Sharon B. Pollard, Plaintiff-Appellee/cross-Appellant v. E. I. Dupont De Nemours Company, Defendant-Appellant/cross-Appellee
Docket: 98-6317, 98-6319, 99-5125
Court: Court of Appeals for the Sixth Circuit; May 26, 2000; Federal Appellate Court
Sharon Pollard and her husband initiated legal action against her employer, DuPont, citing ongoing sexual harassment under Title VII and common law claims including intentional infliction of emotional distress, negligent supervision, and loss of consortium. The district court determined that Pollard faced a hostile work environment due to gender discrimination, noting that DuPont supervisors were aware of the harassment but failed to take effective action, which led to Pollard's medical leave and eventual termination when she refused to return to work under those conditions. The court characterized DuPont's response as gross negligence regarding Pollard's situation. Pollard was awarded $107,364 in back pay and benefits, $300,000 in compensatory damages (the maximum allowed), and $252,997.38 in attorney's fees.
DuPont appealed, contending that there was no harassment, challenging the trial court's findings, asserting that Pollard's claim was based on retaliation rather than harassment, and questioning the basis for the attorney's fees awarded. In contrast, Pollard cross-appealed on grounds that front pay should not be capped, that the cap on compensatory damages was unconstitutional, and that the court erred in dismissing her emotional distress claim.
The court's findings indicated that Pollard had been employed by DuPont since 1977, became an operator in 1987, and was part of a predominantly male workforce in the hydrogen peroxide section, which included only four women among about 28 employees.
While working on "C" shift, Pollard faced gender discrimination when assistant operator Rory Brico refused to take orders from her, citing a Bible passage that denigrated women's authority. Following this incident, Pollard was transferred to "A" shift in 1992, where initially relations among operators were amicable. However, in February 1994, hostility emerged as DuPont prepared for "Take Your Daughters to Work Day." Key figures, particularly Steve Carney and Jerry Lee, vehemently opposed the program, leading to a campaign against Pollard, including an email titled "Bull Malarky." After discussions with Carney and Lee about the event, the men on her shift (except Mark Cobb) ceased communication with her, following Carney's directive to ignore Pollard's instructions.
Testimony indicated a pervasive culture of misogyny in the peroxide department, with Carney frequently using derogatory language towards women and expressing disapproval of their presence in the workplace. Despite the existence of a supportive Women's Network, Carney and others openly criticized Pollard for participating. In May 1994, during a training meeting, Carney made disparaging remarks about women coaching, prompting Pollard to leave in distress. She reported the situation to her supervisor, David Swartz, who attempted to address the issue but was met with resistance, particularly from Carney, who was unapologetic and resistant to change his behavior. Pollard endured this hostile work environment for an extended period.
Swartz testified about ongoing tension in the workplace starting in spring 1994, which persisted throughout the year. The plaintiff reported issues regarding poor communication, isolation, and gender-based conduct, which escalated during the summer. Carney engaged in misconduct by setting off false alarms in the plaintiff's area, undermining her authority and causing disruptions, such as burning her food when she was distracted by these false alarms. Carney also failed to inform the plaintiff of actual alarms, leading to misunderstandings about her job performance.
Carney instructed assistant operators to act contrary to the plaintiff's directives regarding the vaporizers, which jeopardized product quality and timely shipments. These incidents occurred multiple times from 1994 to 1995, with the plaintiff raising her concerns to both the assistant operators and Swartz, who failed to take further action against Carney despite acknowledging the issues.
In the summer of 1994, the plaintiff reported that her bicycle tires were slashed, suspecting Carney was responsible; however, Swartz did not investigate this claim. In December 1994, assistant operators approached Swartz to discuss Carney's treatment of the plaintiff, leading to a "healing meeting" where the plaintiff emphasized the need for communication to avoid dangerous situations.
After Carney returned from vacation, he demanded a follow-up meeting, during which he confronted the plaintiff aggressively. Despite her reiteration of her concerns and reporting the tire slashing incident, Swartz ended the meeting without addressing the issues, resulting in no changes to the situation.
Plaintiff Pollard repeatedly expressed concerns regarding her safety and reported instances of harassment by male coworkers in the peroxide area to both Swartz and during Women's Network meetings. Supervisor Beth Basham acknowledged Pollard's complaints and believed she was harassed due to her sex but failed to investigate further. Despite this acknowledgment, DuPont's legal counsel contested the existence of sexual harassment and denied management's knowledge of such incidents.
