Petition for Writ of Certiorari — National Super Markets, Inc. v. Varner

Supreme Court brief1997

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N@FFWE OF THE CLERK

Suprene Court of the United States

October Term, 1996

LISA ANNE VARNER,

Respondent,

VS.

~ NATIONAL SUPER MARKETS, INC.,

Petitioner.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

ANN MARIE PIANA

Counsel of Record

ANN E. HAMILTON

Attorneys for Petitioner

514 Earth City Expressway

Suite 242

St. Louis, Missouri 63045

(314) 739-8661

9905

nego (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

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QUESTIONS PRESENTED

I. There is a conflict between the Eighth Circuit’s decision

in this case and the Fourth Circuit’s decision in Austin v. Owens-

Brockway Glass Container, Inc., 78 F.3d 875 (1996) concerning

whether a complainant of sexual discrimination must follow a

mandatory grievance and arbitration procedure bargained for in

her collective bargaining agreement before filing suit against

her employer for Title VII damages.

Il. There is a conflict between the Eighth Circuit in the

present case and the Third Circuit in Boutin v. BMW of North

America concerning whether an employer is liable for the

sexually harassing acts of a non-supervisory employee, when

the employer maintains an express policy prohibiting sexual

harassment and expressly prescribes procedures to be followed

for reporting complaints of sexual harassment, and the victim

chooses not to follow the reporting policy. In Meritor v. Vinson,

this Court held that an express policy which encourages victims

to come forward and report their complaints of harassment might

insulate an employer from liability, and this case presents the

court with the opportunity to expound upon this potential defense

for employers.

LIST OF THE PARTIES

The parties to the proceeding before this court are:

Petitioner: The Petitioner is correctly identified in the

caption except that National Super Markets, Inc., is dissolved

and in the process of winding up its affairs and its its cea

company is National Tea Company, Inc.

Respondent: Lisa Anne Varner

iii

TABLE OF CONTENTS

Page

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statement Of Jurisdiction .......0.0cccccscceccens ]

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A. The Collective BargainingAgreement ...... 2

1. Varner Failed to File a Grievance

Regarding Her Hostile Working

RS RE pg SERRE aS 38 heer 2

2. Applicable Provisions of the Collective

BargainingAgreement................ 3

B. National’s Policy Against Sexual Harassment ’

1. Varner Did Not Follow National’s Policy

Against Sexual Harassment ........... 6

2. Varner Chose Not to Report Any

Complaints of Sexual Harassment to

CEES LS nena Ch eee eos bes 6 0s ROC 7

Contents

C. The Basis For Federal Jurisdiction In The

Catt Ge Pt oa os 6 ibd vk 0 hE RES

Reasons for Granting the Writ ....................

There Is A Conflict Between The Fourth And

Eighth Circuits Concerning Whether A

Complainant Of Sexual Discrimination Must

Follow A Mandatory Grievance And

Arbitration Procedure Bargained For In Her

Collective Bargaining Agreement Before

Filing Suit Against Her Employer For Title

VER DOURNONG, «2s cece wscnge edie weaeesets

A. The Conflict Between The Fourth And

SN GES kcavaccdvaviudewancesa

B. The Conflict Between The Circuits

Creates Uncertainty Amongst Employers

And UnionsAs To Whether Bargained For

Grievance Procedures Are Applicable To

Employee Complaints Of Sexual

Discrimination, Sexual Harassment, And

Hostile Working Conditions ...........

C. The Alexander v. Gardner-Denver Co.,

Decision Is Not In Conflict With

Petitioner’s Request That This Court Find

That A Union Employee Must Follow The

Grievance And Arbitration Provision In

Her Collective Bargaining Agreement

Page

Il.

Contents

Before Filing Suit Under Title VII;

However, This Court May Wish to

Examine The Eighth Circuit's

Applicability Of Gardner-Denver To The

Pe is cc anceVadnee dere dk iG

D>. Zemmoary Of Point] . oo. i ck icc cvs

There Is A Conflict Between The Eighth

Circuit In The Present Case And The Third

Circuit In Boutin v. BMW Of North America

Concerning Whether An Employer Is Liable

For The Sexually Harassing Acts Of A Non-

Supervisory Employee, When The Employer

Maintains An Express Policy Prohibiting

Sexual Harassment And Expressly Prescribes

Procedures To Be Followed For Reporting

Complaints Of Sexual Harassment, And The

Victim Chooses Not to Follow The Reporting

Policy. In Meritor v. Vinson, This Court Held

That An Express Policy Which Encourages

Victims to Come Forward And Report Their

Complaints Of Harassment Might Insulate An

Employer From Liability, And This Case

Presents The Court With The Opportunity To

Expound Upon This Potential Defense For

NRG. £3 cas svanakadarenck bashed iva

A. The Supreme Court Should Clarify Under

What Circumstances An Employee Is

Required to Follow An Employer’s

Express Policy For Reporting Complaints

Page

Contents

Page

Of Sexual Harassment And Whether An

Employee’s Failure to Follow The

Express Policy Insulates The Employer

UO LAOOREUE ass ak ERAT RAI bene OL ae

B. The Conflict Between the Third and

AR COPOUNS | oac's beh cp heeseadsaekl 27

C. Various Circuits Have Interpreted Meritor

Differently And This Court Should

Clarify The Holding InMeritor ........ 28

D. Summary Of Pointl] ................. 29

COCTURIOR: on Fh 0 ccd is cdse tian te 30

TABLE OF CITATIONS

Cases Cited:

Alexander v. Gardner-Denver Co., 415 U.S. 36, 94

DB. CR. BOER CRSP O) ev davccacectttens 10, 12, 17, 18, 19

Austin v. Owens-Brockway Glass Container, Inc., 78

Foe OEP CUUOON bee ck ek Tid beses KanT i, 9, 10,11, 12,18

Boutin v. BMW of NorthAmerica, 29 F.3d 103 (1994)

0 06 6 ode hqhate n ohnes Rea ee aS eB

Equal Employment Opportunity Commission v.

Hacienda, 881 F.2d 1504 (9th Cir. 1989) ....... 29

vii

Contents

Page

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ..... 12

Gary v. Long, 39 F.3d 1391 (D.C. Cir. 1995) ...... 28

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S.

20, 111 S. Ct. 1647, 114 L. Ed. 2d 26 (1991) ....

¢énb dE NEN PEO ee edee 40 u bee ce cuens 10, 17, 18, 19, 20

Jansen v. Packaging Corp. of America, 895 F. Supp.

BODE CGE EOD SS orev cdde kahve ccoeevces 28

Knox v. Wheeling Pittsburgh Steel Corp., 899 F.

Supe. 1529 CCD. W. Va. 1995)... iin ccccsuccs 14, 16

Meritor v. Vinson, 477 U.S. 57, 106 S. Ct. 2399

CRUE cau Ake bb ee oe 06 0h bwebo ee Sb, 22, 23, 24, 20, 2

Miller v. Bank of America, 600 F.2d 211 (9th Cir.

SPE os ln be pikdwas 64008 <u s Wk ears bee eT aus oo 29

Mitsubishi Mctors Corp. v. Soler Chrysler-Plymouth,

Inc., 473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d

PE REE bs ces 644603 544 coe bsdacieubene 18, 19, 20

Moses H. Cone Memorial Hospital v. Mercury

Construction, 460 U.S. 1, 103 S. Ct. 927, 74 L.

nc ee PE his > cde oes eink eo teens ncadee’ 20

Republic Steel Corp. v. Maddox, 379 U.S. 650 (1965)

SS c uA Aah hue ddanAdee wa bh seeehepear haeroe 13, 14, 16

viii

Contents

Stacks v. Southwestern Bell Yellow Pages, Inc., 27

ee Re ee rr were yr

Stanton v. Maries County, 868 F.2d 996 (8th Cir..

BOE) Ki cate s tn kk ceeds dbadad bed eae es

Textile Workers Union of America v. Lincoln Mills,

BOR dls OOM REPUTE obs cesnevcéskaesbaccinens

Weaver v. Minnesota Valley Laboratories, Inc., 470

N.W. 2d 131 (Minn. App. 1991) ...............

Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305

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Statutes Cited:

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Page

Contents

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BB SoM Bgl: rE Se a rere ee 13, 21

Be ts ONTO, skins dec cccsrasessenvrsensens 13

42 USA. § BOGS) CF BOE. ect escccivedececvess 1,8

42 U.S.C. § FOGOO-AIAMA) one ccnsvbwcccnesenecss 14

42 U.3LC. § 2OB0O-ZABN A) 2 cc cesicvccvccsccecssces 14

42 U.S.C. § 2000E-2, Pub. L. 102-166, 105 Stat.

ot PRB e ere Es POPE Pp ree e Pee ee eee Ey 14, 15, 18

Rule Cited:

Federal Rule of Civil Procedure 50(b) ............. 8

OtherAuthorities Cited:

Mo. Rev. Stat. § 213.010, ef seg. ......:eeeeeeeees 1

“News”, United States Department of Labor Bureau of

Labor Statistics, February 9,1996,p.1 ......... 16

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Eighth Circuit Filed September 9,

cc cienknnhtodnens Cenndoeeteates ebrterat la

Contents

Appendix B — Memorandum and Order of the United

States District Court for the Eastern District of

Missouri, Eastern Division Filed August 23, 1996

ead ele eh hk a ee Pe ee ee PP

Appendix C — Judgment of the United States District

Court for the Eastern District of Missouri Filed

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Appendix D — Excerpts of Collective Bargaining

Agreement Effective June 19, 1988 Through June

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Appendix E — Excerpts of Collective Bargaining

Agreement Effective June 16, 1991 Through June

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Appendix F — Excerpts of Employee Handbook ...

Appendix G —Associate Acceptance Record ......

Appendix H — Sexual Harrassment Policy Reissued

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Appendix I — Sexual Harassment Policy Reissued

PORIERD STUN he bucked anit. aoe

Page

26a

28a

44a

58a

62a

64a

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Petitioner National Super Markets, Inc. respectfully requests

this Court to issue a writ of certiorari to review the final decision

of the United States Court of Appeals for the Eighth Circuit,

entered on September 9, 1996.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit entered on September 9, 1996 is reprinted as

Appendix la-11a.The opinion of the United States District Court

for the Eastern District of Missouri entered on August 23, 1995,

is reprinted as Appendix 12a-27a.

STATEMENT OF JURISDICTION

The Petition for Writ of Certiorari seeks review of a decision

of the United States Court of Appeals for the Eighth Circuit

filed on September 9, 1996. This application was submitted no

later than 90 days from the aforesaid date. Motions for Rehearing

were not filed.

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

that this petition seeks review of a final judgment rendered in a

civil case by the United States Court of Appeals for the Eighth

Circuit.

STATEMENT OF THE CASE

Lisa Anne Varner (“Varner”) claims that National Super

Markets, Inc. (“National”) is liable under the Federal Civil

Rights Act, 42 U.S.C. § 2000(e), et seg. and the Missouri Human

Rights Act, Mo. Rev. Stat. § 213.010, et seg., for sexual

discrimination arising out of the conduct of a non-supervisory

co-employee Robert Edmiston (“Edmiston”). Varner testified

that Edmiston harassed her by making four offensive comments

and that on two occasions Edmiston made physical contact with

her in an offensive manner. Edmiston’s acts occurred while he

and Varner were on duty as employees of National.

Varner testified that she “chose” not to inform National of

Edmiston’s ongoing alleged harassment. Rather, Varner chose

to first voice and seek reparation for her grievances by filing a

Complaint with the Equal Employment Opportunity

Commission, despite the fact that Varner had two available

means of informing National of her complaints and requesting

amelioration of her working conditions: ( 1) the Collective

Bargaining Agreement grievance process; and (2) National’s

written policy against sexual harassment. Varner failed to avail

herself of either of the prescribed means for informing National

of her complaints. She withheld her grievances from National,

but announced them to her boyfriend, school counselor, parents,

the police and to the E.E.O.C., rather than to her employer.

A. The Collective Bargaining Agreement

The alleged discriminatory acts occurred between

September, 1990 and November 22, 1991, during which time

there was a Collective Bargaining Agreement (“Agreement”) in

effect between National and U.F.C.W. Local 655 (“Local 655”).

See relevant excerpts of the Collective Bargaining Agreements

at App. 28a-57a. Varner, a retail grocery clerk, was a member

of Local 655. The Agreement contains negotiated, mandatory

procedures for resolving all employee complaints concerning

working conditions. The mandatory process commences with

the filing of an employee grievance and culminates in binding

arbitration if the parties are unable to settle their dispute.

Complaints of sexual discrimination are specifically mentioned

in the Agreement as being covered by this mandatory grievance

and arbitration procedure.

1. Varner Failed to File a Grievance Regarding Her Hostile

Working Conditions

The employment relationship between Varner and National

was governed by the Agreement between National and her

exclusive bargaining agent, Local 655. Article 1, § 1.1 of the

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Saas hile

Agreement provides that “[t]he union shall be the sole and

exclusive bargaining agent of all employees . . .” (App. 31a, 47a).

Varner testified that during work she was subjected to four

offensive remarks/gestures and one offensive touching by her

co-worker Robert Edmiston prior to the final incident on

November 22, 1991, which led to Edmiston’s employment

termination. Varner never filed a union grievance against

National concerning Edmiston’s offensive behavior and the

attendant hostile work environment. Varner never consulted or

spoke with the union shop stewards or any of the store

management prior to or after the final November 22 incident.

Varner totally failed to avail herself of any of the remedies that

were afforded to her under the Agreement; remedies that were

bargained for and agreed to by both National and Local 655.

2. Applicable Provisions of the Collective Bargaining

Agreement

As a union employee, the terms and conditions of Varner’s

employment are set forth in the Agreement. Relevant sections

of the Agreement are: (1) the Introductory paragraph (indicating

intent of parties to provide channel of communication); (2)

Section 2.5 (agreement that there will be no sex discrimination);

(3) Article 3, Management Rights (specifying National's right

to establish rules covering the operation of the store); (4) Article

4 (mandatory grievance and arbitration procedures); and (5)

Section 5.2 (Union’s promise to uphold National’s rules). (App.

31a, 35a, 37a-40a, 47a, 51a, 53a-56a).

In exchange for a mutually beneficial labor agreement,

Local 655 and National agreed upon a procedure for resolving

disputes which arose concerning working conditions, employer

rules and regulations and employee discrimination based upon

sex. Relevant excerpts of this Agreement are contained in

Appendix 28a-57a. The Agreement provides that the parties

“shall” settle their disputes by means of a series of four specific

steps, each later step being necessary only if the former step

failed to reconcile the grievance. The ultimate resolution of any

disputes about which the parties could not mutually agree to

settle, is a final and “binding” arbitration, to be conducted by

an arbitrator who is selected by the parties.

Additionally, Article 4 of the Agreement requires that all

“grievances must be taken up promptly. No grievance ‘will be

considered, discussed or become arbitrable which is presented

later than seven (7) days after such has happened.” (App. 39a,

55a, § 4.5). Section 4.7 provides that employee “grievances will

be discussed only through the outlined procedures .. .” (App.

39a, 55a).

Varner circumvented all of the prescribed steps for settling

her complaints with National. Varner admitted that she made a

“choice” not to contact National to report any of the incidents.

Varner even failed to discuss her complaints with National after

she summoned the police to the store to arrest Edmiston,

choosing instead to inform National to direct any questions to

her attorney.

The grievance and arbitration provisions in the Agreement

are mandatory. The first paragraph of Article 4 provides that

the parties “shall” make an earnest effort to settle any complaints

through Steps 1 through 4 of Article 4. Further, Article 4

provides that if the parties are unable to settle the dispute, the

parties “shall” be bound by an arbitrator’s decision. The word

“shall” is used throughout Article 4 to indicate that the process

is mandatory.

The instructions given to the jury in the present case required

that Varner prove that the alleged discrimination affected a “term,

condition or privilege of her employment” and that the sexual

harassment experienced was “sufficiently severe or pervasive

to alter the conditions of the employment and create an abusive,

hostile or offensive working environment.” The allegation that

Varner was forced to work in a hostile environment is a complaint

that involves her working conditions, and, therefore, is subject

to the agreed upon contract terms which prescribe a means for

remedying such unacceptable working conditions.

Varner claims that her working conditions subjected her to

sexual discrimination, via the harassment. Both Local 655 and

National consider a sexually discriminatory work environment

to be an unacceptable working atmosphere, and as a result,

inserted into the labor Agreement, § 2.5 which provides that the

“Employer and the Union agree” that there shall be no

“discrimination against any employee on account of... sex...

