Appendix — Raytheon Aerospace, Inc. v. Greenwell

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APPENDIX

[Filed Dec. 22, 1997]

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30002

KIMBERLY ANN GREENWELL,

Plaintiff-A ppellee,

versus

RAYTHEON AEROSPACE, INC., et al.,

Defendants,

RAYTHEON AEROSPACE, INC. and WAYNE LEESE,

Defendants-A ppellants.

Appeal from the United States District Court

for the Eastern District of Louisiana

(95-CV-2138)

Before DAVIS, JONES and DENNIS, Circuit Judges

PER CURIAM *

Appellants Raytheon Aerospace, Inc. (“Raytheon”) and

Wayne Leese (“Leese”) appeal a jury verdict in favor

* Pursuant to 5TH Cir. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH Cm. R. 47.5.4.

2a

of Kimberly Ann Greenwell on her claims of sex-based

discrimination under Title VII and Louisiana anti-discrim-

ination laws.

Having considered the oral and written arguments of

counsel and the record in this case, we see no reversible

error in the rulings or judgment of the district court,

except as to the award of punitive damages. With respect

to the latter issue, however, we conclude that the plaintiff

failed to present sufficient evidence from which a reason-

able trier of fact could conclude that Raytheon engaged

in discriminatory practices “with malice or with reckless

indifference to the federally protected rights of [the plain-

tiff appellee].” 42 U.S.C. § 198la(b)(1); see Patterson

v. P.H.P. Healthcare Corp., 90 F.3d 927, 943-44 (Sth

Cir. 1996); Farpella-Crosby v. Horizon Health Care, 97

F.3d 803, 809-10 (Sth Cir. 1996).

Accordingly, the judgment of the district court is RE-

VERSED in part, to vacate the award of punitive dam-

ages, and AFFIRMED in all other respects.

{

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Minute Entry [Entered Dec. 9, 1996]

Duval, J.

December 5, 1996

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 95-2138

Section “K”

KIMBERLY ANN GREENWELL

versus

RAYTHEON AEROSPACE, INC., ef al.

Before the court are defendants’ Renewed Motion for

Judgment as a Matter of Law, or in the Alternative, for

a New Trial, pursuant to Federal Rules of Civil Procedure

50(b) and 59, and Motion for Relief from Judgment, pur-

suant to Federal Rule of Civil Procedure 60.’ Both mo-

tions were set for hearing on October 16, 1996, and were

taken on the papers. Having reviewed the record and

the memoranda, the court finds that only the demand for

remittitur contained in defendants’ motion has any merit;

all other bases for post-trial relief shall be denied.

A brief review of the case is in order. Plaintiff Kim-

berly Ann Greenwell filed suit against defendants Ray-

theon Aerospace Company (“Raytheon”), Dave Robinson

and Wayne Leese for alleged sexual harassment, sex dis-

crimination, retaliation, under Title VII and state law.

ee

1 Also submitted on October 16, 1996 was defendants’ Motion

for Stay of Execution or Enforcement of Judgment. Pursuant to

its October 18, 1996 Minute Entry, the court denied a motion to

stay execution or enforcement of the judgment and ordered defend-

ants to post a bond in the amount of $407,520.00.

4a

Raytheon employed Greenwell since 1990. In 1994, while

working as lead person for Raytheon on a maintenance

contract between Raytheon and the Louisiana Army Na-

tional Guard, Greenwell claimed that she was subjected

to sex-based discrimination and harassment from certain

National Guard personnel at her job. Greenwell filed a -

formal complaint in 1994. Three months later, Raytheon

demoted and transferred plaintiff to the Naval Air Station

at Belle Chasse purportedly due to her unsatisfactory

job performance. Plaintiff filed suit in federal court on

July 6, 1995. This case proceeded to trial on August 27,

1996. On August 30, 1996, the jury rendered its verdict

in favor of plaintiff Greenwell and against the only re-

maining defendants, Raytheon and Wayne Leese, in the

amount of $600,000.00 finding both sex-based harassment

and retaliation. The court entered a judgment in the

amount of $607,250.000 which reflected awards of back-

pay, compensatory and punitive damages.

Now defendants move the court to grant them post-

trial relief from the judgment. In rendering its verdict the

jury completed a detailed set of interrogatories indicating

the basis for relief as to each defendant, as follows:

1) Raytheon discriminated against or harassed plain-

tiff on the basis of her sex in violation of federal

law;

2) Raytheon discriminated against or harassed plain-

tiff on the basis of her sex in violation of state law;

3) Raytheon unlawfully retaliated against plaintiff

in violation of federal law;

4) Plaintiff unlawfully retaliated against plaintiff in

violation of state law;

5) Wayne Leese unlawfully retaliated against plain-

tiff in violation of state law:

6) Plaintiff was entitled to $100,000.00 in compen-

satory damages;

Sa

7) Raytheon acted willfully or with reckless disre-

gard to plaintiff's rights in discriminating against her

or retaliating against her;

8) Plaintiff was entitled to an award of $500,000.00

in punitive damages against Raytheon.

Defendants seek post trail relief on based on the fol-

lowing reasons:

:

‘

‘

?

‘

1) Plaintiff failed to prove there was a hostile en-

vironment in order to sustain her sexual harassment

claim;

2) Plaintiff failed to prove severe or pervasive sexual

harassment existed at the Lakefront facility in order

to prove that there was a hostile environment;

3) Plaintiff failed to prove that Raytheon’s investi-

gation of her formal complaint was inadequate, and

thus show that they failed to take remedial action:

4) Plaintiff failed to prove retaliation against Ray-

theon in part because she failed to prove the reasons

for her demotion and transfer were pretextual;

5) Plaintiff failed to prove retaliation against Leese

because she failed to prove that he undertook an

adverse employment action against her;

6) Plaintiff failed to prove her claim for punitive

damages because an employer is not required to pay

punitive damages in a “mixed motive” sex discrim-

ination case;

7) Plaintiff failed to prove her claim for punitive

damages because she failed to prove that Raytheon

acted with malice or reckless indifference with respect

to her federal rights;

8) The jury award should be reduced based on the

statutory caps imposed on awards of punitive dam-

6a

ages awarded in Title VII cases under 42 U.S.C.

§ 198la(b) (3);

9) The court erred in admitting evidence of David

Robinson’s communications with plaintiff despite’s

defendant’s motion in limine to exclude same under

Federal Rule of Evidence 408 which precludes evi-

dence of settlement negotiations;

Of the reasons set forth, the first seven appear to be

grounds for judgment as a matter of law and the last two

appear to be grounds for new trial. Rule 50 and Rule 59

set out different standards for review of the evidence. In

this instance, the evidence is such that the court will not

disturb the jury’s verdict under either standard based on

the evidence. The damages award, however, must be

reduced.

Rule 50(b)—Judgment as a Matter of Law

Under Rule 50 of the Federal Rules of Civil Procedure,

the court must determine whether there is sufficient evi-

dence to support the jury’s verdict and in so doing all

evidentiary conflicts are to be resolved in favor of the

successful party and that party is to be given the benefit

of all reasonable inferences.

As stated in the seminal case Boeing Co. v. Shipman,

411 F.2d 365, 374-75 (Sth Cir. 1969), in considering a

motion for judgment as a matter of law, the court:

should consider all of the evidence—not just that

evidence which supports the non-mover’s case—but

in the light and with all reasonable inferences most

favorable to the party opposed to the motion. If the

facts and inferences point so strongly and overwhelm-

ingly in favor of one party that the court believes

that reasonable men could arrive at a contrary ver-

dict, granting the motion is proper. On the other

hand, if there is substantial evidence opposed to the

motions, that is evidence that such quality and weight

7a

that reasonable and fair-minded men in exercise of

impartial judgment might reach different conclusions,

the motion should be denied... .

See Branch v. Chevron Int'l Oii Co., 681 F.2d 426, 428-

29 (5th Cir. 1982).

Having presided over this trial, the court firmly believes

that taking all the evidence in the light and with all rea-

sonable inferences most favorable to plaintiff Greenwell,

there is sufficient evidence of such quality and weight that

reasonable and fair-minded jurors in the exercise of im-

partial judgment might reach different conclusions, and

thus, the motions must be denied. In addition to there

being sufficient evidence to support the jury’s findings, the

detailed interrogatories they completed certify that due

consideration was given by them with respect to the claims

of sexual harassment and retaliation against both Ray-

theon and Leese. The court hereby incorporates and

reiterates its reasons for denying defendant’s judgment as

a matter of law pursuant to Rule 50(a) with respect to

those claims.

