Petition for Writ of Certiorari — Barnes v. Montgomery County Board of Education

(\) Supreme Court, U.S.

er rrtLes

97-639 AUG 1 1 1997

No. OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

SANDRA S. BARNES

Petitioner,

Vv.

MONTGOMERY COUNTY BOARD OF EDUCATION

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Lola Philpot Lewis

Counsel of Record

177 N. Limestone

Lexington, KY 40507

(606) 281-1313

ATTORNEY FOR PETITIONER

QUESTIONS PRESENTED

Whether the Standard Used for a Successful Hostile

Work Environment Sexual Harassment action in the

Sixth Circuit Court of Appeals and the U.S. District

Court for the Eastern Division of Kentucky is greater

than the standard as established by the U.S. Supreme

Court and the other circuits.

PARTIES TO THE PROCEEDING

The Petitioner is Sandra S. Barnes. The Respondent

is the Montgomery County Board of Education.

TABLE OF CONTENTS

page

Crs e eee COE IO 6. ee ee RT Swe, i

PARiigs 1O THE PROCEEDING ............... i

Rau PARE 6 ES eee Vv

I ee, os a ck cas vw bs oe ]

ae FU PU IG ee. ee dss 2

FEDERAL STATUTE INVOLVED ............... 2

PEREM DUPE W ER EVOLVED 5 occ we eee 3

PEURSR ene We EOE MA et Se 4

REASONS FOR GRANTING THE WRIT .......... 8

l. WHETHER THE STANDARD USED FOR A

SUCCESSFUL HOSTILE WORK

ENVIRONMENT SEXUAL HARASSMENT

ACTION IN THE SIXTH CIRCUIT COURT

OF APPEALS AND THE U.S. DISTRICT

COURT FOR THE EASTERN DIVISION OF

KENTUCKY IS GREATER THAN THE

STANDARD AS ESTABLISHED BY THE

U.S. SUPREME COURT AND THE OTHER

SII v8 6 Pads Pe eWeek ob ieee 8

lil

COMA ASUS WA Sie V ET aa Ves oe 15

APPENDIX

Appendix A

Order of United States Court of

Appeals for the Sixth Circuit,

Affirming the District Court,

Eastern District of Kentucky

Decision, dated May 14, 1997 ....... la

Appendix B

Opinion and Order of the

United States District Court,

Eastern District of Kentucky,

GE I Pc BOO & ae eee eee Ta

Appendix C

Judgment of the United States

District Court, Eastern District

of Kentucky, dated July 26,

ees eee ewe ee 19a

iv

TABLE OF AUTHORITIES

Cases:

Black v. Zaring Homes, Inc.,

104 F.3d 872 (ii Ce. 1997): ee... 14

EEOC v. Sam & Sons Produce, Co.,

872 F.Supp. 29 (W.D. N.Y. 1994) .......... 10

Harris v. Forklift Systems, Inc.,

510 U.S. 17, 114 S.Ct. 367,

520 Se 20 GPP CAINS) or IK 13, 14

Henson v. City of Dundee,

O62 F.20 S97 Gt Cer: 1969) 3 ew 8

Kotcher v. Rosa & Sullivan Appliance Crr.,

SF? Sede Oe Le Se TOMES oi oe oe wee 9

Lipsett v. University of Puerto 'Rico,

weet .2m oes Cet Cer, T9SR) oS oe een: 9

Meritor Savings Bank v. Vinson,

477 U.S. 57, 106 S.Ct. 2399,

91 L.Ed. 2d 49 (1986) ........ 8, 11, 12, 13, 14

Rabidue v. Osceloa Refinign Co.,

Os F206 G11 (6) Cer. 1986)... ek 13

Ross v. Double Diamond, Inc., |

G12 ¥. Supe. 261 OUD. Tex. 1987)... 2.006%. 9

Steiner v. Showboat Operating Co.,

25 F.3d 1459 (9th Cir. 1994) Cert. denied

SES BG. Fae OE 5 ov hoe ewan ws es 10

Yates v. Avco Corp.,

819 F.2d 630 (6th Cir. 1987) .......... 12, 14

Federal Statutes:

SE UO GS oo no 5 ins BIG CHa Se 2

State Statutes:

Ris PUR ee eso Oe RUS Pie ok PRU 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

NO. 97-

SANDRA S. BARNES

Petitioner,

Vv.

MONTGOMERY COUNTY BOARD OF EDUCATION

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner, Sandra S. Barnes, petitions as follows for

a Wnit of Certiorari to review the May 14, 1997 Opinion of

the United States Court of Appeals for the Sixth Circuit,

which affirmed the judgment entered by the United States

District Court for the Eastern District of Kentucky, on July

26, 1995.

OPINIONS BELOW

The Opinion of the United States Court of Appeals for

the Sixth Circuit, in Appeal No. 95-6121, rendered May 14,

1997, is unreported. (Appendix A)

The Opinion of the U.S. District Court was entered

on July 24, 1995 for the Eastern District of Kentucky at

Lexington, and the judgment was entered on July 26, 1995,

No. 93-305, granting Respondent’s judgment as a matter of

law is unreported. (Appendix B & C).

JURISDICTION

The U.S. Court of Appeals for the Sixth Circuit issued

its opinion on May 14, 1997. This Petition is filed within 90

days after the entry of the Judgment of the Court of Appeals

on May 14, 1997.

The jurisdiction of this Court to review the opinion

and judgment of the U.S. Court of Appeals for the Sixth

Circuit is invoked pursuant to 28 U.S.C. §1254(1).

FEDERAL STATUTE INVOLVED

Title VII, 42 U.S.C. §2000(e)-2

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 privileges

of employment, because of such individual’s

race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way

which would deprive or tend to deprive any individual of

employment opportunities or otherwise adversely affect his

Status as an employee, because of such individual’s race,

color, religion, sex, or national origin.

(b) Employment agency practices

It shall be an unlawful employment practice for an

employment agency to fail or refuse to refer for employment,

or otherwise to discriminate against, any individual because

of his race, color, religion, sex, or national origin, or to

classify or refer for employment any individual on the basis

of his race, color, religion, sex or national origin.