(App. 35a, 51a).

The Local 655 shop stewards, who are on the premises of

Varner’s store, testified that: (1) they are both very active shop

stewards who work in the same store as Varner; (2) sexual

discrimination and harassment are subjects covered by the

Collective Bargaining Agreement; (3) all employees were given

a copy of the Agreement; (4) the shop stewards made sure that;

the policy prohibiting sexual harassment was posted in the store,

(5) they have both attended seminars on sexual harassment; (6)

the shop stewards are available twenty-four hours a day to

receive employee grievances and questions; and (7) the grievance

procedures outlined in the Collective Bargaining Agreement

apply to complaints of sex discrimination. In summary, the

testimony of the union representatives was that they agree with

National that complaints of sex discrimination should be

processed through the grievance and arbitration procedure set

out in the Collective Bargaining Agreement.

National’s Director of Human Resources and Labor

Relations testified that the prohibition of sex discrimination

contained in the Agreement, was negotiated with and agreed to

by Local 655, and that Local 655 has the power to process

grievances on this topic and further that the union has agreed to

uphold the rules of the employer.

B. National’s Policy Against Sexual Harassment

National’s written store policies provide a code of conduct

for employees which encourages a professional working

environment. National had a written policy against sexual

harassment during Varner’s employment (“the Policy”). The

Policy sets out the procedure for filing a complaint of sexual

harassment, and the method to be undertaken by the employer

to investigate and resolve the complaint. National reissued its

Policy against sexual harassment, entitled “Sexual Harassment

Policy”, on August 16, 1990 (App. 64a-65a) and January 1, 1991

(App. 67a-68a). Appendix 66a and 69a set forth the procedure

for handling complaints of sexual harassment. There were no

substantive changes made to National’s policy against sexual

harassment during Varner’s emmloymient at National.

1. Varner Did Not Follow N.ional’s Policy Against Sexual

Harassment

To discourage the occurrence of sexual harassment and to

encourage employees to file complaints if they experience sexual

harassment, National undertook several measures to inform its

employees of the existence of the Policy.

1. Varner’s Employee “Welcome” Handbook: Varner was

given a National Employee “Welcome” Handbook during her

new-employee orientation, which occurred only a few months

before the alleged harassment began. National’s Sexual

Harassment Policy is contained in the handbook. (App. 61a).

Varner was told during orientation to familiarize herself with

the contents of the employee handbook. (App. 62a).

2. Varner’s Associate Acceptance Record: During new-

employee orientation, Varner also signed the “Associate

Acceptance Record”. (App. 62a-63a). In this record, Varner

agreed to familiarize herself with the contents of the “Welcome”

handbook, seek verification and clarification of policies and

procedures when necessary, and comply with National's policies

and procedures. Varner accepted responsibility to keep informed

of any changes in National’s policies or procedures. (App. 62a-

63a). By this evidence, Varner admitted that she knew or should

have known of National’s policy against sexual harassment and

its reporting procedures.

3. Policies Posted in Employee Breakroom: Former

National employees testified at trial that National’s “Policy”

against sexual harassment, which contained the procedures for

reporting complaints, was posted on the employee bulletin board

in the employee breakroom. Chris Pilch (Varner’s boyfriend and

co-worker) and Varner were the only witnesses who denied that

the Policy was posted.

4. Seeking Clarification Pursuant toAgreement: Testimony

at trial established that employees can also obtain information

about National’s policies by asking management, union

representatives, shop stewards, co-workers or by calling the main

office.

2. Varner Chose Not to Report Any Complaints of Sexual

Harassment to National

Varner never complained to National pursuant to National’s

Policy, nor her union pursuant to the grievance process, in an

attempt to cease the hostile work conditions that she says she

experienced in 1991. Varner made a “choice” not to complain

to National or her union about Edmiston’s acts.

Pilch claimed to have told the store manager, Curtis Mason,

about Edmiston’s first physically offensive act. This testimony

was disputed at trial. Mason testified that Pilch told him that

Edmiston had made an “off-color” remark to Varner.

Nevertheless, Varner understood through Pilch that she should

report the incident to Mason if she wished to lodge a complaint.

Varner did not report Edmiston’s comments or the first physical

act to Mason even though she saw Mason on several occasions

between the two incidents. Varner did not report any of

Edmiston’s comments or acts to anyone at National, other than

her boyfriend.

During the several months after the first physical contact,

Pilch told Varner to call Mason and report the incident. Although

Pilch could not recall how many times he told Varner to contact

Mason, Pilch knew that National would take no action until

Varner contacted Mason. Pilch and Varner decided not to report

Edmiston’s comments or the first physical act. Pilch could not

recall if, after the second physical act several months later, Pilch

told Varner to again report the incident(s) to Mason.

Although Varner did not report Edmiston’s actions to

National, she told her parents, Pilch, her counselor, and the

police about Edmiston. In fact, Varner called the National store

that day after the second physical act and confronted Edmiston,

yet she still did not inform National’s management of her

complaints.

C. The Basis For Federal Jurisdiction In The Court Of First

Instance

Jurisdiction of the District Court is founded on 28 U.S.C.

§ 1331 and 42 U.S.C. § 2000(e). Varner filed her four count

complaint of law in state court alleging a cause of action under

42 U.S.C. § 2000(e), et seg. and Civil Rights Act of 1991.

National removed the case to the United States District Court

pursuant to Title 28 U.S.C. §§ 1443, 1141(b) and 1441(c) and

28 U.S.C. § 1331.

The jury rendered its verdict against National on both the

Missouri Human Rights Act and Title VII claims. By Order dated

August 23, 1995, the District Court denied National’s Motions

for Judgment as a Matter of Law filed pursuant to Federal Rule

of Civil Procedure 50(b). (App. 12a-13a, 24a-25a). National’s

Notice of Appeal was timely filed on September 21, 1995.

National appealed the District Court’s judgment pursuant to 28

U.S.C. § 1291.

REASONS FOR GRANTING THE WRIT

THERE IS A CONFLICT BETWEEN THE FOURTH

AND EIGHTH CIRCUITS CONCERNING WHETHER A

COMPLAINANT OF SEXUAL DISCRIMINATION MUST

FOLLOW A MANDATORY GRIEVANCE AND

ARBITRATION PROCEDURE BARGAINED FOR IN HER

COLLECTIVE BARGAINING AGREEMENT BEFORE

FILING SUIT AGAINST HER EMPLOYER FOR TITLE

VII DAMAGES.

The United States Courts of Appeals for the Eighth and the

Fourth Circuit have rendered conflicting decisions as to whether

an employee must exhaust her remedies under a collective

bargaining mandatory grievance and arbitration procedure before

bringing a lawsuit against her employer for Title VII damages.

This Court should resolve the conflict because of the importance

of the question and because, if unresolved, the issue will interfere

with the stability and progress of labor relations between

employers and employees under the Labor Management

Relations Act and under the Civil Rights Act of 1964 and the

Civil Rights Act of 1991.

A. The Conflict Between The Fourth And Eighth Circuits

In Austin v. Owens-Brockway Glass Container, Inc., the

Appellate Court, affirming the District Court’s grant of summary

judgment, held that an employee must follow the grievance

procedure established by the collective bargaining agreement

prior to filing her Title VII cause of action. Austin, 78 F.3d 875,

885 (4th Cir. 1996). The employee in Austin has filed a Petition

for Writ of Certiorari, which is pending before this Court. The

Austin court underwent extensive analysis before reaching this

holding, including discussion of Gilmer v. Interstate/Johnson

Lane Corp., 500 U.S. 20, 111 S. Ct. 1647, 114 L. Ed. 2d 26

(1991), the Civil Rights Act of 1991 and its legislative history,

the National Labor Relations Act, the “Steelworkers’ Trilogy”,

and cases decided in other federal jurisdictions.

In the present case, the Eighth Circuit held contrary to the

Austin decision. The Eighth Circuit ruled that an employee did

not need to comply with any of the collective bargaining

grievance procedures before filing a Title VII lawsuit in Federal

Court. The Eighth Circuit’s discussion of this issue does not

contain the same in-depth analysis as the Fourth Circuit’s Austin

decision. As authority for its decision, the Eighth Circuit cited

exclusively to the Supreme Court’s decision in Alexander v.

Gardner-Denver Co., 415 U.S. 36, 49 (1974) and Stacks v.

Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1326 n. 3

(8th Cir. 1994) without any further analysis. The Eighth Circuit

did not discuss Austin, decided almost six months earlier,

although Petitioner cited Austin in its appellate briefs.

Relying upon this Court’s holding in Gardner-Denver, the

Eighth Circuit held:

[T)he United States Supreme Court has held

that the pursuit of a claim through grievance

and binding arbitration under a CBA

[Collective Bargaining Agreement] does not

preclude a civil suit under Title VII, (citation

omitted), and we believe the same reasoning

applies to a plaintiff who has chosen not to

participate in the grievance procedure.

The Eighth Circuit concluded that the District Court did not err

in denying National’s Motion for Judgment as a Matter of Law.

The relevant facts in Austin are substantially similar to this

case. Austin filed suit alleging violations of Title VII (sexual

discrimination) and the Americans with Disabilities Act. The

terms, conditions, and privileges of Austin’s employment, like

Varner’s, were bargained for and identified in her collective

bargaining agreement. The collective bargaining agreements of

both Austin and Varner specifically identify allegations of sex

discrimination as matters that are subject to a mandatory

grievance and arbitration process. Hence. like Varner, Austin

was a party to an agreement to submit her statutory sexual

discrimination claims to arbitration. Both claimants failed to

follow the grievance-arbitration process prescribed by their

collective bargaining agreements.

The Austin court determined that the language contained in

Austin’s collective bargaining agreement showed that Austin was

a party to a “voluntary agreement which has explicitly agreed

to the arbitration of her statutory claims.” Austin, 78 F.3d at

883, n. 2. The terms of Austin’s collective bargaining agreement

which the Fourth Circuit relied upon in reaching its conclusion

are substantively identical to those contained in Varner’s

Agreement. In Austin, the collective bargaining agreement reads:

The Company and the Union will comply

with all laws preventing discrimination

against any employee because of race, color

religion, sex, national origin, age, handicap,

or veteran status.

Austin, 78 F.3d at 879.

Varner’s Agreement, § 2.5 under “Union Security”, reads:

The Employer and the Union agree that there

shall be no discrimination against any

employee . . . because of race, religion, color,

creed, national origin, sex or age in

accordance with existing law.

(App. 35a, 51a).

Austin and Varner’s Agreements both contain a mandatory

grievance and arbitration procedure. See Austin, 78 F.3d at 880

and Varner’s Collective Bargaining Agreement, Article 4 App.

37a-39a, 53a-55a). And, as in Austin, Varner’s Agreement at

Article 4.3 provides that “[t]he decision of the arbitrator shall

be binding on both parties.” See App. 39a, 55a, Article 4.3, and

Austin, 78 F.3d at 880.

B. The Conflict Between The Circuits Creates Uncertainty

Amongst Employers And Unions As To Whether Bargained

For Grievance Procedures Are Applicable To Employee

Complaints Of Sexual Discrimination, Sexual Harassment,

And Hostile Working Conditions

The working conditions of union employees are a mandatory

subject of collective bargaining. See Labor Management

Relations Act, 29 U.S.C. § 158(d). (App. 72a). The Labor

Management Relations Act mandates that employers bargain in

good faith with unions on issues involving “wages, hours, and

other terms and conditions of employment.” Jd. The Supreme

Court in Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) held

that an issue is a mandatory subject of bargaining if the matter

is “plainly germane to the working environment .. .”

The Eighth Circuit’s application of Gardner-Denver to the

present case results in the erosion of the well-established

principle of labor law: employees, unions, and employers are

bound to follow the bargained for grievance process before filing

suit and that such a rule promotes harmony in the workplace.

The Labor Management Relations Act embodies a strong federal

policy favoring compulsory arbitration of disputes concerning

application or interpretation of collective bargaining agreements.

Textile Workers Union of America v. Lincoln Mills, 353 U.S.

448, 455 (1957). A critical element of this federal policy is the

requirement that an employee exhaust grievance and arbitration

procedures prior to filing a lawsuit. Republic Steel Corp. v.

Maddox, 379 U.S. 650 (1965). In Republic Steel, the United

States Supreme Court reiterated that:

[FJederal labor policy requires that individual

employees wishing to assert contract

grievances must attempt use of the contract

grievance procedure agreed upon by the

employer and union as the mode of redress.

Id. at 652.

... unless the contract provides otherwise,

there can be no doubt that the employee must

afford the union the opportunity to ac: on his

behalf. Congress has expressly approved

contract grievance procedures as a preferred

method for settling disputes and stabilizing

the “common law” of the plant.

Republic Steel, 379 U.S. at 652, citing Labor Management

Relations Act, 29 U.S.C. §§ 171(a) and (c) and 29 U.S.C.

§ 173(d). (App. 73a-74a).

This Court in Republic Steel further opined:

... A contrary rule which would permit an

individual employee to completely sidestep

available grievance procedures in favor of a

lawsuit has little to commend it. In addition

to cutting across the interests already

- mentioned, it would deprive employer and

union of the ability to establish a uniform and

exclusive method for orderly settlement of

employee grievances. If a grievance

procedure cannot be made exclusive, it loses

much of its desirability as a method of

settlement.

Republic Steel, 379 U.S. at 652.

Contrary to the Eighth Circuit’s finding in the present case,

Congress intended Title VII to “supplant” rather than

“supplement” other remedies for employment discrimination.

Knox v. Wheeling Pittsburgh Steel Corp., 899 F. Supp. 1529,

1539 (N.D. W. Va. 1995). Title VII makes it unlawful for an

employer to “discriminate against any individual with respect

to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin.” 42 U.S.C. §§ 2000e-2(a)(1) and (2).

(App. 71a). Requiring an employee who is a party to a voluntary

agreement to submit his statutory discrimination claim to a

grievance-arbitration procedure furthers the purpose of Title VII

because it provides an alternative remedy to the employer and

employee to enact prompt remedial measures to end the

discrimination.

Congress’ intent to have federal litigation of employment

discrimination supplement rather than supplant the collective

bargaining process is exemplified in its enactment of § 118 of

the Civil Rights Act of 1991. In § 118, Congress expressed its

confidence in and encouragement of arbitration as a desirable

means of resolving complaints of discrimination:

§ 118 Alternative Means of Dispute

Resolution.

Where appropriate and to the extent

authorized by law, the use of

alternative means of dispute

resolution, including settlement

negotiations, conciliation, facilitation,

mediation, factfinding, minitrials and

arbitration, is encouraged to resolve

disputes arising under the Acts or

provisions of Federal law amended by

this title. 42 U.S.C. § 2000E-2, Pub.

L. 102-166, 105 Stat. 1071.

(App. 72a).

Grievance procedures in labor contracts are designed to keep

problems from escalating. The grievance process is an expedient

and cost effective method of resolving complaints of

discrimination. For example, if Varner had filed a complaint after

Edmiston’s first offensive remark, allowed her employer to

investigate and deal with the situation appropriately, it is highly

unlikely that there would have been any further incidents of

harassment. More specifically, National could have investigated

the complaint, spoken with each of the concerned employees,

counseled either or both employees, encouraged or required that

one or the other seek professional counseling, offered transfers

out of their respective work departments or store, offered leaves

of absence, administered discipline to the offending party, etc.

Varner’s timely complaint could have also resulted in the early

rehabilitation of Edmiston, and perhaps even avoided him losing

his job (since his offensive actions would likely have ceased

after an early reprimand).

It was solely within Varner’s power to keep the problem

from intensifying. A simple grievance filed by Varner, early on

in the course of her dealings with Edmiston, could also have

avoided the need to have the E.E.O.C. incur the expense of

investigating the case, the exorbitant cost of litigating this case

before a jury in federal court, and considerable expense to the

employer in having to defend itself during the course of the

lawsuit, Nevertheless, in spite of Varner’s numerous

opportunities to inform her union or employer of her problems,

Varner chose to “save up” her complaints for a lawsuit in federal

court. Surely this is not the type of prompt and efficient problem

solving mechanism that Congress envisioned. The intent of the

Title VII or the Labor Management Relations Act is not advanced

by permitting such conduct, and actions such as Varner’s serve

to erode the very purpose of such grievance procedures; to

resolve disputes before they get out of control.