The award of punitive damages against Raytheon

sounded in sufficient evidence to overcome a Rule 50(b)

motion. While the punitive damages award must be re-

duced under law, the court finds that the award of puni-

tive damages is supported by the evidence. The Civil

Rights Act of 1991, 42 U.S.C. § 1981a, provides that

punitive damages may be awarded against an employer

proven to have, “engaged in discriminatory practice or

discriminatory practices with malice or reckless disregard

to the federally protected rights of an aggrieved individ-

ual.” 42 U.S.C. § 1981la(b)(1). Defendant Raytheon

does not content that this is a mixed motive case. This is

correct. Rather, Raytheon asserts that the jury instruc-

tions “expressly instruct the jury on a mixed motive analy-

sis,” without referring the court to the instruction it has

in mind. In a mixed motive case the jury would have

Sa

been instructed that a defendant may not be held liable

when, even if it had not taken gender into account, it

would have made the same employment decision regard-

ing the aggrieved employee. Price Waterhouse v. Hop-

kins, 490 U.S. 228, 242 (1989). No such instruction

was given to the jury in this case. Defendant also con-

tends that plaintiff failed to carry her burden of proving

that defendant’s motives were in fact pretextual. The court

has already stated that the evidence sufficiently supported

the jury’s findings with respect to both retaliation and

sex harassment.

Defendant next claims that plaintiff failed to prove that

Raytheon acted with malice or reckless disregard to plain-

tiff’s federal rights. As stated above, the jury had evi-

dence upon which it could reject defendant’s legitimate,

non-discriminatory reason for transferring and demoting

plaintiff. That same evidence could be grounds for find-

ing that Raytheon acted with malice or reckless indiffer-

ence with respect to plaintiff's federal rights in its decision

to transfer and demote her, despite its proffered reasons.

Based on the evidence adduced at trial, reasonable minds

could differ as to whether Raytheon acted with malice or

reckless indifference with respect to plaintiffs federal

rights. Thus, the court denies Raytheon’s Rule 50(b)

motion with respect to punitive damages.

Rule 59—Motion for a New Trial

The standard provided under Rule 59 of the Federal

Rules of Civil Procedure to determine whether a new

trial or remittitur is required is different from that of

Rule 50. The rule does not specify what grounds are nec-

essary to support such a decision; however, case law

demonstrates that a new trial may be granted of the dis-

trict court finds that verdict is against the weight of the

evidence, the damages awarded are excessive, the trial

was unfair, or prejudicial error was committed in its

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course. Smith vy. Transworld Drilling, 773 F.2d 610,

613 (5th Cir. 1985). In making its determination, the

lodestar is whether the verdict is against the great weight

of the evidence or would result in a miscarriage of justice.

Unlike a Rule 50 motion, there is no need to view the

evidence in the light most favorable to the nonmoving

party. Wright & Miller § 2806.

As discussed above, plaintiff's sex harassment, retalia-

tion, and punitive damages claims were well supported

by the evidence. Thus, the jury’s verdict and its answers

to the jury interrogatories were not against the great

weight of the evidence and clearly withstand this Rule 59

motion.

The damages awarded plaintiff were excessive based

on applicable Jaw. The court agrees that remittitur is

appropriate. The court entered a judgment against de-

fendant in the amount of $607,250.00. Of that amount,

$7,250.00 was awarded in backpay, $100,000.00 was

awarded in compensatory damages, $500,000.00 was

awarded in punitive damages against Raytheon. Punitive

damages were awarded under Title VII alone, since no

punitive damages were available to plaintiff under state

law; compensatory damages were awarded for both state

and federal law violations by Raytheon and Wayne Leese.

Further, Leese could only have been liable for compensa-

tory damages under state law, for which there is no cap

on the amount of recovery. Section 198la(b)(3) caps

awards of compensatory and punitive damages in Title VII

suits at $300,000.00 Since the $100,000.00 compensa-

tory damages award could have been based on state law

violations alone, that portion of the award is not subject

to the damages cap imposed by section 198la. Only

the punitive damages award of $500,000.00 against Ray-

theon for Title VII violations is subject to the statutory

cap imposed by section 198la. Applying the cap, the

punitive damages award against Raytheon should be re-

duced from $500,000.00 to $300,000.00. Finding no

ee

10a

reason to disturb the other awards of damages and back-

pay, this leaves plaintiff with an award totalling $407,-

250.00.

Finally, the court rejects defendant’s argument that

plaintiff's testimony regarding her communications with

Dave Robinson should have been excluded on the basis of

Federal Rule of Evidence 408, which precludes the ad-

mission of compromise negotiations to prove liability.

The claim against Dave Robinson was dismissed on the

basis of a Rule 50(a) motion at trial. Rule 408 does not

operate to exclude this testimony. In rejecting defendants’

argument this time, the court hereby reiterates its reason

for refusing to exclude to testimony as set forth in its

August 25, 1996 Minute Entry.

Rule 60(b)—Motion for Relief from Judgment

Defendants next seek relief from judgment based on

res judicata. The bases for granting relief from final

judgment under Rule 60(b) are not applicable in this

instance.” Defendant contends that it is entitled to relief

from judgment based on the res judicata effect of a state

court judgment which dismissed with prejudice plaintifi’s

* Rule 60 provides the following bases for relief from final judg-

ment: (1) mistake, inadvertence, surprise or excusable neglect ;

(2) newly discovered evidence, (3) fraud: (4) the judgment is

void; (5) the judgment has been satisfied, released or discharged:

(6) “any other reason justifying relief from the operation of the

judgment.” The only possible basis for relief based on a failure

to raise a res judicata defense would be under Rule 60(b)(6).

since the other enumerated bases are clearly inapplicable. Relief

under Rule 60(b) (6), however, should be granted only if extraor-

dinary circumstances are present. Picco v. Global, Marine Drill-

ing Company, 900 F.2d 846, 850 (5th Cir. 1990). Failure to raise

res judicata defense or learn of a related prior proceeding are in

this instance accredited to neglect of counsel which neglect is

neither excusable nor otherwise extraordinary as to justify relief

from judgment under the rule. General Plumbing & Heating, Inc.

v. American Filter Company, Inc., 696 F.2d 375, 379 (5th Cir.

1983).

lla

sex discrimination case against the Louisiana Army Na-

tional Guard (“LAANG’”).

Res judicata is an affirmative defense which must be

affirmatively pled by defendant under Rule 8(c) of the

Federal Rules of Civil Procedure. Russell v. Sun America

Securities, Inc., 962 F.2d 1169, 1172 (Sth Cir. 1992).

Thus, defendant had the burden to plead res judicata

and plaintiff had no concurrent obligation to inform the

court or defendant of the state court judgment. A federal

court applies state law in determining the res judicata

effect of a state court judgment. Hernandez v. City of

Lafayette, 699 F.2d 734, 736 (Sth Cir. 1983). Under

Louisiana law, identity of parties is a required element of

the doctrine of res judicata. See La. Stat. Rev. 12:4231;

Morris v. Haas, 93-75 (La. App. 5th Cir. 5/30/95),

659 So.2d 804. Raytheon and LAANG are not iden-

tical parties. The state dismissal with prejudice of

claims against LAANG or its personnel does not impact

a the judgment against Raytheon, Greenwell’s employer,

under Title VII for Raytheon’s discriminatory practices,

even if there is some overlap between the persons in-

volved. In sum, defendant’s cry of res judicata is too

late, not a sound basis for Rule 60(b) relief from this

judgment, and lacks merit under Louisiana law.

Based on the foregoing, the court grants a remittitur

and no other post-trial relief. Accordingly,

IT IS ORDERED that Defendants’ Motion for Judg-

ment as a Matter of Law, or Alternatively, for New Trial

is GRANTED IN PART with respect to the request for

remittitur and the judgment against defendant’s is hereby

REDUCED to $407,250.000; and DENIED with respect

to all other asserted grounds.

IT IS FURTHER ORDERED that Defendants’ Motion

for Relief from Judgment is DENIED.

/s/ Stanwood R. Duval. Jr.

en

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[Filed Dec. 6, 1996]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 95-2138

Section “K”

KIMBERLY ANN GREENWELL

versus

RAYTHEON AEROSPACE, INC., et al.