STATE STATUTE INVOLVED

KRS 344.040

It is unlawful practice for employer:

(1) To fail or refuse to hire, or to discharge any

individual, or otherwise to discriminate against

an individual with respect to compensation,

terms, conditions, or privileges of

employment, because of the individual’s

disability, race, color, religion, national

origin, sex, age between forty (40) and seventy

(70), or because the individual is a smoker or

nonsmoker, as long as the person complies

with any workplace policy concerning

smoking; or

(2) To limit, segregate, or classify employees in

any way which would deprive or tend to

3

deprive an individual of employment opportunities or

otherwise adversely affect status as an employee, because of

the individual’s disability, race, color, religion, national

origin, sex or age between forty (40) and seventy (70), or

because the individual is a smoker or nonsmoker, as long as

the person complies with any workplace policy concerning

smoking; or... .

STATEMENT OF THE CASE

A. Procedural Posture:

This Petition for Writ of Certiorari ("Petition") arises

from a complaint filed by Plaintiff-Petitioner Sandra S.

Barnes (hereinafter Barnes) on July 20, 1993, in the United

States District Court for the Eastern District seeking relief on

the basis of sexual discrimination in violation of Title VII, 42

U.S.C. §2000(e)-2 anc KRS 344.040 from her employer,

Defendant-Respondent, Montgomery County Board of

Education (hereinafter Board of Education) and individually

against her supervisor, Tim Keenan and the Superintendent,

Richard Hughes. (TR 1).

On August 11, 1993, Defendant Keenan filed a

Motion to Dismiss or in the Alternative for Summary

Judgment and a Memorandum in Support. (TR 10). Barnes

filed her response in opposition on September 1, 1993. (TR

14). On April 4, 1994, the District Court entered an Opinion

and Order denying Keenan’s Motion for Dismissal or

Summary Judgment. (TR 25). Keenan renewed his Motion

to Dismiss and For Summary Judgment on July 14, 1994, to

which Barnes responded. (TR 45 and 49). The District Court

dismissed Keenan and Hughes in their individual capacity and

held the renewed Motion to Dismiss and Sunumary Judgment

was moot on August 15, 1994.

4

On November 9, 1994, the Board of Education filed

a Motion to Dismiss to which Barnes responded. (TR 73 and

74). The court entered an Order on December 2, 1994,

denying the Board of Education’s Motion to Dismiss. (TR

86). On March 1-2, 1995, a jury trial was held a verdict was

entered on March 3, 1995, that Barnes had proven her hostile

working environment sexual harassment claim and awarded

her damages in the amount of $159,895.00. (TR 133). On

March 14, 1995, Board of Education filed a Motion as Matter

of Law to which Barnes responded on March 22, 1995. (TR

135 and 139). On July 24, 1995, the district court issued an

opinion and order granting the Board of Education’s Motion

on the basis that Barnes verdict on hostile working

environment sexual harassment was unsupported by evidence

that the employer had any knowledge of her supervisor’s

conduct.

On August 22, 1995, Barnes filed a timely Notice of

Appeal from the district court’s judgment order. (TR 145).

On May 14, 1997, the United States Court of Appeals for the

Sixth Circuit announced its decision affirming the judgment

of the United States District Court of the Eastern Division of

Kentucky on the basis that Barnes failed to demonstrate an

objectively abusive or hostile work environment.

B. Facts:

Barnes had been employed by the Montgomery

County School Board for some twenty years as a school bus

driver receiving excellent evaluations. In the school term of

1991-92, she had a new supervisor, Tim Keenan, Director of

Transportation. (Vol I, TE 57,93). Beginning in late March

1992, after she volunteered for a special bus trip, her

supervisor, Tim Keenan, started calling her into his office and

rubbed up against her several times. His conduct made her

very uncomfortable and she tned to stay away but his

secretary continued to call her stating he wanted to speak

with her about the upcoming trip. Not only did he get close

to her during these meetings and rub up against her but he

made comments to her if any problems occurred to call him

directly rather than the Maintenance Manager as has been the

usual practice. He informed her to "call him directly” and he

would come to her. She avoided calling him directly upon

her return by contacting the female clerk and informing her

of her return and she additionally informed the clerk she

would be in the bus garage the next day cleaning her bus.

The transportation clerk contacted Keenan and informed him

what Barnes had stated. (Vol. 1 TE 70-71).

The next day when Barnes was in the bus garage

alone, Keenan, her supervisor, arnved and touched her

buttocks. She immediately slapped him and told him she

was going to inform his boss, the Superintendent, whereupon

he laughed and told her this would not help her as the

Superintendent would not believe her as he had not believed

other women who had complained about him. He further

informed her he would instead have her terminated. (Vol. 1

TE 72-73). She knew of at least two other females around

this same period who had contacted the Superintendent as

they had been physically abused by her supervisor and no

action had been taken against him.

In a few weeks after the garage incident, an allegation

was made by another employee who was upset with Barnes

Over a personal matter and made a statement that it appeared

Barnes had misreported her time on a bus tip. This

statement was made in the presence of Keenan and he took

it upon himself to report this lie by an upset employee to

Superintendent Hughes. (Vol. lL, TE 62, 137; Vol. I, 103-

104). The upset employee later changed her statement and

it was proven before any action was taken against Barnes by

Barnes herself through detailed accounting of the time,

telephone documents from one of the students who had called

home when the bus was stopped at a rest area, and one of the

children’s parent’s statement as to the time of her return that

she had not padded her hours. This information was again

presented at trial and proved the allegations were simply a

pretext to terminate Barnes and the investigation done by her

supervisor, Keenan, as to the padding of her hours was not

checked out by any higher authorities. (Vol II, 77-78: 102-

103).

However, no action was taken against Barnes until

after her supervisor, Keenan, gave her an annual evaluation.