As explained by the Supreme Court in Republic Steel, the

union, as well as the employer has an interest in seeing union

employee complaints processed through the grievance

procedure. Republic Steel, 379 U.S. at 652. Involvement of the

union will help insure uniformity in the management of sexual

discrimination/harassmeni complaints, equality and impartiality

in the treatment of complaining parties, consistency in dealing

with harassers (who may also be union employees), and

generally, will promote an orderly process for settling the

employees’ disputes. The need for such stability is emphasized

by the fact that 16.4 million wage and salary employees were

union members in 1995. In private industry, transportation, and

public utilities, 27 percent of the workers are union members.

In construction and manufacturing, 18 percent of the workers

are union members. See “News”, United States Department of

Labor, Bureau of Labor Statistics, February 9, 1996, p. 1.

Title VII should be allowed to co-exist with, rather than

displace, the federal policy encouraging mandatory arbitration

of employment disputes under collective bargaining agreements.

Knox, 899 F. Supp. at 1539. Allowing the current conflict

between the federal jurisdictions to exist will cause uncertainty

amongst the employees, unions and employers as to the

enforceability of mandatory grievance provisions in collective

bargaining agreements. See Republic Steel, 379 U.S. at 652.

C. The Alexander v. Gardner-Denver Co., Decision Is Not In

Conflict With Petitioner’s Request That This Court Find

That A Union Employee Must Follow The Grievance And

Arbitration Provision In Her Collective Bargaining

Agreement Before Filing Suit Under Title VU; However, This

Court May Wish To Examine The Eighth Circuit’s

Applicability Of Gardner-Denver To The Present Case

The Eighth Circuit, citing Alexander v. Gardner-Denver Co.,

415 U.S. 36, 49, 94 S. Ct. 1011, 1020 (1974), observed that the

United States Supreme Court has held that “the pursuit of a claim

through grievance and binding arbitration under a [Collective

Bargaining Agreement] does not preclude a civil suit under Title

VII.” Relying exclusively upon the Gardner-Denver decision,

the Eighth Circuit then stated: “and we believe the same

reasoning applies to a plaintiff who has chosen not to participate

in the grievance procedure.” (App. 7a). In Gardner-Denver, the

Court held that an aribtration decision in favor of the employer

did not preclude the employee from filing suit later against the

employer. In the present case, the facts are very different. Varner

did not even file a grievance and, therefore, she never gave the

employer or the union an opportunity to resolve, or if necessary,

arbitrate her case. Hence, the question decided by Gardner-

Denver is not at issue here.

Subsequent to Gardner-Denver, the Supreme Court decided

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.

Ct. 1647, 114 L. Ed. 26 (1991). In Gilmer, the Supreme Court

held that an employee’s age discrimination claim can be subject

to compulsory arbitration pursuant to an arbitration agreement.

Id. at 1650. The Supreme Court concluded that the agreement

required the arbitration of statutory claims in addition to

contractual ones, and affirmed the appellate court’s decision to

compel arbitration of the plaintiff’s ADEA action. Jd. at 1657.

- The contract in Gilmer required that Gilmer arbitrate “any

dispute, claim or controversy” arising between Gilmer and his

employer “that is required to be arbitrated under the rules,

constitutions or by-laws of the organizations with which I

vague when compared with the terms of the agreements in Varner

and Austin which specifically refer to complaints of sex

discrimination.

Because Varner has not yet filed a grievance under her

Collective Bargaining Agreement, this case, like Gilmer, involves

the issue of enforceability of an agreement to follow a grievance

and arbitration process regarding complaints of discrimination

(i.e. statutory claims), not, as in Gardner-Denver, the preclusive

effect of a prior arbitration award. See Gilmer, 111 S. Ct. at

1647. Moreover, an agreement to arbitrate complaints of

discrimination does not cause the party to lose his statutory

rights, “it only submits their resolution in an arbitral, rather than

a judicial forum.” Gilmer, 111 S. Ct. at 1652, citing Mitsubishi

Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,

628, 105 S. Ct. 3346, 3354, 87 L. Ed. 2d 444 (1985).

The Gilmer court held that a party should be held to a

bargain to arbitrate a statutory claim “unless Congress itself has

evinced an intention to preclude waiver of judicial remedies for

the statutory rights at issue.” Gilmer, 111 S. Ct. at 1657. Applying

this holding to Title VII cases, there is no evidence that Congress

intended to preclude substitution of an arbitral tribunal (or at

least initial deferral to an arbitral tribunal) for a judicial forum

in Title VII cases. As discussed above, § 118 of the <ivil Rights

Act of 1991 specifically encourages the use of arbiration as an

alternative means of resolving employment discrimination

disputes. 42 U.S.C. § 2000E, 105 Stat. 1071.

National is mindful of one distinction between the present

case and Gilmer. The Gilmer court was not confronted with the

enforcement of a grievance and arbitration clause in a collective

bargaining agreement, rather Gilmer’s arbitration clause was

contained in his securities registration application. The fact that

this case involves a Collective Bargaining Agreement as did the

Gardner-Denver case, rather than a securities registration

application as in Gilmer, is not relevant to whether Varner should

be required to pursue her remedies through the Collective

Bargaining Agreement before filing a Title VII suit for damages.

See Gilmer, 500 U.S. at 35.

The Gilmer decision is not inconsistent with Gardner-

Denver since Gilmer dealt with a private employee contract and

Gardner-Denver dealt with a collective bargaining agreement.

However, in deciding whether to accept Petitioner’s application,

this Court may wish to consider whether the holding in Gardner-

Denver should be re-examined in light of the enactment of the

Civil Rights Act of 1991 which encourages arbitration and in

light of Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth,

473 U.S. 614, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985). In

Mitsubishi, the Supreme Court stated that “we are well past the

time when judicial suspicion of the desirability of arbitration

and of the competence of arbitral tribunals inhibited the

development of arbitration as an alternative means of dispute

resolution.” 105 S. Ct. at 3354.

By agreeing to arbitrate a statutory claim, a

party does not forego the substantive rights

afforded by the statute; it only submits to

their resolution in an arbitral, rather than

judicial, forum. It trades the procedures and

opportunity for review of the courtroom for

th« simplicity, informality, and expedition of

arbitration. (Emphasis added).

Mitsubishi, 473 U.S. at 3354.

Mitsubishi involved claims of breach of contract, Sherman

Act violations, interpretation of the Puerto Rico Dealers Act,

etc., and the Supreme Court had confidence that an arbitrator

could adequately handle all of these issues. So long as the

claimant may effectively vindicate his or her statutory cause of

action in the arbitral forum, the statute will continue to serve

both its remedial and deterrent functions. Mitsubishi, 105 S. Ct.

at 3359. Clearly the Supreme Court considers arbitrators

competent to interpret and apply federal statutes, as evidenced

by decisions such as Gilmer requiring arbitration of Title VII

and ADA claims for individual employment contracts. See also

Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.

1991).

Although Gilmer and its progeny were cases involving the

application of the Federal Arbitration Act, the presumption

favoring arbitration is equally applicable to non-FAA cases. The

Federal Arbitration Act is “a congressional declaration of a

liberal federal policy favoring arbitration agreements.” Moses

H. Cone Memorial Hospital v. Mercury Construction, 460 U.S.

1, 24, 103 S. Ct. 927, 941, 74 L. Ed. 2d 765 (1983). Since both

Congress and the Supreme Court have accepted arbitration as a

reasonable and prudent method of resolving complex disputes,

this Court should re-examine the enforceability of a grievance

and arbitration clause pertaining to complaints of sexual

discrimination in a union workplace.

D. Summary Of Point I

Varner’s filing of a lawsuit without reporting her complaints

to National’s management or to the Union is an example of the

type of acrimonious employer-employee situation that collective

bargaining is designed to avoid. Section 201 of Title II of the

Labor Management Relations Act provides that:

(a) Sound and stable industrial peace and the

advancement of the general welfare, health,

and safety of the Nation and of the best

interest of employers and employees can

most satisfactorily be secured by the

settlement of issues between employers and

employees through the processes of

conference and collective bargaining

between employers and the representatives

of their employees.

Labor Management Relations Act, Title II, § 201, 29 U.S.C.

§ 171(a) and (c), 61 Stat. 152 (1947).

The introductory language of the Collective Bargaining

Agreement states the “intent” of the parties is to provide “a

channel through which information and problems can be

transmitted from one to another . . .” However, the intent of the

parties cannot be carried out when the individual union

employees refuse to transmit the “problems” through the agreed

upon channels, nor when the Courts refuse to require employees

to do so. The mandatory grievance and arbitration procedure

bargained for in Varner’s Agreement should be enforced as a

condition precedent to filing suit against National for Title VII

damages.

The conflict between the Circuits and lack of guidance from

the Supreme Court will result in uncertainty amongst employers,

employees and unions regarding the enforceability and

applicability of grievance procedures to employee complaints

of discrimination in a union workplace. Until this Court resolves

the conflict, employers, employees, and unions will be unsure

of whether employees are required to initially process complaints

~’ of discrimination in the workplace through the agreed upon

channel of communication, the grievance process. Negotiated

grievance procedures are critical, and some would say, the most

important aspect of collective bargaining. The decision of the

Eighth Circuit results in the beginning of the carving out of many

exceptions to the mandatory grievance process.

Petitioner respectfully requests this Court to accept this case

for hearing, and find that union employees are required to

process their discrimination grievances through the negotiated

process before filing suit against the employer.

Il.

THERE IS A CONFLICT BETWEEN THE EIGHTH

CIRCUIT IN THE PRESENT CASE AND THE THIRD

CIRCUIT IN BOUTIN v. BMW OF NORTH AMERICA

CONCERNING WHETHER AN EMPLOYER IS LIABLE

FOR THE SEXUALLY HARASSING ACTS OF A

NON-SUPERVISORY EMPLOYEE, WHEN THE

EMPLOYER MAINTAINS AN EXPRESS POLICY

PROHIBITING SEXUAL HARASSMENT AND

EXPRESSLY PRESCRIBES PROCEDURES TO BE

FOLLOWED FOR REPORTING COMPLAINTS OF

SEXUAL HARASSMENT, AND THE VICTIM CHOOSES

NOT TO FOLLOW THE REPORTING POLICY. IN

MERITOR v. VINSON, THIS COURT HELD THAT AN

EXPRESS POLICY WHICH ENCOURAGES VICTIMS TO

COME FORWARD AND REPORT THEIR COMPLAINTS

OF HARASSMENT MIGHT INSULATE AN EMPLOYER

FROM LIABILITY, AND THIS CASE PRESENTS THE

COURT WITH THE OPPORTUNITY TO EXPOUND

UPON THIS POTENTIAL DEFENSE FOR EMPLOYERS.

A. The Supreme Court Should Clarify Under What

Circumstances An Employee Is Required To Follow An

Employer’s Express Policy For Reporting Complaints Of

Sexual Harassment And Whether An Employee’s Failure To

Follow The Express Policy Insulates The Employer From

Liability

In Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 61,

106 S. Ct. 2399, 2408 (1986), this Court held that Congress

evinced an “intent to place some limits on the acts of employees

for which employers under Title VII are to be held responsible.”

Meritor, 477 U.S. at 71. In Meritor, the employer had a general

non-discrimination policy, rather than a specific policy directed

against sexual harassment, and the employer required that the

victim must first complain to her supervisor, who in Meritor,

happened to be the perpetrator of the harassment.

The employer in Meritor argued that the existence of the

employer’s grievance procedure and policy against

discrimination, coupled with the employee’s failure to invoke

that procedure, must insulate the employer from liability. The

Supreme Court rejected the employer’s argument because: (1)

the employer’s policy was a “general nondiscrimination” policy

that did not specifically address sexual harassment, and “thus

did not alert employees to employer’s interest in correcting that

form of discrimination”; and (2) the employer's “grievance

procedure” required the employee to report the harassment to

the perpetrator of the harassment, her supervisor. However, this

Court concluded its discussion by stating:

[The employer’s] contention that [the

employee’s] failure [to follow the grievance

procedures] should insulate it from liability

might be substantially stronger if its

procedures were better calculated to

encourage victims of harassment to come

forward.

Meritor, 477 U.S. at 71.

The Court’s statement strongly suggests that an employer

may be insulated from liability if the employer has a written

policy against sexual harassment which contains procedures

calculated to encourage victims of harassment to come forward,

and the victim fails to follow the prescribed procedures. The

current case presents this Court with the opportunity to consider

the question of whether an employer can be liable for the

harassing acts of a non-supervisory employee when the employer

has an express policy for the reporting of the harassment and

the victim chooses not to come forward to file her complaint

with the employer before filing her complaint with the Equal

Employment Opportunity Commission.

A plaintiff must establish five elements to hold an employer

liable under a under a hostile work environment sexual

harassment claim: (1) the victim is a member of a protected

group; (2) she was subjected to unwelcome sexual harassment;

(3) the harassment was based on sex; (4) the harassment affected

a term, condition, or privilege of employment; and (5) the

employer knew or should have known of the harassment and

failed to take appropriate remedial action. Stanton v. Maries

County, 868 F.2d 996, 998 (8th Cir. 1989). However, there is a

serious problem in the application of this law when an employer

can be held liable for harassment by a non-supervisory employee

regardless of whether the individual claiming harassment

knowingly chooses to ignore the employer's reporting

procedures.

In the present case, National had a written policy against

sexual discrimination which also sets out the procedure for

reporting a complaint of sexual harassment. National's Policy

requires that all complaints of sexual harassment be reported to

either Carol Schoene or Roger Beckman, and that thereafter a

confidential investigation of the complaint will be undertaken.

The Policy informs the employees that upon completion of the

investigation, the harasser will be subject to discipline, up to

and including discharge. (App. 64a-65a, 67a-68a).

Varner knew of National’s Policy and the reporting

procedure at the inception of her employment (App. 58a-63a).

Varner testified that she was instructed to report the harassment

but that she “chose” not to report it to anyone at National.

Varner claims that she was subjected to four offensive

comments and one offensive physical contact by Edmiston

before the last offensive incident. These events occurred over a

period of at least several months. During those months, Varner

had ample opportunity to follow National’s policy and report

her complaints. Holding National liable when its employee

decided that she simply was not going to follow National’s

reporting procedures results in National being held strictly liable

for the acts of its non-supervisory personnel. Under the Eighth

Circuit’s ruling, any employee can simply ignore the rules for

the reporting of sexual harassment, “save up” all of her

complaints, never give her employer an opportunity to

investigate or remedy the problem, and then file a lawsuit against

the employer for damages.

In the present case, it was solely within Varner’s power to

keep the harassment from continuing. A simple verbal complaint

made by Varner, early on in the course of her interaction with

Edmiston, would have avoided the need to have the EEOC/

MCHR investigate Varner’s claims, would have avoided the

exorbitant expense of Varner’s awarded attorneys’ fees and costs,

would have avoided the Court’s time and expense in overseeing

the discovery, trial proceedings, and appeals, and would have

avoided any damages Varner claimed at trial.

Prior to the last incident of harassment, the incident upon

which the majority of Varner’s damages were claimed at trial,

Varner “chose” to tell her school counselor, her boyfriend and

her mother of Edmiston’s actions. However, Varner elected not

to inform National of her complaints.

National’s Director of Human Resources and Labor

Relations testified as to the extensive research and thought that

went into the preparation of National’s Policy against sexual

harassment, including the development of the reporting

procedures. The Director testified that when developing

National’s Policy against sexual harassment, National reviewed

the existing law, national and local labor law publications,

consulted with other similarly situated corporations, reviewed

publications directed towards the supermarket industry, and

consulted with attorneys. In this research, National observed

that the majority of the published cases of sexual harassment,

nationwide and in the supermarket industry, involved harassment

by a supervisor. As a result, National’s Policy requires that the

victim report to individuals outside the store environment, Roger

Beckman and Carol Schoene. This reporting procedure ensures

that the victim is not required to report the harassment to a

harassing supervisor, respects the victim’s confidentiality

concerns, and ensures an impartial and unbiased investigation.

National did not want a Policy that contained a lot of

contingencies, and it purposely drafted the policy so it was easy

to understand and follow.

In the present case, National took the initiative to implement

a policy prohibiting any form of sexual harassment and it set

forth a written procedure for filing complaints of harassment.