JUDGMENT

This action came on for trial with a jury before the

Honorable Stanwood R. Duval, Jr. presiding, and the

issues having been duly tried and a decision having been

duly rendered,

IT IS ORDERED, ADJUDGED AND DECREED,

that there be judgment herein in favor of plaintiff, Kim-

berly Ann Greenwell and against defendants, Raytheon

Aerospace Company and Wayne Leese, in the amount of

one hundred thousand dollars and no cents ($100,000.00),

with legal interest from date of judicial demand calculated

at the rate provided by federal law and defendants shall

bear the costs;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that there be judgment herein in favor of

Kimberly Ann Greenwell and against defendants, Ray-

theon Aerospace Company and Wayne Leese, in the

amount of $7,520.00 with legal interest from date of

judicial demand calculated at the rate provided by federal

law.

l3a

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that there be judgment herein in favor of

Kimberly Ann Greenwell and against defendant, Raytheon

Aerospace Company, in the amount of five hundred thou-

sand dollars and no cents ($500,000.00), with legal in-

terest from date of entry of judgment until paid;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

defendant, Dave Robinson, and against plaintiff, Kimberly

Ann Greenwell, dismissing all claims against him;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of Kim-

berly Ann Greenwell and against defendants, Raytheon

Aerospace Company and Wayne Leese, for all reasonable

attorneys’ fees. The amount of attorneys’ fees is hereby

referred to Magistrate Judge Lemelle for a Report and

Recommendation and a hearing, if necessary, upon proper

motion.

New Orleans, Louisiana this Sth day of September,

1996.

/s/ Stanwood R. Duval, Jr.

STANWOD R. DuvVAL, Jr.

United States District Judge

en

l4a

[Filed Dec. 9, 1996]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

Civil Action No. 95-2138

Section “K”

KIMBERLY ANN GREENWELL

versus

RAYTHEON AEROSPACE, INC., et al.

AMENDED JUDGMENT

The court having granted a remittitur in this matter

pursuant to its December 5, 1996 Minute Entry and re-

duced the award against defendant Raytheon, the judg-

ment is amended, as underlined below, to reflect same.

This action came on for jury trial before the Honorable

Stanwood R. Duval, Jr. presiding, and the issues having

been duly tried and a decision having been duly rendered.

IT IS ORDERED, ADJUDGED AND DECREED,

that there be judgment herein in favor of plaintiff, Kim-

berly Ann Greenwell and against defendants, Raytheon

Aerospace Company and Wayne Leese, in the amount of

one hundred thousand dollars and no cents ($100,000.00),

with legal interest from date of judicial demand calculated

at the rate provided by federal law and defendants shall

bear the costs;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that there be judgment herein in favor of

Kimberly Ann Greenwell and against defendants, Ray-

son Lae” tN

15a

theon Aerospace Company and Wayne Leese, in the

amount of $7,520.00 with legal interest from date of

judicial demand calculated at the rate provided by federal

law.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that there be judgment herein in favor of

Kimberly Ann Greenwe!l and against defendant, Ray-

theon Aerospace Company, in the amount of three hun-

dred thousand dollars and no cents ($300,000.00), with

legal interest from date of entry of judgment until paid;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

defendant, Dave Robinson, and against plaintiff, Kimberly

Ann Greenwell, dismissing all claims against him;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that there be judgment herein in favor of

Kimberly Ann Greenwell and against defendants, Ray-

theon Aerospace Company and Wayne Leese, for all rea-

sonable attorneys’ fees. The amount of attorneys’ fees is

hereby referred to Magistrate Judge Lemelle for a Report

and Recommendation and a hearing, if necessary, upon

proper motion.

New Orleans, Louisiana this 9th day of December,

1996.

/s/ Stanwood R. Duval, Jr.

STANWOOD R. DUVAL, JR.

United States District Judge

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BEECH AEROSPACE SERVICES, INC.

INTER-OFFICE COMMUNICATION

From: Wayne Leese Date: 5 May 1994

To: Kimberly Greenwell

Subject: Sexual harassment investigation

Results

You stated that the loud tone of voice used towards

you by Mr. Babin should not be considered sexual harass-

ment. The offensive statement by another National

Guardsman which occurred about eighteen months ago

was sexual harassment.

Action taken

The complaint of harassment was passed on to LTC

Nuss and CWY Babin during separate meetings on 4 and

5 May 1994. LTC Nuss stated that sexual harassment is

not condoned at this National Guard site. He requested

that an individual that has been harassed in any way

should report the nature of the harassment to him as soon

as possible.

Mr. Babin stated that any statement, action, or tone

of voice that is considered offensive in any way should be

reported to him also. That the person responsible for the

sexual harassment statement was counseled and warned

not to make statements of this nature.

Note: Any action or statement that you consider to be

sexual harassment or offensive in any way should

be reported to your supervisor or base manage-

ment personnel in accordance with base policy and

procedure 070-91 as soon as possible.

/s/ Wayne Leese

/s/ Kimberly A. Greenwell

17a

[DoD Logo]

DEPARTMENTS OF THE ARMY

AND THE AIR FORCE

Headquarters, Louisiana National Guard

Office of the Adjutant General

Jackson Barracks

New Orleans, LA 70146-0030

15 July 1994

Beech Aerospace Inc.

Madison, MS

Recent events have caused me increased concern

regarding the maintenance of the C-12 assigned to

Louisiana.

Specific details of events occurring in the maintenance

of BP32 (tail #80-23784) relating to electrical, avionics

and air conditioning work, although troublesome, do not

concern me as much as the relationships and attitudes

which have developed in the workforce assigned to the

New Orleans bed-down site.

Situations both witnessed by me and reported to me,

have occurred at this location which seem to me to be

quite atypical, somewhat negative and degenerative in

nature. To be specific, the following key points appear to

be true and are adversely affecting the quality of service

available to maintain the Louisiana C-12.

a. For reasons unknown to me there seems to be a

poor relationship between Ms. Kim Greenwell and Mr.

James Stout. It is characterized by poor- communication

by both parties and a lack of teamwork to some extent.

My opinion is that Mr. Stout probably has more ability

and experience than Ms. Greenwell, but is not effectively

utilized. This may be due to her lack of experience or to

interpersonal difficulties.

I a ci

18a

b. The relationship issue is also a problem with CW3

Michael Boudreaux, Aircraft Systems Foreman for AASF

#1, (alternate COR) and Ms. Greenwell. I have taken

steps to replace CW3 Boudreaux with CPT Barry Keeling

C-12 pilot (full time) as the alternate COR to relieve the

tensions and provide a fresh start to what has proved to

be a difficult beginning.

c. Poor communication, questionable teamwork and

resulting lack of confidence have displaced the quality

working environment which is essential to excellent service

in quality organizations.

d. After some history of this behavior, I have now

become concerned that the atmosphere conducive to pro-

fessional, competent support has eroded to a degree which

would permit ineffective maintenance actions to become

commonplace and could possibly compromise safety.

4. In conclusion, I would like to request that an

appropriate adjustment be made within the BASI work-

force which would relieve the current situation. As the

State Aviation Officer, I am committed to working through

tough times for the mutual benefit of Beech Aerospace

and the National Guard. I will cooperate fully with your

recommendations and am willing and anxious to com-

municate directly with BASI per:oanel regarding the is-

sues discussed herein.

FOR THE ADJUTANT GENERAL:

/s/ Philip W. Nuss

PHILIP W. Nuss

LTC, GS, LAARNG

State Army Aviation Officer

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[DoD Logo]

DEPARTMENTS OF THE ARMY

AND THE AIR FORCE

Headquarters, Louisiana National Guard

Office of the Adjutant General

Jackson Barracks

New Orleans, LA 70146-0330

15 July 1994

To Whom This May Concern:

When Kim Greenwell first began working at this

facility with the Louisiana Army National Guard, she was

very demanding about things concerning the BASI office

work area, a BASI parking spot, and equipment that we

were to provide to her. Every time she needed something

from us she always made sure she informed us that we

had to do this because it was stated in the contract. Since

BASI contract maintenance wall all new to this facility

we were really not sure what the BASI contract stated that

the facility had to provide to her and BASI.

Since Kim arrived at this facility she has had some-

what of a negaive attitude towards most of the people at

this facility.

After working with Kim as the alternate COR for about

six months, I was told by the other BASI maintenance

technicial at this facility that she didn’t want me in the

BASI office, but as the alternate COR, I was the person

responsible to maintain an accurate DA Form 1352 report

for the C-12. So I had to go to her office to get flight

times, and up and down maintenance times.

Kim Greenwell thinks that she doesn’t have to operate

by this facility’s policies and procedures when it comes to

good housekeeping and flight line operations. She thinks

she can do whatever she wants and do it Kim’s way.

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I really feel if it were anybody else other than Kim

Greenwell that this facility wouldn’t have the problems

we have with BASI. As far as the other BASI Main-

tenance Technician at this facility, we have no problems

at all with this person. He always has a positive and pro-

fessional attitude, and always request support from this

facility rather than demand things be done. His overall

performance far exceeds that of Kim Greenwell.

In closing I really feel that if Kim Greenwell was

removed from this facility that the problems we have with

BASI would be solved.

