYEE’S
SEXUAL HARASSMENT ALLEGATIONS
ae 7
ili
TABLE OF CONTENTS - Continued
Page
2. WHERE A TITLE VII PLAINTIFF HAS
ADDUCED EVIDENCE AT TRIAL THAT
SEVERAL GENDER-BASED HOSTILE
REMARKS WERE DIRECTED TO HER BY
VARIOUS MEMBERS OF THE ALL-MALE
SUPERVISORY HIERARCHY OF HER
EMPLOYER, INCLUDING ITS PRESIDENT,
AND THE PLAINTIFF’S COMPLAINT TO
THE EMPLOYER’S GENERAL COUNSEL
ABOUT THE HARASSMENT WAS
IGNORED, TO WHAT EXTENT MAY THE
REVIEWING COURT SUBSTITUTE ITS OWN
JUDGMENT FOR THAT OF A JURY AND
SET ASIDE A JURY VERDICT TO THE
EFFECT THAT THE EMPLOYER’S CON-
DUCT TOWARD PLAINTIFF WAS SUFFI-
CIENTLY SEVERE AND PERVASIVE SO AS
TO CREATE AN OBJECTIVELY HOSTILE
WORK ENVIRONMENT? ..........ccccceee- 22
Eg SRE aE a 28
APPENDIX
1.
DECISION OF THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT,
eS Oe ea ay wed ah eo be vb vk a esses App. 1
ORDER OF THE UNITED STATES DISTRICT
COURT SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION, FILED DECEMBER 27,
es Cini Eo ini his un enn adsesess App 13
ORDER OF THE UNITED STATES COURT OF
APPEAL FOR THE SIXTH CIRCUIT, FILED
EG es hones a5 canaxsesduvis App. 36
iv
TABLE OF AUTHORITIES
Page
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074
Oe | ee er rer eer rere 24, 26
Anderson v. City of Bessemer City, North Carolina,
SO US. S64, 305 S. C4 THe Cape ecco nase 22
Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir.
| MST EPEC TT TE CERT Ce Cre eee ree passim
Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir.
2 Senne emer penny mente 1, 17, 18, 19, 20, 21, 26
Black v. Zaring Homes, Inc., Case No. C-1-94-471
(S02. Gm ERRCOUIOE 27, TWO s aio vccccsecevcesves's 1
Black v. Zaring Homes, Inc., Case No. 96-3118 (6th
ee Os POREETER TC OTE T Ee CL ETOCS Eee eee 1
Gleason v. Mesirow Financial, Incorporated, __ F.3d
___, 1997 U.S. App. LEXIS 15508 (7th Cir. 1997)
Seba Rae 94a DR Lae ae ee eee aE eS 11, 13, 14, 17, 19
Gross v. Burggraf Construction Co., 53 F.3d 1531
Be eS Pere r eer rrr ere 12, 13, 14, 19
Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)... .passim
Kimzey v. Wal-Mart Stores, 107 F.3d 568 (8th Cir.
WONT i. 555k ceecanenndsw sivas avin sched sh Geese ss 23, 26
SOUP Es « cas cans pncouskececa ener sere sacsuaearas 25, 26
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)
FO OT Fe ne aN 6 7,8. % i.
Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429
Pee Gk DO cook iin he 6 ade eee terest 15
Vv
TABLE OF AUTHORITIES - Continued
Page
Rabidue v. Osceola Refining Co., 584 F. Supp. 419
(E.D. Mich. 1984), aff’d 805 F.2d 611 (6th Cir.
REE NE 5c BRNES Rado cin cde apnea eee eee es 13
Smith v. St. Louis University, 109 F.3d 1261 (8th Cir.
af he errr er yee mon et 15, 16, 23, 26
Spain v. Gallegos, 26 F.3d 439 (3rd Cir. 1994)...... 14, 15
Spicer v. Commonwealth of Virginia, 66 F.3d 705 (4th
Rh SD vine bon anne nearec ena cesetereegneeren 25, 26
Steiner v. Showboat Operating Co., 25 F.3d 1459 (9th
Oe DE 0 vo snes nueens ayaa ee eens 16, 17
Torres v. Pisano, ___ F.3d ___ 1997 U.S. App. LEXIS
eo By aa es eee rere rT e 13, 14, 23, 24, 26
U.S. v. U.S. Gypsum Co., 33 U.S. 364, 68 S. Ct. 525
bo Pe PEP Tee ere Terre eT rT Te ep r ere ere Er 22
STATUTORY AUTHORITIES
Title VII of the Civil Rights Act of 1964:
oR ee ef ee ee ee Se ee eer ee pero 2
ya ne rr Sep rire eee ergs 5
eS ee | ee eee ere ere eee rere 5
Ce Shs ey et MED 6 Ge ks Se SENG oe heceeeee ee 2, 5
Pee. Si. tae We ee 6 + hh sek ods bsasadeasamenen 5
es Ses I eo oo 6 ae kc an ineeudescaseeteens 22
PETITION FOR A WRIT OF CERTIORARI
Petitioner requests that a writ of certiorari be issued
to review the decision and judgment of the United States
Court of Appeals for the Sixth Circuit entered on January
14, 1997, which reversed a jury verdict rendered on behalf
of Petitioner in the United States District Court for the
Southern District of Ohio, Western Division on March 31,
1995 and which also reversed the Magistrate Judge’s
denial of Respondent's post-trial motion for a judgment
as a matter of law entered on December 27, 1995.
*
OPINIONS BELOW
The opinion of the United States Court of Appeals is
contained in the Appendix at App. 1, and is reported as
Black v. Zaring Homes, Inc., 104 F.3d 822 (6th Cir. 1997).
The opinion of the Magistrate Judge of the United States
District Court for the Southern District of Ohio, Western
Division is contained in the Appendix at App. 13, and is
not reported. It is cited as Black v. Zaring Homes, Inc., Case
No. C-1-94-471 (S.D. Ohio December 27, 1995). The Order
of the United States Court of Appeals for the Sixth Circuit
denying Petitioner’s Petition for Rehearing and Rehear-
ing En Banc is contained in the Appendix at App. 36, and
is not reported. It is cited as Black v. Zaring Homes, Inc.,
Case No. 96-3118 (6th Cir., April 25, 1997).
¢
JURISDICTION
The opinion of the Court of Appeals to be reviewed
was entered on January 14, 1997. The Court of Appeals’
denial of Petitioner’s Petition for Rehearing and Rehear-
ing En Banc was entered on April 25, 1997. Jurisdiction to
review the judgment of the United States Court of
Appeals for the Sixth Circuit in this cause, by writ of
certiorari, is conferred on this Court by 18 U.S.C.
§ 1254(1).
STATUTES INVOLVED
Title VII of the Civil Rights Act of 1964 - 42 U.S.C.
§ 2000e 2(a)(1) reads as follows:
(a) Employer practices. It shall be an unlawful
employment practice for an employer -
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or privi-
leges of employment, because of such indi-
vidual’s race, color, religion, sex, or national
origin;
STATEMENT OF THE CASE
Petitioner Debra Black was hired by Respondent Zar-
ing Homes in late June of 1993 as Land Acquisition
Manager to seek out vacant parcels of land for purchase
by Zaring Homes so that it could then develop the land
and build houses upon them for sale.
After Petitioner started her employment, she began
to identify numerous parcels of land for sale upon which
she would report at bi-weekly land meetings at Respon-
dent’s corporate offices. Customarily in attendance at
these meetings would be Petitioner, her immediate super-
visor, Respondent’s President, Vice President and in-
house General Counsel, and the various managers in
charge of Respondent’s product line of homes, all of
whom were male.
Shortly after beginning employment, Petitioner
became subjected to an ongoing pattern of various gen-
der-specific jokes and insults by various members of
Respondent’s management at the land meetings.
Early on in her employment Petitioner passed around
a plate of breakfast pastries. When the plate was passed
to one of Respondent’s Product Managers, he selected a
pastry, and said, while grinning at her and suggestively
wiggling his eyebrows “Nothing I like more in the morn-
ing than sticky buns.” Petitioner reacted by stating “Tim,
cut it out” whereafter the other men started laughing.
Sometime in mid-August, 1993 the land meeting par-
ticipants discussed the purchase of a parcel of land adja-
cent to a Hooters Restaurant. This engendered a spirited
discussion as to what to name the development. Various
of the male attendees volunteered such titles as “Hoot-
ersville,” “Twin Peaks,” and “Titsville.” This banter
engendered a great deal of laughing and smirking by the
male attendees at the meeting. These references to
“Titsville” and the like took place at more than one land
meeting thereafter. These comments were also made in
the presence of Respondent's President who either joined
in the merriment or did nothing to stop it.
In a similar vein in September of 1993 when Peti-
tioner reported at a land meeting as to the potential |
purchase of a property owned by a Dr. Paul Busam,
various male attendees began snickering over the refer-
ence to a female’s breast. This continued on other subse-
quent occasions whenever the name of the Busam
property was brought up.
On or about October 8, 1993 the attendees were again
discussing a new parcel of land for potential purchase
and development which was located adjacent to a bar
frequented by motorcyclists. Suddenly, for no apparent
reason, Respondent’s President, turned to Petitioner and
said “Say, weren’t you there Saturday night dancing on
the tables?” Predictably, the meeting again exploded in
laughter. Petitioner, again extremely embarrassed, looked
down and responded “Not hardly, Ron.”
Other sexist insults were directed towards Petitioner
on a one-on-one basis. During a discussion with her
immediate supervisor over how much commission she
should be earning, the supervisor, angered by what he
perceived as overreaching demands for more compensa-
tion, stated “You are paid great money for a woman.”
Petitioner’s supervisor conveyed even more gender-
specific insulting remarks to Petitioner while he was
speaking with a co-worker concerning another female’s
reluctance to sign a permit. The supervisor told the co-
worker in the direct presence of Petitioner and looking
straight at her, “Just get the broad to sign it.”
iain
In addition to registering her disapproval of various
of the above-cited remarks, Petitioner, early on in her
employment, complained directly to Respondent’s Vice
President and General Counsel about the general tenor of
the gender-based remarks made at the land meetings, and
asked what could be done about it. The General Coun-
sel’s response was that the male supervisors’ attitudes
toward women were a fact of life and that nothing could
be done to change the atmosphere.
Petitioner filed her original Complaint in the United
States District Court for the Southern District of Ohio,
Western Division on July 11, 1994, alleging inter alia sex-
ual harassment by Respondent. This action was properly
heard by the United States District Court for the Southern
District of Ohio, pursuant to 28 U.S.C. § 1331, in that this
action presented a federal question arising under the
laws of the United States, specifically, 42 U.S.C. § 2000e et
seq. The remaining pendant state claims were properly
heard pursuant to 28 U.S.C. § 1367 and Fed. R. Civ. P.
18(a). After a nine day trial, the jury awarded $250,000.00
to Petitioner, $200,000.00 of which was for punitive dam-
ages. The District Court on December 27, 1997, denied
Respondent’s Motion for Judgment n.o.v., Motion for
New Trial and Motion for Remittitur on the issue of
compensatory and punitive damages.
Respondent filed a timely appeal to the United States
Circuit Court of Appeals for the Sixth Circuit. On January
14, 1997, the Sixth Circuit panel hearing the case reversed
the jury verdict and entered judgment for Respondent.
On April 25, 1997, the Sixth Circuit Court of Appeals
denied Petitioner’s Motion for Rehearing and Rehearing
En Banc.
The Sixth Circuit accepted as true, for purposes of
analysis, all of the aforesaid factual allegations, which
formed the predicate for the jury’s finding of the sexually
oppressive work environment. Moreover, the Sixth Cir-
cuit correctly cited the landmark United States Supreme
Court decisions in Meritor Savings Bank v. Vinson, 477 U.S.
