Petition for Writ of Certiorari — Raytheon Aerospace, Inc. v. Greenwell

M¥preme Court, Ug,

FILED

BF 1560 mar 20 4998

QEEICE OF THE CLERK

IN THE

Supreme Cort of the United States

OCTOBER TERM, 1997

RAYTHEON AEROSPACE, INC. AND WAYNE LEESE,

Petitioners,

KIMBERLY ANN GREENWELL,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

ARMIN J. MOELLER, JR.

Counsel of Record

M. NAN ALESSANDRA

PHELPS DUNBAR, L.L.P.

Suite 500

MTEL Centre North

200 South Lamar Street

Jackson, MS 39201

(601) 352-2300

Attorneys for Petitioners

WILSON - Eps PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

I.

IIT.

QUESTIONS PRESENTED FOR REVIEW

Did the Fifth Circuit clearly violate this Court’s man-

date in Harris v. Forklift Systems and concomitantly

create a conflict among the Circuits when it found

that two acts of alleged verbal harassment committed

over a four-month period satisfy the objectively se-

vere and pervasive harassment element necessary for

a hostile environment claim?

Did the Fifth Circuit create a conflict among the

Circuits and impose an unreasonable burden on em-

ployers when it found that an employer responds

inadequately to an employee’s complaint of sex-based

verbal harassment despite the fact that the employer:

A. Investigated the complaint approximately one

week after it was lodged;

B. Confronted the alleged harasser;

C. Obtained the alleged harasser’s commitment to

end the allegedly offensive conduct complained

of; and

D. Took action which ultimately ended the harass-

ment complained of by the employee?

Did the Fifth Circuit create an internal conflict, as

well as a conflict between itself and the other Cir-

cuits, when it found that an employee can prove the

existence of a causal connection between her pro-

tected activity and her employer’s adverse personnel

action without rebutting her employer’s uncontro-

verted proof that it had taken the same, if not more

severe, disciplinary action against other employees

who have not engaged in any protected activity?

ii

CORPORATE DISCLOSURE STATEMENT

One of the Petitioners, Raytheon Aerospace Company,

has a parent corporation, Raytheon Aircraft Company,

which is located in Wichita, Kansas. Raytheon Aircraft

Company is owned by Raytheon Company which is lo-

cated in Lexington, Massachusetts. Raytheon Aerospace

Company has no subsidiaries, except wholly owned sub-

sidiaries, which need not be identified pursuant to Su-

preme Court Rule 14.1(b).

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........

CORPORATE DISCLOSURE STATEMENT ..._

TABLE OF AUTHORITIES .......... siadamaiacatiaichiaebbseisciins

ic aust cb chs ag ESE Se EL

PU eee ks

CONCISE STATEMENT OF THE CE sic cae

aN ARUL ELLE ES ELE nt OO Rea

REASONS FOR GRANTING THE WRIT

ie

IT,

CERTIORARI SHOULD BE GRANTED TO

RECTIFY THE FIFTH CIRCUIT’S COM-

PLETE DEPARTURE FROM THIS COURT'S

DIRECTIVE IN HARRIS v. FORKLIFT SYS-

TEMS AND TO PREVENT A CONFLICT

AMONG THE CIRCUITS REGARDING THE

CONDUCT NECESSARY TO PROVE THE

EXISTENCE OF AN OBJECTIVELY HOs-

TILE WORK ENVIRONMENT...

PETITION FOR CERTIORARI SHOULD BE

GRANTED SO THAT EMPLOYERS WITHIN

THE FIFTH CIRCUIT ARE NOT SUBJECT

TO STRICT LIABILITY FOR COWORKER

HARASSMENT, A STANDARD WHICH

CLEARLY CONFLICTS WITH THIS COURT’S

MANDATE IN MERITOR SAVINGS BANK

F.S.B. v. VINSON AND THE OTHER CIR-

oo ERE SEES ORES ESR le AO eee eR

Page

12

Ill.

iv

TABLE OF CONTENTS—Continued

CERTIORARI SHOULD BE GRANTED TO

RESOLVE THE CONFLICT CREATED BY

THE FIFTH CIRCUIT’S HOLDING THAT AN

EMPLOYEE CAN PROVE THE EXISTENCE

OF A CAUSAL CONNECTION BETWEEN

HER PROTECTED ACTIVITY AND HER

EMPLOYER’S ADVERSE PERSONNEL AC-

TION WITHOUT REBUTTING HER EM-

PLOYER’S UNCONTROVERTED EVIDENCE

THAT IT HAS TAKEN THE SAME, IF NOT

MORE SEVERE DISCIPLINARY ACTION

AGAINST OTHER EMPLOYEES WHO EN-

GAGED IN ANY PROTECTED ACTIVITY

CONCLUSION

Page

18

Vv

TABLE OF AUTHORITIES

Federal Cases

Anderson v. Douglas & Lomanson Co., 26 F.3d

1277 (6th Cir. 1904) .............

Armstrong v. City of Dallas, 997 F, 2d 62 (5th Ci ir.

DAUD ciseutesisilectiipasahiacibes tig pikiee AS EPS 8s io a ok Bk

Baskerville v. Culligan International Co., 50 F. 8d

428 (7th Cir. 1995) ieninblese dis dbuibtasieiickiecicaeens

Black v, Zaring Homes, Inc., 104 F.8d 822 (6th

Soe Se ee ORME PE

Blankenship v. Parke Care Centers, Ine. “123 F.3d

868 (6th Cir. 1997) . ei

Cooper v. Housing Auth., 67 FEP Cas. 617 (N.D

FR | BE eed Reeser SN eee NIN POMOC ee

Creamer v. Laidlaw Transit, Inc., 86 F. 3d 167

ei i Re > Rana Radars eeiiedotne urine

DeAngelis v. El Paso Municipal Police ‘Officers’

Assn., 51 F.3d 591 (5th Cir. 1995), cert. de nied,

- US. je Pie OE eae ae

Ellerth v. Burlington Ind., 123 F.3d 490 (7th Cir.