I’ve always been more than willing to help or assist

BASI with anything I could, but for the most part Kim

hardly ever accepted our help with anything. Within the

past couple of weeks when the C-12’s air conditioner was

down for maintenance, I offered to make a line for her,

but she insisted that she order the line from Beech.

If | can be of any assistance to BASI concerning Kim

Greenwell, feel free to contact the undersigned at 504-

243-7630 between 0630 and 1600 hours, Monday-Friday.

Sincerely,

s/ Michael A. Boudreaux

MICHAEL A. BOUDREAUX

CW3, LAARNG

Allied Systems Foreman

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DEPARTMENT OF THE ARMY

AND THE AIR FORCE

Headquarters, Louisiana National Guard

C-12 Detachment

Building 101, Lakefront Airport

New Orleans, LA 70126-1491

18 July 1994

BEECH AEROSPACE, INC.

MADISON, MS

Due to recent events we feel it has become necessary

to inform BASI of our concerns as to the quality of main-

tenence being performed at base 551 in New Orleans, LA

on BP32.

Starting with the most recent event we will discuss

several problems that are causing concerns:

a. Our air conditioner has been inoperative for the past

seven weeks. The initial part replaced was the hot bypass

line, which did not repair the system. Next the evaporator

coil was determined to be leaking Freon (it should be

noted that the Freon detector was discovered defective

and has not been replaced). When the evaporator coil

arrived, the leadperson installed it alone because the as-

sistant mechanic was on leave. The system appeared to be

working after being charged; After completing the mission

that day the aircraft did not fly for two days. On the

next flight the air conditioner was inoperative. A rover

mechanic was replacing Ms. Greenwell while she was at

a school but did not have time to trouble shoot the system

before the next flight. While flying out in Austin, TX the

forward vent blower failed filling the cabin with smoke

and fumes. The blower was replaced by BASI in Austin

at which time we requested that the air conditioner be

checked and repair if possible. At this time the quality

of maintenance became apparent! The evaporator coil

that had been replaced two days earlier had two fiitings

22a

with crossed threads. In addition a line that attaches to

the evaporator was deformed at the attaching point, the

expansion valve was cross threaded, all the fittings were

covered in pro seal and the evaporator was not installed

properly in its bracket which allowed it to vibrate and

move around.

b. Fuel has been leaking through wing panels and run-

ning down the landing gear we were told this was a

normal situation and the DA 2408-13’s were signed off

repeatedly. Finally a flame arrester was replaced, but we

are still not convinced that this situation is corrected.

c. Ms. Greenwell did not completely defuel an auxiliary

tank before replacing a gasket around the filler cap and

excessive jet fuel spilled onto the hangar floor.

d. The leadperson was caught smoking in a non-

smoking area by a recent ARMS inspection team, safety

officer, and then was caught again after being counseled.

e. After a brake failure it was determined that a brake

line needed to be replaced and Ms. Greenwell ordered a

bleed air line instead of the hydraulic brake line. In addi-

tion she did not know how to get the tire rims apart to

replace the brake line.

f. While on preflight both fuel boost pumps failed to

operate after work was performed on the fuel gages, the

leadperson was unable to determine the cause. To pre-

vent a mission cancellation, a facility fixed wing mechanic

was used to read the wiring diagram. He pointed out that

it was the inertial switches located in the overhead panel

that were tripped.

g. Ms. Greenwell as a leadperson needs to improve

her attention to detail and attitude for mission require-

ments. Several examples of this are as follows:

1. She repeatedly refuels the aircraft within 15 min-

utes of departure time.

23a

2. Leaves the chocks on the ramp after the aircraft’s

departure where helicopters hover.

3. Installs the carpets loose after inspections or main-

tenance creating hazards to crew and passengers.

4. Does not display fuel samples and acts put out if

they are requested to be seen.

5. We have had a forward cowling improperly at-

tached, come loose at 25000’.

6. In one case The Adjutant General showed up about

20 minutes early she made the statement “Its not my

fault he showed up early” when the aircraft was not ready

in his presence.

It is apparent that normal maintenance procedures are

not being adhered to and quality control is lacking. In

addition to the stated maintenance problems there is a

poor work relationship between Ms. Greenwell and Mr.

Stout. It is well known throughout the hanger that there

has been and continues to be friction between these two

individuals. This was evident in a recent comment made

to the COR by the leadperson that while in her absence

she preferred to have the rover do the paper work instead

of the assistant mechanic. This relationship is disruptive

and is not conductive to quality maintenance.

When this aircraft was assigned to the state we did not

have a qualified BASI team to accept it, so it was ac-

cepted by a rover. The leadperson was attending C-12

school and the assistant mechanic had not been assigned

at that time. We felt in time, Ms. Greenwell could pos-

sibly develop into a good C-12 mechanic. However, we

also feel that the leadperson needs to work as an assistant

to a highly qualified C-12 mechanic to achieve this. Her

leadership abilities also need developing.

In light of the apparent substandard maintenance and

poor working relationship with her assistant we have lost

a

24a

confidence in Ms. Greenwell’s mechanical and leadership

abilities. We strongly feel that there is a need for change.

/s/ Norris P. Babin

Norris P. BABIN

CW4, AV, LAARNG

COR

/s/ Barry D. Keeling

BarRY D. KEELING

CPT, OV, LAARNG

ASST COR

NES EOE ER ELON See. Eee oe ae

25a

[DoD Logo]

DEPARTMENT OF THE ARMY AND

THE AIR FORCE

Headquarters, Louisiana National Guard

Office of the Adjutant General

Jackson Barracks

New Orleans, LA 76146-0330

19 July 1994

To BASI

Since Ms. Kim Greenwell has arrived at this facility

there has existed a definite schism between her and the

personnel who work primarily in the hangar area. Her

attitude caused dissension between the C-12 pilots and the

technicians.

Her attitude has been one of telling, rather than re-

questing parts, tools or help. I personally can attest to

the fact that all of my mechanics and supervisors have

gone out of their way to attempt to appease her. This was

for naught.

Some specific examples of her attitude towards this fa-

cility and total disregard for any type of authority can be

seen in the only discrepancy this facility received during

a January 1994, Aviation Resource Management Survey

(ARMS). Her shop was written up as unsafe because

she was smoking during the inspection. The inspector

verified that she had received notification on at least two

occasions through memorandum that smoking was only

allowed in one area outside of the hangar. It was the

inspector’s impression that she knew the regulation but

cvould care less about following the rules. When ques-

tioned on her use of NEK cleaning solvent, she took a

defensive attitude instead of a helpful one. She threatened

work stoppage and that this facility would have to pay

for any other solvent that we make her use. This was

only brought up because the facility safety officer received

complaints from mechanics of headaches from the fumes.

26a:

She also refused on four occasions to remove tape placed

on the hangar floor that BASI personnel had placed to

park the C-12 in the same place. She was asked by the

facility maintenance officer to remove the tape on four

occasions and then claimed if she was made to do this

then she would put in a claim to BASI to charge this

facility. I told the C-12 COR to get the tape up and if

we had to pay for it, do it. She then managed to get

the tape up.

Ms Greenwell does not fit into the type attitude that

all my employees show, that is, a helpful and generally

happy one. She has shunned all help and any display of

friendship or camaraderie that was shown towards her or

her job. She is not the type of individual I enjoy having

work at my facility. My recommendation is that she be

reassigned to some other facility or where ever you feel

she would fit in best.

Sincerely,

/s/ Thomas J. Mix

THOMAS J. Mix

MAJ, LAARNG

Facility Commander

CS ne

27a

WHAT IS SEXUAL HARASSMENT?

® Courts just beginning to sort out what constitutes sex-

ual harassment

By Erin Kelly

Gannett News Service

WASHINGTON—Seven years ago, Anita Hill and Clar-

ence Thomas brought sexual harassment into America’s

living rooms and started a raging debate over how women

are treated at work.

Now, as Paula Jones’ harassment suit against President

Clinton heads toward a possible spring trial, arguments

are once again heating up at dinner tables and lunch

rooms.

Among the causes of indigestion: Has a woman been

harassed if her boss propositions her but doesn’t try to

hurt her when she rejects him? Should employers ban

all office romances to protect themselves from lawsuits?

If men tell dirty jokes in the work place, are they guilty

of sexually harassing their female co-workers?

So far, the only thing Americans seem to be sure of is

that they are confused.

Sexual harassment has become a part of most people’s

vocabulary, but they are often fuzzy about exactly what

it is.

“The problem is that sexual harassment hasn’t been

clearly defined,” said Ron Riggio, a work-place expert at

Claremont McKenna College in California. “It isn’t a

black-and-white kind of situation. Nobody really knows

definitively whether a certain incident is or isn’t sexual

harassment.”