57 (1986) and Harris v. Forklift Systems, Inc., 510 U.S. 17
(1993), as providing the appropriate analytical framework
for determining when a work environment is sufficiently
severe to be actionable under Title VII of the Civil Rights
Act. The Sixth Circuit dwelled in particular on the recent
holding of the Supreme Court in Harris to the effect that
the workplace harassment must be sufficiently severe or
pervasive to create an environment that a reasonable
person would find hostile or abusive, and that the victim
subjectively regarded as abusive.
The Sixth Circuit also properly quoted Harris as to
the proper factors a jury must consider when deciding
whether the verbal harassment of a female employee met
this standard:
[T]he frequency of the discriminatory conduct;
its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an
employee’s performance. The effect on the
employee’s psychological well-being is, of
course, relevant to determining whether the
plaintiff actually found the environment abu-
sive. But while psychological harm, like any
other relevant factor, may be taken into account,
no single factor is required.
Harris at 23.
However, after accurately setting forth the methodol-
ogy for analyzing cases of this nature, and showing
proper deference to the role of a jury in making the
appropriate judgements as to whether the Defendant's
conduct met this objective standard, the Sixth Circuit
ignored the Harris factors altogether and, without a fac-
tual analysis of the evidence in this particular case, sum-
marily concluded that the verbal harassment directed at
Petitioner was not “severe or pervasive enough to create
an objectively hostile work environment.” No empirical
evidence was cited for this sudden proclamation other
than the Sixth Circuit’s observation that “most of the
comments were not directed at plaintiff [Petitioner]”.
+
ARGUMENT
I. QUESTIONS PRESENTED FOR REVIEW
1. WHERE AN EMPLOYEE IN A TITLE VII SEX-
UAL HARASSMENT CASE ADDUCES SUB-
STANTIAL EVIDENCE OF GENDER-BASED
VERBAL SEXUAL HARASSMENT DIRECTED
TOWARD HER BY VARIOUS MALE
EMPLOYEES IN THE SUPERVISORY HIER-
ARCHY OF HER EMPLOYER, WHAT CRITERIA
SHOULD FEDERAL COURTS EMPLOY IN
DETERMINING WHETHER THE CONDUCT
ALLEGED AGAINST THE EMPLOYER WAS
SUFFICIENTLY DE MINIMIS SO AS TO REN-
DER THE EMPLOYEE’S SEXUAL HARASS-
MENT ALLEGATIONS NON-ACTIONABLE?
In its two previous landmark decisions dealing with
the issue of sexual harassment, Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986), and Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), the United States Supreme Court
has taken a rather expansive view of what constitutes
actionable sexual harassment. In Meritor Savings Bank, the
Supreme Court held that Title VII “is not limited to
‘economic’ or ‘tangible’ discrimination. The phrase
‘terms, conditions or privileges of employment’ evinces a
Congressional intent to strike at the entire spectrum of
disparate treatment of men and women.” Id. at 64
(emphasis added). The Supreme Court further stated that
a woman had the right to a work environment free from
“ ... intimidation, ridicule or insult.” Id. at 65. A finding
of a Title VII violation based on verbal harassment alone
was clearly contemplated. The Supreme Court held that
the “terms, conditions or privileges of employment”
should be interpreted expansively. Id. at 65.
In the second case in which the Supreme Court had a
chance to address the issue of sexual harassment, Harris
v. Forklift, the Supreme Court condemned a work envi-
ronment in which the female plaintiff was forced to work
as one in which the supervisor “insulted her because of
her gender and often made her the target of sexual innu-
endos.” Id. at 19.
To be sure, not all verbal comments directed at a
member of the opposite sex were deemed actionable. The
Supreme Court set minimum de minimis guidelines below
which such conduct would be deemed non-actionable. In
Meritor, the Supreme Court emphasized that not all work-
place conduct of a sexual nature amounted to actionable
sexual harassment under Title VII. Rather, it had to be
sufficiently egregious to affect a “term or condition or
privilege” of employment in order for the conduct to be
nal
regarded as violative of Title VII. Meritor at 67. Likewise,
in Harris v. Forklift, supra, the Supreme Court stated that
an employer should not be accountable for conduct by
their employees against members of the opposite sex
which is “merely offensive”. Id. at 21. The Supreme Court
did not go into detail as to what types of conduct might
be deemed “merely offensive”. Instead, the Court laid out
a series of criteria whereby a trier of fact, either a court or
a jury, could determine whether the conduct complained
of rose to the level of aggravation and severity so as to
constitute unlawful sexual harassment:
1. The frequency of the discriminatory con-
duct;
2. Its severity;
3. Whether it is physically threatening or
humiliating or a mere offensive utterance;
and
4. Whether it unreasonably interferes with an
employees performance.
Id. at 23. The Supreme Court indicated that this list of
criteria was “non-exhaustive”. Id.
The Supreme Court did not define, either in Meritor
or in Harris, the type of conduct which it would regard as
“insufficiently severe” or “merely offensive” and thus
beyond the purview of Title VII scrutiny by the federal
courts. However, in the wake of these two landmark
decisions, the various Circuit Courts of Appeal have
addressed the issue. There appears to be a split in the
various Circuit Courts of Appeal as to whether workplace
harassment, especially verbal workplace harassment such
as the type addressed in this case, falls above or below
10
the “de minimis” line as set forth in Harris. A more conser-
vative or restricted view of what constitutes verbal work-
place harassment has been adopted by the Seventh and
Tenth Circuit, whereas a more liberal and expansive view
of what constitutes workplace sexual harassment has
been embraced by the Second, Third, Eighth and Ninth
Circuit.
The lead case coming out of the Seventh Circuit is
Baskerville v. Culligan Int'l Co., 50 F.3d 428 (7th Cir. 1995).
In Baskerville, the plaintiff was exposed litany of highly
offensive gender-specific remarks by her supervisor, the
most egregious including the following: (1) he would call
her a “pretty girl”; ‘2) once, when she was wearing a
leather skirt, he made a grunting sound that sounded like
“um um um” as she turned to leave the office; (3) when
she said that his office was hot, he remarked to her “Not
until you stepped your foot in here”; (4) in response to a
public announcement over the loud speaker “May I have
your attention please”, he responded to her “you know
what that means don’t you, all pretty girls run around
naked”; (5) he stated to her during a Christmas party, that
since there were so many pretty girls in there he didn’t
want to lose control, so he thought he better leave early;
(6) he remarked to her that his wife had not yet moved to
join him in his new job and all he had at night for
company at his hotel was his pillow. He then panto-
mimed an act of masturbation. Baskerville at 430.
The Seventh Circuit characterized all of these com-
ments as “occasional vulgar banter, tinged with sexual
innuendo, of coarse or boorish workers” that was
“merely vulgar and mildly offensive”. Id. at 431. The
Seventh Circuit ultimately reversed the lower court’s
Pn eerce
11
finding of actionable sexual harassment. In minimizing
the impact of the statements set forth above, the Court
reasoned:
Only a woman of victorian delicacy - a woman
mysteriously aloof from contemporary Ameri-
can popular culture and all its sex saturated
vulgarity — would find Hall’s [the supervisor]
patter substantially more distressing than the
heat and cigarette smoke of which the plaintiff
does not complain.
Id. at 431.
A more recent expression of the Seventh Circuit's
restrictive view of workplace harassment was expressed
in Gleason v. Mesirow Financial, Incorporated, ___ F.3d __,
1997 U.S. App. LEXIS 15508 (7th Cir. 1997). In Gleason, the
female plaintiff was subjected to the same type of rude,
vulgar and insulting conduct that her counterpart
encountered in Baskerville. Her supervisor referred to
female customers as “bitchy”, “dumb”, or “suffering from
PMS”, spoke to another female employee about the size
of her breasts, told another female employee that he
would like her in tighter skirts, and ogled at women as
they walked by. He also placed an advertisement for a
nudist colony on plaintiff’s desk and told her that he had
had dreams about holding hands with her.
Gleason, like Baskerville, created a dichotomy between
a “merely unpleasant working environment on the one
hand and a hostile or deeply repugnant one on the
other”. Id. at 32. It echoed the sentiment articulated in
Baskerville that Title VII “was not designed to purge the
workplace of vulgarity”. Id. Gleason also minimized the
impact of various gender-hostile remarks which were
12
brought to plaintiff’s attention because they had not been
directed to her personally, but rather were comments that
she had learned about second-hand. Id. at *33-34.
In closing, the Seventh Circuit boldly announced:
It is established in this Circuit as of this date
that there is a “safe harbor” for employers in
cases in which the alleged harassing conduct is
too tepid or intermittent or equivocal to make a
reasonable person believe that she has been dis-
criminated against on the basis of sex. [Citing an
earlier Seventh Circuit decision in Galloway v.
General Motors, 78 F.3d 1164, 1168 (7th Cir.
1996)].
Gleason at *33.
Judging on the job sexual harassment in the context
of off-the-job community standards was also echoed by
the Tenth Circuit in Gross v. Burggraf Construction Co., 53
F.3d 1531 (10th Cir. 1995). Gross involved the harassment
of a female employee on a blue-collar construction site.
The Tenth Circuit in Gross established a two-tiered stan-
dard for reviewing claims of sexual harassment one for
blue-collar working environments and one for white-col-
lar working environments.
Accordingly, we must evaluate Gross’s claim of
gender discrimination in the context of a blue-
collar environment where crude language is
commonly used by male and female employees.
Speech that might be offensive or unacceptable
in a prep school faculty meeting, or on the floor
of Congress, is tolerated in other working envi-
ronments.
Gross at 1538. Pursuing this theme further, the Tenth
Circuit quoted directly from an earlier pre-Meritor,
13
pre-Harris case in the Sixth Circuit Court of Appeals,
Rabidue v. Osceola Refining Co., 584 F. Supp. 419 (E.D.
Mich. 1984), aff’d 805 F.2d 611 (6th Cir. 1986):
The standard for determining sexual harassment
would be different depending upon the work
environment. Indeed, it cannot seriously be dis-
puted that in some work environments, humor
and language are rough hewn and vulgar. Sex-
ual jobs, sexual conversations, and girlie maga-
zines may abound. Title VII was not meant to —
or can — change this.
While the Court emphasized that Title VII was
designed to ensure equal opportunity for
women in the workforce, “it is quite different to
claim that Title VII was designed to bring about
a magical transformation in the social mores of
American workers.” [citing Rabidue, supra].
Id.
As noted earlier, federal courts in other circuits have
adopted a far more liberal view of what constitutes sex-
ual harassment, oftentimes rejecting the very same factors
relied upon by the Seventh and Tenth Circuit. For
instance in Torres v. Pisano, __ F.3d __ 1997 U.S. App.
LEXIS 12805 (2nd Cir. 1997), the Second Circuit was faced
with much of the same types of crude verbal sexual
comments which had been directed by the supervisors
toward a female employee in Gross, Gleason and Basker-
ville. While the Court cited the well-established Harris
guidelines that plaintiff needed to prove that the harass-
ment was of such a quality that a reasonable employee
would find the conditions objectively hostile, Torres took
special pains to eschew the “public mores” standard ear-
lier articulated by the Seventh Circuit in Baskerville.
14
Judges should be careful to remember that
American popular culture can, on occasion, be
highly sexist and offensive. What is, is not
always what is right, and reasonable people
could take justifiable offense at comments that
the vulgar among us, even if they are in a major-
ity, would consider acceptable.
Torres at *17, n.7.
The Second Circuit went on to state:
No principled argument supports the view that
sex-based offensive behavior in the workplace is
immune from remedy simply because it may be
culturally tolerated outside of the workplace.