The Policy requires that the employee voice his/her complaints

to specific individuals who are trained to conduct confidential

investigations. The Policy removes the need for the employees

to complain to his/her supervisor and ensures an impartial

investigation. The Policy ensures, that in a large organization,

such as National, only those individuals with training and

experience are allowed to conduct such sensitive investigations,

and by requiring that the victim complain to certain individuals,

the company is assured that the proper people of authority have

knowledge of all instances of harassment. _

Varner admits that she did not follow the known Policy and

that she knew that she was the one who needed to come forward

and report the situation, but claims that since her boyfriend spoke

to the manager of the store, she did not need to do anything

further. This is exactly the type of situation that National’s Policy

was designed to avoid. A complaint by a harassee’s boyfriend

to someone who was not charged with or experienced in

otherwise handling sexual harassment complaints resulted in

the employer being held liable for the harassment when the

proper individuals of authority had no knowledge of the

harassment.

The Court should accept this opportunity to clarify when

an employer can be liable for acts of sexual harassment when

the harassee chooses not to report the harassment through the

proper channels.

B. The Conflict Between The Third And Eighth Circuits

There is a conflict between the Third and Eighth Circuits

regarding employer liability when the employee fails to report

the harassment. The Third Circuit in Bouton v. BMW of North

America, Inc., affirming the District Court’s judgment against

employee Bouton, held that a grievance procedure that is known

to the victim and that timely stops the harassment shields the

employer from Title VII liability for a hostile environment.

Bouton, 29 F.3d 103, 110 (1994). In Bouton, the company’s oral

policy regarding sexual harassment was that “there will be none.”

Any complaints of sexual harassment could be pursued through

the company’s general grievance procedures. Bouton, 29 F.3d

at 109. Bouton interpreted Meritor as allowing for the

“possibility that an employer could escape liability if the

[grievance] procedure was sufficiently effective.” Jd. at 107.

Even though National had a more specific, written Policy

against sexual harassment than in Bouton, and even though

Varner chose not to report the harassment to anyone at National

in spite of her knowledge of the Policy, including the grievance

procedure, the Eighth Circuit held National liable under Title

VII for a hostile working environment. The Eighth Circuit held

that Varner’s failure to invoke the reporting procedures of

National’s Policy does not entitle National to judgment as a

matter of law. (App. 8a).

Although the Eighth Circuit in this case recognized that

National had a written policy against sexual harassment and a

grievance procedure for reporting such complaints, the Court

held, contrary to Bouton, that “National’s sexual harassment

policy is not alone sufficient to shield it from liability.” (App.

8a).

The Eighth Circuit misapplied the dicta in Meritor. The

Eighth Circuit stated that: “[t}he Meritor Court found that a

policy that was not ‘calculated to encourage victims of

harassment to come forward’ did not insulate the company from

liability.” (App. 9a). The Eighth Circuit stated that National's

Policy was insufficient because the employee’s immediate

supervisor was not required to report the harassment to the

appropriate individuals when the complaint was lodged by a

third party, non-witness, Varner’s boyfriend. (App. 8a-9a).

National’s Policy did encourage employees to come forward and

it specified to whom the complaints should be made. National's

Policy should not be deemed insufficient because Varner chose

to have her boyfriend report her complaints to someone who

was not responsible for investigating such complaints.

C. Various Circuits Have Interpreted Meritor Differently

And This Court Should Clarify The Holding In Meritor

In Gary v. Long, 39 F.3d 1391, 1397-1398 (D.C. Cir. 1995),

the United States Court of Appeals held, citing Meritor, that the

employer is not liable for sexually hostile work environment if

the employee knew or should have known that: (1) the employer

did not tolerate sexual harassment; and (2) the employee could

report it to the employer without fear of adverse consequences.

Gary, 39 F.3d at 1398.

In Jansen v. Packaging Corp. of America, 895 F. Supp. 1053,

1067 (N.D. Ill. 1995), the employer was granted summary

judgment under a hostile work environment claim because the

employee knew or should have known that the perpetrator’s

conduct was not sanctioned by the company. The District Court

for the Northern District of Illinois held that the employee

“plainly” knew she had “some recourse at [the company].” See

also Weaver v. Minnesota Valley Laboratories, Inc., 470 N.W.

2d 131, 135 (Minn. App. 1991) (holding an employer not liable

because the employee failed to complain).

In Equal Employment Opportunity Commission v. Hacienda,

881 F.2d 1504, 1516 (9th Cir. 1989), the employer, like Meritor,

had a general non-discrimination policy that did not specifically

prohibit sexual harassment and required initial resort to the

supervisor who is accused of engaging in the harassment.

Although the District Court cited Meritor when it denied the

employer’s argument that the employer was insulated from

liability because of the employee's failure to pursue her internal

remedies, the District Court further stated: “[i]n any event, this

court has held that a Title VII plaintiff need not exhaust her

employer’s internal remedies.” Hacienda, 881 F.2d at 1516,

citing Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979).

Miller is a pre-Meritor case and, therefore, does not consider

the dicta of Meritor.

D. Summary Of Point II

Varner knew or should have known of National’s policy

against sexual harassment. Varner knew, by her own admission,

that she should have reported her complaints about Edmiston.

Varner simply chose not to. Varner’s failure to properly report

her complaints should bar her recovery under Title VII.

In Meritor, this Court implied that a proper policy which

specifically condemns sexual harassment, encourages employees

to report acts of harassment, and provides for a reporting

procedure to someone other than the harasser, might shield an

employer from liability for the harassing acts of its employees.

In the present case, not only did the employer have such a policy,

but the employee totally failed to follow the procedures set out

in the policy, and instead, filed her complaint directly with the

E.E.0.C.

National respectfully requests this Court to accept this -

Petition for Writ of Certiorari and specify when, if ever, such a

policy must be followed by an employee before the employee is

allowed to recover damages against its employer.

CONCLUSION

For the stated reasons, National Super Markets, Inc.’s

Petition for Writ of Certiorari should be granted.

Respectfully submitted,

ANN MARIE PIANA

Counsel of Record

ANN E. HAMILTON

Attorneys for Petitioner

524 Earth City Expressway

Suite 242

St. Louis, Missouri 63042

(314) 739-8661

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

FILED SEPTEMBER 9, 1996

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-3611

Lisa Anne Varner, Rony Varner, Peggy Varner,

Plantiffs/Appellees,

National Super Markets, Inc.,

Defendant/Appellant.

No. 95-3839

Lisa Anne Varner,

Plaintiff/Appellant,

Rony Varner, Peggy Varner,

Plaintiffs,

National Super Markets, Inc.,

Defendant/Appellee.

Appendix A

Appeals from the United States District Court for the Eastern

District of Missouri.

Submitted; June 10, 1996

Filed: Sertember 9, 1996

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit

Judge, and DOTY, * District Judge.

WOLLM 4 N, Circuit Judge.

National Super Markets, Inc. (National) appeals the

district court’s' judgment in favor of Lisa Anne Varner on her

claim brought under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq., and the Missouri Human Rights Act

(MHRA), Mo. Rev. Stat. §§ 213.010 et seq. Varner cross-

appeals various rulings by the district court. We affirm.

Over the course of several weeks in the spring of 1991,

Robert Edmiston, a 51-year-old produce worker at National,

approached Varner, a 17-year-old floral worker, and made

graphic sexual comments and displayed pornography to her. In

July or August of 1991, Edmiston approached Varner from

Lehind, reached his arms under Varner’s arms, and squeezed her

* The HONORABLE DAVID S. DOTY, United States District Judge

for the District of Minnesota, sitting by designation.

1. The Honorable Jean C. Hamilton, Chief Judge, United States

District Court for the Eastern District of Missouri.

Appendix A

breasts. Varner broke free and ran from the room. She then

finished her shift and went home. Varner called Chris Pilch,

who was her fiance and also a National employee, and related

what had happened. Pilch immediately called Curtis Mason, the

Store manager, and told him that Edmiston had grabbed

Varner’s breasts. According to Pilch’s testimony, Mason told

him that he could not do anything unless Varner reported the

incident to him, and then he could possibly say something to

Edmiston, but that would make the situation worse. According

to Pilch, Mason further advised him that “he could just let it

alone and maybe Bob would just leave her alone and forget

about it.” Mason did not report the incident to anyone.

On November 22, 1991, Edmiston again approached

Varner from behind, put his arms through her arms, and grabbed

her breasts. Edmiston then grabbed Varner’s thumbs and forced

her hand behind her back into his crotch area. Varner again

broke free and ran from the room — on her way out telling co-

worker Patrick McCorkle that Edmiston had grabbed her.

Varner finished her shift and went home, where she told her

mother what had happened and then called Pilch and told him

what had happened. Pilch called Mason that evening and told

him that Edmiston had again grabbed Varner’s breasts. Pilch

testified that Mason’s response was the same this time as it had

heen after the first complaint, except this time Mason added an

additional dismissive comment: “That’s just Bob being

himself.” Mason again took no further action. Mason testified

that he told Pilch to tell Varner to call Roger Beckman in the

Human Resources Department.

Varner reported the incident to the police the next morning.

At the police officers’ request, Varner telephoned Edmiston.

The police taped the conversation, in which Edmiston admitted

Appendix A

sexually assaulting Varner on two occasions. The police went to

National’s store and arrested Edmiston. Mason told the police

that he was aware of the incidents but that there was nothing he

could do unless Varner told him about it herself. Mason then

contacted his district manager about the incident.

Although Varner continued to work, she suffered from

nightmares, mood swings, depression and crying episodes, and

she became afraid to go to work. She was diagnosed as suffering

from post-traumatic stress syndrome caused in part by the

sexual comments and the first touching incident, but mostly

caused by the November 22, 1991 incident.

National’s sexual harassment policy directs employees

who believe they have been subjected to sexual harassment to

contact individuals in the Human Resources Department or the

Labor Relations Department. The policy provides that a

supervisor who has learned of an incident of sexual harassment

is to direct the employee to contact one of those individuals; the

supervisor is not to take any personal action. The policy was

included in the employee orientation handbook that Varner had

agreed to familiarize herself with during orientation.

Varner was a member of United Food & Commercial

Workers’ Union, Local 655, which has a collective bargaining

agreement (CBA) with National. Varner did not participate in

the grievance and arbitration procedures in place under the

CBA.

Varner filed acomplaint with the Missouri Commission on

Human Rights (MCHR) and the Equal Employment

Opportunity Commission (EEOC) on May 18, 1992. She then

filed her complaint in Missouri state court. National removed

Appendix A

the action to federal district court. A jury awarded Varner

$30,000 in actual damages. The district court denied National's

motion for judgment as a matter of law (JAML).

National argues on appeal that the district court

erroneously denied its motion for JAML because: (1) Varner’s

exclusive remedy is under the Missouri workers’ compensation

law; (2) Varner failed to exhaust grievance and arbitration

remedies under the CBA; (3) Varner failed to invoke the

reporting procedures of National’s sexual harassment policy;

and (4) Varner failed to timely file her administrative

complaint, and thus her claims concerning any pre-November

22, 1991 incidents were barred by the statute of limitations.

Varner cross-appeals, arguing that the district court erred in

formulating jury instructions, admitting and excluding certain

evidence, and in failing to submit her punitive damages claim to

the jury.

We review a district court’s denial of a motion for JAML de

novo, applying the same standard used by that court. Triton

Corp. v. Hardrives, Inc., 85 F.3d 343, 345 (8th Cir. 1996). We

must view all facts and resolve any conflicts in favor of Varner,

giving her the benefit of all reasonable inferences. Jd. We will

affirm the denial of the motion for JAML if a reasonable jury

could differ as to the conclusions that could be drawn, and we

will not weigh, evaluate, or consider the credibility of the

evidence. Jd.

Il.

National first argues that the district court lacked subject

matter jurisdiction over Varner’s complaint because Varner’s

exclusive remedy was under state workers’ compensation law,

Appendix A

as the damages she claimed were the same as those provided

under the Workers’ Compensation statute. Mo. Rev. Stat.

§§ 287.010 et seq. The exclusivity provision of the Missouri

workers’ compensation statute provides that:

The rights and remedies herein granted to an

employee shall exclude all other rights and

remedies of the employee . . . at common

law or otherwise, on account of such

accidental injury as death, except such

rights and remedies as are not provided for

by this chapter. Mo. Rev. Stat. § 287.120.2.

We recently rejected a similar contention, holding instead

that the exclusivity provision cannot preempt an employee’s

federally-created right to recover damages under Title VII.

Karcher v. Emerson Electric Co., No. 95-3427, slip op. at 12

(8th Cir. Sept. 4, 1996). Moreover, as we did in Karcher, we

decline to read the provision to bar the recovery of damages

under the MHRA absent clear direction from the Missouri

courts, and we have found no such direction.

Although Missouri courts have held that the exclusivity

provision bars common law tort actions that arise out of

incidents covered by the workers’ compensation act statute,

see, e.g., Hill v. John Chezik Imports, 797 S.W.2d 528,531 (Mo.

Ct. App. 1990), they have not extended the exclusivity

provision to bar suits under the MHRA. Indeed, the language of

the MHRA appears to preclude any such finding. The statute

States, in relevant part, that:

The provisions of this chapter shall be

construed to accomplish the purposes

Appendix A

thereof and any law inconsistent with any

provision of this chapter shall not apply.

As we said in Karcher, we interpret broadly the remedial

purpose of the MHRA, and we thus hold that an award of

damages under the statute is not foreclosed by the possibility

that such damages would have been recoverable under the

Workers’ Compensation Act. Karcher, slip op. at 12.

Ill.

National next argues that the district court erred in failing

to grant its motion for JAML because Varner failed to exhaust

grievance and arbitration remedies under the CBA.

The Missouri Supreme Court has resolved this question

with respect to the MHRA, holding that exhaustion of other

available administrative remedies is not required before filing

suit underthe MHRA. Green v. City of St. Louis,, 870 S.W.2d

794, 796 (Mo. 1994) (en banc). Moreover, the United States

Supreme Court has held that the pursuit of a claim through

grievance and binding arbitration under a CBA does not

preclude a civil suit under Title VII, see Alexander v. Gardner-

Denver Co., 415 U.S. 36, 49 (1974), and we believe the same

reasoning applies to a plaintiff who has chosen not to

participate in the grievance procedure.

In Alexander, the Court stated that, “federal courts have

been assigned plenary powers to secure compliance with Title

VII.” 415 U.S. at 47. We interpret this absolute grant of power to

entail an absolute right to adjudicate suits under Title VII as

long as the jurisdictional prerequisites dictated in Title VII

itself are satisfied. These prerequisites do not include an

Appendix A

exhaustion of grievance procedures under a CBA. See 42

U.S.C. § 2000e-5(b), (e) and (f). See also Stacks v.

Southwestern Bell Yellow Pages, Inc.,27 F.3d 1316, 1326 2.3

(8th Cir. 1994). Thus, National’s argument that such an

exhaustion is required before bringing suit is without merit, and

the district court therefore did not err in denying National’s

motion for JAML.

IV.

National next argues that the district court erred in denying

its motion for JAML because Varner failed to invoke the |

reporting procedures of National’s sexual harassment policy.

We reject this claim. The relevant question is whether National

knew or should have known of the harassment and failed to

implement prompt and appropriate corrective action. Staton v.

Maries County, 868 F.2d 996, 998 (8th Cir. 1989).

We conclude that Varner’s reports of the incidents to

Mason through Pilch sufficiently put National on notice of the

incidents. We look to agency principles to determine whether an

employer knew or should have known of the harassment.

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986).

Indeed, Title VII defines employer to include any “agent” of the

employer. 42 U.S.C. § 2000e(b). Accordingly, Piich’s

notification to Mason while Mason was acting in his

supervisory capacity was sufficient to constitute notice to

National. We find no significance in the fact that it was Varner’s

fiance who notified Mason, rather than Varner herself.

Moreover, we conclude that once National was notified, it

failed to take reasonable remedial action. Sufficient evidence

supports a finding that Mason’s response to Pilch’s complaint

Appendix A

was inadequate. Moreover, even if Mason was not the proper

person to conduct an investigation of the incidents and take the

appropriate corrective action, he had undisputed supervisory

authority and could have informed the appropriate individuals

responsible for taking action.

Further, we conclude that National’s sexual harassment

policy is not alone sufficient to shield it from liability. The

Supreme Court in Meritor held that while a plaintiff’s failure to

invoke a company’s written procedure is relevant, it is not

dispositive. 477 U.S. at 72. The Court found that a policy that

was not “calculated to encourage victims of harassment to come

forward” did not insulate the company from liability. Jd. at 73.

National’s policy, although certainly laudable in its intentions

and objectives, in effect required Varner’s supervisor to remain

silent notwithstanding his knowledge of the incidents. We can

understand an employer’s desire to utilize a chain-of-command

structure, but a procedure that does not require a supervisor who

has knowledge of an incident of sexual harassment to report that

information to those who are in a position to take appropriate

action falls short of that which might absolve an employer of

liability.