Barnes had attempted to stay away from any contact with her

supervisor, Keenan, as she was extremely upset about his

touching her and the comments he had made to her which

created a hostile and abusive work environment. Barnes did

not know what steps to take to prevent further harassment

since any reports by other females had resulted in no action.

Barnes was contacted to report to her supervisor’s office for

her annual performance evaluation. Once inside, he closed

the door and proceeded to inform her he had always liked her

...would buy her anything she wanted...all she had to do was

be available when he wanted in order to keep her job.

Barnes could not believe he was demanding she have sex

with him to keep her job. Her supervisor further informed

her he had two evaluations and would give the bad one

recommending her employment not continue to the

Superintendent if she did not meet his terms. (Vol. I, TE &86-

87; TE 122-123). Bames ran crying out of the office.

Again, her supervisor had been rejected and he turned in the

recommendation her employment not be continued.

Barnes attempted immediately to contact the

Superintendent telling him she must talk to him in person. |

Barnes was so humiliated and ashamed of Keenan’s actions

she did not want to discuss this harassment with anyone but

wanted to talk with the Superintendent in person to try to tell

him. She informed the Superintendent she had not padded

her hours and the recommendation by her supervisor to not

continue was not because of the alleged pretext of padding

her time. She attempted on numerous occasions to arrange

to talk to the Superintendent in person as she was very

ashamed and unable to discuss the terms of sex demanded of

her by her supervisor over the telephone. She was informed

on one of these telephone conversations with the

Superintendent that he would not go over her supervisor’s

head and if she wanted to stay in that position she had to

convince her supervisor to keep her. Barnes had no avenue

for relief. (Vol. I, TE 88; Vol II, TE 37)

ARGUMENT

I. WHETHER THE STANDARD USED FOR A

SUCCESSFUL HOSTILE WORK ENVIRONMENT

SEXUAL HARASSMENT ACTION IN THE SIXTH

CIRCUIT COURT OF APPEALS AND THE U.S.

DISTRICT COURT FOR THE EASTERN DIVISION

OF KENTUCKY IS GREATER THAN THE

STANDARD AS ESTABLISHED BY THE USS.

SUPREME COURT AND THE OTHER CIRCUITS.

Hostile work environment was first recognized as an

actionable theory under Title VII in this court in Meritor

Savings v. Vinson , 477 U.S. 57 (1986). To establish a prima

facie case an employee must prove: 1) they belong to a

protected group, Henson v. City of Dundee, 682 F.2d 897

(llth Cir. 1982); 2) the employee was subject to

nN en ne ne — anserenewe

ee

"unwelcome" sexual harassment, Meritor at 69 and Henson

at 903; 3) the harassment was based on sex, Henson at 903;

4) the harassment complained of must be sufficiently severe

Or pervasive as to alter the conditions of the victim’s

employment and to create an abusive working environment,

Meritor at 68; and 5) the Plaintiff must establish the

employer’s liability Meritor at 73.

A female surgical resident filed a sexual harassment

claim pursuant to Title VII alleging that the atmosphere was

extremely hostile to women, Lipsett v. University of Puerto

‘Rico, 864 F.2d 881 (Ist Cir. 1988). Upon summary

judgment being granted by the District Court, a reversal

stated there were genuine issues of material fact and the

defendants knew or should have known of the sexual

harassment and a jury verdict was obtained on remand.

In the second circuit, female employees brought a

Title VII action alleging their manager created a hostile work

environment by making vulgar comments and gestures and

pretending to masturbate and ejaculate behind the employee’s

backs. Kotcher v. Rosa & Sullivan Appliance Ctr, 957 F.2d

59 (2nd Cir. 1992). The District Court held that the

employees had established a hostile work environment but

remanded for a determination based upon whether a

reasonable avenue for complaint existed or if the employer

knew of the harassment.

In Ross v. Double Diamond, Inc., 672 F. Supp. 261,

270-71 (N.D. Tex. 1987) the court concluded that a short

duration of employment did not necessarily preclude a claim

of hostile environment harassment when the Plaintiff was

subjected to such harassment during only two days of her

employment by her supervisor who participated in the taking

of a photograph up her dress and grabbing her.

A New York employee who filed a claim for hostile

environment harassment was successful when the court held |

that she had proven her claim of hostile work environment

when she proved she had been called a “whore” on five

occasion over a month. EEOC v. A. Sam & Sons Produce,

Co., 872 F. Supp. 29, 35 (W.D.N.Y. 1994).

A ninth circuit sexual harassment claim was successful

when the court held that a female black jack dealer who

alleged sexual harassment when her supervisor used sexual

epithets and offensive reference to women’s bodies creating

a sufficiently severe or pervasive hostile work environment

of sexual harassment. Steiner v. Showboat Operating Co., 25

F. 3d 1459 (9th Cir. 1994) cert. denied 115 Sup. Ct. 733

(1994). When the Plaintiff first complained she was moved

but the harassment continued and the employer defended on

the basis that the supervisor was equally hostile and negative

toward females and males. The court held that Plaintiff

proved her sexual harassment and the employer was liable.

}

In the case at hand, the District Court reviewed the |

evidence based on the totality of the circumstances and

determined that Barnes had proven the evidence was

sufficient on the basis of hostile work environment in that she :

had proven the severity and pervasiveness of her

environment. Petitioner had been rubbed up against by her

supervisor on more than one occasion when he had called her

into his office prior to a bus tip for which she had

volunteered, he had fondled her buttocks when he found her

in the parking garage alone, and then demanded she be

available for sex with him whenever he desired if she wanted

to keep her employment. (Vol. I, TE 70-73). All of these :

incidents occurred beginning in March and ended in May,

when upon being rejected, the supervisor recommended

Petitioner’s employment not continue.

10

——— a |

The district court in overruling Respondent’s Motion

for a Directed Verdict determined the evidence was sufficient

as a matter of law and submitted the issues of fact to the jury

to be determined on the totality of the circumstances (not

isolated incidents) as to whether Barnes had met her standard

of proof on hostile work environment and whether the

employer knew or should have known of the supervisor’s

hostile conduct. At the conclusion of all the evidence

Respondent requested and stated to the court,

The Court: Just renewing your other motions?

