[Home][Sources][How Do I?][Overview][Help][Logo] [Return To Search] [Focus] [printdoc][emaildoc] Search Terms: Harris, Forklift Systems [Document List] [Expanded List] [KWIC] [FULL] [Previous Document] Document 11 of 11. [Next Document] TERESA HARRIS v. FORKLIFT SYSTEMS, INC. No. 3:89-0557 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE, NASHVILLE DIVISION 1990 U.S. Dist. LEXIS 20115; 60 Empl. Prac. Dec. (CCH) P42,070 November 27, 1990, Filed; November 28, 1990, Entered JUDGES: [*1] Nixon, Sandidge, III OPINIONBY: KENT SANDIDGE, III OPINION: REPORT AND RECOMMENDATION Plaintiff filed this claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e on July 7, 1989. The matter was referred to the undersigned as Special Master on July 21, 1989, pursuant to the provisions of 42 U.S.C. § 2000e-5(f)(5), Federal Rules of Civil Procedure 53, and the Local Rules of Court. Following a first meeting of the parties, a scheduling order was entered and trial was heard before the undersigned on July 23, 1990. Plaintiff, the former Rental Manager for defendant Forklift Systems, Inc. ["Forklift"], claims that she was constructively discharged because of a sexually hostile work environment created by Forklift's President, Charles Hardy. Defendant's theory is that plaintiff walked off the job on October 1, 1987, because defendant had terminated its business relationship with plaintiff's husband. The following are my findings of fact, conclusions of law, and recommendation for disposition. FINDINGS OF FACT The parties agree that Title VII jurisdictional requirements are met in this case. Plaintiff, Teresa [*2] Harris, is a female citizen of the United States and the State of Tennessee. At all times pertinent to this action, plaintiff has been a resident of Davidson County, Tennessee. Plaintiff was employed by Forklift as a Rental Manager from April 22, 1985, until October 1, 1987. At all times relevant, Charles Hardy was, and still is, President of Forklift. Forklift is a Tennessee corporation with its principal place of business at 884 Elm Hill Pike, Nashville, Tennessee. Defendant is in the business of selling, leasing and repairing forklift machines. Defendant is an employer within the meaning of 42 U.S.C. § 2000(e). Plaintiff was initially assigned responsibility for management of leased equipment and sales coordinator for the sales department. Plaintiff earned $ 13,796 in salary, commissions, and bonuses from April 22, 1985, through the end of 1985; $ 30,024 in 1986; and $ 26,051 through September 30, 1987. Of the managers employed by Forklift during the period of plaintiff's employment, four were male and two were female. Other than plaintiff, the remaining female manager was Charles Hardy's daughter. During the time of plaintiff's tenure [*3] the Service Manager was Mike Moseley, Office Manager was Kathy Kernell, Parts Managers were John Garrett and then David Matthews, Sales Manager was Dick Read, and the Comptroller was Bennie Lawson. Plaintiff was a manager paid on a base salary plus commission. All other managers but one were paid strictly a base salary. The net result was that plaintiff was making more than all but one of the managers, Dick Read. Overall, plaintiff's compensation increased during her tenure at Forklift. Plaintiff was treated and compensated differently from other male managers in the following respects: 1) she received a smaller bonus in 1987, than the Service Manager and Comptroller, both of whom were males; and 2) she was reimbursed for her travel expenses on a per mile basis while the other managers either received a company car or a monthly car allowance. However, these discrepancies are attributable to factors other than sex discrimination. Bonuses were distributed primarily on the basis of longevity. The three managers who had been employed at Forklift longer than plaintiff received larger bonuses than she did, and the one with less tenure than plaintiff, David Matthews, received less [*4] of a bonus than she did. An additional factor affecting bonus was compensation method; plaintiff and Mr. Matthews, the two managers with the lowest bonus, were on a commission plan, and thus had control over their income. The three managers on strictly a base salary plan were paid higher bonus. Plaintiff was not afforded a company car nor did she receive a set car allowance, because the amount she drove her car for the company did not economically justify her receiving these benefits. The Service Manager had a company car because he was on 24-hour call. The Sales Manager had a company' car because he was responsible for sales in both Tennessee and Kentucky, and did a lot of driving. The Office Manager and Comptroller were paid a monthly car allowance because they did a lot of running around town and had high mileage, and so it was