The purpose of Title VII is not to import into the
workplace the prejudices of the community, but
through law to liberate the workplace from the
demeaning influence of discrimination, and
thereby to implement the goals of human dig-
nity and economic equality in employment.
Id. at *17 [citing King v. Hillen, 21 F.3d 1572, 1582 (Fed.
Cir. 1994)].
Torres also minimized the fact that many of the state-
ments alleged to be harassing were not made directly to
the plaintiff, reasoning that when a plaintiff is aware that
management freely makes offensive gender-based
remarks to others, her workplace environment may still
be rendered hostile. Id. at *18.
The Third Circuit in Spain v. Gallegos, 26 F.3d 439 (3rd
Cir. 1994), found sexual comments far less egregious than
those which existed in Baskerville, Gleason or Gross to be
unlawful in that they merely allowed a perpetuation of a
rumor that the plaintiff was having an affair with her
15
boss. The key issue in the case, reasoned the Third Cir-
cuit, was not whether there existed blatant sexual miscon-
duct, but whether women in the workplace were treated
differently than men, and whether she would have been
subject to the same treatment by management and her co-
workers had she been a man. Spain, supra at 447-448. See
also Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429,
441 (1st Cir. 1997).
Similar sentiments were expressed by the Eighth Cir-
cuit in Smith v. St. Louis University, 109 F.3d 1261 (8th Cir.
1997). Smith again involves relatively low levels of sexual
discourse which hardly could be determined to be bla-
tant. Plaintiff, an anesthesiology resident at the hospital,
was oftentimes the butt of remarks by the Anesthesiology
Department Chairman, who would refer to the female
residents by their first name without the title of “Doctor”,
whereas he would use the appropriate title for male
residents. The Chairman, as well as other male doctors, at
various times referred to plaintiff as a beautiful young
lady who should consider modeling and on another occa-
sion referred to her and another female resident as “anes-
thesia babes”. The relatively low voltage nature of these
comments did not deter the Eighth Circuit from finding
that the plaintiff had successfully established an action-
able hostile work environment. While her contact with
the offending director was infrequent or sporadic, the
Court noted that the harasser was the head of the depart-
ment and “therefore more omnipresent than a co-worker
might be.” Smith at 1264. More importantly, while the
nature of the gender-based remarks was relatively
benign, the key element upon which the Court relied was
16
the fact that these remarks were selectively directed at
women rather than men.
The predicate acts which support a hostile envi-
ronment sexual harassment claim need not be
explicitly sexual in nature .. . Rather the key
issue is whether members of one sex are
exposed to disadvantageous terms or conditions
of employment to which members of the other
sex are not exposed. [Citing Kopp v. Samaritan
Health Systems, 13 F.3d 264, 269 (8th Cir. 1993)].
Id. at 1265.
Therefore, since the plaintiff and her female col-
leagues were subjected to specific minimalization and
ridicule not directed toward male counterparts, the plain-
tiff successfully made out an actionable case of sexual
harassment under Title VII.
The same crucial distinction between general vulgar,
rude or tasteless comments directed at employees in gen-
eral versus female employees because of their gender was
also emphasized by the Ninth Circuit in Steiner v. Show-
boat Operating Co., 25 F.3d 1459 (9th Cir. 1994). Plaintiff in
Steiner was allowed to take her case to trial based on
hostile insulting language directed toward her, notwith-
standing the employer’s argument that the offending
supervisor used crude language and hostility toward
male employees as well. However, the Ninth Circuit was
careful to emphasize that the verbal abuse shown to
women was qualitatively different than the abuse shown
to men because sexual epithets were attached thereto.
The Court emphasized that “while his [the offending
supervisor’s] abuse of men in no way related to their
gender, his abuse of female employees, especially Steiner
17
[the plaintiff], centered on the fact that they were females.
It is one thing to call a women ‘worthless’, and another to call
her a ‘worthless broad’ ”.
Id. at 1464 (emphasis added).
The Sixth Circuit in the instant case, Black v. Zaring
Homes, appears to have followed the same restrictive
view of what constitutes workplace sexual harassment as
does the Seventh and Tenth Circuit. The Sixth Circuit,
without analyzing this case according to the numerous
criteria laid out in Harris, nonetheless concluded that the
sum total of the harassment directed at Petitioner by
Respondent, while admittedly offensive, inappropriate,
unprofessional and gender-based, did not rise to the level
of severity to create an objectively hostile work environ-
ment. It carved out, as the Seventh and Tenth Circuit
seem to have carved out, another “safe harbor” for
employer whereby gender-based put downs and insults,
be they in the form of anatomical references, sexual jokes,
or words of trivialization such as babes or broads, may be
deemed non-actionable under the rubric of mere “vul-
garity”. Indeed, the Sixth Circuit in Black echoes the
sentiment expressed by the Seventh Circuit in Baskerville
that Title VII was not designed to purge the workplace of
vulgarity. (App. 11).
The Sixth Circuit also discounts the oppressiveness of
the work environment at Petitioner’s workplace, finding
that many of the sexually offensive gender-based com-
ments were not directed to Petitioner but merely in her
presence. (App. 10). Again, the Sixth Circuit appears to be
adhering to the more conservative Seventh Circuit
approach articulated in Gleason, supra, where statements
18
that a plaintiff merely overhears second hand, rather than
directly, are accorded less weight and importance, and
are deemed to have less oppressive impact than state-
ments made directly to a plaintiff by a supervisor.
In light of Black, there now appears to be a clear
conflict between the Sixth, Seventh and Tenth Circuits
which have adopted a more restrictive view of sexual
harassment and the Second, Eighth and Ninth Circuits
which, given a similar factual scenario, would find the
atmosphere sufficiently permeated with sexually hostile
comments which would rise to the level of an objectively
offensive work environment.
There is no clear indication coming out of the circuit
courts as to when conduct is sufficiently de minimis to be
non-actionable. The Sixth Circuit has now, like the Sev-
enth and Tenth Circuit, carved out for employers a safe
harbor for conduct which is merely “vulgar”. This term,
however, is highly ambiguous and provides insufficient
guidance to the courts. If vulgarity refers to gender-
neutral profanity or scatological comments that abusive
foremen and supervisors direct toward all employees
regardless of their gender, an argument can be made that
such conduct does not come within the ambit of the
conduct proscribed by Title VII, inasmuch as it is not
designed to make the workplace uncomfortable for
women as opposed to men. However, the Sixth, Seventh
and Tenth Circuits, unlike the Second, Eighth and Ninth
Circuits, would define vulgarity more broadly, including
conduct of an admittedly gender-specific nature, as long |
as it merely reflects the popular culture of the day, per- |
meated as it is with rude and explicit sexual references
that many employees, especially female employees, find
‘itil
19
offensive and degrading. The Sixth, Seventh and Tenth
Circuits state rather clearly that, for better or worse, the
workplace mirrors the coarser aspects of society, and that
employees faced with such an environment must learn to
cope with it as reflective of society in general. Such a
workplace, while albeit offensive, is not per se objectively
hostile.
The Tenth Circuit in Gross v. Burggraf Construction Co.
attempts a finer distinction between a blue-collar work
environment, where female employees are expected to
tolerate a gender-hostile workplace environment because
it is traditional to that industry, and a white-collar envi-
ronment, where female employees reasonably have
higher expectations.
Equally troubling is the Sixth Circuit’s holding that
sexually hostile comments merely made in the presence
of a female employee are to be deemed less coercive, less
hostile and less intimidating than comments made by
supervisors directly to that plaintiff. (App. 10). In this
regard Black goes even further than the Seventh Circuit in
Gleason, which accorded such minimal weight only to
sexually-specific comments which were made outside the
plaintiff’s. presence, comments which she heard second-
hand. Taken to its logical extension, Black creates a new
widely expanded safe harbor for employer misconduct.
There is nothing particularly benign about a sexually
sensitive remark made by a group of male employees in
the presence of a targeted female individual, especially
when the remark is loud enough for the impacted female
employee to hear. Indeed, it can be argued that such a
remark is even more severe and humiliating than a remark
made directly to such individual and that she is regarded
20
as having so little sensibility and feeling, or even so little
identity, that it can be made with impunity in her pres-
ence. Equally as important, if Black is allowed to stand, it
will have an equally devastating impact upon minority
employees such as African-Americans and Hispanics who
are also oftentimes the victim of hostile work environ-
ments. Racially, religiously, or sexually offensive draw-
ings, cartoons, calendars and open recitation of jokes
hitherto regarded as a hallmark of an unlawfully hostile
work environment will now be deemed acceptable since
they are not directed “at” a particular employee but
merely displayed “in the presence” of such employee.
Other circuits, particularly the Second, Eighth and Ninth
Circuits, would not shrink from finding unlawful such
offensive comments where they are directed at women
because they are women and are not directed to males in
the workplace. However, newly-created dichotomy cre-
ated by the Sixth Circuit, i.e. whether a comment is made
“to” a female employee as opposed to “in her presence”,
would appear to take the law in an entirely different
direction.
Finally, whether sexually hostile comments are made
“to” a female employee as opposed to “in her presence”
is not one of the criteria set forth by the Supreme Court in
either Meritor or Harris. Thus, by creating this distinction,
the Sixth Circuit, along with the Seventh Circuit, would
engraft upon Harris a new criterion for courts to consider
in determining whether or not a sexually hostile environ-
ment exists.
To be sure, verbal abuse of the kind present in this
and the other cases cited herein is, relatively speaking,
not the most aggravated form of sexual harassment.
21
However, as this Court noted in Harris, the most
egregious examples of harassment “do not mark the
boundary of what is actionable”. Harris at 22. It also bears
emphasizing that verbal harassment, especially when
participated in and condoned by top levels of manage-
ment, as was the case here, may embolden the victim’s
co-workers to elevate their misconduct to the next level.
It has been almost five years since the Supreme Court
in Harris, issued a significant opinion discussing the con-
tours of Title VII in the context of what constitutes an
unlawful sexually hostile work environment. It is beyond
dispute that there should be a “safe harbor” where man-
agement’s participation in or condonation of harassing
conduct should be outside the scrutiny of federal courts.
However, there has developed, since Harris, a wide diver-
gence among the circuits as to how wide and deep that
harbor should be. Black presents the ideal vehicle for the
United States Supreme Court to clarify the law on this
issue.
22
2. WHERE A TITLE VII PLAINTIFF HAS
ADDUCED EVIDENCE AT TRIAL THAT SEV-
ERAL GENDER-BASED HOSTILE REMARKS
WERE DIRECTED TO HER BY VARIOUS
MEMBERS OF THE ALL-MALE SUPERVISORY
HIERARCHY OF HER EMPLOYER, INCLUD-
ING ITS PRESIDENT, AND THE PLAINTIFF’S
COMPLAINT TO THE EMPLOYER’S GEN-
ERAL COUNSEL ABOUT THE HARASSMENT
WAS IGNORED, TO WHAT EXTENT MAY THE
REVIEWING COURT SUBSTITUTE ITS OWN
JUDGMENT FOR THAT OF A JURY AND SET
ASIDE A JURY VERDICT TO THE EFFECT
THAT THE EMPLOYER’S CONDUCT
TOWARD PLAINTIFF WAS SUFFICIENTLY
SEVERE AND PERVASIVE SO AS TO CREATE
AN OBJECTIVELY HOSTILE WORK ENVI-
RONMENT?
It is well-established in federal jurisprudence that a
court of appeals may not set aside the verdict of a jury, or
the finding of a judge sitting as a trier of fact, unless it is
clearly erroneous or non-plausible. U.S. v. U.S. Gypsum
Co., 33 U.S. 364, 365, 68 S. Ct. 525 (1948). Fed. R. Civ. P.