Mr. Fogle: Motion to dismiss, your Honor.

The Court: All nght. I do believe there’s a jury

question. You’ve got a couple of technical points that I

might look at later, but, at this point, I think there’s a jury

question. So I'll overrule the motion to dismiss. (Vol. IJ, TE

144).

Later, for whatever reason, since the court had heard

all the evidence and determined the case should be submitted

to the jury on a fact basis. The district court granted

Respondent’s motion as a matter of law totally disregarding

this court’s decision in Meritor Savings Bank at 72 which

states "absence of notice to an employer does not insulate

that employer from liability." The Petitioner had tried on

numerous occasions to talk personally with the

Superintendent about the sexual demands by her supervisor

to explain that she had been recommended to be terminated

not because of the alleged padding of her hours, which was

shown to be a pretext, but for other reasons. This was

Petitioners only reasonably available avenue of complaint

after being an excellent employee for 20 years and she was

told by the Superintendent she would have to convince her

1]

supervisor to keep her. The Superintendent admitted this at

trial stating, "If a supervisor recommended that a person be

terminated and the person comes directly to me, I’m going to

tell then that they’re going to have to always start back with

that supervisor. . . ." (Vol. Il, TE 37). Petitioner had been so

humiliated and ashamed of what was happening to her that

she had been unable to even tell her husband and did not do

so for months after she was terminated.

In Barnes’ twenty years of employment she had never

been disciplined but had only received good performance

evaluations. (Vol I, TE 58-59). Another female who was

supervised by the same supervisor, Keenan, had been pushed,

poked on her arms until bruised and talked to very badly.

This employee, as well as another female employee who had

been pushed by Keenan was told when the information was

reported to the superintendent to resolve the problem with

their supervisor, Keenan. (Vol I, TE 116, 119-122; Vol I,

59-60). The Board of Education knew Keenan’s conduct

towards women and made no effort to stop or proceed with

any action to stop Supervisor Keenan’s harassment of Barnes

or any of the other female employees he supervised. The

Sixth Circuit ignored the issue of notice upon which the

district court originally overruled the jury’s verdict. In Yates

v. Avco Corp., 819 F. 2d 6301 6th Cir. 1987) the Sixth

Circuit agrees with this Court in Meritor that notice is not an

absolute requirement.

2 Se PE Ot ARETE ERMAN OIE RUA RA ENT TCR tat it PP

The sixth circuit affirmed the district court’s granting

of Respondent’s motion as a matter of law, however, it’s

determination was on a different basis that Barnes had not

proven sufficient evidence of her hostile environment totally

relying on the objective standard in finding the evidence was

insufficient to create a hostile work environment. Petitioner’s

testimony was specific in setting forth that her supervisor had

corre

12

|

rubbed up against her, fondled her and even demanded sex

from her if she wanted to keep her job, and how

embarrassing and humiliating this was for her creating an

offensive work environment. This determination to grant

Respondent’s motion as a matter of law and the sixth circuit’s

affirming this decision was totally contrary to the standard of

proof as established in the sixth circuit and in this Court.

Rabidue v. Osceola Refining Co., 805 F. 21 611 (6th Cir.

1986) and Meritor.

The decision by the sixth circuit was based totally on

the basis that while Petitioner satisfied the subjective standard

she failed on an objective standard. This ruling is totally in

opposition to the growing number of cases in the different

circuits that sexual harassment should be judged from the

“victim’s perspective. In Harris v. Forklift Systems, Inc., 510

U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993),this court

affirmed the test as set forth in Meritor but addressed the

importance of the plaintiff's subjective perception of the

alleged abuse or humiliation. Moreover, the Sixth Circuit, in

Yates, created a modified version of the objective standard

called the reasonable woman standard in which the fact-finder

is to look at the severity of the difficult or unpleasant

working conditions as felt and understood by someone in the

shoes of a reasonable woman. In the case at hand, this

analysis was disregarded. Moreover, the standard of the

“totality of the circumstances” as set forth in Harris was

totally ignored by the Sixth Circuit in affirming the district

court's judgment as a matter of law after a jury verdict in her

favor in how these offensive physical contacts and sexual

demands affected Petitioner’s employment as the sixth circuit

court viewed this harassment as individual isolated incidents.

In a recent case decided by the Sixth Circuit in which

the facts are not comparable to Petitioner’s case as Petitioner

was fondled on more than one occasion and had the most

13

severe sexual demands placed upon her in order to keep her

employment with no avenue for notice was Black v. Zaring

Homes, Inc., 104 F. 3d 822 (6th Cir. 1997). In Black, the

sixth circuit again relied solely on the objective standard in

finding that the evidence was insufficient to support a finding

that the comments were severe or pervasive enough to create

an objectively hostile environment. In Black, in meetings

which the Plaintiff was involved she asserted that sexual

comments were made which created a hostile environment.

Petitioner is not contending Black meets the standard as she

did but is only citing it to show the sixth circuit is solely

using the objective standard. Therefore, totally ignoring this

court’s analysis in Harris (that the analysis is to be based

totaliy on the circumstances) and their own analysis in Yates

(of the analysis on the reasonable woman standard). More

importantly, the sixth circuit disregarded the standard for

hostile work environment as set forth in Meritor which

Petitioner met.

Despite the testimony by Petitioner as to the events

that had taken place when her supervisor had demanded

sexual favors for her job, rubbed her and fondled her and

created a hostile environment in her work place which not

only created an offensive and abusive work environment but

created great stress and humiliation for her in having to deal

with being sexually abused by her supervisor and upon her

rejection of his demands her employment was terminated on

a pretext basis. Despite all of the above, the district court

found that the employer was not liable due to lack of notice

and the sixth circuit affirmed on the basis that the hostile

work environment was not objectively abusive ‘or hostile

work enviropment because there was no proof of a material

factor in Barnes’s claim of hostile work environment sexual

harassment.