National argues that Varner failed to timely file her

administrative complaint with respect to all except the

November 22, 1991, incidents of sexual harassment. A plaintiff

is required to file a complaint under Title VII and the MHRA

with the relevant enforcement agency within three hundred

days of the discriminatory act. See 42 U.S.C. § 2000e-5 (e);

Mo. Rev. Stat. §§ 213.075, 213.111. Varner filed aconcurrent

complaint with the MCHR and the EEOC on May 18, 1992. The

10a

Appendix A

November 22, 1991, incident clearly falls within the limitations

period. The earlier incidents of verbal harassment, however, do

not. Because the witnesses could only approximate the date of

the first touching incident, it is unclear whether that incident

fell within the relevant period.

Even if we assume that the November 22 assault is the only

incident that fell within the statute of limitations, National’s

argument still must fail. We have found that evidence of a

hostile environment falls under the “continuing violation”

exception to a statute of limitations bar and that the limitations

period runs from the “last occurrence of discrimination.”

Gipson v. KAS Snacktime Co.,83 F.3d 225, 229 (8th Cir. 1996)

(citations omitted). Under this theory, the entire course of

conduct creating the hostile environment suffered by Varner is

actionable.

VI.

Varner cross-appeals the district court’s decision not to

submit a punitive damages instruction to the jury. To collect

punitive damages under the Civil Rights Act of 1991, Varner

must show that National engaged in discrimination “with

malice or reckless indifference to [her] federally protected

rights.” 42 U.S.C. § 1981a(b)(1). To collect punitive damages

under the MHRA, Varner must show that National’s conduct

was “outrageous because of its evil motive or reckless

indifference to [Varner’s rights].” Kientzy v. McDonnell

Douglas Corp., 990 F.2d 1051, 1062 (8th Cir. 1993).

Varner made no showing that National acted with malice or

deliberate indifference or that its conduct was outrageous. See

Nelson v. Boatmen’s Bancshares, Inc., 26 F.3d 796, 804 (8th Cir.

POI 0 = eS the

lla

Appendix A

1994) (to recover punitive damages, Missouri law requires

showing of conduct that would “shock the conscience and cause

outrage”); Turic v. Holland Hospitality, Inc., 85 F.3d 1211,

1216 (6th Cir. 1996) (duplicitous actions of employees

insufficient to support punitive damages award under Civil

Rights Act of 1991); Pandazides v. Virginia Bad. of Educ., 13

F.3d 823, 830 n.9 (4th Cir. 1994) (a showing of more than

intentional discrimination is required to recover punitive

damages under Civil Rights Act of 1991). Accordingly, the trial

court did not err in refusing to submit a punitive damages

instruction to the jury.

Given our holding on National’s claims on appeal, we need

not address Varner’s remaining claims on cross-appeal.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

12a

APPENDIX B — MEMORANDUM AND ORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF MISSOURI, EASTERN

DIVISION FILED AUGUST 23, 1996

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

Cause No. 4:93CV663 JCH

LISA ANNE VARNER, et al.,

Plaintiffs,

NATIONAL SUPERMARKETS, INC.,

Defendant.

MEMORANDUM AND ORDER

This matter is before the Court on Plaintiff’s Motion for

Judgment as a Matter of Law Pursuant to Federal Rule of Civil

Procedure 50(b), Plaintiff's Motion for an Award of Attorneys’

Fees and Expenses, and Defendant’s Response to Plaintiff’s

Request for Costs.

I. Motion for Judgment as a Matter of Law

On June 23, 1995, this Court entered judgment on the

verdict awarded by the jury. Defendant now moves for

judgment as a matter of law on the following grounds: (1) the

Court lacked subject matter jurisdiction over Plaintiff’s claims;

13a

Appendix B

(2) Plaintiff failed to exhaust her administrative remedies; (3)

Plaintiff failed to comply with the procedure of a written

harassment policy; and (4) Plaintiff failed to timely file her

Complaint with the Missouri Commission on Human Rights

and the Equal Employment Opportunity Commission. Plaintiff

opposes Defendant’s motion for judgment as a matter of law.

After consideration of this matter, the Court will deny

Defendant’s motion. Defendant raised the above issues during

trial and the Court declines to revisit such issues.

Il. Motion for Attorneys’ Fees and Expenses

Pursuant to 42 U.S.C. § 2000e-5(k), Plaintiff seeks an

award of attorneys’ fees in the amount of $130,639.50.

Defendant opposes this motion.

Plaintiff brought this cause of action alleging Negligent

Hiring and Retention, violation of the Missouri Human Rights

Act, violation of the Federal Civil Rights Act, and Negligent

Hiring and Retention. In an Order entered April 14, 1994, the

Court dismissed Counts I and IV of Plaintiff’s Complaint.

Thereafter, on June 23, 1995, the trial court entered judgment

on the jury’s verdict awarding Plaintiff $30,000.00 in damages

on Counts I] and III of her Complaint.

Pursuant to 42 U.S.C. § 2000e-5(k):

[iJn any action or proceeding under this

subchapter the court, in its discretion, may

allow the prevailing party .. . reasonable

attorney’s fees (including expert fees) as

part of the costs.

l4a

Appendix B

The Missouri Human Rights Act contains a similar provision.

Rev.Mo.Stat. § 213.111.2. In determining an award of

attorney’s fees, the starting point is the calculation of the

lodestar. The lodestar is derived by multiplying the number of

hours reasonably expended times a reasonable hourly rate.

Blanchard v. Bergeron, 489 U.S. 87 (1989) (citing Blum v.

Stenson, 465 U.S. 886 (1984)). Once the court determines the

lodestar amount, the court considers the twelve Johnsonfactors

to determine the reasonableness of the fee. These factors are:

(1) the time and labor required;

(2) the novelty and difficulty of the

questions;

(3) the skill requisite to perform the legal

service properly;

(4) the preclusion of other employment by

the attorney due to acceptance of the case;

(5) the customary fee;

(6) whether the fee is fixed or contingent;

(7) time limitations imposed by the client or

the circumstances;

(8) the amount involved and the results

obtained;

(9) the experience, reputation, and ability

of the attorneys;

15a

Appendix B

(10) the ‘undesirability’ of the case;

(11) the nature and length of the

professional relationship with the client;

and

(12) awards in similar cases.

Blanchard, 489 U.S. at 91 n.5 (citing Johnson v. Georgia

Highway Express, Inc., 488 F.2d714, 717-19 (Sth Cir. 1974)).

The law firm of Riezman & Blitz requests $130,639.50 in

attorney’s fees. Robert Blitz, lead counsel and partner, worked

a total of 310.7 hours, and partner Robert O’Neal worked 22.7

hours on the case. Attorney Ellen Dunne worked 535.5 hours,

attorney Nelson L. Mitten worked 13 hours, attorney Suzanne

M. Besnia worked .5 hours, attorney Sherry L. Gunn worked

74.4 hours, attorney E.W. Gentry Sayad worked 44 hours,

attorney Matthew D. O'Leary worked 1.7 hours, and attorney

Thomas Avery 16.4 hours. Paralegals Suzanne J ordan, Shannon

Kister, Kristine Wall, Christine Rallo, Merrily D. Pease, Laura

S. Swindle, and Sue L. Gerard worked a total of 55.1 hours.

(Pitf’s Exh. B). Plaintiff requests $200.00 per hour for Mr.

Blitz, $165.00 per hour for Mr. O’Neal, $90.00 per hour for Ms.

Dunne, $150.00 per hour for Mr. Mitten, $125.00 per hour for

Ms. Besnia, $90.00 per hour for Ms. Gunn, $85.00 per hour for

Mr. Sayad, $75.00 per hour for Mr. O’ Leary, and $65.00 per

hour for Mr. Avery. Plaintiff also requests $55.00 per hour for

work performed by paralegals.

Defendant asserts numerous objections to Plaintiff’s fee

request for the Riezman & Blitz law firm. First, Defendant

argues that the rates charged by Mr. Blitz are excessive.

16a

Appendix B

Defendant cites numerous cases from this District in which lead

counsel received no more than $150.00 per hour. See Brown v.

The Washington University, Cause No. 88-1907-C-5;

Rosenfeld v. El Torito Restaurants, Inc.,Cause No. 88-1959-C-

2;Doyne v. Union Electric, Cause No. 89-2120-C-1; Kientzy v.

McDonnell Douglas Corp., Cause No. 90-584-C-1; Bagsby v.

St. Louis Bd. of Police Commr’s, 783 F.Supp. 1214 (E.D. Mo.

1992). This Court has awarded $185.00 per hour for lead

counsel, however, based in part on lead counsel’s exemplary

performance at trial. Sinskey v. McDonnell Douglas Corp.,

Cause No, 4:92CV1122 (JCH); See Serben v. Inter-City Mfg.

Co., Inc., Cause No., 4:92CV1545 DJS (CDP) (awarding lead

counsel $180.00 per hour in January, 1994). After review of

Eastern District cases, the Court finds that $200.00 is not a

reasonable hourly rate for lead counsel in this matter.

Therefore, the Court will reduce the Mr. Blitz’s hourly rate to

$150.00 per hour. The Court will also reduce the hourly rate of

Mr. O’ Neal to $150.00 per hour. This figure is consistent with

an amount recently requested by lead counsel from Riezman &

Blitz in Sinskey v. McDonnell Douglas Corp., Cause No.

4:92CV 1122 (JCH). The Court will not reduce the hourly rates

of the other attorneys involved in this matter as the Court finds

such rates reasonable.

Second, Defendant objects to the number of hours Mr. Blitz

and Ms. Dunne expended in litigating this case. Plaintiff

requests attorneys’ fees for a total of 1,074.30 hours, 846.2

hours are attributable to Mr. Blitz and Ms. Dunne. Plaintiff

argues that this number of hours is excessive and not justified.

In support of the number of hours expended, Plaintiff’s counsel

argues that this matter involved “unique facts and issues of

proof” that “required diligent investigation and development

by Ms. Varner’s counsel.” (Plft’s Memo, p. 6) The Court finds

17a

Appendix B

that 846.2 hours constitutes an excessive amount of time for

lead and co-counsel to expend on this matter given that trial

lasted only five days, including closing argument and jury

deliberation. The facts and legal issues involved in this case

were no so complex as to warrant over eight hundred hours

work. Review of similar cases in this District; reveals that 846.2

hours is an unreasonable amount of time for Plaintiff’s lead

counsel and co-counsel to have <xpended on this matter. In

Sinskey v. McDonnell Douglas, Plaintiff’s lead counsel

expended approximately 233 compensable hours preparing for

and arguing the case at trial. In Kestern v. Dental Arts

Laboratory Inc., Cause No. 4:92CV95 (GF G), lead counsel’s

hours totaled 194.6. In McMahon vy. Crystal Heating and

Cooling Service, Inc., Cause No. 90-76-C-4, lead counsel Mary

Ann Sedey expended 75.5 hours. The total number of hours

submitted in that case, a title VII case that was tried to a jury,

was 161.2. The instant case did not warrant the expenditure of

nearly 900 hours of work by lead counsel and co-counsel.

Accordingly, the Court will reduce the hours expended to a

reasonable amount. The Court will reduce Mr. Blitz’s total

hours from 310.70 to 200 hours. Similarly, the Court will reduce

Ms. Dunne’s total hours from 535.50 to 300 hours. The Court

finds that a total of 500 hours for lead and co-counsel is more

than reasonable in this matter.

Third, Defendant argues that the attorneys’ fees should be

reduced based on the existence ofa contingency fee agreement

between Plaintiff and Riezman & Blitz. In Blanchard, 489 U.S.

at 92-94, the Supreme Court noted that the fee arrangement is

one factor for the court to consider in assessing attorney’s fees.

It is not, however, dispositive. The Court explained that “ ‘[t]he

fee quoted to the client or the percentage of the recovery agreed

to is helpful in demonstrating attorney’s fee expectations when

he accepted the case.’” Jd. at 93 (quoting Pennsylvania v.

18a

Appendix B

Delaware Valley Citizens’ Council for Clean Air, 483 U.S.711,

723 (1987)). However, a contingent fee agreement does not

limit the amount of fees an attorney may be awarded. 489 U.S.

at 93.

In this case, Plaintiff entered into an agreement with

Riezman & Blitz whereby Plaintiff’s attorneys would recover

33 and 1/3% of any pre-lawsuit settlement and 40% of the total

amount collected after the filing of the lawsuit. (PItf’s Exh. A)

Defendant argues that the contingency fee agreement is

significant because up to and including the final date of

presentation of evidence, Plaintiff’s demand was $75,000.00.

Accordingly, Plaintiff’s counsel were amenable to receiving

40% of $75,000 as payment in this matter. Defendant argues

that in view of the contingency agreement, Plaintiff’s

attorneys’ fees should be reduced. The Court agrees that the

contingency fee agreement is relevant to its determination of

attorneys’ fees and will consider this factor in calculating

Plaintiff’s fee award.

Fourth, Plaintiff argues that the attorneys’ fees should be

reduced based on Plaintiff’s limited success at trial. “[W]here

the plaintiff achieved only limited success, the district court

should award only that amount of fees that is reasonable in

relation to the results obtained.” Hensley v. Eckerhart, 461 U.S.

424, 440 (1983). The Court agrees that Plaintiff may not

recover attorney’s fees for hours spent on briefing the issues

raised in Courts I and IV or her complaint as Plaintiff did not

prevail on these distinct issues. Rather, the Court dismissed

Counts I and IV in ruling on Defendant’s Motion to Dismiss the

entire Complaint. Ms. Dunne billed 11.20 hours preparing her

memorandum in opposition to Defendant’s motion to dismiss.

(Pitf’s Exh. B, p. 6) In absence of more specific evidence

regarding the amount of time devoted to the memorandum, the

Court assumes that Plaintiff’s counsel expended 5.1 hours on

19a

“

Appendix B

addressing Counts I and IV. Accordingly, the Court will exclude

5.1 hours at a rate of $90.00 per hour, Ms. Dunne’s hourly rate.

Moreover, Plaintiff may not recover for hours spent researching

Defendant’s motion for a new trial which was never submitted

to this Court. Accordingly, the Court will exclude 10.1 hours for

researching the motion for new trial. (Pltf’s Exh. B, p. 39-40).

The Court will deduct 3.6 hours at a rate of $150.00 per hour,

and 6.5 hours at a rate of $90.00 per hour. /d.

Fifth, Defendant objects to the total number of hours

submitted on grounds that Plaintiff’s counsel has submitted

redundant, duplicative, or unnecessary hours. Defendant

claims that Plaintiff should not be awarded attorneys’ fees for

time spent “filing, retrieving documents, and reading

background cases.” (Deft’s Memo, p. 12) Specifically,

Defendant claims that the 52.5 hours spent researching the

elements ofa civil rights act claim should be excluded from the

award of attorneys’ fees. The Court finds that time spent

researching the relevant area of law is not unnecessary. See

Leftwich v. Harris-Stowe State College, 702 F.2d 686, 95 (8th

Cir. 1983) Thus, the Court will overrule Defendant’s objection

on this basis.

Defendant also objects to 17.7 hours billed as preparation

time for taking the deposition of Plaintiff and her parents.

Defendant claims that only two hours were actually spent with

deponents. Defendant further objects on grounds that two

attorneys attended the depositions. The Court does not find 17.7

hours to be an unreasonable amount of time to spend preparing

for and deposing the Plaintiff and her parents. Accordingly, the

Court will overrule Defendant’s objection.

Defendant further objects to 1.5 hours billed for a meeting

20a

Appendix B

between Mr. Blitz and Mr. Varner on grounds that the purpose of

the meeting is not stated. (Pitf’s Exh. B, p. 2) The Court will

deduct 1.5 hours at a rate of $150.00 per hour from the award of

attorneys fees because the records regarding this billing entry

are not sufficient to apprise the Court of the purpose of the

meeting.

Additionally, Defend nt objects to 7.1 hours charged for

research and drafting of a memorandum in opposition to a

motion to compel on grounds that this entry is dated June 28,

1995, five days after the jury returned its verdict in this matter.

(Pift’s Exh. B, p. 40) The Court will deduct 7.1 hours at a rate of

$90.00 per hour from the award of attorneys’ fees.

Defendant also objects to 1.7 hours billed for a request to

Dr. Wolfgram to provide copies of medical bills and records.

(Pift’s Exh. B, p. 7) Review of the records submitted in support

of Plaintiff’s motion however, indicate that Mr. O’Neal

performed more services than simply drafting one request.