1997), cert. granted in part, 118 S.Ct. 876 (Jan-

uary 23, 1998) ............ rae

Faragher v. City of Boca Raton, 111 F.3d 1530

(llth Cir. 1997), cert. granted, 118 S.Ct. 438

(November 14, 1997)... f

Harris v. Forklift Systems, Inc., 510 U.S. 17, 114

S. Ct. 367 (1993) . wali en

Hartsell v. Duplex Products, Inc., 123 F.3d 766

(4th Cir. 1997) .. - POMS Te

Henry v. Guest Services, Inc., 902 F. Supp. 245

(D.D.C. 1995), aff'd, 98 F.3d 646 (D.C. Cir.

SE Se 1s ico

Lawson v. Getty Te rminals Corp., 866 F. Supp.

793 (S.D. N.Y. 1994) sdiotibela dition cass aed io

Lees v. Case-Hoyt Corp., 779 F. Supp. 717 (W.D.

N.Y. 1991) .. ne ee Sens hs ae

Long v. Eastfield Colles ge, gg F.3d 300 (5th Cir.

Manning v. Metropolitan Life Insurance Co., 127

F.3d 686 (Sth Cir. 1997) ..........

. 12,

15,

age

20

20

13

. 12,13

17

21

17

16

vi

TABLE OF AUTHORITIES—Continued

Page

McKenzie v. Illinois Department of Transport, 92

F.8d 478 (7th Cir. 1996) ....................... Na 2)

Meritor Savings Bank F.S.B. v. Vinson, 477 U.S.

57, 106 S.Ct. 2399 (1986) . 18

Nash v. Electrospace, Inc., 9 F.8d 401 (5th Cir.

SPOOR sinthiattcunniesonsdbehe alan hace ck a meal 17

Oncale v. Sundowner Offshore Services, Inc., 2

US, " » §.Ct. », 1998 WL

88039 (U.S. La.) (March 4, 1998) Se

Penny v. United Parcel Service, 128 F.3d 408 (6th

tS |: POEM EL SOS 5 AS 20

Perry v. Ethan Allen, 115 F.8d 148 (2nd Cir.

gp FERED = AE FAM TAR a 17

Southard v. Texas Board of Criminal Justice, 124

F.3d 539 (5th Cir. 1997) Ra A 13

Williams v. Conoco, Inc., 860 F.2d 1806 (5th Cir.

eR ticniickouisuiewabiiac st ae tn re 14

Wyerick v. Bayou Steel Corp., 887 F.2d 1271 (5th

CARs SOUP \ccncienchpuesinnlbciidandiacica ta iih weir aaa i 14

Federal Statutes

We Ss ROO OLED inti ue P 2

Oe Sse AR etrescddieckiteattcs nace ee 10, 11

42 U.S.C. § 2000e, et seq. (Title VII) ... V 2

Federal Rules of Civil Procedure

het hE | FEE aR) 13

ot ES RNR ee nar . 11

Federal Rules of Evidence

POs Diy ns UI aii i Se nN te 11

Other Statutes

Louisiana Civil Code Article 2315 ___. o 10

Louisiana Revised Statute § 23:1006(B) (1) 3

Louisiana Revised Statute § 51:2256(1) 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No.

RAYTHEON AEROSPACE, INC. AND WAYNE LEESE,

Petitioners,

v.

KIMBERLY ANN GREENWELL,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Raytheon Aerospace, Inc. and Wayne Leese respect-

fully petition this Court for a writ of certiorari to review

the opinion of the United States Court of Appeals for the

Fifth Circuit, Case No. 97-30002 (United States Court

of Appeals for the Fifth Circuit, December 22, 1997),

OPINIONS BELOW

On December 2, 1997, the United States Court of

Appeals for the Fifth Circuit issued its opinion (Pet. App.

at la-2a) aflirming in part, and vacating in part, the

district court’s December 9, 1996 Order denying Peti-

tioners’ Motion for Judgment as a Matter of Law (Pet.

App. 3a-lla).

JURISDICTION

The opinion, which constitutes its judgement. of the

United States Court of Appeals for the Fifth Circuit. was

entered on December 22, 1997. The Certiorari jurisdic-

tion of this Court is invoked pursuant to 28 U.S.C.

§$ 1254(1).

STATUTES INVOLVED IN THIS CASE

The pertinent provision of Title VI of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e, ef seq.,

(Title VII), which relates to the Plaintiff's, Greenwell’s,

federal law hostile environment claim against Raytheon is

set forth below:

§ 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge an indi-

vidual, or otherwise to discriminate against any indi-

vidual with respect to his compensation, terms, con-

ditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national

origin.

The statute pertaining to Greenwell’s Title VII retalia-

tion claim against Raytheon is 42 U.S.C. § 2000e-3(a).

The pertinent provision of that statute is set forth below:

§ 2000e-3(a) Other Unlawful employment practices

(a) Discrimination for making charges, testifying,

assisting, Or participating in enforcement pro-

ceedings.

It shall be an unlawful employment practice for an

employer to discriminate against any of his employees

or applicants for employment, for an employment

agency, or joint labor-management committee con-

trolling apprenticeship or other training or retraining,

including on-the-job training programs, to discrimi-

nate against any individual, or for a labor organiza-

tion to discriminate against any member thereof or

applicants for membership, because he has opposed

3

any practice made an unlawful employment practice

by this subchapter, or because he has made a charge,

testified, assisted, or Participated in any manner in

an investigation, proceeding or hearing under this

subchapter.