14

PNT 9 RRR EE NENA EER nr OE ee on

CONCLUSION

For the foregoing reasons, Petitioner Barnes requests

that this Court grant certiorari in the above-captioned matter.

Respectfully submj

Cee

LolaPhilpot Lewis

177 N. Limestone

Lexington, KY 40507

(606) 281-1313

Attorney for Petitioner Barnes

15

APPENDICES

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= a)

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fal pment em

Sore oe : oes

APPENDIX A

FILED

MAY 14 1997

LEONARD GREEN, Clerk

NOT RECOMMENDED FOR PUBLICATION

NO. 95-6121

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SANDRA S. BARNES

Plaintiff-Appellant,

Vv.

MONTGOMERY COUNTY BOARD

OF EDUCATION

ll i i i i a

Defendant-Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF KENTUCKY

NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations.

Please see Rule 24 before citing in a proceeding in a court in

the Sixth Circuit. If cited, a copy must be served on other

parties and the Court. This notice is to be prominently

displayed if this decision is reproduced.

BEFORE: JONES, RYAN, and MOORE, Circuit Judges.

la

PER CURIAM. Plaintiff appeals the district court’s

granting of judgment as a matter of law in this sexual

harassment case. Following a jury trial, the jury returned a

verdict in Plaintiff's favor finding that she had proven her

hostile work environment sexual harassment claim.

Defendant then moved for judgment as a matter of law which

was granted by the district court. For the following reasons,

we affirm the judgment of the district court.

I.

— Plaintiff Sandra Barns, a 49 year-old-female, was

employed as a school bus driver by Defendant Montgomery

County Board of Education, in Mt. Sterling, Kentucky, for

approximately 20 years. On May 30, 1992, Barnes was

terminated from her position. The reasons for Barnes

dismissal are disputed.

Barnes contends that she was dismissed because she

did not submit to the sexual advances of her supervisor, Tim

Keenan, the Director of Transportation. She maintains that

on three separate occasions Keenan subjected her to sexual

discrimination and made sexual advances towards her.

Barnes maintains that the first incident occurred in

Apmil 1992, when she was assigned to drive students on a

field trip to Hilton Head, North Carolina. Prior to the trip, :

Keenan called Barnes into his office and “brushed up” against

her while discussing arrangements for the trip. The second

incident occurred when Barnes was cleaning out the bus

following the field tip. Keenan approached Barnes in the

bus garage and placed his hands on her buttocks. The third

incident occurred when Barnes met with Keenan in his office

for an evaluation. Keenan grabbed Barnes’s buttocks and

~stated that he was interested in Barnes and insinuated that she

2a

would have to submit to his advances in order to keep her

job.

The Board of Education contends that Barnes was

dismissed from her position because she "padded her hours"

on two trips, when she drove students from Mt. Sterling,

Kentucky, to Louisville, Kentucky. The Board of Education

maintains that after investigating the trips, the School

Superintendent, Richard Hughes, suggested that Barnes not be

re-employed for the following school year. Barnes maintains

that the hours she recorded for these two trips were accurate.

The Board of Education asserts that this is the only reason

that Barnes was dismissed; it contends that Keenan did not

sexually harass Barnes nor make sexual advances towards

her.

On July 20, 1993, Barnes filed a complaint against the

Board of Education, Richard Hughes, and Tim Keenan

alleging that she had been subjected to sexual discrimination,

in violation of Title VII, 42 U.S.C. § 2000(e) et seg. Barnes

also alleged age discrimination claims, as well as pendent

state law claims, which were dismissed prior to trial.

Trial to a jury wa held on March 1-2, 1995. The jury

found for Barnes on her sexual harassment claim based on

hostile work environment and awarded damages in the

amount of $159,895.00. The jury found for the Board of

Education on Barnes’s claim of quid pro quo sexual

harassment. The Board of Education moved for judgment as

a matter of law on the hostile work environment claim,

pursuant to Rule 50(b) of the Federal Rules of Civil

Procedure. The district court granted the Board of

Education’s motion for judgment as a matter of law finding

that jury’s verdict was unsupported by the evidence because

there was no evidence that the Board of Education had any

3a

knowledge of Keenan’s alleged conduct. This appeal follows.

IL.

The sole issue on appeal is whether the district court

erred in granting judgment as a matter of law to Defendant,

finding that Barnes’s claim of hostile work environment

sexual harassment was unsupported by the evidence.

This court applies the same standard in reviewing

motions for judgment as a matter of law as the district court

uses in deciding such motions. Miller’s Bottled Gas, Inc. v.

Borg-Warner Corp., 56 F.3d 726, 733 (6th Cir. 1995). A

district court considers the evidence in the light most

favorable to the non-moving party, giving the non-moving

party the benefit of all reasonable inferences. Hunt v. Coynes

Cylinder Co., 956 F.2d 1319, 1328 (6th Cir. 1992) (citation

omitted). The motion should be granted "whenever there is

a complete absence of pleading or proof on an issue material

to the cause of action or when no disputed issues of fact exist

such that reasonable minds would not differ." Tuck v. HCA

Health Services of Tennessee, Inc., 7 F.3d 465, 469 (6th Cir.

1993).

In order to present a cognizable claim of hostile work

environment sexual harassment, a plaintiff must demonstrate

that:

1) the employee is a member of a protected

class; 2) the employee was subject to

unwelcomed sexual harassment . . .; 3) the

harassment complained of was based on sex;

4) the charged sexual harassment had the

effect of unreasonably interfering with the

plaintiff's work performance and creating an

da

intimidating, hostile, or offensive work environment . . -; and

5) the existence of respondeat superior liability.

Fleenor v. Hewit Soap Co., 81 F.3d 48, 49 (6th Cir.), cert.

denied, 117 S. Ct. 170 (1996) (quoting Rabidue v. Osceola

Refining Co., 805 F.2d 611, 619-20 (6th Cir. 1986)).

Barnes’s claim must fail because she does not establish the

existence of an intimidating, hostile, or offensive work

environment, the fourth element of her case.

