Petition for Writ of Certiorari — Jones v. Bayer Corp.

Supreme Court, G. 8.

D FILED

8 00 67 4 OCT 242000

LA OF Die n

In The

Supreme Court of the United States

Linda Jones,

Petitioner,

V.

Bayer Corporation,

Respondent.

On Petition for Writ of Certiorari

To the United States Court of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Clifford H. Hardwick

Attorney for Petitioner

Roswell Professional Park

Suite E-1

11205 Alpharetta Highway

Roswell, Georgia 30076-1442

(770) 772-4700

— ee ee

i

QUESTIONS PRESENTED FOR REVIEW

The case sub judice arises out of a claim of

alleged sexual discrimination and harassment

pursuant to 42 U.S.C. 2000(e). The Petitioner

was a female employee of the Respondent. For

several months she made complaints through

the Human Resources Department of the

Respondent of sexual harassment and sexual

discrimination. Petitioner was advised by the

Human Resources representative that she did

not need to file any formal complaints and a

resolution of the matter was agreed upon

wherein the Petitioner was given a lateral

transfer and placed under different

management. However, after the 180-day

period of limitations had expired, Petitioner was

called into a conference with the same Human

Resources representative and the area director.

During that meeting, the company revived the

same claims against the Petitioner that they had

used as a defense in the sexual harassment suit

and brought forth many of the same issues. The

meeting was so hostile that Petitioner became

emotionally upset and resigned her position.

The questions presented, therefore, are:

1. Whether the 180-day time limit set

forth in 42 U.S.C. 2000 e-5(e) acts as a bar to

recovery even though the employer has

announced a settlement with the employee and

revives the very same complaints and

allegations after the 180-day period has expired.

J ˙ 6—iwet!ñß MR TTT

ii

2. Whether the company’s action in

reasserting the same complaints and allegations

covered in the settlement with the employee on

sexual harassment matters constitutes a new

act of sexual harassment enabling the employee

to proceed and incorporate the original

complaints.

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b) and Rule 29.6

the following is a list of all parties to the

proceedings:

Linda Jones, Petitioner

Bayer Corporation, Respondent

CITATIONS ENTERED BY THE

COURTS BELOW

Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq., as amended by the Civil Rights Act of

1991, 42 U.S.C. § 198la

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986)

Avirgan v. Hull, 932 F.2d 1572 (11% Cir. 1991),

cert. denied, 502 U.S. 1048, (1992)

Calloway v. Partners Nat’l Health Plans, 986

ee 00

iii

F. ad 446, 448 (11™ Cir. 1993)

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986)

Hill v. Seaboard Coast Line R.R., 885 F.2d 804,.

809-10 (11™ Cir. 1989)

Jones v. USA Petroleum Corp., 20 F.Supp. 2d

1379 (8.D. Ga. 1998)

Kilgore v. Thompson & Broch Management, Inc.,

93 F. 3d 752, 754 [11 Cir. 1996)

Llampallas v. Mini- Circuits Lab., Inc., 163 F.3d

1236 (11 Cir. 1998)

McCarthney v. Griffin-Spalding Bd. of Educ., 791

F.2d 1549, 1550-51 (11 Cir. 1986)

Merritt v. Dillard Paper Co., 120 F.3d 1181 (11%

Cir. 1997)

Morgan v. City of Jasper, 959 F.2d 1542, 1548

(11™ Cir. 1992)

Olmsted v. Taco Bell Corporation, 141 F.3d

1457 (11 Cir. 1998)

Raney v. Vinson Guard Serv., Inc., 120 F.3d

1192, 1997 (11 Cir. 1997)

St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

511 (1993)

iv

Smith v. Horner, 839 F.2d 1530. 1538 (11 Cir.

1988)

Stone v. Galaxy Carpet Mills, Inc., 841 F. Supp.

1101, 1186 (N.D. Ga., 1993)

Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248, 254 (1981)

Thrasher v. State Farm Fire & Casualty Co., 734

F. ad 637 (11™ Cir. 1984)

Thurman v. Robertshaw Control Co., 869 F.