Accordingly, the Court will overrule this objection.

Defendant objects to 67.6 hours billed by Ms. Dunne for

time spent at trial and waiting for the jury to return its verdict on

grounds that this time was duplicative because Mr. Blitz was

also present during trial. The Court finds that Ms. Dunne’s

presence at trial was not duplicative and is compensable. The

undersigned observed Ms. Dunne assisting Mr. Blitz during

trial. Her presence appeared necessary. Therefore, the Court

will overrule Defendant’s objection.

Defendant objects to 33.1 hours billed for one paralegal

and two attorneys to read and summarize the depositions of

Plaintiff and her parents. (Pitf’s Exh. B, p. 13-15; 20-21) In

2la

Appendix B

absence of greater specificity regarding the summary of these

depositions, the Court assumes that each attorney read and

summarized the three depositions. As such conduct was

duplicative, the Court will deduct twenty-two hours at arate of

$55.00 per hour from the award of legal fees.

Defendant also objects to several billing entries related to

discovery. After review of these entries, the Court will overrule

Defendant’s objections.

Based on the foregoing, the Court awards Plaintiff legal

fees as follows:

(1) Mr. Blitz: 198.5 at $150.00 per hour

($29,775.00)

(2) Ms. Dunne: 281.3 hours at $90.00 per

hour ($25,317.00)

(3) Mr. O'Neal: 22.7 hours at $150.00 per

hour ($3,405.00)

(4) Mr. Mitten: 9.4 hours at $150.00 per

hour ($1,410.00)

(5) Ms. Besnia: .5 hours at $125.00 per hour

($62.50)

(6) Ms. Gunn: 74.4 hours at $90.00 per hour

($6,696.00)

(7) Mr. Sayad; 44 hours at $85.00 per hour

($3,740.00)

22a

Appendix B

(8) Mr. O'Leary: 1.7 hours at $75.00 per

hour ($127.50)

(9) Mr. Avery: 16.4 hours at $65.00 per hour

($1,066.00)

(10) Paralegals Jordan, Kister, Wall, Rallo,

Pease, Swindle, and Gerard: 33.1 hours at

$55.00 per hour ($1,820.50)

Accordingly, the Court will award Plaintiff $73,419.50 in

attorneys’ fees.

Ill. Costs

On July 7, 1995, Plaintiff filed her Bill of Costs. Plaintiff

seeks costs in the amount of $13,436.63. Plaintiff objects to

Defendant's costs for expert witness fees, parking and mileage,

computerized research, express delivery, witness fees, and

photocopies.

A. Expert Witness Fees

Plaintiff seeks $5,632.50 for “professional fees”

associated with the services of Dr. Wolfgram. Defendant

objects to this cost on grounds that it in not substantiated. In

Plaintiff's reply in support of her bill of costs, Plaintiff submits

two exhibits itemizing the costs associated with Dr. Wolfgram’s

participation in this matter. The Court finds that these records

sufficiently substantiate Plaintiff’s claim for $5,632.50 in costs

for expert fees.’ Accordingly, the Court overrules Defendant's

objection.

1. In “Plaintiff's Reply in Support of Her Request for Costs and

Supplemental Cost Request” Plaintiff seeks $6,339.00 in costs for fees paid

(Cont'd)

23a

Appendix B

B. Parking and Mileage

Plaintiff seeks $71.00 for local mileage and $7.87 in

parking. Plaintiff's mileage and parking are not taxable costs.

See Roche v. City of Normandy, 566 F. Supp. 37, 42 (E.D. Mo.

1983) Accordingly, the Court will not tax these costs.

C. Computerized Research

In her bill of costs, Plaintiff seeks $333.62 for

computerized legal research. In “Plaintiff's Reply in Support of

Her Request for Costs and Supplemental Cost Request,”

Plaintiff withdraws her request for such costs. Accordingly, the

Court will not tax such costs.

D. Express Delivery

Plaintiff seeks $83.60 for an “express delivery” fee.

Plaintiff has not submitted any records indicating the purpose

for the express delivery. Therefore, the Court cannot determine

the reasonableness of this cost. Accordingly, the court will not

tax the express delivery fee.

E. Witness fees

On her bill of costs, Plaintiff includes $500.00 in witness

(Cont'd)

to Dr. Wolfgram. The records submitted in support of this claim, however,

indicate that the fees paid Dr. Wolfgram total $6,169.00. Regardless,

Plaintiff's Bill of Costs seeks expert fees in the amount of $5,632.50.

Plaintiff has not filed an amended Bill of Costs or sought leave to do so.

Accordingly, the Court declines to award an amount for expert fees in excess

of $5,632.50, the amount listed on Plaintiff's Bill of Costs.

24a

Appendix B

fees for Dr. Wolfgram. Defendant objects to this cost as

unreasonable. In “Plaintiff’s Reply in Support of Her Request

for Costs and Supplemental Cost Request,” Plaintiff withdraws

her request for such costs. Accordingly, the Court will not tax

such costs.

F. Photocopies

Defendant seeks recovery of copying costs in the amount

of$1,767.86. Copying costs are only taxable when necessarily

incurred. 28 U.S.C. § 1920;Cruse v. KFC Corp., 768 F.2d 230,

234-35 (8th Cir. 1985). Plaintiff has failed to itemize her

copying expenses, therefore, the Court will deny recovery of

these costs because it is not possible for the Court to determine

to what extent such costs were necessarily incurred and to what

extent they were incurred for the convenience of counsel.

Additionally, in so far as Plaintiff’s copying costs appear to be

for “routine copying expenses for duplication of pleadings and

for general legal research,” the Court will not tax these costs.

Stevens v. Zenith Distributing Corp. of Kansas, No. 78-0477-

CV-W-6, 1984 WL 21983,* 7 (W.D.Mo. 1984). Accordingly,

Defendant’s costs for copying will not be taxed.

Based on the foregoing, Defendant’s Bill of Costs in the

amount of $13,436.63 shall be reduced by a total of $2,763.95.

In Accordance with the foregoing,

IT IS HEREBY ORDERED that Defendant’s Motion for

Judgment as a Matter of Law [docket # 120] is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for

an Award of Attorneys’ Fees and Expenses [docket # 119] is

GRANTEDin part andDENIEDin part.

25a

Appendix B

IT IS FURTHER ORDERED that Plaintiff is awarded

$73,419.50 in attorneys’ fees. An appropriate Judgement on

Attorneys’ Fees will accompany this order.

IT IS FURTHER ORDERED that Defendant’s

Objections to Plaintiff’s Bill of Costs [docket #127] are

SUSTAINEDin part and OVERRULED in part.

IT IS FURTHER ORDERED that costs shall be taxed

against Defendant in the amount of $10,672.68.

Dated this 23rd day of August, 1995.

s/ Jean C. Hamilton

UNITED STATES DISTRICT JUDGE

a a

26a

APPENDIX C — JUDGMENT OF THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF MISSOURI FILED JUNE 23, 1995

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

CASE NUMBER: 4:93cv663JCH |

LISA VARNER

Plaintiff(s),

NATIONAL SUPER MARKETS, INC.

Defendant(s).

JUDGMENT IN A CIVIL CASE

@ Jury Verdict. This action came before the Court for atrial

by jury. The issues have been tried and the jury has rendered its

verdict.

IT IS HEREBY ORDERED AND ADJUDGED that on

the Missouri Human Rights Act claim of plaintiff Lisa Varner,

judgment is entered on behalf of plaintiff and against defendant

National Supermarkets, Inc.

IT IS FURTHER ORDERED AND ADJUDGED that on

the Federal Civil Rights Act claim of plaintiff Lisa Varner,

judgment is entered on behalf of plaintiff and against defendant

National Supermarkets, Inc.

27a

Appendix C

IT IS FURTHER ORDERED AND ADJUDGED that

damages be awarded to plaintiff Lisa Varner in the amount of

$30,000 together with interest at the rate of 5.53% and costs.

Robert D. St. Vrain

CLERK

June 23, 1995

DATE

By: s/C. Lippold

C. Lippold

DEPUTY CLERK

28a

APPENDIX D — EXCERPTS OF COLLECTIVE

BARGAINING AGREEMENT EFFECTIVE

JUNE 19, 1988 THROUGH JUNE 15, 1991

AGREEMENT

BETWEEN

NATIONAL SUPER MARKETS, INC.

ST. LOUIS

AND

UNITED FOOD AND COMMERCIAL WORKERS UNION

LOCAL NO. 655

ST. LOUIS, MISSOURI

EFFECTIVE

June 19, 1988

THROUGH

June 15,1991

ae el em

ARTICLE

CSmenAN AU a wWHK

29a

Appendix D

TABLE OF CONTENTS

SUBJECT

Agreement

Jurisdiction

Union Security

Management Rights

Grievances and Arbitration

Union Cooperation

Unauthorized Activities

Hours and Working Conditions

Seniority

Uniforms and Dress Code

Substance Abuse

Leaves of Absence

Funeral Leave

Jury Duty

Sunday and Holidays

Vacations

Health and Welfare

Pension

401(K) Savings Plan

Technological Change

Store Closing

Separability

Term of Contract

Schedule “A” — Wages

Supplemental Agreement #1 — Supplemental

Departments

Supplemental Agreement #2 — Store Space

Allocation Crew

30a

Appendix D

Supplemental Agreement #3 — Meat & Deli/

Seafood Department Employees

Supplemental Agreement #4 — Utility Clerks

Supplemental Agreement #5 — Porters

Geographical Areas

PAGE

3la

Appendix D

[1] AGREEMENT

This Agreement, mutually entered into by and between

National Super Markets, Inc., St. Louis, and/or successors and

assigns, a signatory hereto, hereinafter referred to as the

“Employer”, and the United Food and Commercial Workers

Union Local No. 655, chartered by the United Food and

Commercial Workers International Union, AFL-CIO-CLC,

hereinafter referred to as the “Union”.

It is the intent and purpose of the parties hereto, by entering

into this Agreement, to promote and to improve industrial and

economic relationships between the Employer and their

employees, to recognize mutual interests, to provide a channel

through which information and problems can be transmitted

from one to another, to formulate rules to govern the

relationship between the Union and the Employer, and to

promote efficiency and service. These objectives shall guide

the parties and be observed by them during the term of this

Agreement.

WITNESSETH: That the parties have agreed and do, by

these presents, agree as follows.

ARTICLE 1. JURISDICTION

1.1 The Union shall be the sole and exclusive bargaining

agent of all employees as defined in this Agreement in the City

of St. Louis and in the counties of St. Louis, Franklin, St.

Charles, Jefferson, Washington, Warren and Lincoln,

excluding Store Managers, the legal owner (who shall be

determined by mutual agreement between the Union and the

Employer), supervisory and other employees as defined by the

32a

Appendix D

National Labor Relations Act, as amended, and those

employees covered by other collective bargaining agreements

with the Employer.

1.2 All work and services connected with all operations

carried on at the premises of the Employer’s retail

establishments including, but not limited to, the handling and

selling of all merchandise, shall be performed only by

employees within the unit as defined in this Agreement, and by

employees working for the first thirty-one (31) days of their

employment; provided, however, that the foregoing restriction

on work jurisdiction may be altered or relaxed in whole or in

party by mutual agreement between the Employer and the

Union.

1.3 Under no condition shall supervisors or Store

Managers perform bargaining unit work, except in case of

emergency, such as Acts of God or other conditions beyond the

control of the Employer, and to the extent that they may perform

customer services. Customer services shall not be construed to

include stocking, price marking, truck unloading or building

displays, or any other bargaining unit work on a regular basis.

[2}1.4 As of the effective date of this Agreement, the above

described restriction on work jurisdiction has been, by mutual

agreement between the Union and the Employer, relaxed and

altered in the following respect; that vendors entering the said

retail establishment for the purpose of delivering bread, milk,

and potato chips may service their product line. The Greeting

Card Department may be serviced by their respective vendors.

Any work done by any person outside of the bargaining

unit in violation of this Agreement after it has once beer.

33a

Appendix D

brought to the attention of management shall result in the

employee on duty who reports the violation receiving pay for

the time worked at the top clerk rate in the contract, or the

employee’s regular rate, whichever is the greatest, in addition

to his normal pay for that day. This shall not preclude the Union

representative of the local Union from filing a grievance

pertaining to a violation of this paragraph in the name of a

particular employee who shall be compensated in the method

herein provided above.

Once a violation of any work done by any person

outside of the bargaining unit has once been brought to the

attention of Management; any other violations within a two (2)

week time period by the same person shall result in the

employee on duty who reports the violation receiving pay for

the time worked at the top clerk rate in the contract, or the

employee's regular rate, whichever is greater, in addition to his

normal pay for that day.

ARTICLE 2. UNION SECURITY

2.1 All employees who are now members of the Union

shall, as a condition of employment, maintain membership in

good standing consistent with the provisions of the Labor-

Management Relations Act of 1947, as amended.

The Employer shall not be required to discharge an

employee for failure to attain or maintain membership in the

Union unless it shall have received three (3) days’ written

notice from the Union prior to the date such discharge is to be

effective.

2.2 All new employees must become members of the Union

34a

Appendix D

thirty-one (31) days after their employment date and thereafter

shall, as a condition of employment, maintain membership in

good standing consistent with the provisions of the Labor-

Management Relations Act of 1947, as amended.

CHECKOFF. The Employer agrees to deduct

initiation fees, Union dues and uniform assessments where

lawful, uniformly required as a condition of acquiring or

maintaining membership in the Union from the wages of each

employee, present and future, as the same shall be due, provided

each such employee executes written authorization therefore,

in a form authorized by law, and such authorization is turned

over to the Employer.

[3] The Employer agrees to remit such dues and

initiation fees as deducted to the Union.

The Union shall, on or before the tenth (10th) day of

each month, furnish to the Employer a list of member-

employees and the amounts due therefore, including dues

owing for the succeeding month.

The Employer shall, on or before the last day of the

same month, deduct and remit such dues as authorized to the

Union.

The Employer will deduct Union dues and initiation

fees on a weekly basis. The Employer shall, on or before the

tenth (10th) day of the following month, remit such dues as

authorized to the Union.

In the event no wages are then due the employee, or, are

insufficient to cover the required deduction, it shall be the

35a

Appendix D

responsibility of the Union to re-submit the amount due on the

next regular monthly billing.

Once each month, the Employer will submit to the

Union a list of employees hired the previous month. The list will

include the employees’ names, social security numbers, store

codes, job codes, and dates of hire.

Once each year, the Employer will deduct from the pay

of the employees, who have certified in writing, a political

deduction. The Union shall furnish to the Employer the

amounts to be deducted on the regular monthly billing.

2.3 No employee shall be deprived of membership in the

Union except in accordance with the Constitution and By-Laws

of the Union.

2.4 The Employer and/or its agents or representatives

agree not to aid, promote or finance any other group or

organization which purports to engage in collective bargaining.

2.5 The Employer and the Union agree that there shall be no

discrimination against any employee on account of Union

activities or affiliation, or because of race, religion, color,

creed, national origin, sex or age in accordance with existing

law. Where the word “he” appears in this Agreement, the parties

agree that it applies to both “male and female” employees.

2.6 The Employer agrees not to enter into any agreement or

contract with their employees, individually or collectively

which, in any way, conflicts with the terms and provisions of

this Agreement.

36a

Appendix D

2.7 The Employer agrees to permit an authorized

representative or officer of the Union to have free access to the

stores at all hours when members of Local No. 655 are on duty

to [4] satisfy the Union that the terms of this Agreement are

complied with, but such representative or officer shall not

interfere with the duties of any of the said employees or the

business of the Employer.

The Union shall have the right to desig~ate a Union

steward and assistant Union steward for each store who shall

have top ranking seniority (during the term of their office),

irrespect ‘ve of actual length of service, in case of layoffs and

transfers.

2.8 The Union store card may be displayed in all places

where members of Local No. 655 are employed exclusively.

The store card shall be removed at the request of the Union.

2.9 Members of the Union must wear their Union buttons

when on duty.

2.10 Corrective action initiated as a result of investigative

shopping reports will be taken within five (5) scheduled

working days. All other corrective action will be taken within a

reasonable period of time.

Correction action will be discussed in the presence of

the employee and, if requested, the Union Steward or the

Business Agent or another bargaining unit employee. The

employee and the Union will be given a copy of the “Corrective

Action”.

Work rules and regulations which apply to bargaining

37a

Appendix D

unit employees and changes thereafter will be given to the

Union.