52(a). A reviewing court cannot reverse a finding “of a
trier of fact simply because it is convinced that it would
have decided the case differently.” Anderson v. City of
Bessemer City, North Carolina, 470 U.S. 564, 573, 105 S. Ct.
1504 (1985). Nor is it proper for a reviewing court to
undertake a de novo weighing of the evidence in the
record. Id. at 576.
Whether or not a plaintiff meets the criteria set out
by the Supreme Court in Harris to establish the existence
of an objectively hostile work environment would appear
a question ideally suited for a trier of fact. Questions as to
23
whether the sexual harassment complained of was suffi-
ciently frequent, severe, and capable of interfering with
the employee’s ability to do her job are uniquely fact-
specific. So are collateral issues such as the extent to
which the employee found the work atmosphere subjec-
tively offensive, and the extent to which the employer
was put on sufficient notice of the harassment but took
inadequate steps to cure it.
This policy of judicial deference has been adhered to
in the context of Title VII sexual harassment cases in a
number of federal circuits. In Smith v. St. Louis University,
supra, the Eighth Circuit, in addressing the issue of the
degree of hostility of the work environment, stated:
Here, many of Schweiss’s comments included
gender conscious terms, and therefore could
reasonably be believed to have been directed at
Smith because of her sex. The question that
remains is whether the abuse rose to the level
required by Harris to be actionable under Title
VIL, a question that a jury should resolve.
Smith at 1265, (emphasis added). See also Kimzey v. Wal-
Mart Stores, 107 F.3d 568 (8th Cir. 1997).
The Second Circuit has weighed in with similar senti-
ments. In Torres v. Pisano, supra, the Court held that even
when the plaintiff may have a difficult time convincing a
jury that her workplace was sufficiently hostile, the case
should still go to the jury:
She may find it difficult to convince a jury that
pervasive harassment in fact took place, and
that a reasonable employee in her shoes would
have found her working environment hostile.
But this court cannot say as a matter of law that
24
Coe’s alleged conduct did not suffice to create a
hostile work environment. . . . [T]he pervasive-
ness of harassing conduct “is the sort of issue
that is often not susceptible of summary resolution”
[citing DiLaurenzio v. Atlantic Paratrans, Inc., 926
F.Supp. 310, 314 (E.D. NY 1996).]
Torres at *14, (emphasis added).
The key role of a jury in sifting through all of the
evidence to determine the impact of hostile and offensive
statements (albeit in a racial rather than a sexual context)
was recognized by the Third Circuit as well in Aman v.
Cort Furniture Rental Corp., 85 F.3d 1074, 1081-1084 (3rd
Cir. 1996).
Whether these cases present themselves in the pos-
ture of review of a lower court’s ruling on summary
judgment or in the posture of review of a jury verdict is
merely two sides of the same coin. Weighing all of the
evidence to determine whether the Harris criteria have
been met is the exclusive province of the trier of fact, as
long as the plaintiff has posited before the court some
evidence of gender-(or race-)specific hostility. Such issues
should not be resolved as a matter of law.
Other circuits have taken a more activist role, and
decided as a matter of law that certain patterns of
employer conduct and certain levels of workplace hostil-
ity do not, as a matter of law, rise to the level of an
actionable hostile working environment, notwithstanding
the fact that a jury found that plaintiff introduced into
evidence numerous instances of gender-specific harass-
ment so as to support a verdict in her favor. As noted
above, the Seventh Circuit, in Baskerville, supra, set aside a
jury verdict in favor of plaintiff, even though she had
25
adduced several incidents of sexually insulting remarks
by her supervisor. The Court ruled as a matter of law,
that since the tenor of the remarks was no more egregious
than those which were prevalent in the popular culture,
no jury could reasonably find that plaintiff's workplace
was unlawfully hostile.
A similar stance was taken by the Fourth Circuit in
Spicer v. Commonwealth of Virginia, 66 F.3d 705 (4th Cir.
1995). At issue in Spicer was the adequacy of the
employer’s response to plaintiff’s allegations of on-the-
job sexual harassment. Notwithstanding the trier of fact’s
finding that the response was inadequate and that plain-
tiff has successfully established an objectively hostile
work environment, the Fourth Circuit reversed the trier
of fact and ruled as a matter of law that the employer had
effectively responded to plaintiff’s allegations. Id. at 705.
The Court’s ruling sparked a dissenting opinion to the
effect that the adequacy of an employer’s attempts to
remedy sexual harassment is quintessentially a question
of fact for the jury (or lower court sitting as a trier of fact)
to resolve. Id. at 712.
A jury verdict was also preempted by the Fifth Cir-
cuit in Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.
1997). The issue in that case was whether plaintiff had
made out a case of retaliation for her earlier filing of a sex
harassment complaint. There was substantial eviderice of
on-the-job harassment which would support a jury ver-
dict of retaliation. However, the Fifth Circuit ruled that
this harassment was insufficiently attributable to the
employer so as to hold it liable for the retaliation. Id. at
706-708. Again, there was a strong dissent taking the
26
majority to task for overturning a jury verdict on this
highly fact-specific issue. Id. at 712-714.
In the case sub judice, the Sixth Circuit appears to
have adopted the philosophy of judicial activism dis-
played by the Fourth, Fifth, and Seventh Circuits, in
Spicer, Mattern, and Baskerville, rather than the policy of
judicial restraint and deference displayed by the Second,
Third, and Eighth Circuits in Torres, Aman, Smith, and
Kimzey. Notwithstanding the fact that the jury in Black
had substantial evidence before it in terms of the number
and frequency -f gender-hostile remarks made to the
plaintiff by members of management, and the emotional
distress she suffered therefrom, the Sixth Circuit, with
very little factual analysis, concluded on its own that no
trier of fact could reasonably conclude that the work
environment was anything more than merely offensive.
The only empirical evidence cited by the Court was that
much of the harassing statements were, in its view,
merely made in Petitioner’s presence, rather than directly
to her.
This case would not be particularly noteworthy were
the extent of gender hostility before the jury truly de
minimis, i.e., “a mere offensive utterance”, Harris at 23.
However, this case did not involve just one, or even just
two or three isolated statements. The jury in Black was
presented with a quantum of evidence equal to, or greater
than, that existing in those other verbal sexual harass-
ment cases where the reviewing court had no problem
either sustaining jury verdicts or allowing the cases to go
to the jury. See Smith, Kimzey, Aman, and Torres, supra. It
also bears emphasizing that in Black, the jury was con-
fronted with a female subject to gender-based insults and
27
ridicule by various levels of management, including the
Company President, in an all male working environment.
Furthermore, the jury had before it clear evidence that
Respondent’s Vice President and General Counsel had
been put on notice_of Petitioner’s complaints of sexual
harassment and yet did nothing about them.
There is, therefore, a sharp and significant dispute
among the circuit courts as to the fact-specific nature of
the various Harris factors for determining employer lia-
bility in a Title VII lawsuit for sexual harassment. The
extent to which circuit courts are allowed to exercise free
reign to invade the province of juries and second-guess
their weighing and analysis of evidence in hostile work
environment cases will govern the willingness of
employees to bring their lawsuits in the first place. Harris
created a fairly workable analytical framework for assess-
ing the viability of a sexual harassment suit. If there
existed sufficient facts whereby a jury might conclude
that the Harris criteria had been met, the suit could go
forward. However, if employees know that after the hard-
fought battle has been won the reviewing court may on
its own whim set aside the jury’s finding, a chilling air of
uncertainty will be injected into the process, and
employees will be hesitant to bring such suits in the
future.
Therefore, the Supreme Court should grant certiorari
so as to resolve the dispute amongst the circuits on this
significant issue.
28
CONCLUSION
For all of the reasons set forth, Petitioner respectfully
asks that the within Petition For Writ Of Certiorari be
issued to the United States Court of Appeals for the Sixth
Circuit.
Respectfully Submitted,
DonaLpb B. Horpes
App. 1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
ELECTRONIC CITATION: 1997 FED App. 0014P (6th Cir.)
File Name: 97a0014p.06
No. 96-3118
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
On AppeAL from the
United States District
Court for the Southern
District of Ohio
DesrRA BLACK,
Plaintiff-Appellee,
v.
ZARING Homes, INc.,
Defendant-Appellant.
~~ eee ee eee e e”
Decided and Filed Jan. 14, 1997.
Before: KENNEDY and BATCHELDER, Circuit
Judges; EDGAR’, District Judge.
KENNEDY, Circuit Judge.
In this action under Title VII, 42 U.S.C. § 2000e et seq.,
defendant appeals both the jury’s verdict in favor of
plaintiff and the magistrate judge’s denial of its post-trial
motion for judgment as a matter of law or, in the alterna-
tive, for a partial new trial or remittitur. The jury found
that while plaintiff was an employee of defendant, she
* The Honorable R. Allan Edgar, United States District
Judge for the Eastern District of Tennessee, sitting by
designation.
App. 2
was subjected to sexual harassment in the form of a
hostile work environment. The jury awarded plaintiff
$50,000 in compensatory damages and $200,000 in puni-
tive damages. Defendant first argues that it is entitled to
judgment as a matter of law because no reasonable inter-
pretation of the evidence supports a finding of a hostile
work environment. In the alternative, defendant asserts
that (1) no justification exists for an award of punitive
damages and (2) the magistrate judge erred in denying its
motion for a new trial.! For the following reasons, we
REVERSE.
I. Facts
Defendant is in the business of acquiring and devel-
oping land and building and selling homes. Plaintiff
started working for defendant as Land Acquisition Man-
ager on June 29, 1993. Her job entailed identifying pieces
of land suitable for neighborhood development and
working toward getting that land under contract to pur-
chase. Her duties required that she be out of the office
and in the field seventy percent of the time.
1 Defendant sought a new trial on grounds that the
magistrate judge erred in admitting certain evidence, including,
as evidence of a hostile work environment, evidence of two
incidents that occurred after plaintiff left defendant’s employ
and which did not involve plaintiff. Defendant also asserted
that the jury instructions were improper and inaccurate.
Defendant has raised substantial claims with regard to these
assignments of error, but we decide the case on other grounds.
App. 3
Every two weeks, employees of defendant’s land
department attended “land meetings” to discuss the sta-
tus of acquisition efforts. Besides plaintiff, attendees
included Jeff Hebeler, plaintiff's immediate supervisor;
Ronald Benkert, defendant’s then-President; Michelle
Grigsby, Vice President and in-house General Counsel;
Tim Zaring, Rick Iannitti, Tim Kramer, and Doug Hinger,
the managers in charge of defendant’s four product lines
of homes; Jeff Hafer, development manager; and Mark
Stenger, land development administration manager.
Plaintiff asserts that sexually harassing comments were
made at many of these meetings.
Sometime at the end of July, plaintiff was in a land
meeting, sitting next to Tim Zaring. Zaring reached over
to take a pastry from a plate in the center of the table and
in front of plaintiff, and he said, “Nothing I like more in
the morning than sticky buns,” while looking plaintiff up
and down, smiling, and “wriggl[ing]” his eyebrows.
Plaintiff asserts that she reacted by saying “Tim, cut it
out,” whereafter Zaring turned to Iannitti, who was sit-
ting on his other side, and laughed. Zaring’s comment
“bothered [plaintiff] a little bit.”
At the next land meeting, sometime in mid-August,
the meeting participants discussed a parcel of land adja-
cent to a Hooters Restaurant. Someone suggested that the
area be named “Hootersville,” and Zaring and Iannitti
suggested “Titsville” or “Twin Peaks.” Everyone at the
meeting laughed. Plaintiff says she “looked down,
and . . . was devastated by this thinking this is going to
continue on... an ongoing basis.” According to plaintiff,
jokes about this particular parcel of land occurred at
numerous meetings. Her ability to work was affected
App. 4
because she would worry that any remark she might
make would “throw everybody off for awhile.”
