Sontana J. Heckert v. The Firestone Tire and Rubber Company, 968 F.2d 20, 10th Cir. (1992)
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Scribd Government DocsSontana J. Heckert v. The Firestone Tire and Rubber Company, 968 F.2d 20, 10th Cir. (1992)
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Scribd Government Docs968 F.
2d 20
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Sontana J. HECKERT, Plaintiff-Appellant,
v.
The FIRESTONE TIRE AND RUBBER COMPANY,
Defendant-Appellee.
NO. 90-6417.
United States Court of Appeals, Tenth Circuit.
June 25, 1992.
1
Before STEPHEN H. ANDERSON and BALDOCK, Circuit Judges, and
CONWAY,* District Judge.
2ORDER AND JUDGMENT**
3
JOHN E. CONWAY, District Judge, Sitting by Designation.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff appeals the entry of adverse judgment on her claims of sexual
harassment, Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and
intentional infliction of emotional distress. The trial of the two claims was
bifurcated. The jury returned a verdict for Defendant on the intentional
infliction of emotional distress claim; the district court found in favor of
Defendant at the close of Plaintiff's Title VII case in chief. Plaintiff raises three
arguments on appeal: (1) she established and proved sexual harassment; (2) the
actions of Defendant's supervisors are Defendant's actions; and (3) she had a
right to jury trial on all issues common to the sexual harassment and emotional
distress claims. We affirm.
I.
6
Plaintiff first argues that she proved a claim of sexual harassment. The district
court, after hearing Plaintiff's evidence, determined there was insufficient
evidence of sexual harassment. Accordingly, the district court dismissed the
claim.
There are two forms of sexual harassment which violate Title VII: quid pro quo
sexual harassment and hostile environment sexual harassment. Hicks v. Gates
Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). Plaintiff alleged that she
suffered from both types.
A.
8
"Quid pro quo harassment occurs when submission to sexual conduct is made a
condition of concrete employment benefits." Id. Additionally, quid pro quo
harassment may occur when adverse job consequences result from refusal to
submit to sexual conduct. Id. at 1414. The record in this case does not indicate
that Plaintiff's employment in any way was conditioned upon her submission to
sexual conduct with any employee of Defendant or was adversely affected. The
district court did not err in finding no quid pro quo sexual harassment.
B.
9
Hostile work environment sexual harassment occurs when conduct
unreasonably interferes with an individual's work performance or creates an
intimidating, hostile, or offensive working environment. Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65 (1986). "For sexual harassment to be
actionable, it must be sufficiently severe or pervasive 'to alter the conditions of
[the victim's] employment and create an abusive working environment.' " Id. at
67 (quoting Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir.1982)).
"Whether the sexual conduct complained of is sufficiently pervasive to create a
hostile or offensive work environment must be determined from the totality of
the circumstances." Hicks, 833 F.2d at 1413.
10
Plaintiff contends that under the totality of the circumstances her unequal
treatment need not have sexual overtones to be sexually harassing. Although we
agree with Plaintiff's contention, as it is supported by the law of this circuit, see
id. at 1415, we conclude that any unequal treatment to her was not due to sexual
harassment.
11
Plaintiff also contends that incidents of sexual harassment directed at other
female employees may be used to support her hostile environment claim.
Plaintiff maintains the district court mistakenly believed that her hostile
environment claim turned on adverse consequences. Evidence of a generally
harassing work atmosphere, in addition to evidence specifically showing
harassment of the plaintiff, is an important inquiry in evaluating hostile
environment claims. Id. at 1415. Such evidence may be critical when the
plaintiff cannot establish harassment without showing a discriminatory
environment. Id. at 1415-16. "[I]ncidents involving employees other than the
plaintiff are relevant in establishing a generally hostile work environment." Id.
at 1416. The evidence of sexual harassment of other female employees along
with Plaintiff's testimony of harassment to her was insufficient to prove hostile
environment sexual harassment. The district court did not err in finding no
hostile environment sexual harassment.
II.
12
Plaintiff next argues that the acts of Defendant's supervising personnel are the
acts of Defendant. Because Plaintiff failed to prove her sexual harassment
claim, we need not reach the issue of whether Defendant is liable under agency
principles. See Hicks v. Gates Rubber Co., 928 F.2d 966, 973 (10th Cir.1991).
III.
13
Plaintiff finally argues that she had a right to trial by jury on the issues common
to both the legal claim of intentional infliction of emotional distress and the
equitable Title VII discrimination claim. The district court refused to permit
Plaintiff to present evidence to the jury of unwelcome sexual advances to other
female employees of Defendant. Plaintiff contends the bifurcation of the trial
abrogated her right to a jury trial on the claim of intentional infliction of
emotional distress, because the hostile environment evidence was necessary to
prove the emotional and physical distress she sustained.
14
It is settled that where there is a jury trial of legal issues and a bench trial of
equitable issues, any fact issues central to each must first be tried to the jury.
Lytle v. Household Mfg., Inc., 494 U.S. 545, 550 (1990); Skinner v. Total
Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir.1988). Any claims exclusively
within the bounds of Title VII were not to be tried to a jury. See Snider v. Circle
K Corp., 923 F.2d 1404, 1407 (10th Cir.1991).
15
In this case, the evidence, of sexual advances toward other female employees,
which Plaintiff sought to include to support her claim of intentional infliction of
emotional distress, was irrelevant to that claim. To recover in Oklahoma for
intentional infliction of emotional distress, a plaintiff must prove the
defendant's extreme and outrageous conduct intentionally or recklessly caused
the plaintiff emotional distress. Pytlik v. Professional Resources, Ltd., 887 F.2d
1371, 1379 (10th Cir.1989). Extraordinary transgressions are required. Eddy v.
Brown, 715 P.2d 74, 77 n. 6 (Okla.1986). Conduct toward other employees,
such as that Plaintiff sought to present, would not have proven outrageous
conduct toward Plaintiff.
16
Thus, the district court did not abuse its discretion in bifurcating the trial and
excluding evidence of sexual advances toward other female employees during
the jury trial. See Figures v. Board of Pub. Utils. of the City of Kan. City, --F.2d ----, Nos. 90-3210, 90-3226, 90-3225, slip op. at 6 (10th Cir. May 7, 1992)
(decision to exclude evidence within sound discretion of district court and will
be reversed only for clear abuse of discretion); Polys v. Trans-Colorado
Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir.1991) (same); Thweatt v. Ontko,
814 F.2d 1466, 1470 (10th Cir.1987) (district court has discretion in conduct of
trial, including presentation of evidence).
17
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Honorable John E. Conway, District Judge, United States District Court for the
District of New Mexico, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
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