simpler for the company to give them a flat fee rather than have them keep track of their mileage. The Office Manager received a company car in 1987 because she was then required to travel to an office in Kentucky. Plaintiff was initially denied a separate office when Forklift relocated its place of business in November 1986. This was rectified after [*5] plaintiff complained to Charles Hardy. On one occasion plaintiff was directed by Hardy to bring coffee into a meeting, a request which he did not make of male managers. Plaintiff was the object of a continuing pattern of sex-based derogatory conduct from Hardy, including the following: (a) Hardy stated to plaintiff in the presence of other employees of Forklift, "You're a woman, what do you know," on a number of occasions during the period of plaintiff's employment, and "You're a dumb ass woman," at least once. (b) Hardy, on a number of occasions, stated to plaintiff in the presence of other employees of Forklift, "We need a man as the rental manager." (c) Hardy, in front of a group of other employees of Forklift and a Nissan factory representative stated to plaintiff, "Let's go to the Holiday Inn to negotiate your raise." However, plaintiff knew this was meant as a joke, and treated it as a joke at the time. This comment must be viewed in context of the fact that the company often conducted management meetings at a nearby Holiday Inn. (d) Hardy asked plaintiff and other female employees, but not male employees of Forklift, to retrieve coins from his front pants pocket. (e) [*6] Hardy three objects on the ground in front of plaintiff and other female employees of Forklift, but not male employees, and asked them to pick the object up, thereafter making comments about female employees' attire. (f) Hardy commented with sexual innuendos about clothing worn by plaintiff and other female employees of Forklift, but not male employees. Plaintiff testified that by August 1987, she was experiencing anxiety and emotional upset because of Hardy's behavior. She did not want to go to work; she cried frequently and began drinking heavily; and her relationship with her children became strained. Forklift had notice of the harassment. The harasser was President of the defendant company, and on August 18, 1987, plaintiff met with Hardy to complain about his treatment towards her. Plaintiff secretly taped a portion of this August 18th meeting with Hardy, and transcribed the tape herself. The transcription of the tape indicates that Hardy had no prior knowledge that plaintiff was offended by any of his conduct. During the meeting between plaintiff and Hardy, he admitted making some of the comments, but said they were "jokes." He also apologized and promised that his offensive [*7] behavior would cease. Based upon his assurances, plaintiff did not resign as she had threatened earlier in the meeting. Shortly after the August 18th meeting, Hardy's offensive behavior began again. In early September, Hardy made a remark to plaintiff suggesting that she promised sexual favors to a customer in order to secure an account: Hardy asked plaintiff in front of other employees of defendant, "What did you do, promise the guy at ASI (Alladin Synergetics, Inc.) some 'bugger' Saturday night?" On Thursday, October 1, 1987, plaintiff collected her pay check and left her place of employment. On Friday, October 2, 1987, plaintiff met with her attorney; and on Monday, October 5, 1987, plaintiff filed her EEOC complaint. Until the time plaintiff quit Forklift, a social relationship existed between Mr. and Mrs. Hardy and plaintiff and her husband. The couples went out together on more than one occasion. It appeared to plaintiff's co-workers that she had a good working relationship with themselves and with Hardy. Plaintiff would sometimes drink beer with her co-workers after hours, and would join in the conversations, sometimes with course language. Other females employed [*8] at Forklift were not offended by Hardy's vulgar sexual comments. Several clerical employees formerly employed at Forklift testified that Hardy's frequent jokes and sexual comments were just part of the joking work environment at Forklift. They were not offended, nor did they know that plaintiff was offended. Angela Hicks, formerly a receptionist at Forklift, aptly expressed her feelings about comments Hardy may have made about her body. Ms. Hicks jauntily testified, "lots of people make comments about my breasts." Plaintiff was good at her job, and did not receive any substantial criticism from Hardy. Annual reviews at Forklift are informal. Plaintiff did not feel that her 1987 annual review was adequate, but there is no proof that other managers received a more thorough review than did plaintiff. After plaintiff filed her EEOC complaint, Hardy went back into