Also in August, plaintiff went to Hebeler to discuss
her job performance and to ask about how her bonus
would be affected by the number of parcels of land she
acquired. Hebeler responded by telling plaintiff that she
was “paid great money for a woman.” Plaintiff was
“deeply upset” about the comment.
In September, plaintiff was negotiating to purchase a
parcel of land owned by an individual named “Dr. Paul
Busam,” apparently pronounced “bosom.” Plaintiff gave
a presentation regarding the parcel at a land meeting and,
when she mentioned the owner’s name, everyone
laughed. Some participants, although plaintiff could only
specifically name [annitti, began joking again about the
possible names for the property near the Hooters Restau-
rant. In order to avoid such laughter and joking at subse-
quent meetings, plaintiff would refer to the owner as “Dr.
Paul.”
At a land meeting in October, when plaintiff asked
about the location of a particular property, Benkert told
her that it was near a biker bar. He then said, “Say,
weren't you there Saturday night dancing on the tables?”
Plaintiff testified that everyone laughed and that she was
“hurt,” “crushed,” and “devastated” by the remark
because “it was making a characterization of [her].” After
the remark, plaintiff looked down and quietly said, “Not
hardly, Ron,” but she did not believe that anyone heard
her.
Finally, sometime in October, plaintiff was sitting
next to Hebeler, waiting for a land meeting to start, when
App. 5
she heard him tell Hafer, “Just get the broad to sign it.”
This comment was made supposedly in response to Hafer
telling Hebeler that he was having problems getting a
county official to sign a document. Plaintiff says that she
immediately looked at Hebeler and that he looked at her
and shrugged his shoulders. She then shook her head.?
Plaintiff testified that she complained to Michelle
Grigsby, defendant’s general counsel, sometime at the
end of the summer. Their discussion took place in the
women’s restroom after a land meeting. Plaintiff says she
told Grigsby: “I can’t stand this in this land meeting. This
is crazy. It’s gotten way out of hand. Has it always been
like this?” Grigsby responded: “Well, that’s just the way
they are. . . . There’s nothing you can do about it.”
Plaintiff then said: “Except that it takes up so much time.
It doesn’t make sense to spend quality business time to
get our business done for them to go off on these little
tangents and little schoolboy activities laughing and jok-
ing.”
Plaintiff was terminated for performance deficiencies
on November 8, 1993, a little over four months after she
2 Defendant includes in its list of alleged incidents of
harassment an event that occurred in mid-August at a farewell
party for an employee of defendant: Allen Zaring, defendant's
chief executive officer, invited plaintiff and Michelle Grigsby to
sit by him, saying “I love to be surrounded by beautiful
women.” Plaintiff says she was not offended by this remark, but
that she was offended by the “look” she received from an
unidentified woman. Plaintiff does not include this event in her
brief. The magistrate judge found that “this isolated incident
did not constitute, nor did it contribute to a sexually hostile and
abusive environment.”
App. 6
started working for defendant. On April 4, 1994, she filed
a charge of sex discrimination with the Equal Employ-
ment Opportunity Commission (EEOC). Plaintiff received
a right to sue notice on or about June 9, 1994. She then
sued defendant alleging sex discrimination, sexual
harassment, breach of contract, and the intentional inflic-
tion of emotional distress. She asserted claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., as well as claims under the comparable state statute,
Onto Rev. Cope § 4112.02(A) (Anderson 1991), and Ohio
common law. The parties agreed to have the case tried by
a magistrate judge. Plaintiff dismissed the breach of con-
tract claim, and the magistrate judge directed a verdict in
defendant’s favor on plaintiff’s emotional distress claim.
On March 31, 1995, the jury rendered a verdict
against plaintiff on her claim of sex discrimination related
to her termination, but in favor of plaintiff on her claim of
sexual harassment based on a hostile work environment.
The jury awarded $50,000 in compensatory damages and
$200,000 in punitive damages. Judgment on this verdict
was entered on September 21, 1995.
Defendant timely filed a renewed motion for judg-
ment as a matter of law or, in the alternative, for a partial
new trial on the sexual harassment claim or remittitur.
The magistrate judge denied defendant’s motions. The
magistrate judge found that the evidence revealed “an
atmosphere of a grade school level fascination with
women’s body parts combined within [sic] denigrating
comments about women” which were “not appropriate in
the workplace.” Acknowledging that “[t]he more difficult
question is whether this conduct was sufficiently offen-
sive and occurred often enough to create an objectively
App. 7
and subjectively hostile and abusive working environ-
ment,” the magistrate judge held that the evidence sup-
ported such a finding.
The magistrate judge also denied defendant’s motion
for a new trial, finding that (1) the verdict was not against
the clear weight of the evidence; (2) its evidentiary rul-
ings were not prejudicial to defendant; (3) the jury
instructions were not misleading, inadequate, or prejudi-
cial; and (4) the verdict did not shock the conscience.
Finally, stating that the “propriety of a punitive damages
award in this case is a close question,” because plaintiff
did not complain about many of the comments, the mag-
istrate judge concluded that the jury could have deter-
mined that particular circumstances demonstrated
reckless disregard for women’s rights in general and
plaintiff’s rights in particular. Accordingly, the magistrate
judge affirmed the judgment.
This timely appeal followed.
II. Discussion
A.
This Court’s standard of review for a Fep.R.Cw.P.
50(b) motion for judgment as a matter of law based on the
sufficiency of the evidence is identical to that used by the
District Court. K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d
171, 175 (6th Cir.1996). Thus, we do not weigh the evi-
dence, evaluate the credibility of the witnesses, or substi-
tute our judgment for that of the jury. Id. at 175-76; Wehr
v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th
Cir.1995). Instead, we must view the evidence in the light
App. 8
most favorable to the party against whom the motion was
made, and give that party the benefit of all reasonable
inferences. K & T Enters., Inc., 97 F.3d at 176. We reverse a
district court’s denial of such a motion only if reasonable
minds could not come to a conclusion other than one in
favor of the movant. Id.
Title VII of the Civil Rights Act of 1964 prohibits
discrimination “against any individual with respect to his
compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S.
57, 66 (1986), the Supreme Court held that a plaintiff may
establish a violation of Title VII by proving that discrimi-
nation based on sex created a hostile or abusive work
environment. Indeed, the statute grants employees “the
right to work in an environment free from discriminatory
intimidation, ridicule, and insult.” Id. at 65.
However, the Court emphasized in Meritor that not
all workplace conduct that has sexual] overtones can be
characterized as harassment forbidden by the statute. See
id. at 67. Rather, harassment must affect a “term, condi-
tion, or privilege” of employment in order for it to fall
within Title VII’s purview. Thus, for alleged harassment
to be actionable, it must be “sufficiently severe or perva-
sive ‘to alter the conditions of [the victim’s] employment
and create an abusive working environment.’ ” Id. (quot-
ing Henson v. City of Dundee, 682 F.2d 897, 904 (11th
Cir.1982)).
App. 9
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-23
(1993), the Supreme Court reaffirmed this standard and
elaborated upon its contours. The Harris Court explained
that the conduct in question must be judged by both an
objective and a subjective standard: The conduct must be
severe or pervasive enough to create an environment that
a reasonable person would find hostile or abusive, and
the victim must subjectively regard that environment as
abusive. Id. at 21-22. “This standard . . . takes a middle
path between making actionable any conduct that is
merely offensive and requiring the conduct to cause a
tangible psychological injury.” Id. at 21. Acknowledging
that this approach is not susceptible to a “mathematically
precise test,” id. at 22, the Court then sought to provide
some guidance with regard to the somewhat elusive
question of whether a work environment was objectively
hostile or abusive. The Court explained that all of the
circumstances should be considered, and it suggested a
non-exhaustive list of relevant factors:
[T]he frequency of the discriminatory conduct;
its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an
employee’s performance. The effect on the
employee’s psychological well-being is, of
course, relevant to determining whether the
plaintiff actually found the environment abu-
sive. But while psychological harm, like any
other relevant factor, may be taken into account,
no single factor is required.
Id. at 23.
Defendant concedes that verbal conduct alone can be
the basis of a successful hostile work environment claim.
”
App. 10
However, it asserts that such conduct must be objectively
hostile or abusive before it can be legally proscribed.
Defendant maintains that here the verbal conduct simply
did not rise to that level and that therefore the evidence
does not support a finding of sexual harassment.
We agree with defendant. Given the imprecise stan-
dard laid down by the Harris Court, we might be reluc-
tant to overturn a jury verdict in favor of plaintiff.
Nevertheless, although the comments were sex-based, we
hold that the evidence is insufficient to support a finding
that they were severe or pervasive enough to create an
objectively hostile work environment.? Our conclusion is
not based upon an analysis of the comments as isolated
events. Rather, viewing the totality of the circumstances,
see Harris, 510 U.S. at 23, we find that even when con-
strued in a light most favorable to the plaintiff, the con-
duct does not appear to have been more than “merely
offensive,” id. at 21. While we emphasize that sex-based
comments need not be directed at a plaintiff in order to
constitute conduct violating Title VII, we note that in this
case most of the comments were not directed at plaintiff;
this fact contributes to our conclusion that the conduct
here was not severe enough to create an objectively hos-
tile environment. See cf. Brown v. Hot, Sexy and Safer
Productions, Inc., 68 F.3d 525, 541 (1st Cir.1995) (finding
that plaintiffs’ allegations were not so severe as to create
an objectively hostile educational environment under
3 Indeed, the magistrate judge commented that it
“recall[ed] very few sexual harassment cases tried in this court
or in the case books where the conduct was that innocuous as in
this case.”
App. 11
Title IX, in part because the sexual comments were not
directed at the plaintiffs), cert. denied, 116 S.Ct. 1044
(1996). Although the verbal comments were offensive and
inappropriate, and the record suggests that defendant’s
employees did not always conduct themselves in a pro-
fessional manner, Title VII was “not designed to purge
the workplace of vulgarity,” Baskerville v. Culligan Inter-
nat'l Co., 50 F.3d 428, 430 (7th Cir.1995).
Although the EEOC in its amicus brief urges us to
reject the court’s analysis in Baskerville, we find that case
helpful. In Baskerville, the Seventh Circuit overturned a
jury verdict in favor of the plaintiff because it found that
the facts were insufficient to support a finding of an
objectively hostile work environment. Id. at 430. As in
this case, the plaintiff’s claim was based on verbal con-
duct only.4 The court found that the nine allegedly
* The plaintiff testified that over a period of seven months,
her supervisor: (1) would call her “pretty girl”; (2) once made a
grunting sound when she was wearing a leather skirt; (3) in
response to her comment that it was hot in his office, said “Not
until you stepped your foot in here”; (4) once, when an
announcement “May I have your attention, please,” was
broadcasted over the public address System, said to plaintiff,
“You know what that means, don’t you? All pretty girls run
around naked”; (5) called plaintiff a “tilly,” explaining that he
used that term for all women; (6) once told her that his wife had
told him he had “better clean Up my act” and “better think of
[plaintiff] as Ms. Anita Hill”; (7) when asked why he had left the
office holiday party early, replied that there were so many pretty
girls there that he “didn’t want to lose control, so I thought I’d
better leave”; (8) once replied, after plaintiff commented that his
office was smokey, “Oh really? Were we dancing, like in a
nightclub?”; and (9) once made a movement suggesting
masturbation in response to the plaintiff’s question regarding
App. 12
unlawful incidents, spread over seven months, could not
reasonably be thought to constitute sexual harassment
actionable under Title VII. Id. The court reached this
conclusion not because the alleged harassment was based
upon verbal conduct only, but because the conduct did
not create an objectively hostile work environment.