Viewing the evidence in the light most favorable to

Barnes, Keenan’s actions did not create an intimidating,

hostile or offensive work environment. To create a

cognizable claim of hostile work environment sexual

harassment, the alleged actions must be "sufficiently severe

Or pervasive to alter the conditions of the [the victims’s]

employment and create an abusive working environment."

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)

(internal quotation marks and citation omitted). In Harris v.

Forklift Systems, Inc., the Court reaffirmed this standard and

concluded that the determination of an offensive or abusive

environment should be judged by both a subjective and

objective standard. Harris, 510 U.S. 17, 21-22 ( 1993). The

Harris Court concluded that a hostile or offensive work

environment must be determined by looking at the totality of

the circumstances and outlined a non-exhaustive list of factors

to be considered: “the 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 work

performance.” Jd. at 23.

While Barnes perceived her work environment to be

hostile and abusive, thus satisfying the subjective standard of

Harris, Keenan’s conduct was not severe or pervasive enough

Sa

to create an objectively hostile work environment. See id. at

21. Examining Keenan’s actions using an objective standard,

Keenan’s actions were isolated occurrences which did not

unreasonably interfere with Barnes’s work performance.

Although the incidents were offensive and inappropriate, they

are not so severe and pervasive that the incidents created an

objectively hostile or abusive work environment.

Looking at the totality of the circumstances, the

actions did not occur frequently, were not particularly severe

nor were they physically threatening. As a result, using an

objective standard, the actions would not unreasonably

interfere with the ability of an employee to perform her job.

Consequently, Barnes fails to demonstrate an

objectively abusive or hostile work environment. We find

that the district court correctly granted judgment as a matter

of law because there is no proof of a material factor in

Barnes’s claim of hostile work environment sexual

harassment.

Il.

For the reasons stated herein, we AFFIRM the

decision of the district court granting the Board of

Education’s motion for judgment as a matter of law.

ae at a

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APPENDIX B

Eastern District of Kentucky

FILED

JUL 24 1995

AT LEXINGTON

LESLIE G. WHITMER

CLERK: U.S. DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 93-305

SANDRA S. BARNES,

Plaintiff

OPINION AND

ORDER

Vv.

MONTGOMERY COUNTY BOARD

OF EDUCATION,

Nee ee Nee ee ee ee ee ee ee

Defendant.

Plaintiff, Sandra S. Barnes, a 49-year-old female, was

employed by the Montgomery County Board of Education as

a school bus driver for approximately twenty (20) years, until

May 30, 1992, when her employment \was not renewed for

the next school year. Plaintiff filed this action against the

Montgomery County Board of Education alleging that in not

renewing her employment, the Defendant subjected her to

sexual discrimination, in violation of Title VII, 42 U.S.C.

7a

§2000(e), et seq. Plaintiff also filed pendent state claims for

sexual discrimination, in violation of K.R.S. 344.040, and for

intentional infliction of emotional distress based on

outrageous conduct.

This action was tried on March 1-2, 1995. The jury

found for the Plaintiff on one of her two sexual harassment

claims (the hostile or abusive working environment claim)

and awarded Plaintiff total compensatory damages of

$159,895.00. The jury found for the Defendant on the other

sexual harassment claim (the quid pro quo claim).

This matter is before the Court on the following post-

trial motions that have been fully briefed and are mpe for

review:

l. The Defendant has moved for judgment as a

matter of law, pursuant to Fed.R.Civ.P. 50(b), or in the

alternative, for a new tral, pursuant to Fed.R.Civ.P. 59(e).

2. Plainuff has moved the Court for an award of

costs and attorney’s fees, pursuant to Title VII of the Civil

Rights Act (42 U.S.C. §2000(e)-5(k)) and K.R.S. Chapter

344, as a prevailing party against the Defendant.

Il. THE PENDING MOTIONS

A. Defendant’s motion for judgment as a matter of

law or, in the alternative for a new trial

As grounds for this motion, the Defendant contends

that the jury’s finding in Plaintiffs favor on her hostile

working environment sexual harassment claim is unsupported

by the evidence and that proof on this particular claim was

insufficient as a matter of law to impose vicarious liability on

8a

eT RS ee ee ee eT ee ee ee ee ane ee eee at

ee ey ee

iin ene a

the Defendant for the alleged conduct of Tim Keenan. The

Defendant submits that the absence of evidence to support the

jury’s verdict on this claim implies that the jury’s verdict in

Plaintiff's favor on this claim was in fact a verdict evoked

out of sympathy for one whose employment was discontinued

after twenty years of service.

In objecting to this motion, Plaintiff argues that this

motion should not be considered because it was not timely

filed but that if considered it should be denied on the merits

because the evidence was sufficient to support a finding in

Plaintiff's favor on her hostile working environment sexual

harassment claim under both Title VII and K.R.S. 344.040.

Applicable Law

One of the leading sexual harassment cases is Meritor

Savings Bank v. Vincent, 477 U.S. 57 (1986), which

recognized that two different types of sexual harassment are

actionable under Title VII: quid pro quo sexual harassment

and hostile working environment sexual harassment. The

Meritor Court stated:

. . . For sexual harassment to be actionable, it

must be sufficiently severe or pervasive ’to

alter the conditions of [the victim’s]

employment and create an abusive working

environment.’ (quoting Henson v. Dundee, 682

F.2d 897, 904 (11th Cir. 1982)).

477 U.S. at 67.

One of the issues considered in Meritor was whether

an employer is always automatically liable for the sexually

harassing conduct of a supervisory employee. The Meritor

9a

Court declined to hold that an employer is always

automatically liable for the sexually harassing conduct of a

supervisory employee, concluding that "Congress wanted

courts to look at agency principles for guidance in this area."

Id. at 72.

Meritor was rendered on June 19, 1986.

Subsequently, on November 13, 1986, the Sixth Circuit

decided Rabidue v. Osceola Refining Company, 805 F.2d 611

(6th Cir. 1986), which established a five-part test for

evaluating sexually hostile work environment claims, and on

November 18, 1986, the Sixth Circuit decided Highlander v.