ARTICLE3. MANAGEMENT RIGHTS

The management of the business and the direction of the

working forces, including the right to plan, direct and control

store operations, hire, suspend or discharge for proper cause,

transfer or relieve employees from duty because of lack of work

or for other legitimate reasons, the right to study or introduce

new or improved production methods or facilities and the right

to establish and maintain reasonable rules and regulations

covering the operation of the stores, a violation of which shall

be among the causes for discharge, are vested in the Employer;

orovided, however, that their right shall be exercised with due

regard for the rights of the employees and provided further that

it will not be used for the purpose of discrimination against any

employee. This paragraph is subject to the Grievance

Procedure.

ARTICLE4. GRIEVANCES AND ARBITRATION

4.1 Should any differences, disputes or complaints arise

over the interpretation or application of the contents of this

Agreement, there shall be an earnest effort made on the part of

both parties to settle same promptly through the following

steps:

[5]Step1. By conference between the aggrieved

employee, the Union Stewart of business

representative, or both, and the Store

Manager or owner. Store Management shall

make its decision known within two (2)

38a

Appendix D

working days thereafter. If the matter is not

resolved in Step 1, it shall be referred to Step

2 within two (2) working days.

Step2. By conference between the business

representative and the owner or a supervisor

of the Employer. The Employer shall make

its decision known within three (3) working

days thereafter. If the matter is not resolved

in Step 2, it shall be reduced to writing and

referred within three (3) working days to step

Step3. By conference between an official or

officials of the Union and a designated

representative of the Employer.

Step4. In the event the last step fails to settle the

complaint, it shall be referred, within seven

(7) working days, to arbitration.

4.2 In any case in which an employee is aggrieved and the

Union promptly notifies the employee that it does not int | ud to

request arbitration after the Step 3 meeting, the tim. for

requesting arbitration shall be stayed pending the employee’s

exhaustion of internal Union appeals to the Union’s Executive

Board.

4.3 The Employer and the Union shall mutually agree to an

impartial arbitrator to hear said arbitration case; however, if

said arbitrator cannot be chosen within three (3) days, then the

Federal Mediation and Conciliation Service will be requested

to furnish a panel of seven (7) names from which the arbitrator

39a

Appendix D

may be chosen. The arbitrator will be selected within seven (7)

days after the receipt of the panel by both parties. The arbitrator

may be chosen by alternatively striking names. The party

striking first will be determined by the flip of a coin. The

decision of the arbitrator shall be binding on both parties. The

expenses of the arbitrator shall be paid for jointly.

Such arbitrator shall not be empowered to add to, detract

from or alter the terms of this Agreement.

44 The Employer may, at any time, discharge any worker

for proper cause. The Union or the employee may file a written

complaint with the Employer within seven (7) days after the

date of discharge, asserting that the discharge was improper.

Such complaint must be taken up promptly. If the Employer and

the [6] Union fail to agree within five (5) days, it shall be

referred to arbitration. Should the arbitrator determine that it

was an unfair discharge, the Employer shall abide by the

decision of the arbitrator,

4.5 Grievances must be taken up promptly. No grievance

will be considered, discussed, or become arbitrable which is

presented later than seven (7) days after such has happened.

4.6 The Employer shall have the right to call a conference

with a Union steward or officials of the Union for the purpose of

discussing his grievance, criticisms or other problems.

4.7 Grievances will be discussed only through the outlined

procedures; except that by mutual agreement between the

Union and the Employer, the time limits may be waived.

4.8 There shall be no lockout or cessation of work pending

the decision of the arbitrator.

40a

Appendix D

ARTICLES. UNION COOPERATION

5.1 The Union shall use its best efforts as a labor

organization to enhance the interests of the Employer, as an

employer of union labor.

5.2 The Union agrees to uphold the rules and regulations of

the Employer with regard to punctual and steady attendance,

proper and sufficient notification in case of necessary absence,

conduct on the job, and all other reasonable rules and

regulations established by the Employer.

5.3 The Union agrees to cooperate with the Employer in

maintaining and improving safe working conditions and

practices, in improving the cleanliness and good housekeeping

of the stores, and in caring for equipment and machinery.

5.4 The Union recognizes the need for conservation and the

elimination of waste and agrees to cooperate with the Employer

in suggesting and practicing methods in the interest of

conservation and waste elimination.

5.5 The Union recognizes the need for improved methods

and output in the interest of the employees and the business and

agrees to cooperate with the Employer in the installation of

such methods, in suggesting improved methods, and in the

education of its members in the necessity for such changes and

improvements.

ARTICLE6. UNAUTHORIZED ACTIVITIES

6.1 During the term hereof, the Union agrees that there

shall be no strike or any interference with or interruption of the

4la

Appendix D

normal conditions of the Employer's business. The Employer

agrees there shall be no lockout.

[7] 6.2 The failure of any employee to cross or work behind

a lawful, primary labor picket line which has been officially

recognized by the St. Louis Labor Council and/or the United

Food and Commercial! Workers’ International Union, AFL-

CIO-CLC shall not constitute a violation of this Agreement.

6.3 The Employer and the Union mutually agree that in the

event of an unauthorized strike or slowdown by an employee or

employees that the Employer will not file or press suits for

monetary damages against the Union. The Union agrees that it

will immediately take every reasonable means to induce the

employee or employees to return to their- jobs or resume

standard production. Should such employee or employees

refuse to return to work or to resume normal production, the

Employer may exercise whatever disciplinary action it deems

proper against such employee or employees, including

discharge, layoff, loss of seniority rights or other privileges

granted employees under this Agreement or the Employer

policy.

ARTICLE7. HOURS AND WORKING CONDITIONS

7.1.A. The basic work week for all employees covered by this

Agreement shall be forty (40) hours, to be worked in five (5)

eight (8) hour shifts or four (4) ten (10) hour shifts, not

necessarily consecutive. The work week shall be each

Employer’s seven day payroll period.

B. The regular work day for employees shall not exceed

eight (8) consecutive hours per shift [or ten (10) consecutive

42a

Appendix D

hours per shift for those employees scheduled to work four (4)

ten (10) hour shifts] exclusive of an unpaid meal period.

C. All time worked in excess of forty (40) hours per week

or eight (8) consecutive hours per shift [ten (10) consecutive

hours per shift for employees working four (4) ten (10) hour

shifts] shall be paid at the rate of time and one-half (1-1/2) the

employees regular rate of pay. There shall be no pyramiding of

overtime or premium pay.

D. Available schedules for full time employees of four (4)

ten (10) hour shifts shall be on a voluntary basis in accordance

with seniority and qualifications to perform the job. The

Employer will ascertain the number of four (4) ten (10) hour

schedules available by department; then determine the actual

number to be scheduled by department based on the number of

volunteers per department. At no time shall anyone be forced to

work a four (4) ten (10) hour schedule.

E. Daily overtime shall be offered by seniority and job

classification within the store among the employees present and

qualified to do the work when the need for overtime arises.

Scheduled overtime shall be offered by seniority to employees

qualified to do the work within the store for the designated

[36] In the event of a second violation in the same store of

the Employer within a six (6) month period (following the first

violation), the Union may advise the Employer, in writing, that

the classification of Courtesy Clerk in that store is terminated

for a period of six (6) months; and that all employees in the

Courtesy Clerk classification will be reclassified as of the first

43a

Appendix D

(1st) day of the next pay period to the appropriate clerk rate, and

remain in this classification.

A violation is constituted when work, other than proper

duties for Courtesy Clerk, is by the direction of Management

and/or work that is done with Management's knowledge.

FOR THE UNION: FOR THE EMPLOYER:

United Food andCommercial National Super Markets, Inc.

Workers Union, Local No.655 St. Louis

AFL-CIO-CLC

s/ Jack Valenti s/ Robert J. Flacke

Jack Valenti Robert J. Flacke

Vice President

President Director of Human Resources

s/ William B. Campey s/ Kevin J. Beckerle

Labor Relations Manager

Date: Aug. 30, 1988 Date: Aug. 24, 1988

44a

APPENDIX E — EXCERPTS OF COLLECTIVE

BARGAINING AGREEMENT EFFECTIVE

JUNE 16, 1991 THROUGH JUNE 11, 1994

AGREEMENT

BETWEEN

NATIONAL SUPER MARKETS, INC.

ST. LOUIS

AND

UNITED FOOD AND COMMERCIAL WORKERS UNION

LOCAL NO. 655

ST. LOUIS, MISSOURI

EFFECTIVE

June 16, 1991

THROUGH

June 11, 1994

ARTICLE

Omen AUN WD =

45a

Appendix E

TABLE OF CONTENTS

SUBJECT

Agreement

Jurisdiction

Union Security

Management Rights

Grievances and Arbitration

Union Cooperation

Unauthorized Activities

Hours and Working Conditions

Seniority

Uniforms and Dress Code

Substance Abuse

Leaves of Absence

Funeral Leave

Jury Duty

Sunday and Holidays

Vacations

Health and Welfare

Pension

401(K) Savings Plan

Technological Change

Store Closing

Separability

Term of Contract

Schedule “A” — Wages

Supplemental Agreement #1 — Specialty

Departments

Supplemental Agreement #2 — Store Space

Allocation Crew

46a

Appendix E

Supplemental Agreement #3 — Meat & Deli/

Seafood Department Employees

Supplemental Agreement #4 — Utility Clerks

Supplemental Agreement #5 — Porters

Geographical Areas

PAGE

47a

Appendix E

[1] AGREEMENT

This Agreement, mutually entered into by and between

National Super Markets, Inc., St. Louis, and/or successors and

assigns, a signatory hereto, hereinafter referred to as the

“Employer”, and the United Food and Commercial Workers

Union Local No. 655, chartered by the United Food and

Commercial Workers International Union, AFL-CIO-CLC,

hereinafter referred to as the “Union”.

It is the intent and purpose of the parties hereto, by entering

into this Agreement, to promote and to improve industrial and

economic relationships between the Employer and thei:

employees, to recognize mutual inirests, to provide a channel

through which information and problems can be transmitted

from one to another, to formulate rules to govern the

relationship between the Union and the Employer, and to

promote efficiency and service. These objectives shall guide

the parties and be observed by them during the term of this

Agreement.

WITNESSETH: That the parties have agreed and do, by

these presents, agree as follows.

ARTICLE 1. JURISDICTION

1.1 The Union shall be the sole and exclusive bargaining

agent of all employees as defined in this Agreement in the city

of St. Louis and in the counties of St. Louis, Franklin, St.

Charles, Jefferson, Washington, Warren and Lincoln,

excluding Store Managers, the legal owner (who shall be

determined by mutual agreement between the Union and the

Employer), supervisory and other employees as defined by the

48a

Appendix E

National Labor Relations Act, as amended, and those

employees covered by other collective bargaining agreements

with the Employer.

1.2 All work and services connected with all operations

carried on at the premises of the Employer’s retail

establishments including, but not limited to, the handling and

selling of all merchandise, shall be performed only by

employees within the unit as defined in this Agreement, and by

employees working for the first thirty-one (31) days of their

employment; provided, however, that the foregoing restriction

on work jurisdiction may be altered or relaxed in whole or in

party by mutual agreement between the Employer and the

Union.

{2} 1.3 Under no condition shall supervisors or Store

Managers perform bargaining unit work, except in case of

emergency, such as Acts of God or other conditions beyond the

control of the Employer, and to the extent that they may perform

customer services. Customer services shall not be construed to

include stocking, price marking, truck unloading or building

displays, or any other bargaining unit work on a regular basis.

1.4 As of June 16, 1991, the above described restriction on

work jurisdiction has been, relaxed and altered in the following

respect: that there shall be no restrictions on outside sales

persons stocking commercial bakery products, milk, soda,

cookies, crackers, snacks, and L’Eggs. The greeting card

department may be serviced by their respective vendors.

Outside sales persons, Store Management, and the employer’s

reset crew shall not be restricted from performing resets or

rearrangements of any product once it has been initially stocked

by bargaining unit employees. No present forty (40) hour

49a

Appendix E

employee who is on the Full Time Seniority list as of 6/19/91

shall have their hours reduced by vendor stocking hours as a

direct result of the expansion of vendor assistance.

Any work done by any person outside of the bargaining

unit in violation of this Agreement after it has once been

brought to the attention of management shall result in the

employee on duty who reports the violation receiving pay for

the time worked at the top clerk rate in the contract, or the

employee’s regular rate, whichever is the greatest, in addition

to his/her normal pay for that day. This shall not preclude the

Union Representative of the local Union from filing a grievance

pertaining to a violation of this paragraph in the name of a

particular employee who shall be compensated in the method

herein provided above.

Once a violation of any work done by any person

outside of the bargaining unit has once been brought to the

attention of Management; any other violations within a two (2)

week time period by the same person shall result in the

employee on duty who reports the violation receiving pay for

the time worked at the top clerk rate in the contract, or the

employee’s regular rate, whichever is greater, in addition to his/

her normal pay for that day.

[3] ARTICLE 2. UNION SECURITY

2.1 All employees who are now members of the Union shall,

as a condition of employment, maintain membership in good

Standing consistent with the provisions of the Labor-

Management Relations Act of 1947, as amended.

The Employer shall not be required to discharge an

50a

Appendix E

employee for failure to attain or maintain membership in the

Union unless it shall have received three (3) days written notice

from the Union prior to the date such discharge is to be

effective.

2.2 All new employees must become members of the Union

thirty-one (31) days after their employment date and thereafter

shall, as a condition of employment, maintain membership in

good standing consistent with the provisions of the Labor-

Management Relations Act of 1947, as amended.

CHECKOFF. The Employer agrees to deduct

initiation fees, Union dues and uniform assessments where

lawful, uniformly required as a condition of acquiring or

maintaining membership in the Union from the wages of each

employee, present and future, as the same shall be due, provided

each such employee executes written authorization therefore,

in a form authorized by law, and such authorization is turned

over to the Employer.

The Employer agrees to remit such dues and initiation

fees as deducted to the Union.

The Union shall, on or before the tenth (10th) day of

each month, furnish to the Employer a list of member-

employees and the amounts due therefore, including dues

owing for the succeeding month.

The Employer shall, on or before the last day of the

same month, deduct and remit such dues as authorized to the

Union.

The Employer will deduct Union dues and initiation

Sla

Appendix E

fees on a weekly basis. The Employer shall, on or before the

tenth (10th) day of the following month, remit such dues as

authorized to the Union.

In the event no wages are then due the employee, or, are

insufficient to cover the required deduction, it shall be the

responsibility of the Union to re-submit the amount due on the

next regular monthly billing.

Once each month, the Employer will submit to the

Union a list of employees hired the previous month. The list will

include the employees’ names, social security numbers, store

codes, job codes, and dates of hire.

[4] Once each year, the Employer will deduct from the

pay of the employees, who have certified in writing, a political

deduction. The Union shall furnish to the Employer the

amounts to be deducted on the regular monthly billing.

2.3 No employee shall be deprived of membership in the

Union except in accordance with the Constitution and By-Laws

of the Union.

2.4 The Employer and/or its agents or representatives

agree not to aid, promote or finance any other group or

organization which purports to engage in collective bargaining.

2.5 The Employer and the Union agree that there shall be no

discrimination against any employee on account of Union

activities or affiliation, or because of race, religion, color,

creed, national origin, sex or age in accordance with existing

law. Where the word “he” appears in this Agreement, the parties

agree that it applies to both “male and female” employees.

52a

Appendix E

2.6 The Employer agrees not to enter into any agreement or

contract with their employees, individually or collectively

which, in any way, conflicts with the terms and provisions of

this Agreement.

2.7 The Employer agrees to permit an authorized

representative or officer of the Union to have free access to the

stores at all hours when members of Local No. 655 are on duty

to satisfy the Union that the terms of this Agreement are

complied with, but such representative or officer shall not

interfere with the duties of any of the said employees or the

business of the Employer.

The Union shall have the right to designate a Union

steward and assistant Union steward for each store who shall

have top ranking seniority (during the term of their office),

irrespective of actual length of service, in case of layoffs and

transfers.

2.8 The Union store card may be displayed in all places

where members of Local No. 655 are employed exclusively.

The store card shall be removed at the request of the Union.

2.9 Members of the Union must wear their Union buttons

when on duty.

[5] 2.10 Corrective action initiated as a result of

investigative shopping reports will be taken within five (5)

scheduled working days. All other corrective action will be

taken within a reasonable period of time.

Corrective action will be discussed in the presence of

the employee and, if requested, the Union Steward or the

53a

Appendix E

Business Agent or another bargaining unit employee. The

employee and the Union will be givena copy of the “Corrective

Action”.