his desk calendar and plaintiff's personnel file and made some notes in order to manufacture a justification for her termination. Albert Lyter, a forensic chemist experienced in ink pen chemical analysis, testified that Hardy probably made the notations in his desk calendar and personnel file on some date after January [*9] 1, 1988. These notes indicate that Hardy was considering terminating plaintiff because she could not get along with the receptionist. In fact, former receptionists testified that they had no real problems with plaintiff. There is no credible proof that Hardy was ever dissatisfied with plaintiff's job performance or ever intended to fire her. Hardy and plaintiff's husband, Larry Harris, had a business relationship during the time of plaintiff's employment at Forklift. Larry Harris' business, Cellular Power, sold batteries to Forklift for use in the forklift machines. On October 7, 1987, Forklift cancelled its account with Cellular Power. The cancellation occurred orally in a phone conversation between Larry Harris and Hardy's Secretary, Stephine Vanns, and was confirmed by a letter from Ms. Vanns to Mr. Harris dated October 7, 1987. Larry Harris owed Hardy money on a loan, which Harris had used to finance Cellular Power. After Forklift cancelled its account with Cellular Power, Hardy stopped making payment on the note and Hardy sued Harris in state court. CONCLUSIONS OF LAW Assignment of credibility was difficult in this case. Defendant attempted to show that the sole reason [*10] plaintiff quit at Forklift was because Hardy terminated Forklift's account with Cellular Power. Hardy testified that the business relationship between himself and Harris had been deteriorating for some time, and that he informed Harris that his account was terminated in late September, prior to the date plaintiff walked off the job. Plaintiff testified that she had no information that the business relationship was deteriorating, and that it was the norm for Hardy to do business with her husband's competitors as well as her husband. Larry Harris also testified that he had no knowledge the relationship was deteriorating until the account was terminated by Stephine Vanns on October 7th. I am certain that Hardy's business relationship with plaintiff's husband played more of a role in plaintiff's dissatisfaction with her job than plaintiff admitted. Business relationships rarely deteriorate just like that, especially between social friends and in light of Hardy's financial interest in Cellular Power. It must have been a financial blow to Cellular Power to lose the Forklift account, and I do not doubt that plaintiff had some bitter feelings towards Hardy over this. However, I do not [*11] assign much credibility to Charles Hardy. Hardy's credibility is damaged by the proof that after plaintiff left Forklift, Hardy went into his desk calendar and doctored it up to make it look as if he was displeased with plaintiff's job performance. Furthermore, plaintiff's version of the facts regarding the timing of the breakdown of Forklift's relationship with Cellular Power is corroborated by a letter from Stephine Vanns to Larry Harris dated October 7th, indicating that the Cellular Power account was not terminated until that date. See Plaintiff's Exhibit 10. Thus, it is just as likely that Charles Hardy cut the business relationship with Cellular Power because plaintiff quit and filed the EEOC charge as it is likely that plaintiff quit because of the deteriorating business relationship. I will thus discount defendant's theory of this case, and examine whether the proof bears out plaintiff's allegations of Title VII violations. I believe that Hardy is a vulgar man and demeans the female employees at his work place. Many clerical employees tolerate his behavior and, in fact, view it as the norm and as joking. Plaintiff presented no testimony from other female Forklift [*12] employees indicating that they found Hardy's behavior to be offensive or that a hostile work environment existed. This does not mean, however, that plaintiff, a managerial employee, took it the same way. In fact, I believe she did not. She believed that Hardy's sexual comments undermined her authority; this was especially painful when Hardy would make demeaning sexual comments to plaintiff in front of her co-workers. Why plaintiff kept this to herself until August 18, 1987, I do not know. n1 Plaintiff denies that she did, but the tape plaintiff made of the private August 18th meeting between herself and Hardy reveals that prior to this date Hardy really did not know that plaintiff viewed his conduct as other than joking. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 I do not assign much credibility to the testimony of Dick Read, who stated that plaintiff did express her displeasure to Hardy prior to this date. Dick Read was terminated from Forklift and believe he still holds quite a grudge against Hardy. He has testified for the Harris' against Hardy in prior State court litigation regarding Cellular Power and the promissory note. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*13] I conclude that plaintiff was not able to prove that Hardy's conduct was so severe as to create a hostile work environment for plaintiff at Forklift. Nor was plaintiff able to show that she was treated disparately as to other terms or conditions of employment. Thus, I recommend that plaintiff's Title VII claims be dismissed. Hostile Work Environment Plaintiff makes several claims that she was subjected to disparate treatment in regard to the terms and conditions of her employment. One of the conditions about which plaintiff complains is a sexually hostile work environment. Sexual harassment which creates a hostile work environment is discrimination on the basis of sex within the meaning of Title VII. Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). Sexual harassment includes "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." 29 C.F.R. § 1604.11a (1985), quoted in Vinson, 477 U.S. at 65. Sexual harassment is actionable under Title VII whether or not it [*14] results in economic injury to the victim, where "such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." Id. A hostile working environment exists where sexual harassment is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id., at 67. In the Sixth Circuit, the test for whether or not sexual harassment rises to the level of a hostile work environment is whether the harassment is "conduct which would interfere with that hypothetical reasonable individual's work performance and affect seriously the psychological well-being of that reasonable person under like circumstances." Rabidue v. Osceola Refining Company, 805 F.2d 611, 620 (6th Cir. 1986). The plaintiff must also prove that her injury "resulted not from a single or isolated offensive incident, comment, or conduct, but from incidents, comments, or conduct that occurred with some frequency." Id. Once the objective "reasonable person" [*15] test is met, the court must next determine if the victim was subjectively offended and suffered an injury from the hostile work environment. Id. See also Highlander v. K.F.C. National Management Co., 805 F.2d 644, 650 (6th Cir. 1986). The elements of a cause of action for hostile work environment discrimination under Title VII are: (1) the employee was a member of a protected class; (2) the employee was subjected to unwelcomed sexual harassment in the form of sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based upon sex; (4) the charged sexual harassment had the effect of unreasonably interfering with the plaintiff's work performance in creating an intimidating, hostile or offensive working environment that affected seriously the psychological well-being of the plaintiff; and (5) the existence of respondeat superior liability. Rabidue, 805 F.2d at 619-620. Here, there is no question but that elements one, three and five are fulfilled. Teresa Harris is a woman, and thus a member of a protected class; there is [*16] no proof that male employees of Forklift were subjected to the conduct complained of by plaintiff; and Charles Hardy, the party allegedly responsible for committing the sexual harassment, is President of the company, thus eliminating the issue of respondeat superior liability. I also believe that element two is fulfilled; Charles Hardy really did not deny that he made the sexually crude comments complained of by plaintiff. His excuse is that he thought of his conduct as joking, and up until August 18, 1987, he thought plaintiff thought so too. The disputed issue involves element four, that is, whether Hardy's continuous inappropriate sexual comments rose to the level of creating a hostile work environment. I believe that this is a close case, but that Charles Hardy's comments cannot be characterized as much more than annoying and insensitive. The other women working at Forklift considered Hardy a joker. Most of Hardy's wisecracks about females' clothes and anatomy were merely inane and adolescent, such as the running joke that large breasted women are that way because they eat a lot of corn. Hardy's coin dropping and coin-in-the-pocket tricks also fall into this category. [*17] I appreciate that plaintiff, as a management employee, was more sensitive to these comments than clerical employees, who it appears were conditioned to accept denigrating treatment. At trial, plaintiff tried to get far too much mileage out of Hardy's comment that they would negotiate her raise at the Holiday Inn. The comment shows Hardy to be a man with a bad sense of humor, but it was