The EEOC maintains that Baskerville improperly
ignored the impact that offensive comments have in the
context of the workplace, and that we should instead
follow the reasoning of Harris. Yet, we do not believe that
Baskerville is inconsistent with Harris or Meritor. The
Supreme Court in both decisions recognized that there
may be times when offensive comments have an impact
in the workplace, indeed constitute “harassment”, but do
not create an objectively hostile work environment. See
Harris, 510 U.S. at 21; Meritor, 477 U.S. at 67. “[N]ot 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.
Our understanding of the analysis in Meritor and the
standard set forth in Harris supports our finding that the
record here does not establish an objectively hostile work
environment. Accordingly, the verdict must be reversed.
III. Conclusion
For the foregoing reasons, we REVERSE.
whether he had bought his wife a Valentine’s Day card.
Baskerville, 50 F.3d at 430.
a
App. 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DEBRA BLACK,
Plaintiff
vs Case No. C-1-94-471
ZARING HOMES, INC.,
Defendant
ORDER
(Filed Dec. 27, 1995)
This case is before the Court on defendant Zaring
Homes, Inc.’s renewed motion for judgment as a matter
of law or, in the alternative, for a partial new trial or
remittitur (Doc. 64), plaintiff Debra Black’s response
(Doc. 65), and defendant’s reply (Doc. 66). Black sued
Zaring Homes alleging sex discrimination and hostile
environment sexual harassment claims pursuant to Title
VII of the Civil Rights Act of 1964 as amended, 28 U.S.C.
§ 2000e et. seq. and the comparable state statutes, Ohio
Rev. Code § 4112.02(A) et. seq. The jury trial on these
claims resulted in a finding that Zaring Homes did not
discriminate against Black due to her gender when it
discharged her. The jury found, however, that Black was
subjected to sexual harassment, and it awarded her
App. 14
$50,000 in compensatory damages and $200,000 in puni-
tive damages. (Doc. 63). The Court subsequently awarded
Black attorneys’ fees and costs. Id.
Zaring Homes moves for judgment as a matter of law
regarding plaintiff's sexual harassment claim. In the
alternative, it requests a new trial on the sexual harass-
ment claim or a remittitur of compensatory and punitive
damages.
THE STANDARD OF REVIEW
Pursuant to a Rule 50(b) motion for judgment as a
matter of law, the Court may set aside the jury’s verdict
and enter a judgment as a matter of law only if reason-
able minds could come to but one conclusion from the
evidence. Wayne v. Village of Sebring, 36 F.3d 517, 525 (6th
Cir. 1994); Radliff v. Wellington Exempted Village Schools Bd.
of Ed., 820 F.2d 792, 795 (6th Cir. 1987). Reviewing the
evidence as it existed at the close of trial, see Douglass v.
Eaton Corp., 956 F.2d 1339, 1344 (6th Cir. 1992), the court
must construe all evidence in favor of the party prevail-
ing at trial, drawing all reasonable inferences in the pre-
vailing party’s favor. Chappell v. GTE Products Corp., 803
F.2d 261, 265 (6th Cir. 1986), cert. denied, 480 U.S. 919
(1987). The court may not weigh the evidence, pass on the
credibility of witnesses, or substitute its judgment for
that of the jury. Agristor Leasing v. A.O. Smith Harvestore
Products, Inc., 869 F.2d 264, 268 (6th Cir. 1989). If there is
substantial evidence from which the jury could find in
favor of the party against whom the motion is made, the
motion must be denied. Lewis v. City of Irvine, Kentucky,
899 F.2d 451, 454 (6th Cir. 1990).
App. 15
The authority to grant a Rule 59(a) motion for a new
trial is purely within the Court’s discretion. Logan v.
Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). The
bases for granting a new trial include findings that the
verdict was against the clear weight of the evidence,
Hartzler v. Licking Cty. Humane Society, 740 F. Supp. 470,
480 (S.D. Ohio 1990), the jury instructions were mislead-
ing, inadequate, or prejudicial, Fryman v. Federal Crop Ins.
Corp., 936 F.2d 244, 248 (6th Cir. 1991), or attorney mis-
conduct resulted in prejudice. Clarksville-Montgomery
County School System v. U.S. Gypsum Co., 925 F.2d 993,
1002 (6th Cir. 1991).
When ruling on a motion for a new trial because the
verdict is against the weight of the evidence, the court
may set aside the verdict only if it determines that it is
against the clear weight of the evidence. Simpson v. White,
52 F.3d 326 (6th Cir. 1995). “[The court] is not free to
reweigh the evidence and set aside the jury verdict
merely because the jury could have drawn different infer-
ences or conclusions or because [the court] feel[s] that
other results are more reasonable.” Hartzler, 740 F. Supp.
at 780 (quoting Duncan v. Duncan, 377 F.2d 49, 52 (6th Cir.
1967)); U.S. v. L.E. Cooke Co. Inc., 991 F.2d 336, 343 (6th
Cir. 1993).
Rule 59 allows for a remittitur as an alternative to a
new trial only when, after reviewing all evidence in the
light most favorable to the prevailing party, the court is
convinced that the verdict is clearly excessive, resulted
from passion, bias, or prejudice, or is so excessive or
inadequate as to shock the conscience. Farber v. Massillon
Bd. of Ed., 917 F.2d 1391, 1395 (6th Cir. 1990). While the
grant of a remittitur is within the court's discretion, it
App. 16
abuses its discretion in ordering either a remittitur or a
new trial when the award turns upon conflicting evi-
dence and the credibility of witnesses. Hewitt v. B.F. Good-
rich Co., 732 F.2d 1554, 1556 (11th Cir. 1984). See also Cross
v. Thompson, 298 F.2d 186 (6th Cir. 1962). If there is cred-
ible evidence to support the verdict it should not be set
aside. Farber, 917 F.2d at 1395; Werthan Bag Co. v. Agnew,
202 F.2d 119 (6th Cir. 1953). “As a general rule, . . . a jury
verdict will not be set aside or reduced as excessive
unless it is beyond the maximum damages that the jury
reasonably could find to be compensatory for a party’s
loss.” Green v. Francis, 705 F.2d 846, 850 (6th Cir. 1983). See
also In re Lewis, 845 F.2d 624, 635 (6th Cir. 1988). If the trial
court reduces the award, it must offer the prevailing
party a choice between a new trial and the amount of its
remittitur. Brewer v. Uniroyal, Inc., 498 F.2d 973, 976 (6th
Cir. 1974).
ZARING HOMES IS NOT ENTITLED TO
JUDGMENT AS A MATTER OF LAW
Zaring Homes seeks judgment in its favor as a matter
of law because it contends the evidence is not sufficient
to support a finding of hostile environment sexual
harassment. It claims that the alleged wrongful conduct
did not create an environment that either a reasonable
person or plaintiff herself would find hostile or abusive.
It also avers that the punitive damages award should be
set aside because the Court should not have given a
punitive damages charge and because the jury’s award of
punitive damages was unreasonable.
App. 17
Title VII is violated when an employee is subjected to
harassment because of her sex that is sufficiently perva-
sive to alter her employment conditions and create an
abusive or hostile working environment. Harris v. Forklift
Systems, Inc., 114 S. Ct. 367, 370-71 (1993). The harassment
must be severe or pervasive enough to create an environ-
ment that is both objectively hostile or abusive as well as
one that plaintiff herself perceives as hostile or abusive.
Id. at 370; Goldsmith v. City of Canton, 47 F.3d 1168 (6th Cir.
1995). There is no specific test for detecting hostile envi-
ronment sexual harassment. The trier of fact must look at
all the circumstances. Id. at 371. These circumstances
include, but are not limited to: (1) the frequency of the
wrongful conduct; (2) its severity; (3) whether the con-
duct was physically threatening, humiliating or a mere
offensive utterance; (4) whether the conduct unreason-
ably interfered with plaintiff’s work performance; and (5)
the conduct’s effect on the plaintiff’s psychological well-
being. Harris, 114 S. Ct. at 371. The court may consider
the psychological effects on plaintiff even though a tang-
ible psychological injury is not proven. Id. These factors
do not comprise the sole test for sexual harassment; the
jury must evaluate all the circumstances to decide
whether sexual harassment occurred. Id. See also Id. at 372
(Ginsburg, J. concurring) and id. (Scalia, J. concurring).
The mere utterance of an epithet that engenders
offensive feelings in an employee does not sufficiently
affect employment conditions to violate Title VII. Id. at
369-70. However, recovery for hostile environment sexual
harassment can be based on offensive utterances alone.
See Harris v. Forklift Systems, Inc., 1994 WL 792661 (M.D.
Tenn. Nov. 9, 1994); Dillon v. Frank, 952 F.2d 403 (6th Cir.
App. 18
1992); Shope v. Bd. of Supervisors of Louden County, Va., 14
F.3d 596 (4th Cir. 1993). A plaintiff may prove interfer-
ence with her work performance by showing that a rea-
sonable person subjected to the conduct in question, as
well as the plaintiff herself, would find that it altered her
working conditions by making it more difficult to per-
form her job. Harris, 114 S.Ct. at 372 (Ginsburg, J. concur-
ring) (referring to Davis v. Monsanto Chemical Co., 858 F.2d
345, 349 (6th Cir. 1988)).
In the instant case, the jury found that Zaring Homes’
discharge of Black was not the result of gender discrimi-
nation. This finding indicates the jury’s determination
that Zaring Homes’ Chief Executive Officer Allen G. Zar-
ing, did not engage in discriminatory conduct. Nor did
Black establish that Allen G. Zaring engaged in sexual
harassment.! She claimed that other Zaring Homes per-
sonnel made offensive utterances to her during a four
month period, thus creating a hostile working environ-
ment. She alleged that Land Acquisitions Director Jeff
Hebeler (Black’s immediate supervisor), General Counsel
1 The only incident Black related involving Allen Zaring
took place when Black and General Counsel Grigsby arrived
together at a company employee’s farewell party. Allen Zaring
asked them to sit on either side of his chair and said, “I love to
be surrounded by beautiful women.” (Doc. 50, Tr. 276). Black
walked over and stood on one side of Zaring while Grigsby
stood on the other. Black was not offended by the compliment,
but said she was offended by the reaction of her female co-
workers. She believed that it gave them the impression that she
“was his little play toy” and raised questions concerning the
reasons she had been hired. (Doc. 50, Tr. p. 277). We find this
isolated incident did not constitute, nor did it contribute to a
sexually hostile and abusive environment.
App. 19
Michelle Grigsby, and President Ron Benkert either par-
ticipated in or were aware of such conduct and did noth-
ing to prevent it. To decide the pending motions, we must
assume that the jury found Black’s version of the events
regarding sexual harassment credible. Chappell, 803 F.2d
at 265, Hartzler, 740 F. Supp. at 780.
The first incident occurred at a land acquisition meet-
ing. The Estate Division Product Manager, Tim Zaring,
reached across the table in front of Black for a donut. He
said to her while wiggling his eyebrows, “nothing I like
more in the morning than sticky buns.” (Tr. pp. 255-57).
Black looked down and said, “Tim, cut it out.” (Id.). He
then leaned toward Rick Iannitti and the two men started
whispering and laughing (Id.).