Supp. 934, 942 (N.D. Ga. 1994)

United Air Lines, Inc. v. Evans 431 U.S. 553,

558-60 (1977)

Walker v. Mortham, 158 F.3d 1177, 1186 (11

Cir. 1998)

webb v. Cardiothoracic Surgery Associates, 139

F.3d 532 (5% Cir. 1998)

Young v. General Foods Corp., 840 F.2d 825

(11% Cir. 1988), cert. denied, 488 U.S. 1004

(1989)

V

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED............ i

OPINIONS BELOW............ 2923 221

D.15˙.0E.0. .. 1

STATUTES INVOLVED IN THIS CASE. . 2

STATEMENT OF THE CASE 3

REASONS FOR GRANTING THE WRIT. . 14

CONCLUSION. ..........2.- ‚ 2 22

vi

TABLE OF AUTHORITIES

Cases Page

Fleming v. Boeing Co., 120 F.3d 242,

In 20

Fowler v. Sunrise Carpet

Industries, 911 F.SUPP.,

1560, 1575 [N. D. Ga. 1996) ................ 18

Henson v. City of Dundee,

682 F. ad at 905 (11% Cir. 1982).......... 18

Kilgore v. Thompson &

Brock Management, Inc.,

93 F.3d 752-753-754 (11™ Cir. 1996)... 21

McCoy v. Macon Water Authority,

966 F.SUPP. 1209, 1217-18

M. D. da. 1997 2 20

Reynolds v. CSX Transportation,

115 F.3d 860, 866 (11% Cir. 1997)....... 21

Sparks v. Pilot Freight Carriers,

830 F.2d 1554, 1556 (11™ Cir. 1987}... 18

Statutes and Rules

42 U.S.C. 2OODe-Sle)............escscccccesseseee 2

PETITION FOR WRIT OF CERTIORARI

Linda Jones respectfully prays that a writ

of certiorari issue to review the judgment and

opinion of the United States Court of Appeals

for the Eleventh Circuit entered in this

proceeding on July 27, 2000.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Eleventh Circuit that gives rise

to this petition is a published opinion. It is

reprinted in the Appendix hereto at page 1.

The opinion of the United States District

Court for the Northern District of Georgia that

gave rise to the appeal to the United States

Court of Appeals for the Eleventh Circuit is a

published opinion. It is reprinted in the

Appendix hereto at page 2.

JURISDICTION

On the 17“ day of August, 1999, the

United States District Court for the Northern

District of Georgia, Atlanta Division, entered an

order granting summary judgment to

Respondent and a final judgment was issued by

the court on the same day.

Petitioner timely appealed to the United

States Court of Appeals for the Eleventh Circuit.

On June 27, 2000, the United States Court of

Appeals for the Eleventh Circuit issued a

published opinion affirming the District Court’s

jadgment.

The judgment of the Court is invoked

pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED IN THIS CASE

42 U.S.C. 2000e-5(e) states, “Time for

filing charges; time for service of notice of

charge on respondent; filing of charge by

Commission with State or local agency.

(1) Acharge made under this section shall

be filed within one hundred and eighty days

after the alleged unlawful employment practice

occurred and notice of the charge (including the

date, place and circumstances of the alleged

unlawful employment practice) shall be served

upon the person against whom such charge is

made within ten days thereafter, except that in

a case of an unlawful employment practice) shall

be served upon the person against whom such

charge is made within ten days thereafter,

except that in a case of an unlawful employment

practice with respect to which the person

aggrieved has initially instituted proceedings

with a State or local agency with authority to

grant or seek relief from such practice or to

institute criminal proceedings with respect

thereto upon receiving notice thereof, such

charge shall be filed by or on behalf of the

person aggrieved within three hundred days

after the alleged unlawful employment practice

occurred, or within thirty days after receiving

notice that the State or local agency has

terminated the proceedings under the State or

local law, whichever is earlier, and a copy of

such charge shall be filed by the Commission

with the State or local agency.

(2) For purposes of this section, an

unlawful employment practice occurs, with

respect to a seniority system that has been

adopted for an intentionally discriminatory

purpose in violation of this title [42 USCS § @

2000e et seqq.] (whether or not that

discriminatory purpose is apparent on the face

of the seniority provision), when the seniority

system is adopted, when an individual becomes

subject to the seniority system, or when a

person aggrieved is injured by the application of

the seniority system or provision of the

system.”

STATEMENT OF THE CASE

Petitioner was an employee for

Respondent corporation (formerly Miles, Inc.),

as a pharmaceutical sales representative from

May of 1991 through June of 1996. Her

position required her to work a territory in the

state of Mississippi. Under the management

structure she was assigned as part of a regional

sales team under the management of George

Stamboulieh. Bill Corley was the divisional

manager.