In May 1995, diversity training specialist Bernie Scales was informed by Pollard about the harassment, prompting a meeting with employee relations manager Bob Shaw and Lee Ann Rice. Pollard detailed her complaints, yet no formal disciplinary action was taken against the alleged harasser, Carney. Although his behavior temporarily improved, it reverted to previous patterns shortly thereafter. When Pollard requested a shift transfer, the alternative offered involved working with a colleague who had previously disrespected her.
In late July 1995, Pollard found a Bible verse in her locker that undermined her authority, leading her to request medical leave. An investigation into this incident was initiated but was quickly halted after employees denied knowledge of it, with no follow-up questions posed. Notably, Carney was not questioned about the incident due to being on vacation at the time.
After Pollard's departure from the "A" shift, a celebration was held by the team, including supervisor David Swartz, during which derogatory comments were made about Pollard. Carney expressed relief at her leaving, prompting Swartz to caution him about potential implications for future investigations. Pollard was on short-term disability for six months based on a psychologist's advice, but upon DuPont's scheduling of a "return to work" meeting, she was informed that her return could involve working with Carney and others from the "A" shift. Pollard declined the conditions and was subsequently terminated.
In relation to a hostile work environment claim, the relevant legal standard requires the plaintiff to demonstrate that the employer was aware of the harassment and failed to act appropriately. DuPont contested the claim, arguing that the conduct was not sexual or gender-specific. However, the court found substantial evidence of anti-female bias directed at women in the peroxide area. The plaintiff must show that the harassment was severe enough to alter her employment conditions, taking into account the cumulative effect of various acts of harassment, including their frequency and impact on her work.
In the Williams decision, behaviors deemed severe and pervasive enough to constitute harassment included the use of foul language, sexual innuendos about the plaintiff, tasteless sexual jokes, and conspiracies among co-workers to force her to change shifts. Additional harassment involved objects glued to her desk, derogatory comments about women, being physically threatened, denied overtime and breaks, and various pranks intended to disrupt her work. The plaintiff demonstrated a pattern of daily degrading comments about women, harassment that undermined her authority, and incidents where she was isolated or misinformed, compromising her safety and job performance. This conduct aligns with established precedents for severe sexual harassment.
The document further examines whether DuPont had actual or constructive notice of the harassment and responded appropriately. DuPont contested the court's findings, claiming a lack of evidence regarding their awareness of sex-based derogatory comments directed at Pollard. However, this argument overlooks other forms of harassment and isolation the plaintiff faced, which were rooted in gender bias against women working in the peroxide area.
The trial court's findings were affirmed as correct upon reviewing the testimony. Plaintiff Sharon Pollard reported harassment to her supervisor, David Swartz, multiple times, and he was already aware of issues on "A" shift through his own observations. Beth Basham, Swartz's supervisor, acknowledged Pollard's complaints during Women's Network meetings but failed to investigate. Following a significant incident involving a Bible verse found in Pollard's locker, DuPont management conducted interviews that yielded no admissions, which was not unexpected. No disciplinary actions were taken against the individuals involved. Bob Shaw confirmed that Pollard would return to the same shift where she faced harassment, albeit with an additional female member.
DuPont's defenses included claims that they instructed the men to behave appropriately, posted notices about appropriate conduct, and argued that their investigation, despite being ineffective, should absolve them of liability. However, these arguments were deemed unconvincing. The district court found that DuPont management was aware of Pollard's harassment and failed to take adequate action. The behavior of Steve Carney towards Pollard was well known, yet no disciplinary measures were implemented.
Additionally, DuPont's assertion that Pollard's claim pertained to retaliation rather than sexual harassment was rejected as irrelevant. Pollard's testimony and complaints focused on the harassment by her coworkers and DuPont's inaction, not any adverse actions taken against her for reporting the misconduct.
DuPont's argument that the plaintiff must demonstrate disparate treatment to prevail on her hostile work environment sexual harassment claim is incorrect. Disparate treatment and hostile work environment sexual harassment are fundamentally different, and the McDonnell Douglas test applicable to disparate treatment claims does not apply here. In cases of hostile work environment, if such an environment is proven, there is no legitimate justification for it, and the defendant can only contest the allegations or claim remedial action was taken. The Supreme Court has established that evidence of a hostile work environment constitutes proof of disparate treatment, and it is not necessary to show economic disparate treatment to establish a prima facie case of coworker hostile environment sexual harassment. Therefore, the court affirms the district court's finding of DuPont's liability for co-worker sexual harassment.
Additionally, DuPont asserts that the trial judge exhibited bias, compromising its right to a fair trial. During testimony, the judge openly challenged the defense witness Bob Shaw, indicating a belief that the plaintiff's witnesses were credible while deeming the defense witnesses untruthful. The judge also expressed dissatisfaction with DuPont's attempts to address the harassment, aiming to ensure the company learns from its mistakes.