The pertinent provision of the Louisiana Code which

relates to Greenwell’s state law hostile environment claim

against Raytheon is Louisiana Revised Statute § 23: 1006

(B)(1). The relevant portion of that statute is set forth

below:

§ 1006. Intentional discrimination in employment

B. It shall be unlawful discrimination in employ-

ment for an employer to:

(1) Intentionally fail or refuse to hire, refer,

discharge, or to otherwise intentionally discrim-

inate against or in favor of an individual with

respect to compensation, terms, conditions, or

privileges of employment, because of race, color,

religion, sex, or national origin.

The pertinent provision of the Louisiana Code which

relates to Greenwell’s state law retaliation claims against

Raytheon and Leese is Louisiana Revised Statute

§ 51:2256(1). The relevant portion of that statute is set

forth below:

§ 2256. Conspiracy to violate this Chapter unlawful

It shall be an unlawful practice for a person or

for two or more persons to conspire:

(1) To retaliate or discriminate in any manner

against a person because he has opposed a prac-

tice declared unlawful by this Chapter, or be-

cause he has made a charge, filed a complaint.

testified, assisted, or participated in any manner

in any investigation, proceeding, or hearing

under this chapter.

4

CONCISE STATEMENT OF THE CASE

A. Facts

Greenwell began her employment with Raytheon in

November 1990 as a mechanic at Raytheon’s Moffet Field

facility in California. The company later transferred her

to its Fort Ord facility where she remained until her pro-

motion as leadperson at Raytheon’s New Orleans, Louis-

iana facility located at the Lakefront Airport (“Lake-

front”). As leadperson, Greenwell was responsible for

servicing one aircraft, a “C-12,” which was owned by

Raytheon’s only customer at Lakefront, the Louisiana

Army National Guard (the “Guard”). After completion

of training school in August 1992, Greenwell assumed

her duties at Lakefront.’

Since the Guard had never hired an outside contractor

to service its aircraft at Lakefront, there was an expected

adjustment period between the Guard and Raytheon.

This adjustment period began without incident, but soon

changed when Greenwell demanded additional office space

and a reserved parking spot even though Raytheon’s con-

tract with the Guard did not obligate it to furnish such

amenities. Shortly thereafter, Greenwell learned that a

Guard employee, Michael Boudreaux, had referred to her

as the “BASI-bitch” outside of her presence.” About this

time, two other Guaid employees, Major Tom Mix and

COR * Norris Babin, allegedly referred to Greenwell as

“little girl” and/or “BASI-gal.”

1 Greenwell also supervised Jim Stout, a mechanic who arrived at

Lakefront in November 1992. Stout was Raytheon’s only other

employee at Lakefront.

2 The “BASI” portion of the “BASI-bitch” term refers to Ray-

theon’s former name, Beech Aerospace Services, Inc. Boudreaux

allegedly made this statement in September 1992.

3“COR” refers to Contracting Officer Representative.

————Seaaaa

5

Greenwell reported the above-referenced comments to

her supervisor, Walt House. On September 29, 1992,

House met with Colonel Nuss, the highest ranking Guard

officer at Lakefront, and obtained Nuss’ assurance that

such conduct would not be tolerated. Greenwell was ad-

mittedly satisfied with House’s action and his meeting

with Nuss. However, the tension between Greenwell and

the Guard grew over the next few months as the Guard

employees became more dissatisfied with Greenwell’s

technical competence and her uncooperative attitude. The

Guard employecs observed no less than ten separate

mechanical problems during her tenure at Lakefront.‘

Despite these problems, the Guard did not initially com-

plain to Raytheon because they wanted to afford Green-

well an opportunity to learn how to service the aircraft.®

Nonetheless, by April 1994, the Guard’s patience had

worn thin as evidenced by a disagreement between Green-

well and COR Babin over the removal of tape from the

Guard’s hangar floor.

This April 1994 dispute began when Babin used tape

to mark a spot where the plane should rest while it was

temporarily stored at a different location in the hangar.

The Guard informed Greenwell that the tape had to be

removed in one week. However, Greenwell did not remove

the tape after the week expired which prompted Babin

to tell Greenwell to “get the damn tape off the floor.”

Greenwell removed the tape, but she charged the Guard

with two hours of “non-reporting time” on her monthly

Status report for the time spent removing tape.*

* Those problems included: (1) fuel leakage through the plane’s

wing panels; (2) detachment of the forward cowlings during flight;

and (3) malfunctions in the navigation system, engine, landing

gear, and brakes,

®* Guard pilots Babin and Keeling frequently took Greenwell on

flights so she could gain more insight into the C-12’s various

mechanical problems.

* By including this time as “non-reporting time”, Greenwell pre-

vented such time from reducing her “operational readiness” or

“OR” rate, one of the criteria by which she was evaluated.

ee A ETE Te NT eT TN

6

Babin then informed “ATCOM”’ that Greenwell

charged the Guard with “non-reporting time,” and

ATCOM called Raytheon to complain about this incident.

After Greenwell’s new supervisor, Wayne Leese, learned

about this incident, he told Greenwell she should not have

charged the Guard with “non-reporting time.” Greenwell

responded by informing Leese that Babin had used a

loud tone of voice when he requested her to remove the

tape, and Greenwell told Leese she considered this sexual

harassment. Before this incident, Greenwell had never

complained to Leese about Babin’s, or the Guard's, al-

leged sexual harassment.

Approximately one week later, Leese traveled to Lake-

front to investigate Greenwell’s sexual harassment com-

plaint.”. Leese interviewed several Guard employees, in-

cluding Babin and Michael Boudreaux. Leese also con-

fronted Colonel Nuss with Greenwell’s complaints. Nuss

and Babin then advised the Guard employees that any

inappropriate conduct or language would not be tolerated.

After Leese concluded his investigation, he drafted a

report regarding Greenwell’s complaints and his response

thereto. Leese’s report stated that Greenwell no longer

considered Babin’s statement about the tape to be sexual

harassment, but she still considered the “BASI-bitch”

comment to be sexual harassment, even though it occurred

18 months earlier. (Pet. App. at 16a). Greenwell read

Leese’s report, signed it, and never recanted her ratifica-

tion of that report until after filing her lawsuit.