K.F.C. National Management Co., 805 F.2d 644 (6th Cir.

1986). In Highlander, the Sixth Circuit recognized that:.

In a quid pro quo sexual harassment

action, an employer is held strictly liable for

the conduct of supervisory employees having

plenary authority over hiring, advancement,

dismissal and discipline under the theory of

respondeat superior.

Id. at 648.

Concerning a hostile work environment sexual

harassment claim, the Highlander court stated:

. .. The Rabidue court also noted that, unlike

quid pro quo sexual harassment claims which

may be predicated upon a single incident of

sexual harassment, hostile environment claims

are characterized by varied combinations and

frequencies of hostile sexual exposures. Thus,

in an action alleging a hostile work

environment, the plaintiff has the burden of

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;

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f

demonstrating that ‘injury resulted not from a single isolated

or offensive incident, comment, or conduct, but from

incidents, comments, or conduct that occurred with some

frequency.’ Rabidue, at 620.

805 F.2d at 649-50.

In 1987, the Sixth Circuit decided Yates v. Avco

Corp., 819 F.2d 630 (6th Cir. 1987), where a supervisory

employee was accused of sexual harassment, and the

employer had notice of the employee’s conduct as early as

1980. The Yates court observed:

Here we have a company with a sexual

harassment policy that did not function

properly, coupled with a twenty-eight year

supervisory employee who harassed women on

a daily basis in the course of his supervision

of them. Thus, even under traditional agency

principles, Avco should be liable. The

essential question in applying agency

principles is whether the act complained of

took place in the scope of the agent’s

employment. This determination requires an

examination of such factors as when the act

took place, where it took place, and whether it

was foreseeable.

Id. at 636.

Thus, in order to prove a hostile working environment

claim, the plaintiff must show that the conduct must be

sexual in nature and foreseeable and that the employer had

notice of the offending employee’s conduct.

lla

Discussion

As a preliminary matter, the Defendant’s motion for

judgment as a matter of law, or alternatively, for a new trial

was timely filed. These alternative motions must be filed no

later than ten (10) days after entry of the judgment.

Fed.R.Civ. P. 6(a) provides:

. . . When the period of time prescribed or

allowed is less than 11 days, intermediate

Saturdays, Sundays, and legal holidays shall

be excluded from the computation.

The judgment was entered on March 3, 1995, and the

Defendant’s alternative motions were filed on March 14,

1995. Since the two intermediate Saturdays, March 4 and 11,

and the two intermediate Sundays, March 5 and 12, are

excluded from the computation, it is clear that the

Defendant’s motions were timely filed.

1. The jury instruction

Based on the applicable law, the Court gave the

following instruction to the jury on Plaintiff's hostile working

environment claim:

INSTRUCTION NO. 8

To prevail on her hostile working

environment sexual harassment claim against

the Defendant, Plaintiff must prove each of the

following elements of this claim:

First: That Tim Keenan was an agent

of the employer;

12a

meee

Second: That Tim Keenan subjected

Plaintiff to unwelcome sexual advances,

requests for sexual favors, and other

unwelcome verbal or physical contact of a

sexual nature;

Third: That Tim Keenan’s conduct

had the effect of creating a workplace

permeated with discriminatory behavior that

was sufficiently severe or pervasive so as to

create an environment which a reasonable

person would find hostile or abusive and that

the Plaintiff in fact perceived her work

environment as hostile or abusive; and

Fourth: That the Defendant knew or

should have known of the alleged conduct by

Tim Keenan and failed to implement prompt

and corrective action.

Concerning the "conduct" described in

the third element, conduct that is not severe or

pervasive enough to create an objectively

hostile or abusive work environment does not

amount to sexual harassment. Whether an

environment is “hostile” or "abusive" must be

determined by looking at all of the

circumstances, including the frequency of the

discriminatory conduct; its severity; whether it

is physically threatening or humiliating and

whether it unreasonably interferes with the

employee’s job performance.

As to the fourth element, an employer

is liable for sexual discrimination if the

13a

employer has notice of the sexually harassing conduct by

actual knowledge or constructive notice. Constructive notice

may occur if the harassment is so pervasive as to lead a

reasonable employer to conclude that sexual harassment has

occurred or is occurring in the workplace.

If you find that Plaintiff has proved

each of these elements by a preponderance of

the evidence, then you shall find for the

Plaintiff; otherwise, you shall find for the

Defendant.

See Docket Entry #129.

2. The evidence regarding the hostile working

environment claim

Plaintiff was the bus driver for a school trip to Hilton

Head, South Carolina, for spring break in 1992. Plaintiff

stated that prior to the trip, Keenan repeatedly called her into

his office to discuss the trip, that he had brushed up against

her a couple of times while she was in his office, and that

she had begun to feel uncomfortable around him. Upon her

return from Hilton Head, Plaintiff encountered Keenan at the

bus garage while she was cleaning her bus. Plaintiff testified

that Keenan pinched her on the buttocks while she was in the

bus garage and that she slapped him. After this incident,

Plaintiff stated that she made it a point to have minimal

contact with Keenan. There was no proof that Plaintiff

reported Keenan’s conduct at the bus garage to the school

superintendent or to any other employees of the Defendant.

Peggy Purvis Stelzer, the school board transportation

clerk while Keenan was Director of Transportation, occupied

an office adjacent to Keenan’s office. Mrs. Stelzer testified

14a

ee ee

that Keenan had shoved her on one occasion and that she had

reported this incident to the school superintendent. However,

Mrs. Stelzer also testified that Keenan made no sexual

Statements, overtures, advances or exhibited any other

sexually related conduct toward her and that she had not

observed Keenan engage in any sexually offensive conduct

toward Plaintiff. At the time of trial, Mrs. Stelzer was living

in Ohio and was no longer employed by the Defendant; her

testimony was entirely credible.

Debbie Arnold was Keenan’s secretary when he was

Director of Special Education in 1990 and 1991. She stated

that Keenan was never abusive toward her and that he was

always polite and complimentary. In her opinion, Keenan

was not qualified to perform the duties as Director of Special

Education; however, Debbie Arnold had no other complaints

about Keenan.