The expected behavior of a judge differs between bench trials and jury trials. The Supreme Court clarified that a judge's negative feelings towards a defendant, formed through evidence presented during the trial, do not constitute bias or prejudice, as these feelings are necessary for the judge's role. In the current case, there is no evidence of personal bias against the plaintiff by the district court prior to the trial, nor evidence of unfair treatment towards DuPont during the proceedings. Any remarks made by the judge were a result of the evidence presented and were not indicative of bias, especially since there was no jury to influence. Therefore, the motion for a new trial is denied.
Regarding attorney's fees, DuPont contests the district court's award of $252,997.38, arguing it should be reduced due to summary judgment in favor of the defense on certain claims and that the fees are excessively high. The court reviews such awards for abuse of discretion and notes that attorney's fees are typically calculated based on a reasonable number of hours at a reasonable rate, adjusted for unsuccessful claims. However, both parties failed to provide specific reasoning for or against the fee's reasonableness. Given the lack of detailed arguments and the complexity of the case, the award is affirmed.
Pollard cross-appeals, contending that front pay should not be constrained by the $300,000 statutory cap on compensatory damages under 42 U.S.C. § 1981a. The district court adhered to the precedent established in Hudson v. Reno, which categorized front pay as part of future pecuniary losses subject to this cap. Pollard argues that front pay functions as a substitute for reinstatement when reinstatement is inappropriate, a position supported by the Equal Employment Opportunity Commission (EEOC). Pollard and the EEOC assert that the Hudson decision misinterpreted both the statute's language and legislative history, which explicitly excludes traditional Title VII remedies from the cap. They also present public policy arguments favoring the exclusion of front pay from the cap and cite contrary rulings from other Circuit Courts. Despite agreeing with Pollard's arguments, the court cannot overturn Hudson without en banc consideration; thus, it upholds the inclusion of front pay within the statutory cap.
Pollard further cross-appeals, claiming the statutory cap violates the Separation of Powers doctrine by infringing on judicial authority to determine damages. The court finds this argument unpersuasive, affirming that Congress, in establishing Title VII, has the discretion to define remedies and set limits on damages without impairing judicial functions. Additionally, Pollard argues that the cap violates the Equal Protection Clause by discriminating between claimants of racial and gender discrimination. The court interprets this as an implied claim under the Fifth Amendment’s Due Process Clause, noting that the statute is valid if it has a rational relationship to a legitimate government purpose.
42 U.S.C. § 1981a imposes a $300,000 cap on damages for intentional discrimination based on race, national origin, sex, religion, or disability, aligning with the Americans with Disabilities Act. The statute is equitable, but the application differs for gender and race discrimination due to a provision stating that section 1981a does not limit remedies provided in section 1981, which addresses intentional discrimination claims pertaining specifically to contracts. Section 1981 covers discrimination in various contracts, including employment, while section 1981a focuses solely on employment discrimination. Therefore, a plaintiff cannot be considered "similarly situated" to claimants under section 1981. Even if there are similarities, the plaintiff's claim fails because racial and national origin discrimination remains a foundational element of civil rights law. The Civil Rights Act of 1991 was a political compromise limiting remedies to avoid imposing hiring quotas on employers, a concern reflected in Congressional debates. Consequently, the district court's decision to limit the plaintiff's recovery under 42 U.S.C. § 1981a is affirmed.
Regarding the plaintiff's cross-appeal on the summary judgment granted for the defense concerning intentional infliction of emotional distress, Tennessee law requires that the alleged conduct be deemed utterly intolerable in a civilized society to survive summary judgment. The district court referenced Dunn v. Moto Photo, Inc., emphasizing that not all malicious conduct meets this threshold. Nonetheless, the court found the defendant's actions unusually egregious, creating a factual issue regarding the outrageousness of the behavior. The plaintiff experienced prolonged harassment, including work sabotage, threats to personal safety, and derogatory remarks about women's capabilities, which were described as a form of slow torture.
A review of the record revealed significant moral outrage regarding DuPont managers' failure to address the prolonged degrading treatment of employees in the peroxide area. The inaction of the employer, despite awareness of the distressing conduct, may constitute intentional infliction of emotional distress. This tort serves as a necessary legal deterrent independent of physical harm. The court identified material factual issues regarding the outrageous behavior of DuPont employees and the management's refusal to rectify the situation, alongside ongoing denials of gender discrimination. The case is remanded for trial to evaluate whether the plaintiff meets the criteria established by Tennessee courts for this tort. The district court's summary judgment favoring DuPont on this matter is reversed, while the remaining judgment is affirmed. Additionally, the plaintiff's motion to strike a reply brief is denied.