Employers have added to the confusion by issuing vague

harassment policies designed more to protect themselves

from lawsuits than to enlighten employees, said Nancy

28a

Hauserman, a professor at the University of lowa’s Col-

lege of Business.

“I have a nagging feeling that sexual harassment is not

a priority for most businesses,” she said. “And there are

people who gain from that confusion. Some men will

throw up their hands and say, ‘We can’t even tell a joke

or give a compliment anymore,’ even though that’s not

what the courts are saying. It somehow diminishes the

whole concept of sexual harassment by keeping it un-

clear.”

The type of sexual harassment most people understand

best is what’s known as quid pro quo: the classic case

of a woman’s boss demanding she have sex with him if

she wants to keep her job, get a raise or win promotion.

But even such clear-cut cases have been causing legal

controversy, and the Supreme Court now is stepping in

to help sort it out.

Justices this year are hearing four cases, most notably

whether Kimberly Ellerth, a former marketing representa-

tive for Burlington Industries, can be awarded monetary

damages although her boss did not carry out alleged

threats to hurt her career when she rejected his sexual

advances.

Lower courts have split on the issue, with some ruling

that you haven’t really been harassed unless you've suf-

fered financially.

President Clinton’s attorneys are using a similar argu-

ment, saying that even if Paula Jones’ allegations that he

denies are true, she was not punished at work. In fact,

they say, she received raises of 25 percent over two years

in her job as a clerk in Arkansas government.

Jones’ attorneys argue that sexual harassment violates

a woman’s civil rights’ protections against discrimination

—even if there is not retribution.

3

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5

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29a

The latest sexual accusations against the president—

of an affair with former White House intern Monica Lew-

insky—would not qualify as harassment under federal law

because it was a consensual relationship. But some fem-

inists, including a Northern Virginia chapter of the Na-

tional Organization of Women, have argued that a sexual

relationship between a boss and an employee is an abuse

of power and therefore a form of harassment.

Most would disagree, Riggio said.

“For a sexual advance to be harassment, it has to be

unwelcome,” he said. “But I do think people who are in

positions of power need to be very careful about their

relationships. You can’t deny your position or your

power, and the effect it can have on your employees.”

As a result, many companies have policies against it.

The Paula Jones case

Even if Paula Jones’ sexual harassment allegations

against President Clinton are true, Clinton’s attorneys say

it would not constitute harassment because she was not

punished in any way and, in fact, later received 25 per-

cent pay raises.

Jones’ attorneys argue sexual harassment violates a

woman’s civil rights, even if there is no retribution.

The law is even murkier when sexual harassment by a

woman’s co-workers creates a “hostile work environment”

that prevents her from doing her job.

There have been numerous cases in which female em-

ployees have charged that male co-workers targeted them

30a

for sexual harassment, often as a way to make it clear

that women are not welcome in traditionally male jobs.

Case in point: A jury in the fall awarded damages to

Tammy Blakey, the first female captain of Continental

Airlines’ A300 Airbus, who complained that pornographic

photographs repeatedly strewn by male employees through-

out the cockpits of the planes she piloted created a hostile

environment.

But serious cases have been overshadowed recently by

highly publicized incidents of schools and businesses

adopting policies many folks may think absurd.

Just this year, in Fullerton, Calif., a junior high prin-

cipal temporarily banded hugging between students be-

cause public displays of affection could create a “hostile

environment” that might make some people uncomfort-

able.

Then there was the summer’s notorious Seinfeld case,

in which a jury awarded $26 million to a man fired by

Miller Brewing Co. for telling a female co-worker about

a sitcom episode that revolved around a woman whose

name rhymed with a female body part.

The verdict was seen by some court observers as a

backlash against the increasing number of harassment

complaints, which have more than doubled in the last

seven years—from 6,127 in 1991 to 15,889 in 1997,

according to the Equal Employment Opportunity Commis-

sion.

Feminist law professor Vicki Schultz of Yale University

fears the backlash will grow if courts and corporations

continue to elevate sexual interactions above broader

forms of gender discrimination in the work place.

“The focus on sexuality has led some companies to

engage in what I call over-reaching,” Schultz said. “If

3la

someone just talks about sex, that’s seen as a problem.

I don’t want to see men or women fired in the name of

sexual harassment law because they tell a sexually explicit

joke in the work place, I think it gives feminism a bad

name.”

In a Yale Law Journal article to be published in April,

Schulz advocates a return to the original intent of Title

VII of the Civil Rights Act of 1964, which prohibits dis-

crimination against employees because of their sex in

hiring, firing, wages, benefits or working conditions.

Sexually explicit harassment is just one form of dis-

crimination in the work place, but courts have repeatedly

ruled it is the only one that women can cite to sue their

employers for creating a hostile environment, Schultz said.

As a result, she said, women who have been subjected

to horrendous harassment at work have lost court cases

because the abuse was not sexual.

Schultz cites a case in which Margaret Reynolds, a

journeyman electrician, charged that she had been sub-

jected to a constant barrage of harassment by male co-

workers after being named sub-foreman of a construction

job at Atlantic City’s convention center. She said her

male subordinates refused to work for her, directed ob-

scene gestures and verbal abuse at her, and stood around

laughing while she unloaded heavy boxes.

Reynolds and another female electrician were replaced

by male workers when an exhibitor at the convention cen-

ter demanded that female workers be removed from the

floor during the Miss American pageant. Apparently, the

exhibitor didn’t like the contrast between female electri-

cians and beauty contestants.

When the pageant was over, the convention center’s

director fired the whole crew and hired nearly everyone

back the next day, with the exception of Reynolds and a

few others. A man became the new sub-foreman.

32a

When Reynolds sued, a federal court rejected her

claim, saying she was not subjected to a hostile work en-

vironment because the harassment was not sexual.

“Women have had great success in making the case in

court that unwelcome sexual advances are a form of dis-

crimination,” Schultz said. “But what the courts don’t get

is that there are equally harmful forms of abuse that are

not sexual but are based on the fact that the employee

is a woman.”

While Schultz is hopeful the courts may redirect their

focus, many companies continue to fret more about the

sex lives of their employees than about whether men and

women are given equal opportunities to succeed.

Even before news of the alleged Clinton-Lewinsky rela-

tionship broke, attorneys at Littler Mendelson of San

Francisco were being asked by clients to draw up agree-

ments shielding employers from lawsuits when office ro-

mances turn sour.

Employees who date one another are asked to sign

statements saying the relationships are consensual and that

they are aware of the company’s sexual harassment poli-

cies, said Scott Wenner, a partner in the law firm.

The Clinton-Lewinsky flap will only increase the

demand for these “relationship agreements,” Wenner pre-

dicted.

Meanwhile, working women continue to face more

basic problems.

“My (female) students tell me they are not getting the

same types of entry-level jobs as men because employers

believe they’re just going to get married and have kids,”

said Martha Ackmann, professor of women’s studies at

Mt. Holyoke College in Massachusetts. “You'd think we’d

be long past that now. But we’re not.”

SPECIAL REPORT

LAWS THAT RUN AMUCK

Two ill-conceived laws are to blame for the

current crisis in American politics

By JEFFREY ROSEN WASHINGTON

AS AMERICA STRUGGLES TO UNDERstand the

Lewinsky affair, there’s a natural temptation to make

sense of the drama by reducing it to a clash between in-

dividual heroes and villains. And so we have a parade

of soap-opera caricatures—the overzealous and partisan

prosecutor, the lusty young temptress, the bloodless wife,

the philandering husband—all competing for blame in the

public eye.

But the real villains in the current crisis are bad laws,

rather than bad women or bad men. In particular, the

explosive collision of sexual-harassment doctrine and the

Independent Counsel Act, combined with the erosion of

legal protections for privacy, has led to violent breaches

of the boundaries between public and private life. At

each stage in the endless legal battles, judges, prosecuotrs

and lawyers have made decisions that, while technically

defensible, have had brutal consequences for the parties,

their innocent friends and, ultimately, the country.

Let’s begin with sexual harassment. Last May, when

the Supreme Court rejected President Clinton’s claim that

Paula Jones’ sexual-harassment suit should be delayed

until he left office, the Justices unanimously dismissed the

President’s claim that allowing the suit to proceed would

generate unrelated litigation that might hamper his ability

to do his job. The events of last week suggest that tie

court’s optimism was misplaced.

Much of the problem stems from the elas..c nature of

sexual harassment itself, which is defined so expansively

(it includes “unwanted advances” that create an “offensive

working environment”) that no one is quite sure what it

34a

means. After the court ordered the Jones case to proceed,

President Clinton’s lawyers made a plausible argument

that her suit should be dismissed without a trial. Even

assuming, for the sake of argument, that her allegations

were true, the President’s lawyers said they didn’t add up

to illegal harassment.