Each of the pharmaceutical reps worked

their own territory, and they were required to

attend weekend sales meetings from time to

time. (R-40, Deposition of Stamboulieh, p. 27,

ll. 21-25) The sales reps would only see each

other three or four times a year. (R-40,

Deposition of Corley, p. 29, ll. 1-4)

During the sales meetings, the sales reps

were normally required to go to Jackson,

Mississippi, but meetings were sometimes held

in other locations, including Florida and

Tennessee. (R-40, Depo. Of Stamboulieh p. 27,

U. 13-18; p. 129, ll. 7-16) These meetings were

generally two days long. (R-40, Depo. Of

Stamboulieh, p. 28, ll. 4-8)

Stamboulieh required the sales reps to

travel to Jackson, Mississippi on the day before

the sales meetings. Although Respondent

contends that this was a company rule that

applied to all except those who lived in and

around Jackson, it was not a company rule, nor

was it applied uniformly to all. All females were

required to stay overnight in the motel. Three

male employees were given permission not to

spend the night in the motel. (R-32, Depo. of

Petitioner, p. 34, ll. 5-16) One of the female reps

lived close to Jackson, but she was still required

to attend the overnight sessions. (R-32, Depo.

Of Petitioner, p. 34, ll. 21-22)

On the night before the sales meeting, the

female employees were required to go to dinner

with Stamboulieh. (R-32, Depo. Of Petitioner, p.

26, ll. 7-15) The women were referred to as

“George’s harem” by Stamboulieh, and they

were encouraged to go out after the dinner

drinking and socializing with Stamboulieh and

the male sales reps. (R-32, Depo. of Petitioner,

p. 26, II. 7-15; p. 35, IL 15-24; p. 44, U. 11-22)

When the Petitioner did not go out and

socialize, she received a bad evaluation. (R-32,

Depo. of Petitioner, p. 35, ll. 19-24; p. 36, U. 2-

11; Depo. Of Stamboulieh, p. 94, Il. 19-25; p. 95,

ll. 1-25) Stamboulieh complained to Corley that

Petitioner didn’t want to interact with other

division members. (R-40, Depo. of Corley, p. 36,

ll. 1-2; p. 38, U. 3-7) On one or more of these

occasions, the invitation included the female

sales reps joining the men for trips to strip

clubs. (R-40, Depo. of Petitioner, p. 26, ll. 22-

25)

During the sales meetings, the male reps,

as well as Stamboulieh and Corley, would make

inappropriate comments and tell dirty jokes.

The men would openly comment on the body

parts and qualities of the strippers. Other

inappropriate jokes were made on a racial or

ethnic basis. This was done with the

encouragement and/or approval of Stamboulieh

and Corley (when he attended the meetings). (R-

32, Depo. of Petitioner, p. 57, ll. 15-25; p. 58, Il.

1-5; p. 61, ll. 9-25)

Petitioner, who is a divorced mother of a

minor child, objected to the unnecessary

overnight stays, but complied, went to the

dinners and even socialized after dinner some

because it was required by her managers. She

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did not go to the strip clubs.

The employees were also required to

attend Corley’s Christmas party. When in 1993

the Petitioner could not attend because of

health, Corley made comments to other

employees about why she missed the party and

chastised her. In fact, the Petitioner was

expected to spend her after-work hours

socializing with her male co-workers. (R-40,

Depo. of Stamboulieh, p. 108, ll. 8-25)

During her time with the corporation, the

Petitioner was a highly successful sales rep.

This is evidenced by the fact that she was the

highest salaried representative (male or female)

in her division. This was in a position that was

mostly commission. (R-47, Respondent’s

Statement of Undisputed Facts Par. 29) She was

consistently at or above quota; and, in 1993,

won membership in the President’s Club (an

award based on a representative's sales

performance). For winning the President’s Club,

the winners were sent to Hawaii for a

convention. The winners could take their

spouses or a “significant other.” The Petitioner

requested that she be allowed to take her

daughter rather than an adult male. At first,

she was told by Stamboulieh and Corley that she

could not take the daughter and that she would

have to take an adult. Finally, after repeated

requests, the company granted Petitioner an

exemption and allowed her to bring her child.