Approximately two months later, Guard pilot Barry

Keeling and an instructor pilot, John Fowler, took the

C-12 out for a routine flight. They were about 6,000 feet

7 ATCOM is the acronym for Army Aviation Troop Command,

the agency responsible for supplying and maintaining the Army’s

equipment.

* Leese was temporarily delayed because he had to attend an

important meeting with the Navy in Pensacola, Florida.

5

up when they smelled smoke in the cockpit. Keeling turned

around but could barely see because the cockpit was filled

with smoke. Keeling contacted a nearby Austin, Texas

control tower and obtained clearance for an emergency

landing which he safely performed.

After Keeling landed the plane, he requested that a

mechanic from Raytheon’s nearby facility inspect the

plane’s blower and air conditioning system because the air

conditioner had not worked for over a month. Raytheon’s

mechanic found serious problems in the air conditioning

system.” Since Greenwell’s subordinate, Stout, was on

vacation the entire week before this emergency landing,

Greenwell was the only person who could have worked

on the air conditioner before Keeling’s July 12, 1994

departure.”

After Raytheon’s Austin, Texas mechanic informed

Babin of these critical mechanical problems, Babin called

Raytheon’s headquarters and reported the serious deficien-

cies." Raytheon informed Babin that the Guard must

put their complaints in writing before Raytheon would

review them. Shortly thereafter, COR Babin. Major Keel-

ing, Colonel Nuss, Major Mix and former Assistant COR

Boudreaux, forwarded written complaints to Raytheon

regarding Greenwell’s deficient performance. (Pet. App.

at 17a-26a).

After Raytheon’s Human Resource Director, Bill Ogle,

reviewed the Guard’s letters with the Operations Depart-

ment, Raytheon decided to transfer Greenwell from Lake-

front because Raytheon’s practice had always been to

®* These problems included cross-threaded tubing, an improperly

placed coil, deformed fittings and “Pro-seal” on the fittings.

1° Greenwell admitted her error in placing Pro-seal on the fittings.

"t Although Babin had not complained about Greenwell’s mechani-

cal skills before, he now realized that something had to be done to

ensure the Guard’s pilots’ safety.

8

remove an employee following a customer’s complaint.”

Thus, on July 28, 1994, Raytheon transferred Greenwell

to a mechanic’s position at its Belle Chasse, Louisiana

facility.”*

Greenwell thereafter obtained the Guard’s complaint

letters and responded with a rebuttal letter in which she

claimed that the Guard’s complaints were either untrue

or exaggerated. Bill Ogle recommended that she provide

Raytheon’s Operations Department with a copy of her

rebuttal letter because Ogle had limited knowledge regard-

ing the mechanical issues discussed therein. Inexplicably,

Greenwell rejected Ogle’s offer and would not allow him

to forward her rebuttal letter to Raytheon’s Operations

Department.

In August 1994, Wayne Leese gave Greenwell a “below

average” rating in quality and accuracy of work based on

the C-12’s air conditioning problems, the Guard’s com-

plaints and 94-96 “discrepancies” found during Leese’s

May 1994 inspection."* Leese gave Greenwell satisfactory

ratings in all other categories. Greenwell nonetheless dis-

puted Leese’s evaluation even though she suffered no loss

of pay or benefits following it.

On October 5, 1994, Lance Fachman, Greenwell’s

supervisor at Belle Chasse, discovered that she and a co-

worker, Dave Burlette, overtorqued 75-100 “C-flange”

_ bolts on an aircraft. Overtorquing these bolts was a poten-

tially serious error because it could cause the engine to

break apart while the plane was in the air. Shortly after

October 5, 1994, Fashman mentioned this incident to his

12 Raytheon’s removal practice had been adopted because it was

ultimately responsible if any of its customers’ employees were

injured due to a mechanical defect in an airplane.

'SGreenwell’s transfer resulted in a $4,368.00 per year salary

reduction.

'* Greenwell had already assumed her position at Bell Chasse

when Leese performed his August 1994 evaluation.

9

supervisor, Wayne Leese. Leese responded by telling Fach-

man that this infraction had to be documented pursuant

to Raytheon’s policy. However, Fachman did not believe

documentation was necessary, and he therefore failed to

follow Leese’s instruction. Once Leese learned of Fach-

man’s inaction, he again instructed Fachman to record

the employees’ error. Fachman thereafter complied by

documenting both employees’ errors.”®

In February 1995, Raytheon’s new Vice President of

Operations, Dave Robinson, began investigating Green-

well’s claims and the reasonableness of reinstating her as

leadperson at Lakefront.** On February 22, 1995, Robin-

son contacted Greenwell to relay his initial findings. In

doing so, he told Greenwell that, in general, it would be

difficult for an employer to perceive a litigious employee

as not “biting the hand that feeds him.” Robinson then

told Greenwell she had two paths to choose from: (1)

she could look to resolve her claims with his help; or (2)

she could litigate which would make it difficult for him to

help her because “everything would have to be washed

through the legal process.” After Greenwell’s counsel

learned of Robinson’s offer, she prohibited him from speak-

ing with Greenwell again, thereby terminating Robinson’s

reconciliation efforts. Two months later, Greenwell re-

signed from Raytheon.

B. Proceedings Below

On July 3, 1995, Greenwell filed her Complaint in the

Federal District Court for the Eastern District of Louisiana

against Defendants Raytheon, Wayne Leese and Dave

Robinson. Greenwell claimed that Raytheon violated both

% Fachman’s memo regarding the overtorquing incident did not

affect either Burlette’s or Greenwell’s pay, benefits, or promotion

status.

16 Robinson was investigating this issue in response to Green-

well’s attorney’s demand for her reinstatement as leadperson at

Lakefront.

10

Title VII and Louisiana Revised Statute § 23:1006 by

subjecting her to a sex-based hostile work environment.