To win her case before a jury, Jones would have to

prove that Clinton had conspired, in his official capacity

as Governor, to deprive Jones of her constitutional rights.

But it’s hard to see how making a pass at someone and

taking no for an answer violates the Constitution. (Jones’

claims that Clinton retaliated against her for resisting his

advances are far less convincing.) Nevertheless, the law

required Judge Susan Webber Wright to give Jones every

benefit of the doubt at the beginning of a case, and so she

allowed Jones’ lawyers to begin “discovery.”

That’s where the trouble started. Sexual-harassment

suits have a tendency to spiral out of control because the

relaxed rules of civil discovery permit lawyers for the

plaintiff to rummage freely through the defendant's sexual

history, to try to prove a pattern of “unwanted advances.”

In criminal trials involving serious sexual allegations, such

as rape, inquiries into the sexual history of the alleged

victim and the defendant are more carefully limited.

What followed was a gross invasion of privacy. Dur-

ing a three-year search, Jones’ lawyers sent private inves-

tigators to comb the country, using the rough force of

subpoena power to compel women who were rumored to

have had consensual affairs with the President to discuss

their sex lives against their will. At least five women de-

nied the rumors in pretrial depositions, one of whom was

Monica Lewinsky. But merely by asking these intrusive

questions, Jones’ lawyers were able to force Lewinsky, as

well as the President, to discuss their private lives under

oath.

Enter Kenneth Starr. The independent counsel had

been given tapes of Lewinsky that suggested that she and

35a

the President might not have told the whole truth about

their relationship. In an ordinary civil suit, evidence that

a witness lied in a deposition might, at worst, be used to

embarrass her at trial, and ultimately the jury would de-

cide whom to believe.

But Jones v. Clinton wasn’t an ordinary civil suit be-

cause it was being shadowed by the independent counsel.

Confronted with the secret tapes, Starr was technically

within his authority to ask Attorney General Janet Reno

to recommend an expansion of his jurisdiction. Like

sexual-harassment litigation, the Independent Counsel Act

is so elastic that it authorizes the investigation of “other

allegations . . . arising out of” the original Whitewater as-

signment. And if Clinton had asked his friend Vernon

Jordan to get Lewinsky a job at Revion to buy her silence

in the Jones inquiry, Starr could plausibly wonder whether

this made it more likely that Clinton had also asked

Jordan to get a job at Revlon for Webster Hubbell, the

former Associate Attorney General, to buy his silence in

the Whitewater inquiry.

Although plausible, the theory was so elaborate that

Starr’s efforts to prove it soon began to unravel. On

Jan. 29, Judge Wright in Arkansas ruled that “evidence

concerning Monica ‘Lewinsky should be excluded” from

the Jones trial, on the grounds that it was more likely to

confuse a jury that cast any light on Jones’ claims. Better

late than never.

As a result of Judge Wright's ruling, Starr’s efforts to

make a case that Clinton committed perjury have become

much more complicated. Most prosecutors would hesitate

to bring perjury charges when the alleged lies aren't ma-

terial to the case—in other words, when there’s little

chance they would influence the outcome of the case.

Even Starr’s friends acknowledge that Judge Wright’s rul-

ing makes it far less likely that Starr will ever bring per-

jury charges against Clinton or Lewinsky, which also re-

duces his leverage in securing Lewinsky’s cooperation.

36a

Where does that leave the independent counsel? He

still plans to investigate whether the President obstructed

justice by encouraging Lewinsky to lie in her deposition.

But without Lewinsky’s help, Starr isn’t much closer to

proving that charge than he was before the ugly drama

began. Even if Starr does uncover evidence that Clinton

encouraged Lewinsky to lie, he’s unlikely to prosecute be-

cause most legal scholars believe the President can’t be

indicted before he is impeached. Because of the odd in-

centives created by the Independent Counsel Act, which

allows Starr to justify his existence by pinning a crime,

any crime, on his target, the investigation will continue

to lurch from one allegation to the next, with its ending

always just out of reach.

If anything good comes out of this dark episode in

American politics, it will be a reexamination of the ill-

conceived laws that made it possible. Perhaps Democrats

and Republicans, in an act of mutual disarmament, will

finally let the law expire when it comes up for a reau-

thorization vote next year. And perhaps the Supreme

Court will seize the opportunity presented in several cases

this year to refine the definition of harassment in ways

that recall its core meaning of sex discrimination in the

workplace. Finally, Congress could acknowledge that the

Supreme Court was too optimistic in the Clinton v. Jones

case, and give future Presidents temporary immunity from

civil-law suits while in office.

Ultimately, of course, the President must take responsi-

bility for his own behavior. But as long as these illiberal

laws remain in force, we will continue to suffer from the

criminalization of sex and the criminalization of politics,

regardless of who lives in the White House. bd

37a

Time, March 23, 1998

CLINTON’S CRISIS

SEXUAL HARASSMENT CAN MEAN FIRING VIC-

TIMS WHO DON’T GIVE IN OR MERELY TELLING

A DIRTY JOKE. CLINTON’S FATE RESTS ON

LAWS THAT TIE EVEN LAWYERS INTO KNOTS

SEX AND THE LAW

By JOHN CLOUD

Bill Clinton should be happy that Paul Jones’ sexual-

harassment lawsuit against him won’t be decided by the

city attorney of little Murfreesboro, Tenn. It was there in

1995 that local artist Maxinc Henderson exhibited some

of her work in the city hall rotunda, including Gwen, a

painting of a partly nude woman. A city employee saw

the painting and was offended—so much so that she filed

a sexual-harassment complaint against her employer. City

attorney Tom Reed promptly whisked the painting away.

Although a judge eventually ruled that Henderson had a

First Amendment right to hang her art in the rotunda (it’s

a public place, after all), the lawsuit frightened Reed. To

this day, he won’t allow Gwen to be displayed in city

offices that aren’t public places. “In my opinion, that

would count as sexual harassment,” he says.

In today’s overheated legal environment, if an impres-

sionistic painting more modest than many at Matisse can,

on its own, count as sexual harassment, the President

could be doomed. Jones maintains that as Governor of

Arkansas, Clinton exposed himself to her and asked for

oral sex at a Little Rock hotel. There was nothing im-

pressionistic about it, Jones said in her deposition last fall:

“I mean, it was disgusting.”

Her account is a matter of great dispute, one likely to

land the President’s case in an Arkansas courtroom in

38a

May. But in truth the tangle of laws currently defining

sexual harassment is so jumbled that even if everyone

could agree on the facts, it’s simply impossible to predict

the outcome of a case like Jones v. Clinton. Just 25 years

ago, sexual harassment was considered a radical-fringe by-

product of feminist theory. Today it’s embedded in multi-

ple Supreme Court decisions (three more are expected

before July), thousands of corporate policies and a host

of lower-court cases that have spread like kudzu across

the legal landscape. The result is a thicket of rulings.

Since 1991, juries have returned well over 500 verdicts

on sexual harassment—decisions that often contradict one

another and send mixed signals about how we should

behave anytime we meet a co-worker we'd like to see

after five.

Because of the twin trends of long hours (10% more

than we worked in 1969) and more women working (18

million more today than in 1980, or about 50% of the

labor force), more Americans than ever are flirting, dat-

ing and propositioning at work. Actually, only a tiny pro-

portion of office come-ons result in harassment complaints;

of those that do, just 9% end up in formal proceedings,

whereas 38% of relationships that start on the job survive

into the long term. The huge surge in sexual-harassment

cases that took place in the early "90s has slowed. Such

cases are still being filed at the rate of 15,500 a year—

some 60 new cases every working day—compared with

6,900 in 1991, but the number hasn't changed much for

three years. A recent survey of human-resources managers

found that 7 out of 10 handled at least one sexual-

harassment complaint last year, down from 9 out of 10

in 1995.

Meantime, employers fearing lawsuits are stopping har-

assment before it starts. Some, like General Motors and

Wal-Mart, have instituted zero-tolerance policies banning

just about any speech or conduct with sexual undertones,

like sending E-mail with a naughty Web address to a

39a

co-worker, which not so long ago would have been deemed

not just harmless but constitutionally protected. While it’s

rare for nonthreatening behavior to be ruled harassment,

it happens. In 1993 the University of Nebraska forced a

grad student to remove from his desk a picture of his

bikini-clad wife after two fellow students complained that

the photo violated the school’s sexual-harassment policy.

The legal principle of harassment hinges on impossibly

Squishy terms like “unwelcome” and “pervasive,” words

that a thousand lawyers can define in a thousand ways.