Work rules and regulations which apply to bargaining

unit employees and changes thereafter will be given to the

Union.

ARTICLE3. MANAGEMENT RIGHTS

The management of the business and the direction of the

working forces, including the right to plan, direct and control

store operations, hire, suspend or discharge for proper cause,

transfer or relieve employees from duty because of lack of work

or for other legitimate reasons, the right to study or introduce

new or improved production methods or facilities and the ri ght

to establish and maintain reasonable rules and regulations

covering the operation of the stores, a violation of which shall

be among the causes for discharge, are vested in the Employer;

provided, however, that their right shall be exercised with due

regard for the rights of the employees and provided further that

it will not be used for the purpose of discrimination against any

employee. This paragraph is subject to the Grievance

Procedure.

ARTICLE4. GRIEVANCES AND ARBITRATION

4.1 Should any differences, disputes or complaints arise

over the interpretation or application of the contents of this

Agreement, there shall be an earnest effort made on the part of

both parties to settle same promptly through the following

steps:

Step 1.

[6] Step 2.

Step 3.

Step 4.

4.2 In any case in which an employee is aggrieved and the

Union promptly notifies the employee that it does not intend to

request arbitration after the Step 3 meeting, the time for

requesting arbitration shall be stayed pending the employee’s

exhaustion of internal Union appeals to the Union’s Executive

Board.

54a

Appendix E

By conference between the aggrieved

employee, the Union Stewart of business

representative, or both, and the Store

Manager or owner. Store Management shall

make its decision known within two (2)

working days thereafter. If the matter is not

resolved in Step 1, it shall be referred to Step

2 within two (2) working days.

By conference between the Business

Representative and the owner or a supervisor

of the Employer. The Employer shall make its

decision known within three (3) working days

thereafter. If the matter is not resolved in Step

2, it shall be reduced to writing and referred

within three (3) working days to step 3.

By conference between an official or officials

of the Union and a designated representative

of the Employer.

In the event the last step fails to settle the

complaint, it shall be referred, within seven

(7) working days, to arbitration.

55a

Appendix E

4.3 The Employer and the Union shall mutually agree to an

impartial arbitrator to hear said arbitration case; however, if

said arbitrator cannot be chosen within three (3) days, then the

Federal Mediation and Conciliation Service will be requested

to furnish a panel of seven (7) names from which the arbitrator

may be chosen. The arbitrator will be selected within seven (7)

days after the receipt of the panel by both parties. The arbitrator

may be chosen by alternatively striking names. The party

striking first will be determined by the flip of a coin. The

decision of the arbitrator shall be binding on both parties. The

expenses of the arbitrator shall be paid for jointly.

Such arbitrator shall not be empowered to add to, detract

from or alter the terms of this Agreement.

4.4 The Employer may, at any time, discharge any

employee for proper cause. The Union or the employee may file

a written complaint with the Employer within seven (7) days

after the date of discharge, asserting that the discharge was

improper. Such complaint must be taken up promptly. If the

Employer and the Union fail to agree within five (5) days, it

shall be referred to arbitration. Should the arbitrator determine

that it was an unfair discharge, the Employer shall abide by the

decision of the arbitrator.

[7] 4.5 Grievances must be taken up promptly. No

grievance will be considered, discussed, or become arbitrable

which is presented later than seven (7) days after such has

happened.

4.6 The Employer shall have the right to call a conference

with a Union Steward or officials of the Union for the purpose

of discussing his/her grievance, criticisms or other problems.

56a

Appendix E

4.7 Grievances will be discussed only through the outlined

procedures; except that by mutual agreement between the

Union and the Employer, the time limits may be waived.

4.8 There shall be no lockout or cessation of work pending

the decision of the arbitrator.

ARTICLE5. UNION COOPERATION

5.1 The Union shall use its best efforts as a labor

organization to enhance the interests of the Employer, as an

employer of union labor.

5.2 The Union agrees to uphold the rules and regulations of

the Employer with regard to punctual and steady attendance,

proper and sufficient notification in case of necessary absence,

conduct on the job, and all other reasonable rules and

regulations established by the Employer.

5.3 The Union agrees to cooperate with the Employer in

maintaining and improving safe working conditions and

practices, in improving the cleanliness and good housekeeping

of the stores, and in caring for equipment and machinery.

5.4 The Union recognizes the need for conservation and the

elimination of waste and agrees to cooperate with the Employer

in suggesting and practicing methods in the interest of

conservation and waste elimination.

aa The Union recognizes the need for improved methods

and output in the interest of the employees and the business and

agrees to cooperate with the Employer in the installation of

such methods, in suggesting improved methods, and in the

57a

Appendix E

education of its members in the necessity for such changes and

improvements.

ARTICLE6. UNAUTHORIZED ACTIVITIES

6.1 During the term hereof, the Union agrees that there

shall be no strike or any interference with or interruption of the

normal conditions of the Employer’s business. The Employer

agrees there shall be no lockout.

* * *

[37] It is further provided that any improvements, changes

or amendments, unless otherwise provided for in the new

Agreement, shall become effective on the day following the

expiration date of the old Agreement provided there has not

been a work stoppage.

FOR THE UNION: FOR THE EMPLOYER:

United Food and Commercial National Super Markets, Inc.

Workers Union, Local 655 St. Louis

AFL-CIO-CLC

s/ William B. Campey s/ Kevin J. Beckerle

William B. Campey Kevin J. Beckerle

President Director, Labor Relations

Dated: Dated: Sept. 13, 1991

58a

APPENDIX F — EXCERPTS OF EMPLOYEE

HANDBOOK

Your Handbook

Welcome

NATIONALS. Louis

YOUR CAREER AT NATIONAL, A GOOD

PLACE TO SHOP...

A GOOD PLACE TO WORK

National was founded in the spirit of friendliness and

cooperation. Today, that spirit remains as a valuable tradition

that makes working here rewarding and pleasant.

Good working relationships are achieved through

understanding and initial good will. Your Handbook has been

prepared to make working relationships better for all of us. It

outlines what you can expect from your Company, and what

your Company expects from you.

Each statement of policy contained in this handbook has a

sound background based on experience. Your comments and

suggestions for improvements in future editions are welcome.

Welcome to National — enjoy your work, your

surroundings, your associates, and your Company.

Harold Seitz

President

59a

Appendix F

CONTENTS

YOUR COMPANY

History 1

Objectives and Basic Policies of the Company

BENEFITS

Benefits — General 6

Promotions and Transfers 7

Service Awards 7

Tuition Reimbursement 8

POLICIES AND PROCEDURES

Absenteeism and Tardiness 9

Accidents 10

Attendance and Time Clock Procedures 10

Conflict of Interest 11

Courtesy 12

Emergencies 12

General Violations 12

Harassment 14

Honesty Policy 14

Hours and Wages 16

Off-The-Job Behavior 17

Outside Employment Opportunities 17

Parking 17

Personal Appearance 17

Personal Checks 18

Personal Information Changes 19

Resignation 19

Sale of Alcohol or Tobacco 19

60a

Appendix F

Smoking

Safety

Telephones

Teamwork

6la

Appendix F

[Page 14]

HARASSMENT

It is an established policy of National Super Markets, Inc. that

sexual harassment by and of itself will not be tolerated. This

policy applies to everyone, both supervisory and non-

supervisory, and prohibits sexual harassment in any form,

including verbal and physical harassment. Individuals who

believe they have been sexually harassed by a co-worker or

supervisor should promptly call the Human Resources

Department.

62a

APPENDIX G — ASSOCIATE ACCEPTANCE RECORD

NATIONAL

HUMAN RESOURCES DEPARTMENT REV. 9/90

NATIONAL

ASSOCIATE ACCEPTANCE RECORD

I have received a copy of:

— WELCOME HANDBOOK

— CHEMICAL SAFETY HANDBOOK

— PERSONAL APPEARANCE STANDARDS

These outline the benefits, policies, procedures and associates’

responsibilities for the organization. I will familiarize myself

with this information and seek verification or clarification where

necessary, and will comply with the policies and procedures

pertaining to the facility in which I am employed. I understand

that my employment may be terminated, with or without notice,

by the company for legitimate business reasons, including lack

of work, unsatisfactory performance, improper behavior or any

other reason which, in the sole judgment of the Company,

constitutes a basis for termination of employment. I further

understand that no representative of National, other than the

President or Director of Human Resources, has any authority to

enter into any agreement for employment for any specified

period of time or to make any arrangement contrary to the

foregoing.

Should I leave the employment of National, I agree to return

63a

Appendix G

my uniform to my store. If I fail to do so, I authorize National

to deduct from my paycheck the current assessed value.

The information I have received is subject to change as situations

warrant and I understand that the changes in the policies may

supercede, modify or eliminate the policies summarized.

Changes in policy will be communicated to me by my supervisor

or through official notices on bulletin boards. I accept

responsibility for keeping informed of these changes.

Lisa Varner

NAME (Please Print)

10-10-90

DATE

s/ Lisa Varner

SIGNATURE

STORE NO.

RETURN TO THE HUMAN RESOURCES

DEPARTMENT IMMEDIATELY

64a

APPENDIX H — SEXUAL HARASSMENT POLICY

REISSUED AUGUST 16, 1990

NATIONAL POLICY

Reissued August 16, 1990

Sexual Harassment Policy

It is an established policy of National Super Markets, Inc.

that sexual harassment by and of its employees is unacceptable

and will not be tolerated. This policy applies to all employees,

both supervisory and non-supervisory, and prohibits sexual

harassment in any form, including verbal and physical

harassment.

Sexual harassment includes, but is not limited to, making

unwanted sexual advances and requests for sexual favors where

either:

(1) submission to such conduct is made an

explicit or implicit term or condition of

employment;

(2) submission to or rejection of such conduct by

an individual is used as the basis for employment

decisions affecting such individual; or

(3) such conduct has the purpose or affect of

substantially interfering with an individual’s work

performance or creating an intimidating, hostile,

or offensive working environment.

Any employee who believes he/she has been sexually

harassed by a co-worker or supervisor should promptly report

65a

Appendix H

the facts of the incident to either Carol Schone of the Training

Department or Roger Beckman of the Labor Relations

Department, either may be reached at 731-5511. Aconfidential

investigation of any complaint will be undertaken and if the

complaint is determined to be valid, the offender will be subject

to disciplinary action up to and including termination.

—PLEASE POST—

66a

Appendix H

August 16, 1990

Procedures for Handling Sexual Harassment Complaint

Any supervisor who is notified of a complaint regarding

sexual harassment, should immediately direct the

complaintant to Carol Schone or Roger Beckman.

Ms. Schone or Mr. Beckman will meet with the complaintant

to discuss the situation and to determine if further

investigation is warranted.

If the investigator believes the situation warrants it, a formal

confidential investigation will be undertaken. All pertinent

witnesses will be interviewed hy the investigator to

determine the facts of the situation.

. The complaint and facts fr.m the investigation will be

presented to the Director of Labor Relations, the Director of

Store Operations and the Division Counsel for review and

decisions as to what, if any, action should be taken.

. The investigator will inform the complaintant of the

Company’s decision within fourteen days of their initial

meeting with the complaintant.

If the complaintant is not satisfied with the Company’s

response, they will have one week from the date they are

notified of the Company’s decision to request a review of the

case before the Director of Labor Relations.

. All complaintants will be given a copy of the above

procedures at the initial meeting between themselves and the

investigator.

67a

APPENDIX I — SEXUAL HARASSMENT POLICY

REISSUED JANUARY 1, 1991

NATIONAL POLICY

Reissued 1/1/91

Sexual Harassment Policy

It is an established policy of National Super Markets, Inc.

that sexual harassment by and of its employees is unacceptable

and will not be tolerated. This policy applies to all employees,

both supervisory and non-supervisory, and prohibits sexual

harassment in any form, including verbal and physical

harassment.

Sexual harassment includes, but is not limited to, making

unwanted sexual advances and requests for sexual favors where

either:

(1) submission to such conduct is made an

explicit or implicit term or condition of

employment;

(2) submission to or rejection of such conduct by

an individual is used as the basis foremployment

decisions affecting such individual; or

(3) such conduct has the purpose or affect of

substantially interfering with an individual’s work

performace or creating an intimidating, hostile, or

offensive working environment.

Any employee who believes he/she has been sexually

68a

Appendix I

harassed by aco-worker or supervisor should promptly report

the facts of the incident to either Carol Schone of the Training

Department or Roger Beckman of the Labor Relations

Department, either may be reached at 731-5511. Aconfidential

investigation of any complaint will be undertaken and if the

complaint is determined to be valid, the offender will be subject

to disciplinary action up to and including termination.

—PLEASE POST—

69a

Appendix I

01/01/91

Procedures for Handling Sexual Harassment Complaint

Do NOT Post

. Any supervisor who is notified of a complaint regarding

sexual harassment, should immediately direct the

complaintant to Carol Schone or Roger Beckman.

. Ms. Schone or Mr. Beckman will meet with the complaintant

to discuss the situation and to determine if further

investigation is warranted.

. Ifthe investigator believes the situation warrants it, a formal

confidential investigation will be undertaken. All pertinent

witnesses will be interviewed by the investigator to

determine the facts of the situation.

. The complaint and facts from the investigation will be

presented to the Director of Labor Relations, the Director of

Store Operations and the Division Counsel for review and

decision as to what, if any, action should be taken.

. The investigator will inform the complaintant of the

Company’s decision within fourteen days of their initial

meeting with the complaintant.

. If the complaintant is not satisfied with the Company’s

response, they will have one week from the date they are

notified of the Company’s decision to request a review of the

case before the Director of Labor Relations.

70a

Appendix I

7. All complaintants will be given a copy of the above

procedures at the initial meeting between themselves and the

investigator.

Tla

| APPENDIX J — RELEVANT STATUTES

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and (2):

§ 2000e-2. Unlawful employment practices

(a) Employer practices

It shall be unlawful employment practice for

an employer —

(1) to fail or refuse to hire or to discharge

any individual, or otherwise to discriminate

against any individual w:th respect to his

compensation, terms, conditions, or

privileges of employment, because of such

individual's race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities or otherwise adversely afiect

his status as an employee, because of such

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

national origin.

72a

Appendix J

Civil Rights Act of 1991, 42 U.S.C. § 2000 E-2, Pub. L. 102-

166, 105 Stat. 1071:

Where appropriate and to the extent

authorized by law, the use of alternative

means of dispute resolution, including

settlement negotiations, conciliation,

facilitation, mediation, factfinding,

minitrials, and arbitration, is encouraged to

resolve disputes arising under the Acts or

provisions of Federal law amended by this

title.

Labor Management Relations Act, 1947, 29 U.S.C. § 158(d):

(d) For the purposes of this section, to

bargain collectively is the performance of the

mutual obligation of the employer and the

representative of the employees to meet at

reasonable times and confer in good faith

with respect to wages, hours, and other terms

and conditions of employment, or the

negotiation of an agreement, or any question

arising thereunder, and the execution of a

written contract incorporating any agreement

reached if requested by either party .. .

* * *

73a

Appendix J

Labor Management Relations Act, 1947, 29 U.S.C. § 171(a)

and (c):

§ 171. Declaration of purpose and policy

It is the policy of the United States that —

(a) sound and stable industrial peace and

the advancement of the general welfare,

health, and safety of the Nation and of the

best interests of employers and employees

can most satisfactorily be secured by the

settlement of issues between employers and

employees through the processes of

conference and collective bargaining

between employers and the representatives

of their employees:

* * *

between parties to collective bargaining

agreements may be avoided or minimized by

making available full and adequate

governmental facilities for furnishing

assistance to employers and _ the

representatives of their employees in

formulating for inclusion within such

agreements provision for adequate notice of

any proposed changes in the terms of such

agreements, for the final adjustment of

grievances or questions regarding the

application or interpretation of such

74a

Appendix J

agreements, and other provisions designed

to prevent the subsequent arising of such

controversies.

June 23, 1947, c. 120, Title II, § 201, 61 Stat.

152.

Labor Management Relations Act, 1947, 29 U.S.C. § 173(d):

§ 173. Functions of Service

Use of conciliation and mediation services as last resort.

(d) Final adjustment by a method agreed

upon by the parties is declared to be the

desirable method for settlement of grievance

disputes arising over the application or

interpretation of an existing collective-

bargaining agreement. The Service is

directed to make its conciliation and

mediation services available in the settlement

of such grievance disputes only as a last

resort and in exceptional cases.

June 23, 1947, c. 120, Title II, § 203, 61 Stat.

153.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.