Greenwell also sued Raytheon for retaliatory demotion

under Title VII and Louisiana Revised Statute § 51:2256.

Finally, Greenwell sued Raytheon for intentional infliction

of emotional distress under Louisiana Civil Code Article

2315. Additionally, Greenwell sought punitive damages

against Raytheon for her Title VII claims pursuant to 42

U.S.C. § 198 1a.

At trial, Raytheon moved for directed verdict on all of

the Plaintiff's claims. This district court granted Ray-

theon’s motion on the Plaintiff's intentional infliction

claim, but it denied Raytheon’s motion on her federal and

state law claims for sex and retaliation discrimination.

The Court also denied Raytheon’s motion on the Plain-

tiff’s punitive damage claim. After trial, the jury returned

a compensatory damages verdict of $100,000 against both

Defendants Raytheon and Leese."’ The jury also assessed

a $500,000 punitive damage award against Raytheon pur-

suant to 42 U.S.C. § 198la.

Plaintiff sued Defendant Leese for retaliation under

Louisiana Revised Statute § 51:2256 and for intentional

infliction of emotional distress under Louisiana Civil Code

Article 2315. At trial, Leese moved for directed verdict

on both of these claims, and the district court granted

Leese’s motion on the intentional infliction claim. How-

ever, the district court sent the retaliation claim to the

jury, and the jury returned its verdict against Leese for

$100,000."*

Finally, Greenwell sued Defendant Robinson under the

same state statutes as Leese. The district court granted

Robinson’s motion for summary judgment on the inten-

7 As discussed below, the jury found Leese jointly liable for

these damages.

18 See n.17, supra.

;

4

:

1]

tional infliction claim, and the court later granted Robin-

son’s motion for directed verdict on the retaliation claim.

The district court thereafter entered judgment in accord-

ance with the jury’s verdict, but it also added a backpay

award of $7,520 against Defendants Raytheon and Leese.

(Pet. App. at 12a-13a). Defendants thereafter jointly

moved for judgment as a matter of law contending that

there was insufficient evidence to support the jury’s ver-

dict.” Additionally, Raytheon moved for directed verdict

because it contended that the district court erroneously

admitted testimony regarding Robinson’s February 22,

1995 statements with Greenwell pursuant to Fed. R. Evid.

408, and that this admission substantially prejudiced its

rights. The district court denied all of the Defendants’

post-trial motions except for partially granting Raytheon’s

request for a remittitur of the punitive damage award as

the court reduced that award from $500,000 to $300,000

based on its reconciliation of the jury’s verdict and the

damages cap in 42 U.S.C. § 198la. (Pet. App. at 14a-

15a).

In its December 22, 1997 opinion, the Fifth Circuit

affirmed the district court’s rulings and entered an order

denying Defendants’ motion for judgment as a matter of

law except in one respect. The Fifth Circuit reversed the

lower court’s finding that sufficient evidence existed for a

punitive damage award under 42 U.S.C. § 1981a.

Petitioners now seek review of this Court.

19 Alternatively, Defendants requested a new trial pursuant to

Fed. R. Civ. P. 59. However, the Court also denied this request.

12

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO REC-

TIFY THE FIFTH CIRCUIT’S COMPLETE DEPAR-

TURE FROM THIS COURT'S DIRECTIVE IN

HARRIS v. FORKLIFT SYSTEMS AND TO PRE-

VENT A CONFLICT AMONG THE CIRCUITS

REGARDING THE CONDUCT NECESSARY TO

PROVE THE EXISTENCE OF AN OBJECTIVELY

HOSTILE WORK ENVIRONMENT.

In affirming the district court, the Fifth Circuit com-

pletely departed from this Court’s directive in Harris v.

Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367,

370 (1993), the Fifth Circuit’s own precedent in

DeAngelis v. El Paso Mun. Police Officers’ Assn., 51 F.3d

591, 593 (Sth Cir. 1995), cert. denied US. .

116 S.Ct. 473, and at least three other Circuit Courts of

Appeal. See Hartsell v. Duplex Products, Inc., 123 F.3d

766, 772-73 (4th Cir. 1997); Black v. Zaring Homes,

Inc., 104 F.3d 822, 826 (6th Cir. 1996); Baskerville v.

Culligan Int'l Co., 50 F.3d 428, 430-31 (7th Cir. 1995).

The Fifth Circuit departed from Harris, and the other

Circuits identified supra, when it found that two instances

of minor verbal harassment over a four-month period was

sufficiently severe and pervasive conduct “to create an

objectively hostile or abusive work environment—an en-

vironment that a reasonable person would find hostile or

abusive...” Harris, supra at 21.

In this case, the Plaintiff presented but two acts of non-

time barred harassment in support of the “objectively

severe and pervasive conduct” element of her hostile en-

vironment claim: ” (1) COR Norris Babin told her “to

2° The plaintiff testified about the “BASI-bitch’ comment and

other instances of alleged verbal harassment occurring before April

1, 1994. However, the district court correctly instructed the jury

that any pre-April 1, 1994 conduct was not actionable and could

only be used to determine whether the post-April 1, 1994 conduct

complained about was motivated by Greenwell’s sex or her com-

plaints about alleged sexual harassment. The district court in-

a

13

get the damn tape off the floor” in late April 1994; and

(2) Greenwell’s subordinate, Jim Stout, stated that he

wished Plaintiff were Kim Basinger instead of Kim Green-

well during the summer of 1994." Clearly, these two

instances of alleged verbal harassment cannot possibly

satisfy the objectively severe and pervasive harassment

standard promulgated by this Court in Harris and applied

by the Circuits. See Southard v. Texas Bd. of Criminal

Justice, 124 F.3d 539, 555 (Sth Cir. 1997) (finding that

a few instances of verbal harassment and requests for

performance of menial tasks did not satisfy objectively

severe and pervasive harassment standard); Hartsell,

supra at 772-73 (co-workers’ immature, insensitive and

insulting comments were insufficient to create objectively

hostile work environment); Black, supra at 826 (revers-

ing jury verdict in favor of employee on hostile environ-

ment claim because male co-workers’ comments were of-

fensive, inappropriate and unprofessional, but insufficiently

severe or pervasive to prove hostile environment claim):

Baskerville, supra at 430-31 (reversing jury verdict be-

cause several instances of verbal harassment over a seven-

month period were insufficiently severe or pervasive to

create objectively hostile work environment).