(R-32, Depo. of Petitioner, pp. 72-74)

Throughout her career with the

Respondent, Petitioner sought to move up into

mamagement. She let her desire for promotion

be known, and tried to earn consideration.

Therefore, when she was dropped in her annual

rating by Stamboulieh and Corley she became

very concerned. According to Stamboulieh and

Corlley, Petitioner would have to be rated a “4"

on ttwo consecutive annual reports before she

coulld be considered for promotion (other than

the promotion from PSR I to PSR II which is

more a matter of longevity).

The reason for the drop in Petitioner’s

rating was Stamboulieh’s opinion that she

wasn’t socializing enough with her fellow

workers and that she didn’t establish close

enough relationships with a male sales rep, Mike

Sharp. Mr. Sharp held the position of HSS and

worked hospitals. This was not the same

territory that Petitioner worked, and HSS was

gemerally considered to be a promotion from

PSR. (R-32, Depo. of Petitioner, pp. 50-51; R-

40, Depo. Of Stamboulieh, p. 93, ll. 4-13)

Stamboulieh openly encouraged the female

employees to drink alcoholic beverages and

“loosen up.” (Depo. of Petitioner, p. 27, ll. 4-11;

p. 40, ll. 5-25) With at least one female

employee (Wood), he suggested on more than

one occasion that the employee use marijuana.

(R-40, Depo. of Tracy M. Wood in Ridgway v.

Milles, Case No. 93-33-5-III, Chancery Court for

Dawidson County, Tennessee, p. 33, 3-12) On

seweral occasions he would place women

employees in questionable or embarrassing

circumstances and refuse to support the

employee. For example, Wood was taken by

Stamboulieh when he picked up a doctor who

was to be a speaker at a dinner. Wood was

required to sit beside the doctor in the car and

later at the dinner table. The doctor openly

made numerous attempts to fondle Wood, and

management did nothing to stop this behavior.

(R-40, Depo. of Tracy M. Wood in Ridgway x.

Miles, Case No. 93-33-5-III, Chancery Court for

Davidson County, Tennessee, pp. 49-50) Wood

was chosen to be the only female among two

male reps and Stamboulieh at a medical

convention. While the group talked with two

doctors, the doctors started making sexually

offensive comments about condoms, etc., and

statements to the effect of “all you (female sales

reps) want is sex.” Although the comments

were clearly inappropriate and offensive,

Stamboulieh did nothing to protect his female

employees nor to stop this type of conduct.

Through his silence, Stamboulieh encouraged

this type of behavior. (Depo. of Tracy M. Wood

in Ridgway x. Miles, Case No. 93-33-5-III,

Chancery Court for Davidson County,

Tennessee, pp. 50-51)

The divisional manager was no help either.

Bill Corley openly stated at one of the

company’s meetings that women were good for

only one thing. The clear indication was that to

the divisional sales manager women were only

good for sex and not as workers. (R-40,

Petitioner’s affidavit, exhibit No. 1) Corley’s

highly offensive and sexist style of management

is set out very well in the suit filed by another

female sales rep in 1993, that being the case of

Kimberly S. Ridgway v. Miles, Ing., and Bill

Corley, Civil Action File No. 93-33-5. Chancery

Court for Davidson County, Tennessee. (R-40,

Petitioner’s Exhibit 5)

Stamboulieh wasn’t the only manager for

the Respondent to encourage alcohol

consumption and loosening up of the female

employees. Clearly Corley’s attitude as to what

females were good for was the expected conduct

within the division, and this was known to the

company. If the company didn’t know about it

prior to 1993, it was certainly put on notice on

November 9, 1993, when the Ridgway suit was

filed. Yet, there was no change in the way

females were treated within the sales division.

However, the Petitioner did complain to the

Human Resources Department long before her

termination.

Petitioner discussed the problems with

sexual harassment and discrimination with

Stamboulieh, with an EAP counselor, and with

Laura Collins. (R-32, Petitioner’s Depo., p. 13,

ll. 2-23; p. 8, ll. 12-24) Ms. Collins advised the

Petitioner that a formal complaint was not

necessary (R-32, Petitioner’s depo., p. 8, ll. 20-

21), and that since she was typing into her

computer as Petitioner was talking, a written

complaint was not necessary. (R-32,

Petitioner’s depo, p. 11, ll. 17-20) Respondent

says, for purposes of this litigation, that no

written complaint was ever filed.