As a consequence, some despicable harassers get off easy,

just as some men (and, increasingly, women) with inno-

cent intentions can have their lives ruined. That’s because

intent seldom defines harassment; reception and percep-

tion do.

The confusion and excessive rulemaking may already

be sowing the seeds of backlash. In a recent TIME/CNN

poll, just 26% of those surveyed called sexual harassment

of women “a big problem,” down from 37% in 1991.

What's more, 57% of men—and 52% of women—agree

that “we have gone too far in making common interactions

between employees into cases of sexual harassment.”

In short, many think the solution has become as bad as

the problem. “In 1964 [when discrimination based on

gender first became legal],” says UCLA harassment-law ex-

pert Eugene Volokh, “if you told a member of Congress,

‘If you vote to bar discrimination based on sex, you will

prohibit employees from putting pictures of their wives in

bikinis on their desks,’ most legislators would have said,

‘Wait a minute, where does it say that?’ ”

What exactly is the law on sexual harassment, and how

did it evolve into such a beast? Legally speaking, there

are two kinds of sexual harassment, and Jones—to take a

not so random example—charges both. The first is called

“quid pro quo” harassment, and it’s the easier to grasp. If

your boss docks your pay or fires you or otherwise pun-

40a

ishes you for rebuffing an advance, he’s flat-out guilty.

Jones, for instance, says her supervisors at the little state

office where she was a clerk mistreated her after she re-

jected Governor Clinton’s alleged advance. Her co-

workers got bigger raises, she says, and her job became

a “dead end.” Clinton has denied that he propositioned

her (and indeed has deneid that he ever sexually harassed

any woman). Further, Clinton’s lawyers say there was

never any “quid” for Jones’ refusal to “quo”—that she

received a promotion and pay hikes as the others did.

A generation ago, Jones would have had no case. Not

even blatant quid pro quo harassment was illegal; many

judges simply deemed such matters “personal.” When

they were allowed to bring lawsuits, plaintiffs—nearly all

women today—had no right to jury trials, leaving their

fate up to a mostly male stable of judges.

Things began to change, albeit slowly, in the ’60s. In

1964 Southern members of Congress tacked “sex” onto

the list of protections in the pending Civil Rights Act, not

because they cared about harassment but because they

thought the idea so laughable that it would kill the entire

bill. It wasn’t until the 1970s that courts started taking

the antidiscrimination provisions on sex seriously, and not

until 1977 that a federal court of any stature—the U.S.

Court of Appeals for the District of Columbia—said quid

pro quo harassment violated the act. After the 1991 furor

between Anita Hill and Clarence Thomas raised public con-

sciousness, George Bush signed a law granting sexual-

harassment plaintiffs the right to jury trials and big-mony

damages.

Even then, quid pro quo cases remained tough to prove,

since employers could simply say the retribution resulted

from poor job performance. Victims began to point out

that co-workers could create an abusive climate against

women without actually demanding sex in exchange for

something. One such victim was Mechelle Vinson. In the

1970s Vinson worked as a teller at Meritor Savings Bank,

4la

where, she later claimed, her boss began asking her for

dates. At first she said no, but eventually she relented;

she estimated they had sex 40 or 50 times. She claimed

that she felt pressured into the relationship and that he

exposed himself, groped her at work and even raped her

several times. Still, he never fired or even demoted her

when she objected. Vinson lost her court case.

With the support of several women’s groups, however,

she appealed. In 1986 the Supreme Court ruled in her

favor—and in doing so threw open a huge new arena for

sexual-harassment claims. In its first ruling ever on sexual

harassment, the court held that speech or conduct in it-

self can create a “hostile environment”—like the one

Vinson alleged at Meritor—and that such an environment

violates the Civil Rights Act. According to the Justices,

unwelcome verbal or physical behavior, if “severe or per-

vasive” enough, is discriminatory even when there is no

quid pro quo.

Today quid pro quo cases remain hard to win, and

most sexual-harassment cases are based on the looser

principle of “hostile environment.” At a trial last year,

Staci Bonner, a former research editor suing Spin maga-

zine and its publisher Bob Guccione Jr., failed to con-

vince a jury that because Guccione gave choice assign-

ments and other perks to women who slept with him—

but not to her—he was guilty of quid pro quo harassment.

But the jury did say that his apparent favoritism, as well

as other editors’ coarse propositions and unwanted back

rubs, created a hostile environment at the music maga-

zine. The case is being appealed.

Given the expansive terminology, just about anything

can count as a hostile environment, depending on who’s

defining the terms. In 1995 the Montana Human Rights

Commission awarded damages to Josephine Dernovich, a

former municipal clerk horrified by smutty pictures her

co-workers passed around. The images were stomach

churning to her—some depicted bestiality and incest—but

42a

no one else complained. None of the pictures was di-

rected solely at her, and most of her colleagues were

women. It’s hard to understand how she was discrimi-

nated against because of her sex (and not, say, her atti-

tudes about sexual pictures). Still, Dernovich won.

Paula Jones too is asserting that Clinton’s alleged pass

at her created a hostile environment, but she may have a

hard time proving it. The judge in the case has ruled that

a single incident of harassment could be enough to create

a hostile environment. But most experts agree that such

an incident would have to be especially outrageous.

“From what I’ve seen, [Jones] clearly doesn’t have per-

vasiveness—it was just one incident—so she has to prove

severity,” says Deborah Epstein, who teaches law at

Georgetown University. “And there are lots of things

worse than this incident that the courts have said are

not severe enough.” Epstein cites the plight of Kimberly

Weinsheimer. In the mid-80s Weinsheimer was a Rock-

well International Corp. employee who inspected parts

used to build spacecraft at the Kennedy Space Center.

In her suit, Weinsheimer said that over an eight-month

period, a co-worker frequently asked that she “suck him,”

grabbed her crotch and breasts and once held a knife to

her throat. Another colleague allegedly touched his penis

to her hand when she was looking away. Even so, a fed-

eral court ruled against her, in part because the judge

thought the harassment wasn’t severe enough. “The com-

ments, in both their nature and their causes, were ap-

parently commonplace and routine,” the judge wrote, as

if frequently somehow diminished severity.

To avoid the same fate, Jones’ lawyers now argue that

Clinton was more aggressive in the hotel room than Jones

said in her original 1994 complaint. In her recent deposi-

tion, Jones said that Clinton in fact tried to grab her

crotch and kiss her and that he briefly blocked her way—

not simply that he had lightly touched her, as Jones first

said. These elements make the incident sound much more

“severe,” especially coming from her ultimate boss.

43a

(Courts are tougher on accused CEOs than accused co-

workers.) Clinton’s attorneys, who contend that the new

details are lawyer-induced embellishments, will doubtless

want jurors to compare Jones’ original complaint with her

current story. Just one Friday she added several charges,

including an expert’s testimony that the alleged incident

left her with symptoms that resemble post-traumatic stress

disorder.

Jones’ team is employing a legal strategy that most

sexual-harassment plaintiffs can’t afford—a search through

the garbage bin of Clinton’s sexual history. Specifically,

her lawyers hope to present “a pattern and practice” by

the President of sexually harassing other women, bolster-

ing Jones’ broader claim of sexual discrimination. (The

courts have said such patterns are relevant in discrimina-

tion cases.) Jones and her lawyers figured that if they

could find as yet undetonated “bimbo eruptions” in Clin-

ton’s past, they could show this damning pattern: that

again and again Clinton hits on women with less power

than he. It was this investigation that yielded Monica

Lewinsky, not to mention Kathleen Willey and dozens of

others tracked down by the Jones team. Today Willey

could be Jones’ best shot at showing the pattern. When

she was a White House volunteer, Willey says she went

to the Oval Office to ask the President for a paying job.

Before she left, she says, Clinton hugged her, felt her

breasts and then placed her hand on his aroused genitals.

In his own deposition, Clinton denied each of these

charges.

Clinton’s lawyers in turn scoured Jones’ sexual past,

but whatever they came up with probably won’t be pre-

sented in court—thanks in part to Clinton. In 1994,

when he signed the Violence Against Women Act, he

restricted the kinds of digging that defendants can do into

the past of sexual-harassment plaintiffs—and specifically

allowed such evidence against harassers who are accused

of assault (the Jones team has argued in pleadings that

Clinton’s alleged behavior in the hotel room amounts to

44a

assault). “Now you have to be very careful about dredg-

ing up a woman’s psychological or sexual history,” says

Judith Vladeck, a New York City lawyer who has handled

sexual-harassment cases for 20 years. Technically, the

new rules don’t apply to the Jones case, as she filed suit

before they took effect. But the rules have created a new

climate in which such evidence appears unseemly. And

anyway, for political reasons a Democratic President

won't want to look too aggressive in trashing his accuser.