On appeal, the Plaintiff recognized the complete paucity

of evidence supporting the objectively abusive conduct

element of her hostile environment claim because she

offered a previously unasserted theory in support thereof.

Greenwell claimed that the Guard’s July 1994 complaint

letters regarding her deficient mechanical skills and un-

cooperative behavior were sufficient, by themselves, to

have created an objectively hostile work environment.

structed the jury in this manner because the pre-April 1, 1994

conduct was outside the applicable statutes of limitation. Since the

Plaintiff never objected to this instruction, she waived any alleged

error in it pursuant to Fed.R.Civ.P. 51.

*1 Although Greenwell testified about Stout’s comment, she never

contended that this statement constituted actionable sex-based

harassment.

14

However, the Plaintiff overlooked one very critical fact:

these letters could not have created an objectively hostile

work environment at Lakefront because the Guard’s let-

ters were not communicated or provided to Greenwell

until after Raytheon transferred her from Lakefront. This

critical distinction also prevented Greenwell from proving

that she subjectively perceived these letters as creating a

hostile work environment, another requirement for estab-

lishing her claim. Harris, supra, at 21-22. Accordingly,

this novel theory did not, and cannot, cure the otherwise

deficient proof offered to show that Raytheon subjected

Greenwell to an objectively hostile work environment.”

Finally, this case, more than any other this Court will

see, cries out for refinement of the “objectively hostile or

abusive work environment” standard articulated in

Harris.” Justice Scalia was most prophetic when he

candidly addressed the problems created for employers

and the lower courts by Harris’ definition of hostile work

environment:

[a]busive (or hostile, which in this context I take to

mean the same thing) does not seem to me a very

clear standard—and I do not think clarity is at all

increased by adding the adverb “objectively” or by

appealing to a “[reasonable person[’s]” notion of

what the vague word means... . As a practical

** The same analysis above would also be applicable to Greenwell’s

state law hostile environment claim as the Fifth Circuit has cor-

rectly found that Louisiana’s anti-discrimination statutes are inter-

preted like their federal counterpart, Title VII, because of their

similarity in scope and purpose. Wyerick v. Bayou Steel Corp.,

887 F.2d 1271, 1274 (5th Cir. 1989): Williams v. Conoco, Inc., 860

F.2d 1306-07 (5th Cir. 1988).

*8 This Court recently reaffirmed its commitment to the “objec-

tively hostile or abusive work environment” standard when it found

this element to be “crucial” in preventing both judges and juries

from converting otherwise isolated, innocuous comments into dis-

criminatory “conditions of employment.” Oncale vy. Sundowner

Offshore Services, Inc., U.S. » — S.Ct. , 1998 WL

88039 at p. 4 (U.S. La.) (March 4, 1998).

15

matter, today’s holding lets virtually unguided juries

decide whether sex-related conduct engaged in (or

permitted by) an employer is egregious enough to

warrant an award of damages.

Harris, supra at 24 (Scalia, J., concurring). See also

Ellerth vy. Burlington Ind., 123 F.3d 490, 501 (7th Cir.

1997) (en banc) cert. granted in part, 118 S.Ct. 876

(January 23, 1998) (lamenting the difficulty which both

employers and courts have had, and will continue to have,

in determining conduct necessary to create a hostile work

environment). Justice Scalia’s concern over this issue was,

and never will be more, fully realized than in the instant

case. Further, this court, the lower courts, and the

nation have, willingly or not, been forced to confront the

issue of what constitutes actionable sexual harassment.

(Pet. App. 27a-49a).™ Accordingly, the instant case

presents this court with a perfect Opportunity to not only

prevent a split in the circuits, but to articulate a definition

of actionable sexual harassment which wil] prevent the

further “opening of more expansive vistas of litigation”

as Justice Scalia astutely predicted some five years ago.

See Harris, supra at 24.

** This Court also recently explained that “common sense, and an

appropriate sensitivity to social context, will enable courts and

juries to distinguish between simple teasing . . . and conduct which

a reasonable person in the plaintiff’s position would find severely

hostile or abusive.” Oncale, supra at p. 4 Petitioners agree that

such common sense should prevail, but as demonstrated herein, both

the jury and lower courts omitted it from their determinations.

*° As reflected by recent articles attached hereto, neither lay peo-

ple nor legal scholars truly understand what is legally proscribed

sexual harassment. This problem is compounded by the fact that

the EEOC reports that the number of sexual harassment complaints

has doubled since 1991. (Pet. App. at 30a). Further, a June, 1997

CNN/USA Today Weekend poll found that 15% of all adults are

either “afraid” or very afraid” or being accused of sexual harass-

ment. Such fear undoubtedly stems from the fact that most of

those polled do not comprehend (and/or fear others do not com-

prehend) the definition of actionable sexual harassment.

16

Il. PETITION FOR CERTIORARI SHOULD BE

GRANTED SO THAT EMPLOYERS WITHIN THE

FIFTH CIRCUIT ARE NOT SUBJECT TO STRICT

LIABILITY FOR COWORKER HARASSMENT, A

STANDARD WHICH CLEARLY CONFLICTS WITH

THIS COURT’S MANDATE IN MERITOR SAVINGS

BANK F.S.B. v. VINSON AND THE OTHER CIR-

CUITS.