Because of the pattern of conduct by

Stamboulieh and Corley, when she was dropped

in her annual evaluation because of her failure

to meet Stamboulieh’s expected level of

socializing, Petitioner asked for a meeting with

Stamboulieh, Corley and a representative from

Human Resources. That meeting occurred on

November 6, 1994, at Corley’s office in

Tennessee. The Human Resources rep was

Laura Collins. (R-47, Respondent’s Statement of 0

Undisputed Facts No. 18; R-40, Petitioner’s

affidavit exhibit 1)

Several matters were discussed, including

that Petitioner felt she was being sexually

discriminated against. An agreement on solving

some of the problems was reached, and Laura

Collins later memorialized part of (but not all)

the topics agreed upon. The one thing neither

Stamboulieh, Corley nor Collins would identify

with any clarity was what they expected of

socializing or to “improve the rapport with

another employee.” Accordingly, Petitioner

sent e-mail follow-ups to seek this

clarification. Rather than clarify, Corley and

Stamboulieh used this as another method of

degrading and downgrading Petitioner. (R-32,

Petitioner’s depo., p. 168, ll. 6-22; p. 169, U. 13-

20; R-40, Stamboulieh depo. P. 137, ll. 13-25; p.

144, ll. 2-18; R-40, depo. of Corley, p. 45, U. 4-

20; p. 60, II. 6-25)

In 1995 Stamboulieh and Corley were

transferred and Petitioner was assigned to work

under a new manager. However, the damage and

harassment did not stop. Stamboulieh and

Corley had already poisoned the Petitioner’s (

reputation within the company. Even though

Respondent admits that Petitioner was very

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10

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good at her job, she was not considered for

promotions within her division. Finally a

position in Houston, Texas, became open and

Petitioner applied. She advised her manager

that she had put her home on the market in

anticipation of the promotion. [R-40,

Petitioner’s affidavit exhibit 1)

During this period the Petitioner was

contacted by an attorney for the Respondent.

The Ridgway suit had been filed, and a request

by plaintiffs counsel had been made. The

request was that Petitioner volunteer to give a

deposition in that case. Petitioner refused to

volunteer; and she asked, if subpoenaed, would

she get in trouble with the company if she told

the truth. The attorney for the Respondent

laughed and told her not to worry, that it would

be hard for the other side to serve a subpoena in

Mississippi. Petitioner was subsequently served

and testified truthfully in that case. (R-40,

Petitioner’s affidavit, exhibit 1; R-47,

Respondent’s Statement of Undisputed Facts

No. 44)

After her testimony in Ridgway, Petitioner

was denied the promotion to Houston. The

alleged reason was that she was “agitated”

during the interview and that the best man was

hired. The position was given to a man (Mr.

Rambo). (R-23, Respondent’s Statement of

Undisputed Facts Par. 52-55) Respondent argues

that Rambo was a strong performer and that was

why he got the promotion. However, the

Petitioner had been a constantly high performer.

In fact, there is no mention of Rambo having

11

ever qualified for the President’s Club or ever

exceeding the Petitioner’s sales performance.

It was during the interview process that

the employee socializing was again brought up.

The Petitioner was asked to imagine that she

was at a party where she would be standing.

She was also asked if she was usually a

“wallflower.” The other reason, or core

competencies, expressed by Respondent is that

Rambo has strong interpersonal skills and team

building-the same type of pop phrases used in

the past to encourage socializing and drinking

with the boys. (R-40, Petitioner’s affidavit

exhibit No. 1)

The timing of the interview is also

suspect. Petitioner had only been assigned to

this division for less than four months. Her

evaluations had to have been based upon the old

problems with Stamboulieh and Corley. No one

else had sufficient time to work with her much

less form an accurate evaluation. However,

Stamboulieh did discuss with the manager

Rosato Petitioner’s not having good interaction

with co-workers. (R-40, Stamboulieh depo. p,

148, ll. 13-15 Rosato admits he could not

properly evaluate Petitioner, so he gave her the

same rating that Stamboulieh had on the

previous evaluation. (R-40, Depo. of

Stamboulieh, pp. 148-149)

On June 28, 1996, Petitioner was sent to

Dallas, Texas, for a meeting with the South

Central Business Area Director, Ms. Conder-

Flannery. Petitioner was advised that the

meeting was for consideration for a promotion

12

(R-32, Petitioner’s depo., pp. 100-101); but,

according to Conder-Flannery, it was to advise

the Petitioner of her deficiencies. It is

interesting to note that, according to

Respondent’s brief and Statement of Undisputed

Facts, the Petitioner never told anyone of her

desire for a promotion. Yet, Conder-Flannery

“became aware of Jones’ interest in promotional

opportunities. (R-47, Statement of

Undisputed Facts No. 58), and she was

considered for at least three promotional

opportunities (two of which were within the last

six months of her employment).