Another incident occurred at a land acquisition meet-
ing involving the purchase of a property near a “Hooters”
restaurant. Employees Tim Zaring and Rick Iannitti sug-
gested names for the Property such as “Hootersville,”
“Titsville,” and “Twin Peaks.” (Id. 259-60). Black was
present at this meeting. These suggestions were met with
much laughter by all the men at the meeting, and the
meeting was interrupted for a time until the laughter
ceased. (Id., 260-61).
The next incident arose at a land acquisition meeting
involving a prospective land seller named Busam. The
men at the meeting broke into uncontrollable laughter at
the name, which was pronounced “bosom.” (Id., Pp. 268).
Black was present at this meeting. This incident precipi-
tated a reference to the Hooters restaurant discussion and
triggered more laughter among the men at the meeting.
Both of these discussions were revisited at subsequent
App. 20
meetings whenever the name Busam was mentioned and
the men at the meetings had similar reactions each time.
(Id. 268-69). Black had to cease using the client’s name to
avoid outbursts at other meetings. (Id. 169-70).
One incident occurred at a land acquisition meeting
involving a discussion of certain property Zaring Homes
was considering purchasing. (Id., 264). When Black asked
where the property was located, President Ron Benkert
described its location as “on old 74 close to the gun and
ammo (sic) place. There’s a biker bar (sic) right next door
to it.” (Id., 265). Then Benkert asked Black, “[s]ay, weren’t
you there Saturday night dancing on the tables?” (Id.).
Benkert’s question was met with laughter from those at
the meeting. (Id.). Black looked down and responded,
“not hardly, Ron.” (Id., 266).
Another incident took place when Black was sitting
next to her supervisor, Jeff Hebeler, waiting for the start
of a land acquisition meeting. (Id., 271). An assistant
approached Hebeler to discuss a problem regarding hav-
ing a permit signed. Black overheard Hebeler tell his
assistant, “[jJust get the broad to sign it.” (Id.). Black
immediately looked at Hebeler and he shrugged his
shoulders. Black shook her head and put it down. (Id.,
271-72).
An incident happened when Black approached
Hebeler to discuss her performance and the company’s
salary bonus plan. (Id., 273). Black asked Hebeler
whether she would receive a salary bonus for property
she found over her minimum and he responded, “[y]lou
are paid great money for a woman. Your job is to find
TL —————————eeeeee
App. 21
ground. . . . Don’t worry about your income. You just do
what I tell you and get your job done.” (Id., 274).
Zaring Homes argues that the aforesaid remarks,
uttered over a four month period, were neither offensive
nor sufficiently pervasive to establish sexual harassment.
It contends that the statements were nothing more than
“remarks of a schoolboy kind” (Doc. 64, p. 12), and
“spontaneous jokes precipitated by circumstance.” (Id.,
5). It argues that “there is no workplace in the world
where a joke [regarding women’s breasts] inspired by
[the] restaurant [Hooters] name and ambience would not
have occurred in the context of suggesting a name for a
potential . . . neighborhood. . . . ” (Id.). It claims that
requiring its employees not to interrupt a meeting with
uncontrollable laughter at the name Busam does not pro-
mote Title VII's goals of equal opportunity in the work-
place. (Id.).
Zaring Homes contends that Tim Zaring’s comment
in Black’s presence, “there’s nothing I like more in the
morning than sticky buns,” was merely “an off-the-cuff
quip inspired by his liking for the . . . pastries served at
the meeting.” (Id., p. 5). It argues that because General
Counsel Michelle Grigsby attended the land acquisition
meetings and was not embarrassed or uncomfortable,
these comments cannot be objectively construed as offen-
sive. It also argues that plaintiff failed to prove she per-
sonally found these incidents to be abusive or hostile. It
contends that when President Benkert asked Black if she
danced on the table tops at a “biker bar,” she was
offended because she attributed an unintended negative
implication to the statement. It asserts that Hebeler’s
remark about plaintiff making good money for a woman
App. 22
was generated by his shock and surprise that Black
would raise salary issues so soon after being hired.
While Zaring Homes views each incident separately
and characterizes each as harmless, the jury properly
viewed the circumstances collectively. The evidence
revealed an atmosphere of a grade school level fascina-
tion for women’s body parts combined within denigrat-
ing comments about women. There was no evidence of
similar conduct regarding males. The jury found, and the
Court agrees, that this conduct is not appropriate in the
workplace. The jury found these remarks to be directed to
either Debra Black or to women in general in Black’s
presence, and they found them offensive. They also found
that Black personally found them offensive. The Court
agrees with these findings.
Zaring Homes relies on the reactions of two of its
female management members, General Counsel Grigsby
and Operations Vice President Anna McCarthy, who were
not offended by such conduct. It claims that if these two
women were not offended, the conduct could not consti-
tute sexual harassment. There is evidence, however, that
McCarthy engaged in conduct offensive to women with
Grigsby’s approval. During the time Black was employed
by Zaring Homes, McCarthy drafted a chart calendaring
the menstrual cycles of female employees, and she posted
the chart on Rick Iannitti’s office door. Grigsby was
aware of the chart and its posting but took no action to
have it removed. Apparently, the two women found the
chart to be humorous.
Zaring Homes claims that because McCarthy and
Grigsby thought the chart was amusing, the incident did
App. 23 |
not contribute to creating an abusive environment. The
jury, however, apparently had no problem in finding this
incident to be offensive to a reasonable employee. The
Court agrees with the jury’s determination. This evidence
was admitted over objection as proof of management's
disregard of sexually harassing conduct. The fact that the
conduct was perpetrated and condoned by two female
members of upper management does not bar recovery.
Women can engage in sexual harassment toward other
women. As managers responsible for eliminating such
conduct, they can contribute toward an atmosphere that
is abusive to women by ignoring their responsibility and
condoning such conduct. E.E.O.C. v. Hacienda Hotel, 881
F.2d 1504, 1515 n. 8 (9th Cir. 1989); Baskerville v. Culligan
Int'l Co., 50 F.3d 428, 431 (7th Cir. 1995); see also Dillon,
1992 WL 5436, at *7.
There is substantial evidence from which a reason-
able person could find that the challenged conduct was
humiliating and offensive to women. There was no evi-
dence of similar comments made about men. The jury
reasonably concluded that the offending conduct was
directed at Black because of her gender. The more diffi-
cult question is whether this conduct was sufficiently
offensive and occurred often enough to create an objec-
tively and subjectively hostile and abusive working envi-
ronment.
Black testified she personally found the conduct in
question to be abusive. She was employed by defendant
for four months. Given the short duration of her employ-
ment, the frequency and severity of the remarks was not
insignificant. Black testified that she was devastated by
the comments about the property near Hooters restaurant
App. 24
(Tr. p. 260), and felt crushed when President Ron Benkert
asked her if she danced on table tops in a “biker bar.”
(Id., 265). She also testified that she was deeply upset by
Hebeler’s statement that she was “paid good money for a
woman.” (Id., 274). She testified that the incidents
adversely affected her work performance (id., 260-61,
270), and psychological well-being (id., 280, 1452-54).
Black received psychological treatment for adjustment
disorder with anxiety and depression. (Id., 905). Dr.
Baum, her psychologist, testified that the incidents in
question, which were discussed as part of Black’s treat-
ment, contributed to her stress and anxiety. (Id., 912). The
Court must assume that the jury found this testimony
credible. Chappell, 803 F.2d at 265; Hartzler, 740 F. Supp. at
780.
The jury comprised five women and three men
whose ages ranged from thirty-one to fifty-six years. The
jurors listed their occupations as pipefitter, homemaker,
printer, payroll supervisor, purchasing agent, health care
worker, truck driver, and surgical secretary. These eight
people were properly instructed on hostile environment
sexual harassment and very carefully considered the facts
necessary to render a decision on this difficult issue. They
clearly believed that there existed an atmosphere hostile
and abusive to women. They returned their verdict with a
notation at the bottom of the verdict form recommending
that Zaring Homes employees “undergo diversity /sexual
harassment training.”?
2 The Court was notified following trial that Zaring Homes
voluntarily underwent a sensitivity training program and
successfully completed it.
App. 25
In deciding the instant motions, the Court may not
weigh the evidence, pass on witness credibility, or substi-
tute its judgment for that of the jury. Construing all the
evidence and drawing all reasonable inferences in plain-
tiff’s favor, there is sufficient evidence to support the
jury’s verdict. For the foregoing reasons, defendant’s
motion for judgment as a matter of law on plaintiff’s
hostile environment sexual harassment claim will be
denied.
Zaring Homes’ contention that the Court should not
have instructed the jury on punitive damages is discussed
infra, pp. 13-16.
ZARING HOMES IS NOT ENTITLED
TO A NEW TRIAL
Zaring Homes contends that the Court should grant a
new trial on plaintiff’s hostile environment sexual harass-
ment claim because: (1) the clear weight of the evidence
fails to establish a hostile environment; (2) testimony was
both improperly excluded and improperly admitted; (3)
the jury was improperly instructed on sexual harassment;
(4) the court should not have allowed the jury to consider
punitive damages; (5) the punitive and compensatory
damage awards are excessive; and, (6) the jury was
unfairly influenced by plaintiff counsel’s appeals to pas-
sion and prejudice. In the alternative, it argues the Court
should reduce the amount of the compensatory and puni-
tive damage awards.
For the reasons stated supra, pp. 4-10, the Court finds
that the jury’s verdict is not against the clear weight of
the evidence. Reasonable jurors could find that the verbal
App. 26
conduct was hostile and abusive toward women in gen-
eral and Black in particular and constituted harassment
based on sex. Although it is a closer question, reasonable
jurors could also find that such conduct sufficiently per-
meated Black’s work environment to alter her employ-
ment conditions and make it more difficult for her to
perform her job. The Court may not grant a new trial
merely because different conclusions or inferences can be
drawn based on the evidence presented or because it
believes that other conclusions are more reasonable. The
five female and three male jurors were properly
instructed, and, pursuant to the dictates of Harris, there is
no reason to substitute a judge’s opinion for theirs.
The Court admitted testimony regarding incidents
not directly involving plaintiff that showed the com-
pany’s tolerance of sexual harassment during pertinent
periods. Testimony concerning the menstrual chart post-
ing, for example, was relevant because Zaring Homes’
Operations Vice President and General Counsel were
aware of the incident, failed to act upon it, and in effect
condoned it. An error in admitting or excluding evidence
may not be grounds for granting a new trial unless the
ruling was “inconsistent with substantial justice,” TCP
Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542, 550 (6th Cir.
1981); or, in the case of excluded evidence, the evidence
would have caused a different outcome, Nida v. Plant
Protection Ass'n Nat'l, 7 F.3d 522, 527 (6th Cir. 1993). The
Court carefully considered its evidentiary rulings, heard
challenged evidence outside the jury’s presence, heard
arguments on each issue, and evaluated all relevant fac-
tors before ruling. The Court admitted evidence of each
party and rejected evidence of each party evenhandedly.
U
App. 27
We see no bases to revisit each ruling in detail herein. The
rulings did not improperly prejudice Zaring Homes.
Zaring Homes contends that the Court should have
instructed the jury that among the circumstances they
may consider were “the frequency of the discriminatory
conduct; its severity; and whether it is physically threaten-
ing or humiliating or a mere offensive utterance.” The Court
instructed the jury that “[sJexual harassment may include
verbal or physical conduct of a sexual nature, or abusive
or humiliating remarks based on Plaintiff’s sex.” (Tr. p.
2027). The Court also instructed the jury that it may
consider the frequency of the harassing conduct and its
severity, whether it unreasonably interfered with Plain-
tiff’s work performance, and whether harassing com-
ments were made by persons in a higher management
position. (Id., 2028).
A party is not entitled to a new trial unless the jury
instructions taken as a whole are misleading or give the
jury an inadequate understanding of the law. Bowman v.