not a sexual proposition. Plaintiff took the comment as a joke at the time and knew that it stemmed from the fact that management meetings were often conducted at the Holiday Inn. Hardy's comments to plaintiff that she was a "dumb ass woman," and "you're a woman, what do you know," were more objectionable. Hardy's comment to plaintiff suggesting that she promised sexual favors to a customer in order to secure an account was truly gross and offensive. However, it should be noted that this comment was not made in front of a client, but in front of other employees of Forklift. I believe that some of Hardy's inappropriate sexual comments, especially this last one, offended plaintiff, and would offend the reasonable woman. However, I do not believe they were so severe as to be expected to seriously [*18] affect plaintiff's psychological well-being. A reasonable woman manager under like circumstances would have been offended by Hardy, but his conduct would not have risen to the level of interfering with that person's work performance. Neither do I believe that plaintiff was subjectively so offended that she suffered injury, despite her testimony to the contrary. Plaintiff repeatedly testified that she loved her job. She and her husband socialized with Hardy and his wife, and plaintiff often drank beer and socialized with Hardy and her co-workers. Plaintiff herself cursed and joked and appeared to her co-workers to fit in quite well with the work environment. The channels of communication were open between plaintiff and Hardy, but plaintiff was not inspired to broach the issue with him until she had been working at Forklift for over two years. Although Hardy may at times have genuinely offended plaintiff, I do not believe that he created a working environment so poisoned as to be intimidating or abusive to plaintiff. It is helpful to compare the instant case to Rabidue, wherein the Sixth Circuit affirmed the district court's finding that the plaintiff was not the victim of [*19] a hostile work environment. In Rabidue, the plaintiff was subjected to a pattern of sexual harassment by a co-worker who "customarily made obscene comments about women generally, and, on occasion, directed such obscenities to the plaintiff." 805 F.2d at 615. This annoyed the plaintiff as well as her female co-workers. On top of this, several co-workers displayed pictures of naked women about the work area. In finding that the plaintiff was not subjected to a hostile work environment remediable under Title VII, the Sixth Circuit noted that cases recognizing a violation of Title VII here based on a pattern of sexual harassment more egregious than that complained of by plaintiff. Id., at 622, n. 7. These cases involved sexual harassment directed at the plaintiff for a period of lime by more than one fellow employee, in the form of requests for sexual relations or actual offensive touching. Id. I find that the degree of sexual hostility that existed in Teresa Harris' work environment was comparable to that in Rabidue. In both cases, the perpetrator of the offensive conduct was chiefly one person. He was vulgar [*20] and crude, but the sexual conduct was not in the form of sexual propositions or physical touching. It is true that Ms. Harris' nemesis was her supervisor and owner of the company, whereas Ms. Rabidue's was merely a co-worker. However, Ms. Rabidue was able to show that the offensive conduct was severe enough to annoy her female co-workers, which Ms. Harris has been unable to show. Constructive Discharge As plaintiff has not shown that she was subjected to a hostile work environment, neither can she show that she was constructively discharged. An employee is not constructively discharged unless she can show that a reasonable person in her shoes that is subjected to the same working conditions would have found the working conditions so unpleasant that she would have felt compelled to resign. Wheeler v. Southland Corp., 875 F.2d 1246, 1249 (6th Cir. 1989); see also Yates v. AVCO Corp., 819 F.2d 630 (6th Cir. 1967). Further, she must show some proof of intent on the part of the employer that the environment would cause her to resign. 