When the Petitioner arrived at Conder-

Flannery’s office, she discovered that the same

Laura Collins (from the Stamboulieh/Corley

interview) was also present.

The meeting began with an attack on

Petitioner along the same lines as the previous

sessions with Stamboulieh and Corley.

Petitioner did not socialize enough. She was not

a team player. She did not work at building

better relationships with her managers and co-

workers. The meeting was extremely hostile,

with Conder-Flannery talking in very derogatory

and insulting tones to the Petitioner. (R-32,

Petitioner’s depo., p. 105, ll. 21-25; pp. 106-

107)

The meeting was so hostile and Conder-

Flannery’s tone so upsetting that twice

Petitioner got to her feet and advised Conder-

Flannery that, if she did not stop talking to her

in that manner, Petitioner was going to leave.

When Conder-Flannery persisted in the same

13

manner, Petitioner became visibly upset and left

stating that she was quitting. (R-32,

Petitioner’s depo., p. 108)

Within two hours Petitioner had calmed

down. She called her supervisor and requested

that she be allowed to withdraw her resignation.

The request was forwarded to Laura Collins, and

the offer was rejected. Collins did, however,

advise Petitioner that she was eligible for

rehire. (R-32, Petitioner’s depo., p. 109, ll. 12-

20)

Petitioner was forced to find other

employment, and she subsequently was

relocated to Atlanta, Georgia. While in Atlanta,

she saw ads run in the newspaper by the

Respondent for PSR positions. She immediately

applied. Although the Petitioner had

approximately five years of strong experience

with both the company and the product, was a

past President’s Club member, and a proven

producer, she was never considered for any of

the openings. According to Respondent, the

Petitioner was not selected because either the

ad had already produced too many applicants or

she failed to attach a cover letter. It is

undisputed that persons with far less

qualifications were hired and she was not.

Petitioner contends that this was clear

retaliation. (R-47, Respondent’s Statement of

Undisputed Facts Nos. 75-80, 84-90)

REASONS FOR GRANTING THE WRIT

14

1. Whether the 180-day time limit set

Petitioner’s case is similar to that of a

plaintiff in a civil action wherein she settles out

of court prior to filing a law suit. Then after the

statute of limitations has run on the cause of

action the defendant violates the terms of the

settlement and contends that plaintiff's claims

are barred by the statute of limitations.

However, there is one major difference for

victims of sexual discrimination. Under normal

tort and contract law, the plaintiff would have

the right to bring an action for contempt or to

enforce a settlement agreement. Here there is

no such right.

The Respondent has argued, and the lower

courts have agreed with Respondent, that there

was nothing to prevent the Petitioner from filing

a claim with the EEOC when the original and

most outrageous acts were being committed.

Technically this is true. However, the process

set up by the Respondent was to go through its

department of human resources, and the

Petitioner did. Petitioner was told by the human

resources representative that she did not need

to file a complaint that it was being handled by

that department. Shortly thereafter she was told

15

that she was being reassigned and that her

concerns and complaints would be resolved

through this move. For several months

thereafter it appeared that Petitioner’s

complaints had been resolved and therefore

there was no need to take any further action.

Then, after the 180 day time period, Petitioner

started to see the same old patterns, only this

time not as blatant as the “harem” days.

This eventually came to a climax when

Petitioner was called to a meeting with the

South Central Business Area Director, Ms.

Conder-Flannery, and Collins, from human

resources. Petitioner entered the meeting with

the understanding that its purpose was to

interview her for a long awaited promotion.

Instead it was a vicious attack on her for the

very same things that were supposed to have

been settled as part of her transfer. This

included the same charges that she was not a

team player because she didn’t socialize and

drink with her superiors or co-workers and that

her interpersonal skills were satisfactory. In

short, the Respondent had violated their

agreement and, now that the 180 days had

elapsed, was attacking the Petitioner using, in

part, the same information contained in her file

from the sexual harassment complaints she had

made to Collins.