The Jones team’s search has doubtless been frustrating

even as it has embarassed the White House: Lewinsky,

the biggest catch, won't be part of the trial. Federal

Judge Susan Webber Wright has ruled that no one can

drag that scandal into her courtroom, in part to avoid

interfering with special prosecutor Kenneth Starr’s case.

And anyway, no one claims that Clinton's alleged en-

counters with Lewinsky were unwelcome. Still, says

Washington lawyer Douglas Huron, “if a man_ uses the

power of his position to pursue a woman, then that could

be deemed relevant.” In spite of Wright’s ruling, it’s easy

to imagine that “consent” is meaningless when offered by

4 starstruck intern. If Clinton were president of a For-

TUNE 500 company instead of the country, he'd probably

be toast. “If a CEO had sex with a 21-year-old girl

in his office,” says Monica Ballard, a consultant who ad-

vises businesses on sexual harassment, “I would tell the

company, ‘Fire him for poor judgment.’ ”

Employers pay people like Ballard hundreds of dollars

a day for their advice. Headlines on sexual harassment

scare the money out of them. Just last month the EEOC

obtained its largest sexual-harassment settlement ever when

drugmaker Astra U.S.A. agreed to pay nearly $10 million

to scores of employees who claimed they had been

fondled, asked for sex or exposed to a hostile environment

by the former company president and others. Other firms

have lost even more in jury verdicts favoring plaintiffs.

Companies have responded to the legal morass with

wildly varying policies. Some ignore the issue, and others,

45a

particularly those burned with lawsuits, even ban inter-

office dating. Nearly 9 out of 10 companies have proce-

dures for dealing with sexual harassment, according to a

| recent survey, but many of those procedures are weak—

“a paragraph in the company handbook,” says Ellen

Bravo, co-director of the National Association of Working

Women.

2” oe RNs on ei <¢ OO

Experts routinely warn companies not to get caught

with lax policies, which can enrage juries and inflate set-

: tlement costs. Consultants’ on-site training is usually

straightforward; if what you're thinking even vaguely in-

i volves sex, keep it to yourself. Ballard poses hypotheticals

such as, What if someone gets the Victoria’s Secret cata-

. log at work? “If someone makes a comment about that,

you get rid of it,” she says. Parallax, her company based

in Santa Monica, Calif., teaches that one complaint is

enough to change office policy—and such advice is be-

coming the standard in business schools and financial

newspapers. A U.S. Department of Labor brochure on

sexual harassment even advises that those who hear “sex-

ual jokes or . . . sexual things that you didn’t like” could

be victims. Several states offer equally broad, subjective

definitions.

Employers are heeding the advice, sometimes too well.

The University of New Hampshire suspended a professor

of technical writing, J. Donald Silva, in 1993 for class-

room remarks he had made the previous year. Besides

other suggestive comments, Silva had compared the focus

required for writing to that demanded by sex. He had

also said, “Belly dancing is like Jell-O on a plate with a

vibrator under the plate.” Weird, yes. But harassment?

The university thought so and directed Silva to take coun-

seling at his own expense. Instead he filed suit. Backed

by the Center for Individual Rights, a conservative Wash-

ington-based advocacy group, Silva won. A federal judge

ruled that the school had trampled n his First Amendment

rights. The university reinstated Silva, who is now 62

and teaching once again.

46a

Some employers have got more than a slap on the hand.

In an important case in California, a jury awarded Ralph

Cotran $1.78 million in lost compensation four years ago

in a wrongful-termination lawsuit against his former em-

ployer, insurance brokerage Rollins Hudig Hall Interna-

tional. The company fired Cotran in 1993 after two secre-

taries alleged sexual harassment. He denied it and claimed

that he and two women had been involved in consensual

relationships. “I didn’t do it, but the company ignored

every shred of evidence on my side,” he says today.

The jury agreed with the defendant—as have other

juries in a few such backlash cases. The most famous was

brought by Jerold Mackenzie, a former Miller Brewing

executive, who claimed that the company wrongfully inter-

fered with his employment status after a co-worker,

Patricia Best, accused him of sexual harassment. He had

recounted for Best an episode of Seinfeld on TV that

indirectly referred to the clitoris, and then showed her the

word in the dictionary. A jury gave him $26.6 million

last summer.

But such cases remain the exception, and few have been

upheld on appeal. Part of Mackenzie’s giant damage

award has already been set aside by a judge. And the

California Supreme Court dealt Cotran a setback in Jan-

uary, when it ordered a new trial, which may be harder

for him to win. The court said if employers fully investi-

gate and arrive at a “good-faith belief” that harassment

occurred, they may fire the alleged harasser.

The next big legal battle on sexual harassment will

probably center on free-speech concerns. UCLA’s Volokh

says liberal court rulings have had a “chilling effect” on

free speech at work. He says many employers are scared

to write anything other than zero-tolerance policies that

prohibit any potentially offensive speech. “Something like

‘Women don’t belong here,’ that’s sexist, but it should be

protected speech,” Volokh says. Few defendants have

used the First Amendment as a defense. (“Lawyers just

ee erase

47a

don’t think about it,” Volokh adds.) As sexual-harassment

laws strike further and further into what we are allowed

to say to our co-workers, look for that to change.

Of course, some contend that giving up our right to

tell dirty jokes is a small price to pay to prevent harass-

ment. Georgetown’s Epstein argues, “I think that one has

to balance your concern for the First Amendment with

your concern for equality.” Maybe. But because so many

of us spend more time at work than at home, today’s co-

workers are the neighbors and bowling-league partners of

yesteryear. It’s difficult to imagine that we can’t talk to

them about sexual topics—not just our personal lives but

Monica and Bill, the teacher and her 13-year-old student

lover, or Marv Albert and his dating habits.

Before this term, the High Court had issued just two

major decisions on workplace sexual harassment. This

term it has four cases, one of which it decided this month:

it broadened sexual harassment to include same-sex cases.

The three other rulings, expected before July, won’t ad-

dress the First Amendment, but they should end some

other disputes over the law. In two of the cases—both

scheduled for oral argument this week—the court will

determine to what extent employers are liable for harass-

ment to which top management has not been explicitly

alerted. In the absence of such a ruling, many companies

have assumed they are liable for just about anything and

adopted zero-tolerance policies for everyone from the jan-

itor to the CEO.

In one of the two cases, the court will decide whether to

hold a Texas school district responsible for the actions of

teacher Frank Waldrop. According to court documents,

a cop discovered Waldrop having sex with an eighth-

grader, who later claimed that the couple had had sex

regularly. Her mother sued the school system, even though

no school-district employees (except Waldrop, of course)

knew about the affair. She argued that the district was

FE nn eT ee

48a

liable anyway, on the theory that employers are responsi-

ble for an employee's bad acts if his employment status

helped the employee commit them.

The other case, Faragher v. City of Boca Raton, in-

volves two municipal lifeguards in the town north of

Miami who claimed that they were sexually harassed by

their supervisors. A judge found that they had been har-

assed but that the city should not be held responsible

because no officials in city hall knew about the abuse.

The third case before the court, arguably the most im-

portant of this term, was brought by a marketing employee

at Burlington Industries. Kimberly Ellerth says her boss’s

boss made constant sexual remarks to her. He allegedly

rubbed her knee and told her that her legs were nice but

her breasts were too little. She says he once told her,

“You know, Kim, I could make your job very hard or

very easy at Burlington.” Ellerth interpreted this to mean

that she would have to have sex with the executive, a vice

president, in order to get ahead. But in fact she never

slept with him—and she did get promoted. A lower court

ruled that Ellerth suffered quid pro quo harassment any-

way—without actual retribution. Jones’ lawyers have cited

this ruling prominently. Burlington appealed, and now the

Justices must determine if quid pro quo harassment can

include mere threats.

Even after the court rules on these matters, there’s

likely to be confusion about sexual harassment. The end

of the old patriarchal system, in which male bosses be-

haved as they pleased with female subordinates, has nec-

essarily complicated gender relations in American offices.

To sort out who is misbehaving now, the law must rely

on subjective notions of power and courtship, sex and

sensitivity. The best company policy would allow co-

workers their freedom and privacy but punish truly un-

wanted, harmful behavior. But no one has figured out

exactly what that policy should be—least of all the law-

49a

yers and judges who keep adding new loops and threads

to the complex web of sexual-harassment law.—With

reporting by Jay Branegan and J.F.O.McAllister/Wash-

ington, Dan Cray and Margot Hornblower/Los Angeles,

Pat Dawson/Billings, Rod Paul/Portsmouth and Elaine

Rivera/Southampton