By affirming the district court, the Fifth Circuit essen-

tially found that once an employee is allegedly harassed

by a coworker, or as in this case, a customer, her em-

ployer is strictly liable for that harassment, irrespective

of the employer’s response thereto.” That inescapable

conclusion is established by the following facts:

1. Greenwell complained to Wayne Lease in late

April 1994 about Norris Babin’s loud request

for her to remove tape from the hangar floor; 7"

2. Leese investigated her complaints in early May

1994; **

3. Leese confronted the alleged harasser, the Guard;

Leese obtained the Guard’s commitment to end

the allegedly offensive conduct complained of;

and

*°This Court has already granted certiorari on two cases to

resolve the standard by which an employer incurs liability for a

supervisory employee's creation of a sexually hostile work environ-

ment. See Faragher v. City of Boca Raton, 111 F.8d 1580 (11th

Cir. 1997) (en banc) (cert. granted, 118 S. Ct. 438) and Ellerth,

supra,

27 On appeal, Greenwell claimed that Raytheon was also liable for

her former supervisor's, Walt House’s, alleged failure to remedy

the Guard’s pre-April 1, 1994 conduct, ie, the “BASI-bitch,” “little

girl” comments, However, the district court properly instructed the

jury that Leese’s alleged inaction, like the other pre-April 1, 1994

conduct, was not actionable because it was outside the applicable

statute of limitations.

78 Greenwell was admittedly satisfied with the promptness of

Leese’s response.

<A Rin —— +2

17

5. Leese’s action ended the alleged harassment com-

plained of by Greenwell.”

Although this Court has never directly addressed the

adequacy of an employer’s response to a sexual harass-

ment complaint, the Fifth Circuit, like the other Circuits,

has. Prior to this case, the Fifth Circuit has held that an

employer must take action reasonably calculated to end

harassment of which it should have known. Nash vy.

Electrospace, Inc., 9 F.3d 401, 403-04 (Sth Cir. 1993).

Clearly, the panel in the instant case completely deviated

from its own precedent in finding that Leese’s action was

not “reasonably calculated to end” Greenwell’s complaint

about the Guard’s alleged harassment as Leese’s response

was not only reasonably calculated to end such harass-

ment, but it in fact ended such harassment. Thus, the

Fifth Circuit essentially imposed strict liability on Ray-

theon, and by doing so, it created an internal conflict and

a conflict between itself and the other Circuits. See

Blankenship v. Parke Care Centers, Inc., 123 F.3d 868,

873 (6th Cir. 1997) (employer is only liable for reckless

indifference to employee’s harassment complaint as negli-

gent, good faith, response insulates employer from lia-

bility); Perry v. Ethan Allen, 115 F.3d 143, 149 (2nd

Cir. 1997) (employer is only liable if it provides no rea-

sonable avenue of complaint or does nothing about known

harassment; Creamer v. Laidlaw Transit, Inc., 86 F.3d

167, 171 (10th Cir. 1996) (employer incurs liability for

recklessly or negligently failing to remedy harassment of

which it knew, or should have known). Moreover, the

Fifth Circuit’s ruling in this case violated this Court’s

mandate that employers are not “automatically liable” for

*° After Leese’s investigation and meeting with the Guard was

complete, the Guard did not subject Greenwell to any other acts

of alleged verbal harassment. However, Jim Stout, Greenwell’s

subordinate, stated that he wished she were Kim Basinger instead

of Kim Greenwell, but Greenwell rightfully never contended that

Stout’s statement was actionable sex-based harassment.

18

sexual harassment. Merifor Savings Bank F.S.B. vy.

Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 2408 (1986).

On appeal, Greenwell recognized the deficiency of proof

offered to show that Raytheon and/or Leese inadequately

responded to her April 1994 harassment complaint as she

asserted that Leese’s action was deficient because he failed

to prevent the Guard employees from sending their July

1994 complaint letters. Greenwell’s argument is com-

pletely meritless unless one accepts the two illogical pre-

cepts underlying it: (1) Raytheon somehow should have

Stopped the Guard from complaining about her deficient

maintenance of the C-12, a deficiency which nearly caused

the death of two Guard pilots; and (2) Raytheon should

have anticipated such action from the Guard and pre-

empted it even though neither Greenwell, nor the Guard,

had done anything to place Raytheon, or Leese, on notice

that the Guard would falsely complain about her perform-

ance. Further, the law does not require an employer to

possess such clairvoyancy. Nash, supra at 404 (finding

that employer is not liable for failure to rectify harass-

ment of which it had no reason to know). Accordingly,

there was no evidentiary or legal basis for the Fifth Cir-

cuit to conclude that Raytheon took inadequate action in

response to Greenwell’s April 1994 complaint.

Ill. CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE THE CONFLICT CREATED BY THE

FIFTH CIRCUITS HOLDING THAT AN EM-

PLOYEE CAN PROVE THE EXISTENCE OF A

CAUSAL CONNECTION BETWEEN HER PRO-

TECTED ACTIVITY AND HER EMPLOYER’S

ADVERSE PERSONNEL ACTION WITHOUT RE-

BUTTING HER EMPLOYER’S UN CONTROVERTED

EVIDENCE THAT IT HAS TAKEN THE SAME,

IF NOT MORE SEVERE, DISCIPLINARY ACTION

AGAINST OTHER EMPLOYEES WHO HAVE NOT

ENGAGED IN ANY PROTECTED ACTIVITY.

Greenwell asserted that Raytheon was liable for unlaw-

ful retaliation under state and federal law because it

19

transferred and demoted her following Greenwell’s April

1994 complaints regarding the Guard’s alleged verbal har-

assment. However, Raytheon provided uncontroverted

proof that it had taken the same, if not more severe, dis-

ciplinary action against other employees about whom its

customers had complained.” As for defendant Leese,

Greenwell claimed that he had given her a worse perform-

ance evaluation than she deserved in August 1994, and

that he recommended the documentation of an admitted

mechanical error in October 1994 in retaliation for her

complaints about the Guard’s alleged harassment2* As

with Raytheon, Leese also provided uncontroverted proof

that he took the same action against two of Greenwell’s

former coworkers, Jim Stout and Dave Burlette, as he

took against her.**

To establish her retaliation claims against both Ray-

theon and Leese, Greenwell had to prove:

1. that she engaged in protected activity;

2. that an adverse employment action occurred: and

3. that a causal link existed between her protected

activity and the adverse employment action.