The argument has been made, and the

lower courts have held that this action did not

constitute additional acts of sexual harassment

such as to allow the litigation of the prior acts.

It was further argued that there was nothing to

16

prevent the Petitioner from filing a claim on the

prior acts before the expiration of the 180 days.

With all due respect, since the complaint had

been settled, there was no basis to file the EEOC

complaint until after the 180 days had expired.

Petitioner is in the same situation as an

attorney or pro se litigant who settles a case

prior to filing suit and then, after collecting the

settlement, files the civil suit. Here the

Petitioner did exactly what the law requires and

encourages, she brought the situation to the

attention of the proper department of the

company, worked within the company to resolve

the situation, and settled the matter without

the need of litigation. Now because she did what

the law asks, she is barred from pursuing her

claim when the Respondent has acted in bad

faith throughout the proceedings.

If a litigant, or his attorney, had filed a

suit after reaching a settlement there is no

question that the suit would be dismissed and

the party sanctioned under Rule 11. If

Petitioner had filed a complaint after reaching

a settlement, the same thing would have

happened. The EEOC and the courts would have

dismissed the complaint.

If the law is going to continue to require

victims to have to go through the EEOC and the

various human resources regulations of the

companies, then the victims must have a

remedy when the company acts in bad faith and

violates the terms of any agreements or

promises. The bad faith actions of the company

cannot act as a barr to victims of sexual

17

harassment.

2. Whether the company’s action in

reasserting the same complaints and allegations

covered in the settlement with the employee on

sexual harassment matters constitutes a new

act of sexual harassment enabling the employee

to proceed and incorporate the original

complaints.

For much the same rationale as set forth

in the preceding portion of this petition, if the

company is the one to revive the subjects that

are part of the original sexual harassment

complaint, then the actions of the company

must be considered as a new act of sexual

harassment and subject to the 180 day rule.

Petitioner claims that Respondent

violated Title VII by subjecting her to both quid

pro quo and hostile environment sexual

harassment.

To establish a prima facie case of quid pro

‘ quo sexual harassment, an employee must

prove: (1) that she belongs to a protected group;

(2) that she was subjected to unwelcome sexual

harassment; (3) that the harassment was based

on sex; and (4) that her reaction to the

harassment affected aspects of her

compensation, terms, conditions or privileges of

em ployment. Fowler _v. Sunrise Carpet

Industries, 911 F.SUPP., 1560, 1575 (N.D. Ga.

1996) (citing Sparks v. Pilot Freight Carriers,

830 F.2d 1554, 1556 (11 Cir. 1987). Moreover,

the acceptance or rejection of the harassment

18

by an employee must be an express or implied

condition to the receipt of a job benefit or the

cause of a tangible job detriment in order to

create (quid pro quo sexual harassment)

liability.” Farley, 115 F.3d at 1552 (quoting

Henson, 682 F.2d at 909).

There is no question that Petitioner

belongs to a protected group.

The constant encouragement to drink and

party with the guys is a form of quid pro quo

sexual harassment. It is clear that under Corley

the women sales reps were treated as second

class citizens. The women, including Appellant,

were constantly pressured to loosen up and

socialize with the guys. The women were

required to attend social functions (dinners,

Christmas parties, etc.) And to serve as dance

partners for the males. During business

meetings where attendance was mandatory, the

women were required to arrive the day before

and to go out to dinner with Stamboulieh. While

at dinner they (the women sales reps) would be

referred to as “George’s harem.” The business

meetings were filled with inappropriate and

offensive sexual comments and dirty jokes by

the male co-workers and management. Women

sales reps were subjected to invitations to

attend strip clubs as part of this socializing, and

when they refused, they had to listen to graphic

comments during the next day’s meeting as to

the strippers’ body parts, talent and other such

offensive remarks.

Requiring the female reps to attend a

party at the motel where male co-workers were

19

engaged with the strippers in a lingerie show is

clearly offensive and inappropriate. However,

the Respondent claims that all of this occurred

outside of the 180 day period, the lower courts

agreed and dismissed the case.

Petitioner respectfully suggests that the

facts of this case are directly contrary to this

finding, but even if this was the case, the

actions by Conder-Flannery, and Collins were

but a continuation of conduct by the

Respondent that continued a hostile sexual

work environment.