875 F.2d at 1249. Intent can be shown by proof [*21] that circumstances were so unpleasant that it was reasonably foreseeable to the employer that the plaintiff would resign. This is based on the precept that a person is held to intend the foreseeable consequences of his or her conduct. This intent factor is usually shown by proof of some "aggravating factor," in addition to the proof of discrimination alone. Id. The undersigned is moved by the fact that after plaintiff spoke with Hardy on August 18th, thus making him aware that his sexual comments were not jokes to her, Hardy did not stop altogether. The proof showed that he stopped for awhile, but then made the crude "promised him some 'bugger'" comment. However, since things were just annoying and not that bad before, I do not believe that this additional comment created foreseeability that plaintiff would in fact, resign. It would, of course, create foreseeability that plaintiff would again speak with Charles Hardy or reprimand him sharply at the time of the comment. It would not drive a reasonable person, even a reasonable female manager, to quit. Other Terms and Conditions of Employment In addition to the hostile work environment, plaintiff brings a claim of disparate [*22] treatment in terms of her pay, bonus, car allowance and failure to receive a 1987 annual review. The proof does not bear out plaintiff's claims of disparate treatment in these particulars. As set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the basic allocation of burden of proof in a Title VII case is as follows: First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff is successful in proving a prima facie case, the burden shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's termination or rejection." Id., at 802. Third, should the defendant carry this burden, the plaintiff must then prove by a preponderance of the evidence that the reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id. In order to show that the articulated reason is a pretext, the plaintiff may either show that a discriminatory reason was the more likely motivation or that the articulated reason is unworthy of belief. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983). [*23] Plaintiff simply was not paid less than her male co-managers, and has thus failed to set forth a prima facie case of discrimination because she was not treated disparately. The elements of a prima facie case vary according to the specific factual situation, but, at a minimum, plaintiff must show she was treated differently from similarly situated males. See, e.g., Texas Department of Community Affairs v. Burdine, 500 U.S. 248, 253 (1981). To establish a claim of unequal pay under Title VII, "plaintiff must show that different wages were paid to employees of opposite sexes for substantially equal work." Henry v. Lennox Industries, Inc., 768 F.2d 746, 752 (6th Cir. 1985). Nor was plaintiff able to show that her failure to receive a formal 1987 annual review was an example of disparate treatment. Plaintiff felt that her 1987 annual review was cursory, but she could not show that some similarly situated male employees were treated more favorably. Defendants articulated a legitimate, non-discriminatory reason for providing plaintiff with a different form of car allowance and a lesser bonus than her co-worker [*24] managers. She was reimbursed on a mileage basis rather than a flat rate or having a company car because she did not drive around town as often as other managers, or drive to Kentucky. She received less of a bonus than other managers because she had not worked at Forklift as long, and because her salary was based partially on commission and was thus under her control. She received more of a bonus than the other manager who had worked less time than she. Plaintiff did not offer any evidence that Forklift's proffered reasons for the differential bonus and car allowance treatment are unworthy of credence. Plaintiff has simply failed to raise an inference of discriminatory intent, a crucial element of proof in a Title VII case brought under the disparate treatment theory. Grano v. The Department of Development of the City of Columbus, 637 F.2d 1073, 1081 (6th Cir. 1980). I thus conclude that these legitimate, non-discriminatory reasons were not pretext. RECOMMENDATION The undersigned recommends that plaintiff's Title VII claims be DISMISSED. The undersigned further recommends that each party bear its own cost. An award of attorney's fees to [*25] a prevailing party is within the District Court's discretion, and there is no evidence to indicate that the defendant in this case is financially unable to assume these fees, that plaintiff's claim is frivolous, unreasonable or groundless, or that plaintiff pursued the action in bad faith. Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978); Torres v. County of Oakland, 758 F.2d 147 (6th Cir. 1985). ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of receipt of this notice, and must state with particularity the specific portions of this Report, or the proposed findings or recommendation to which objection is made. Failure to file objections within the specified time waives the right to appeal the District Court's Order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Respectfully submitted, Kent Sandidge, III UNITED STATES MAGISTRATE [Previous Document] Document 11 of 11. 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