Koch Transfer Co., 862 F.2d 1257, 1263 (6th Cir. 1988); Beard
v. Norwegian Caribbean Lines, 900 F.2d 71, 72-73 (6th Cir.
1990). Because the challenged conduct consisted entirely
of offensive utterances, the requested instruction would
have misled the jury by suggesting that a sexual harass-
ment claim could not be based upon—“mere” offensive
utterances. The trier of fact must look at all the circum-
stances to decide whether a working environment is hos-
tile or abusive. There is no definitive test. The jury must
consider a variety of factors. See Harris, 114 S. Ct. at 371.
The Court’s hostile environment sexual harassment
App. 28
instruction informed the jury of the relevant consider-
ations and provided them with a proper basis in law for
reaching a decision. Beard, 900 F.2d at 72.
Zaring Homes’ contention that the Court should not
have instructed the jury on punitive damages is discussed
infra, pp. 13-16.
Zaring Homes contends that the compensatory and
punitive damages awards are excessive and moves this
Court for a new trial, or in the alternative, for a remit-
titur. The Court properly instructed the jury that it must
determine what damages, if any, will be awarded to
compensate plaintiff and that there is no exact standard
for fixing the compensation awarded for the mental
aspect of injury. The Court also instructed the jury that
the punitive damages to be awarded, if any, must be
determined based on all the evidence and that they may
consider defendant’s financial resources in deciding the
amount. Redgers v. Fisher Body Division, GM Corp., 739
F.2d 1102, 1109 (6th Cir. 1984).
Excessiveness of a compensatory or punitive damage
award is determined based upon “[w]Jhether [it] is so
high as to shock the judicial conscience and constitute a
denial of justice.” Id. Neither damage award shocks the
conscience. In 1994, Zaring Homes’ assets totaled over
forty million dollars and its earnings were over six mil-
lion dollars. (Tr. p. 2102). Although the punitive damage
award is four times the amount of compensatory dam-
ages, it appears the jury felt this was the minimum
amount necessary to get the attention of a company with
such assets and earnings. The jury’s written comment on
the verdict indicates that, in addition to compensating the
App. 29
plaintiff, they wished to punish the defendant sufficiently
to attract its attention to the need for sensitivity training.
The Court abuses its discretion by granting a new trial or
reducing an award when, as here, the verdict is based on
witness credibility and conflicting evidence. See Hewitt,
732 F.2d at 1556. For the foregoing reasons, the award
amounts will not be reduced.
Zaring Homes contends that plaintiff’s counsel’s con-
duct and alleged appeals to passion and prejudice
unfairly influenced the jury and prejudiced the defen-
dant, thereby requiring a new trial. To avoid prejudice to
opposing counsel, the trial judge may interrupt counsel
during argument and instruct the jury to disregard preju-
dicial statements. This Court does not hesitate to do so
when necessary. The Court carefully scrutinized counsel's
argument at the time of trial and did not find that the
argument unfairly prejudiced defendant. The jury’s ver-
dict in Zaring Homes’ favor regarding Black’s discrimina-
tory discharge claim shows that the jury was not unduly
influenced by plaintiff’s counsel’s remarks.
The Court has reviewed the record as a whole and
carefully considered defendant’s arguments in support of
its motion for a new trial. We find the verdict was not
against the clear weight of the evidence, the jury instruc-
tions were not misleading, inadequate or prejudicial, and
there was no prejudicial attorney misconduct. Nor is the
verdict so excessive as to shock the conscience. Therefore,
the motion for a new trial, or, in the alternative, for
remittitur will be denied.
App. 30
THE JURY’S PUNITIVE DAMAGES AWARD
WILL NOT BE SET ASIDE
Zaring Homes contends that the jury should not have
been instructed on punitive damages and that the evi-
dence was not sufficient to support such an award. It |
moves the Court to set aside the punitive damages |
award. |
The 1991 Civil Right [sic] Act amended Title VII to
permit recovery of punitive damages where a plaintiff
proves by a preponderance of the evidence that a defen-
dant engaged in a discriminatory practice with malice or
with reckless indifference to her federally protected
rights. 42 U.S.C. § 1981a. See also Hennessy v. Penril
Datacomm Networks Inc., 1995 WL 671574, *6-7 (7th Cir.
Nov. 13, 1995). A punitive damages award must be sup-
ported by the record and cannot constitute a windfall to
the prevailing party. Id. at *7. See also Nicks v. Missouri, 67
F.3d 699 (8th Cir. 1995); Turic v. Holland Hospitality, Inc.,
849 F. Supp. 544 (W.D. Mich. 1994). A punitive damages
award must bear a reasonable relationship to the amount
of compensatory damages, but courts should not depend
on a fixed mathematical formula in determining what is
reasonable. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 903
(9th Cir. 1994). The jury may consider defendant's finan-
cial resources in fixing an amount. Rodgers v. Fisher Body
Division, GM Corp., 739 F.2d 1102, 1109 (6th Cir. 1984). To
prevent excessive awards, Congress limited the total
punitive and compensatory damages available based on
the employer’s size. See 42 U.S.C. § 1981a(b)(3).
|
ansnaiieiiaiaasmaiaciiitiel
App. 31
Under Ohio law, plaintiff may recover punitive dam-
ages only where defendant's actions or omissions demon-
strate malice, egregious fraud, oppression, or insult or
where defendant as principal or master ratified or partici-
pated in such actions or omissions. Ohio Rev. Code
§ 2315.21(c). See also Delaney v. Skyline Lodge Inc., 95 Ohio
App. 3d 264, 274, 642 N.E.2d 395, 402 (1994). Malice is
defined as (1) that state of mind under which conduct is
characterized by hatred, ill-will, or spirit of revenge, or
(2) a conscious disregard for the rights and safety of
others that has great probability of causing substantial
harm. Preston v. Murty, 32 Ohio St. 3d 334, 336, 512
N.E.2d 1174, 1176 (1987).
A punitive damages award supported by substantial
evidence should not be set aside. Gutzwiller v. Fenick, 860
F.2d 1317, 1329 (6th Cir. 1988). There is little guidance in
this Circuit as to the facts necessary to support a punitive
damages award in a hostile environment sexual harass-
ment case; however, the decision whether to award puni-
tive damages is clearly within the jury’s discretion “as it
requires the type of moral judgment that lay persons
make every day.” Gutzwiller, 860 F.2d at 1329. “The deci-
sions of the trier of fact as to deliberate intent and as to
credibility in cases based upon allegations of discrimina-
tion are not to be set aside unless clearly erroneous. .. . ”
Erebia v. Chrysler Plastic Products Corp., Nos. 87-3297 and
87-3298, 1988 WL 125356 at *4.
Before instructing the jury, the Court held a jury
charge conference during which it carefully considered
the parties’ arguments. Defense counsel did not request
the Court to omit a punitive damages instruction or to
limit the punitive damages instruction to discriminatory
App. 32
discharge claim. Counsel also failed to object to the
instruction before the jury retired. Therefore, the giving
of the instruction cannot be assigned as error. Fed. R. Civ.
P. Si.
The Court instructed the jury that: “[p]Junitive dam-
ages may be awarded if you find that Plaintiff has shown
by a preponderance of the evidence that Defendant's
conduct involved reckless or callous indifference to Plain-
tiff’s legal rights. In the alternative, you may award puni-
tive damages if you find that Plaintiff has shown by a
preponderance of the evidence that Defendant’s conduct
was characterized by hatred, ill will, evil motive or intent,
or spirit of revenge.” (Tr. p. 2037). The instructions prop-
erly stated that the jury had discretion to award punitive
damages to punish the defendant and to deter similar
future conduct. See Rodgers, 739 F.2d at 1109. The question
of whether a defendant’s conduct justifies a punitive
damages award is well within the province of the jury.
Gutzwiller, 860 F.2d at 1329.
The propriety of a punitive damages award in this
case is a close question, because Black did not complain
about much of the offensive conduct to Zaring Homes’
management. The only evidence Black introduced on this
point was a conversation she had with General Counsel
Michelle Grigsby in the women’s restroom while Grigsby
was brushing her hair. The conversation took place after a
land acquisition meeting where an offensive reference to
the Hooters restaurant was made:
Black: Michelle, I can’t stand this in the
land meeting. This is crazy. It’s got-
ten out of hand. Has it always been
like this?
ooo
App. 33
Grigsby: Well, that’s just the way it is.
Black: What can we do about it?
Grigsby: That’s the way they are, Debbie.
There is nothing you can do about
it.
Black: Except that it takes up so much
time. It doesn’t make sense to spend
quality business time to get our
business done for them to go off on
these little tangents and little
schoolboy activities laughing and
joking. It takes up way too much
time, and we could get a lot more
done if they would stick to the busi-
ness at hand.
Grigsby: That's the way it is. That’s the way
they are, and you can’t change it.
Black: I don’t like it.
Grigsby: I don’t like it, either, but there is
nothing we can do.
(Tr. pp. 281-82).5
Black concedes that Zaring Homes had a sexual
harassment policy that provided for reporting such inci-
dents, but she claims she never received it. Doc. 65, p. 8.
Other than the informal discussion with Grigsby in the
ladies’ restroom, Black never complained about sexual
harassment to management officials.
3 Grigsby denied this conversation took place. For the
purposes of this motion, we must assume the jury credited
Black’s version.
App. 34
The following evidence, however, supports the jury’s
punitive damage award. In addition to Grigsby’s knowl-
edge of Black’s informal complaint about conduct at the
land acquisition meetings, Grigsby and other manage-
ment officials were present at these meetings where
offensive conduct toward Black took place. Company
President Benkert himself engaged in such conduct by
referring to Black dancing on tables at a “biker bar,” a
humiliating remark. The General Counsel was aware of
the menstrual chart incident, which did not involve
Black, and failed to take action. During the trial itself, in
the presence of the jury, Zaring Homes officials and coun-
sel took the position that there was nothing wrong with
such conduct. They considered it harmless and normal in
a business setting. The jury could reasonably have deter-
mined that these circumstances constituted callous and
reckless disregard for women’s rights in general and
Black’s rights in particular.
In deciding the motions regarding punitive damages,
the Court may not substitute its interpretation for that of
the jury. L.E. Cooke Co., 991 F.2d at 343; Agristor Leasing,
869 F.2d at 268. Although different inferences can be
drawn from the evidence presented, it cannot be said that
the jury’s award of punitive damages flowing from hos-
tile environment sexual harassment. was clearly erro-
neous. See Erebia, 1988 WL 125356.
App. 35
IT IS THEREFORE ORDERED THAT:
1) Defendant’s renewed motion for judgment as a
matter of law is DENIED;
2) Defendant’s motion for a partial .-w trial is
DENIED; and,
3) Defendant’s motion for remittitur of compensa-
tory and punitive damages is DENIED.
Date: 12-27-95
/s/ Robert A. Steinberg
Robert A. Steinberg
United States Magistrate
Judge
App. 36
No. 96-3118
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DEBRA BLACK,
Plaintiff-Appellee, ORDER
v.
ZARING HOMES, INC.,
Defendant-Appellant.
(Filed
Apr. 25, 1997)
ee
BEFORE: KENNEDY and BATCHELDER, Circuit Judges;
and EDGAR,’ District Judge.
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
original panel members but also to all other active judges of
this court, and no judge of this court having requested a vote
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehear-
ing and concludes that the issues raised in the petition were
fully considered upon the original submission and decision
of the case. Accordingly, the petition is denied.
ENTERED BY ORDER OF
THE COURT
/s/ Leonard Green
Leonard Green, Clerk
“Hon. R. Allan Edgar, United States District Judge for the
Eastern District of Ternessee, sitting by designation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.