Hostile work environment sexual

harassment “occurs when the employer or

agent’s conduct has the purpose or effect of

unreasonably interfering with an individual’s

work performance or creating an intimidating,

hostile, or offensive environment.” Fleming v.

Boeing Co., 120 F.3d 242, 245 (11™ Cir. 1997)

(citing Steele, 867 F.2d at 1315 (quoting Vinson,

477 U.S. at 65, 106 S.Ct. 2405)) (internal

quotations omitted). To establish a claim of

hostile work environment sexual harassment,

Appellant must show that (1) she is a member of

a protected group; (2) she was subjected to

unwelcome sexual harassment; (3) the

harassment complained of was based on sex; (4)

the harassment complained of affected a term,

condition, or privilege of employment; and (5)

respondeat superior. Henson, 682 F.2d at 903-

905; McCoy v. Macon Water Authority, 966

F.SUPP. 1209, 1217-18 [M. D. Ga. 1997).

To hold an employer directly liable under

Title VII for a hostile environment created by a

20

supervisor, an Appellant must prove that the

emiployer knew or should have known of the

harassment and failed to take prompt remedial

acttion. Reynolds x. CSX Transportation, 115

F.3d 860, 866 (11 Cir. 1997); Faragher, 111

F.3d at 1538; Kilgore v. Thompson & Brock

Mamagement, Inc., 93 F.3d 752-753-754 (11

Cir’. 1996); Henson, 682 F. ad at 905 (11 Cir.

1982); McCoy 966 F.SUPP. at 1218. The

employee can show that the employer knew of

the harassment by proving that she complained

to higher management. R olds, 115 F.3d at

866 (citing Faragher, 111 F.3d at 1538).

Did the Respondent have notice of the

problems with Stamboulieh and Corley? Again

the answer is “of course they did.” If not before,

the Respondent was certainly put on notice in

Nowember of 1993 when served with the

Ridigway suit. That case clearly outlines the

serjious sexual harassment problems within the

Corley sales division, but the company did

not hing about it.

When Petitioner had her meeting with

Corley, Stamboulieh and Collins, she expressed

her’ concerns about sexual harassment. The

Resspondent contends that Petitioner did not

raise this issue at the meeting, but Collins’ own

selff-serving memo refers to sexual harassment

on at least three different topics. In Collins’

memo titled “Linda’s Issues” issue number one

is that there is a different standard for women

than men. Several of the examples cited deal

witlh the sexual harassment issues. These were

the issues supposedly settled by the transfer

21

and promises of no further harassment or sexual

discrimination.

Rather than keep its promises and act in

good faith, the Respondent continued to forced

the Petitioner to work in a sexually hostile work

environment, and the actions of Conder-

Flannery, and Collins must be considered to be

a continuing act of sexual harassment such that

the 180 day rule has been met by the Petitioner.

CONCLUSION

The petitioner herein did what the law

would like everyone to do. She tried to work

within the company to resolve a serious

problem. She relied, in good faith, on the

promises of the Respondent that it was taking

the necessary steps to resolve the problem.

When it became clear that the company was not

acting in good faith and had no intention of

honoring its word, the Petitioner filed her

complaint with EEOC as required.

Companies must not be allowed to avoid

the liability for sexual harassment by simply

making empty promises to their employees as

an effort to stall past the 180 rule. Where the

company’s actions revived the sexual

harassment complaint, that action, whatever it

may be, must be considered to be a new act of

sexual harassment that triggers the running of

a new 180 days.

Respectfully submitted,

Clifford H. Hardwick

Attorney for Petitioner

Roswell Professional Park

11205 Alpharetta Highway

Building E, Suite One

Roswell, Georgia 30076-1442

(770) 772-4700

23

CERTIFICATE OF SERVICE

This is to certify that I have this day

served counsel for the Respondent with three

true copies of the foregoing Petition For Writ Of

Certiorari by depositing same in the U.S. Mail,

with proper postage affixed thereto, and

addressed as follows:

Mr. Stephen M. Brooks

Mr. Stephen M. Lore

Smith, Helms, Mulliss & Moore, LLP

1355 Peachtree Street, N.E.

Suite 750

Atlanta, Georgia 30309

+

This the 2 y “day of October, 2000.

Clifford H. Hardwick

Attorney for Petitioner

Georgia Bar No. 325675

Roswell Professional Park

Suite E-1

11205 Alpharetta Highway

Roswell, Georgia 30076-1442

(770) 772-4700