3° The uncontroverted proof was that Raytheon had not only

transferred and demoted employees about whom customers had

complained, but that it had also terminated employees about whom

customers had complained.

*! The October 1994 admitted mechanical error was Greenwell’s

overtorquing of the C-flange bolts on an aircraft located at the

Belle Chasse facility. Neither of Leese’s allegedly adverse employ-

ment actions caused a reduction in Greenwell’s pay or benefits.

“2 Leese gave Jim Stout, Greenwell’s subordinate at Lakefront,

the identical personnel evaluation he had given Greenwell for 1994.

Likewise, Leese recommended that Lance Fachman document not

only Greenwell’s overtorquing of the C-flange bolts but also Bur-

lette’s overtorquing of the C-flange bolts.

20

Long v. Eastfield College, 88 F.3d 300, 304 (Sth Cir.

1996).* Both Raytheon and Leese argued that Green-

well had not met her burden of proving the causal con-

nection element of her claim because she had wholly failed

to rebut the defendants’ proof that they had taken the

same disciplinary action against other employees who had

not engaged in any protected activity. The Fifth Circuit

had previously agreed with the Petitioners’ defense on two

occasions when it found an employee cannot prove the

necessary causal connection when uncontroverted evidence

showed that the employer had taken the same action

against other employees who had not engaged in any pro-

tected conduct. Anderson v. Douglas & Lomanson Co.,

26 F.3d 1277, 1300-1302 (Sth Cir. 1994); Armstrong v.

City of Dallas, 997 F.2d 62, 66-67 (Sth Cir. 1993).

In adopting the aforementioned rule in Anderson and

Armstrong, the Fifth Circuit fell in line with the other

Circuits which have addressed this issue. See Penny vy.

United Parcel Service, 128 F.3d 408, 417 (6th Cir. 1997)

(finding that plaintiff's failure to show evidence of dis-

parate treatment once employer offered evidence of sim-

ilar disciplinary action precluded plaintiff from proving

causal connection); Manning v. Metropolitan Life Ins.

Co., 127 F.3d 686, 693 (8th Cir. 1997) (plaintiff's

failure to show disparate treatment of similarly situated

non-complaining employees was fatal to proving causal

connection); Henry v. Guest Services, Inc., 902 F. Supp.

245, 252 (D.D.C. 1995), aff'd., 98 F.3d 646 (D.C. Cir.

1996) (same); McKenzie v. Illinois Dept. of Transp., 92

F.3d 473, 484 (7th Cir. 1996) (same). Likewise, numer-

ous district courts have also concluded that an employee

will not meet his burden of proving the necessary causal

33 As with Greenwell’s state law hostile environment claims

against Raytheon, Greenwell’s state law retaliation claims have been

evaluated similarly to her federal retaliation claims because of the

similarity in scope and purposes of Louisiana’s anti-discrimination

statutes and Title VII. See n.22 supra.

SOLER SEER RRR Gh thle Shi NEAR Nie OME RD

21

connection for a retaliation claim when his employer pro-

vides unrebutted evidence that it has taken the same

disciplinary action against similarly situated non-complain-

ing employees. Cooper v. Housing Auth., 67 FEP Cas.

617, 619 (N.D. Ala. 1995); Lawson v. Getty Terminals

Corp., 866 F. Supp. 793, 803-04 (S.D.N.Y. 1994); Lees

v. Case-Hoyt Corp., 779 F. Supp. 717, 727 (W.D.N.Y.

1991) .*

Ignoring its own precedent, as well as that of the other

Circuits and lower federal courts, the Fifth Circuit cre-

ated a conflict herein when it found that Greenwell met

her burden of proving a causal connection even though

she offered no evidence rebutting Raytheon’s proof that

it had taken the same, if not more severe, disciplinary

action against other non-complaining employees. Accord-

ingly, this Court should grant certiorari to remove the

uncertainty and conflict created by the Fifth Circuit's

decision in the instant case and to articulate the proof

necessary to establish a causal connection between an

employee's protected activity and his/her employer’s ad-

verse personnel action.

CONCLUSION

Undoubtedly, the Plaintiff will respond to this Petition

by arguing that this court should deny certiorari because

the lower court decisions were unpublished and therefore

lack any meaningful precedential value. However, this

court has reviewed numerous unpublished decisions, espe-

cially those, like the instant one, which have “so far

departed from the accepted and usual course of judicial

proceedings, .. ., as to call for an exercise of this Court’s

supervisory powers.” See S. Ct. R. 10(a). Indeed, the

fact that the lower courts’ decisions may escape further

** Petitioners’ review of this Court’s precedent revealed no deci-

sion in which this Court had addressed the proof necessary to

support the causal connection element for a retaliation claim.

22

review because of their unpublished status only enhances

the need for this Court’s review. Accordingly, for this

reason and all other reasons set forth herein, the Petition-

ers respectfully request the Court to issue a writ of cer-

tiorari in this case. Alternatively, if this Court renders

an intervening decision in any of the cases that are pres-

ently under review which limits the Petitioners’ liability,

then Petitioners request that this Court vacate the lower

court’s judgment and remand for proceedings consistent

therewith.

Respectfully submitted,

ARMIN J. MOELLER, JR.

Counsel of Record

M. NAN A“ESSANDRA

PHELPS DUNBAR, L.L.P.

Suite 500

MTEL Centre North

200 South Lamar Street

Jackson, MS 3920:

(601) 352-2300

Attorneys for Petitioners