Judy Baker, another school bus driver, testified that in

1993, subsequent to Plaintiff's non-renewal in 1992, Keenan

pushed her toward a doorway and requested that she clean

out some buses in preparation for a state inspection.

However, she stated that Keenan had made no sexual

advances and no sexual comments to her.

Plaintiff presented no evidence to show that the

Defendant knew or should have know of Keenan’s sexually

harassing conduct at the bus garage after the spring break trip

to Hilton Head in 1992. When Plaintiff discussed her time

sheets with Jim Brown on May 5, 1992, she did not inform

him of Keenan’s conduct at the bus garage, and she did not

attempt to report the bus garage incident to anyone until after

she learned that she was not going to be re-employed as a

school bus driver for the 1992-93 school year. Plaintiff

testified that in her telephone conversations with the school

15a

superintendent during this period of time, she did not inform

him over the telephone of Keenan’s behavior but instead

attempted to discuss Keenan’s behavior with the school

superintendent in person; however, a face-to-face meeting

between Plaintiff and the school superintendent never

occurred in the spring or summer of 1992.

Donald Maze, the County Attorney in Bath County,

Kentucky testified that in the late summer or early fall of

1992, Plaintiff consulted him about Keenan’s behavior and

the non-renewal of her employment; however, notice to a

third party of Keenan’s behavior cannot be imputed to his

employer. Karibian v. Columbia University, 812 f.Supp. 413

(S.D. N.Y. 1993).

Analysis

As noted above, in Instruction No. 8, the jury was

instructed that there were four elements of Plaintiff's hostile

working environment sexual harassment claim and that she

had to prove all four of those elements before the jury could

return a verdict in her favor on this claim. Upon review of

the evidence adduced at trial, the Court concludes that the

evidence presented in support of Plaintiff's claim, as

summarized above, fails to support that claim. Specifically,

the evidence was marginal at best concerning the third

element of this claim (a workplace permeated with

discriminatory behavior) and was completely lacking in

respect to the fourth element of this claim (notice to the

employer of the discriminatory conduct). As recounted

above, there was absolutely no proof that the Defendant had

any knowledge of Keenan’s discriminatory conduct exhibited

toward the Plaintiff in the spring of 1992 and failed to take

measures to correct his alleged behavior.

16a

For the reasons stated above, the jury’s verdict in

favor of the Plaintiff on her hostile working environment

sexual harassment claiun is unsupported by the evidence, as

there was no evidence that the employer had any knowledge

of Keenan’s alleged conduct. Therefore, pursuant to

Fed.R.Civ.P. 50(b), the Defendant is entitled to judgment as

a matter of law on this claim.

B. Plaintiff's motion for attorney’s fees

As a prevailing party in this action, Plaintiff has

moved for an award of attorneys’ fees and costs, pursuant to

42 U.S.C. §2000(e)-S(k) and K.R.S. Chapter 344, which

authorizes the Court in its discretion to award costs and a

reasonable attorney’s fee to the prevailing party in a Title VII

action. Plaintiff requests the Court to award her an attorney’s

fee of $63,958.00 and out-of-pocket expenses of $2,436.00

The Defendant objects to this motion, arguing that

Plainuff's motion is unsupported by any itemization of the

work performed or the hours expended by counsel on

Plaintiff's behalf and that Plaintiff inappropriately seeks an

attorney’s fee based on a 40% contingency fee contract which

was forbidden in Burlington v. Dague, 112 S.Ct. 2638 (1992).

Analysis

Since the Court has determined that the Defendant is

entitled to judgment as a matter of law on Plaintiff's hostile

working environment sexual harassment claim, Plaintiff is not

a prevailing party herein; therefore, she is not entitled to an

attorney’s fee.

17a

Accordingly, IT IS HEREBY ORDERED and

ADJUDGED that:

1. The Defendant’s motion for judgment as a matter

of law, pursuant to Fed.R.Civ.P. 50(b), on Plaintiff's hostile

working environment sexual harassment claim [DE #135] is

GRANTED.

2. The jury’s verdict in Plainuff’s favor on her hostile

working environment sexual harassment claim is unsupported

by the evidence in that there was no proof that the employer

had notice of Keenan’s discriminatory conduct exhibited

toward Plaintiff in the spring of 1992.

3. The jury’s verdict in Plainuff’s favor on her hostile

working environment sexual harassment claim and the

judgment entered on March 3, 1995 [DE #133], for the

Plaintiff in accordance with the jury’s verdict on March 2,

1995, are VACATED and SET ASIDE.

4. Plaintiff's motion for an award of attorney’s fees

pursuant to Title VII of the Civil Rights Act (42 U.S.C.

§2000(e)-5(k)) and K.R.S. Chapter 344 [DE #137] is

DENIED.

This _24th_ day of July, 1995.

Js/

KARL S. FORESTER, JUDGE

18a

ee OT ee a -

APPENDIX C

Eastern District of Kentucky

FILED

JUL 26 1995

AT LEXINGTON

LESLIE G. WHITMER

CLERK: U.S. DISTRICT COURT

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

CIVIL ACTION NO. 93-305

SANDRA S. BARNES,

Plaintiff

Vv JUDGMENT )

MONTGOMERY COUNTY BOARD

OF EDUCATION,

Nowe Nee Nee ee ee ee ee ee ee”

Defendant.

In conformity with the Court’s Opinion and order

entered herein on July 24, 1995,

IT IS ADJUDGED, that the plaintiff take nothing,

that the action be dismissed on the merits, and that the

defendant, Montgomery County Board of Education, record

of the plaintiff, Sandra S. Barnes, its costs of action.

19a

This 26th day of July, 1995

/s/

KARL S. FORESTER, JUDGE

NOTICE IS HEREBY GIVEN OF

THE ENTRY OF THIS ORDER OR

JUDGMENT ON 07/26/95

LESLIE G. WHITMER, CLERK

BY: /s/

20a