ORDER
This mаtter came on for trial before the Court. The plaintiff alleged sexual discrimination under Title VII, the Equal Pay Act and the Iowa Civil Rights Act. The matter is deemed fully submitted and the Court now enters its findings of fact, conclusions of law, and Order.
I. FINDINGS OF FACT
A. Introduction
This case arises out of JoDee Flock-hart’s claim that she was constructively discharged from Iowa Beef Processors, Inc. (“IBP”), because she was the victim of pervasive and on-going sexual harassment by both co-workers and management employees. She also alleges that she received less pay than male peers performing equal work.
Many of the facts are undisputed, but as with most sexual harassment cases, the Court is called upon to resolve some significant factual disparities. The Court’s findings are set forth as follows. 1
B. JoDee Flockhart Harassment
The plaintiff was born on April 5, 1966. She obtained her GED in 1984, and joined the Army in 1985. On September 19, 1988, Ms. Flockhart started with IBP as a
On July 16, 1990, Ms. Flockhart became a supply clerk, earning $5.80 per hour. The supply clerk position is known as a management support position. It is not part of the bargaining unit and is a nonunion job. Her job grade for pay purposes was “DD”. On October 24, 1994, Ms. Flockhart was promoted to senior supply clerk from pay grade “DD” to paygrade “BB”. Ms. Flockhart left her employment with IBP on May 10,1996.
Ms. Flockhart contends that she was the victim of sexual harassment of one kind or another from the time she began her employment at IBP. The sexual harassment can be grouped into three main categories: sexual touching and assault by a co-employee, David Wisecup; verbal abuse and harassment by Ms. Flockhart’s immediate supervisor, Frank Eisermann; and general harassment, including groping and touching, by co-employees. In order to put this dispute into some context, the Court will briefly outline the chain of command at IBP. This is important in connection with the issues concerning notice to supervisors.
As indicated, Ms. Flockhart was in the supply department. She started initially as a supply clerk and was later promoted to senior supply clerk. The supply department is part of the plant engineering department and is under the general supervision of the plant engineer. The chain of command that existed during the entire period of Ms. Flockhart’s employment is as follows. Starting with Ms. Flockhart, her immediate supervisor was the supply department manager, which position was occupied during her entire tenure by Frank Eisermann. Immediately above Mr. Eisermann were the engineering superintendents; those positions were occupied by Robert Law, and during the later years of Ms. Flockhart’s tenure, by Tim Schelle. The next position in order of the IBP hierarchy was the plant engineer, who had overall responsibility for the engineering department. When Ms. Flockhart first started her employment in the supply department, that position was occupied by Chris Truxel; shortly after Ms. Flockhart began her employment, Mr. Truxel was replaced by Mark Schwenneker, who occupied the position of plant engineer during most of the period of the relevant events in this case. The final person in the chain of command at IBP was the plant manager; that position was occupied by James Schmitz during Ms. Flockhart’s entire term of employment at IBP.
1. David Wisecup Harassment
Ms. Flockhart claims that she was fondled and sexually assaulted by David Wi-secup on at least three occasions while employed at IBP.
Mr. Wisecup worked in the engineering department at IBP. His titles included maintenance supervisor, project engineer, and project supervisor during Ms. Flock-hart’s tenure at IBP. He was not in the direct chain of command between Ms. Flockhart and the plant engineer. However, he was “higher up” in the IBP hierarchy. He was under the direct supervision of the plant engineer. His duties were, such that he was required to be in and around the supply department on a daily basis. Ms. Flockhart and the other members of the supply department had daily interaction with Mr. Wisecup, as part of their overall job responsibilities. Mr. Wi-secup had no say in Ms. Flockhart’s pay, promotion, or other conditions of employment. However, as a person with supervisory responsibility, he could give directions to Ms. Flockhart, and did do so on some
Ms. Flockhart testified that the first incident of sexual fondling occurred around 1992, the second in 1993, and the third in 1995. Unlike many cases of sexual harassment, the perpetrator does not dispute the conduct occurred. In fact, Mr. Wisecup believes that it happened on more occasions than Ms. Flockhart recalls. Mr. Wi-secup testified, and admitted during discovery, that he fondled Ms. Flockhart on at least five or six occasions. One of the issues that will be discussed in more detail in the section on damages is Ms. Flock-hart’s belief that she has mentally repressed much of the conduct directed at her while at IBP, and her distress that she can only recall three incidents while the perpetrator of the acts believes that there were as many as twice that number.
Mr. Wisecup claims that the first incident occurred around 1989-1990 and was not unwelcome. Mr. Wisecup takes the position that Ms. Flockhart told Mr. Wi-secup that he could fondle her breasts if she was not given a disciplinary report for a particular infraction Ms. Flockhart apparently committed. Ms. Flockhart does not recall this specific incident but denies that any of the incidents were invited by her or in any way welcome. In any event, the Court does not need to resolve this dispute because the Court finds that it is undisputed that all subsequent incidents of sexual fondling were unwelcome. Mr. Wi-secup acknowledged in his testimony that he knew Ms. Flockhart did not want him to do it, protested his action, and made it clear that the conduct was very upsetting to her. So that the record is clear, the specific conduct that Ms. Flockhart is complaining of involves Mr. Wisecup putting his hand under Ms. Flockhart’s shirt and bra and fondling her breasts, and, on at least one occasion, sticking his hand down her pants.
The first incident that Ms. Flockhart recalls occurred in August 1992 (this may not be the actual first incident since Ms. Flockhart only recalls three of the five or six incidents Mr. Wisecup testified to). Ms. Flockhart testified that she became extremely upset and emotional after this incident. She immediately reported the incident to her supervisor, Frank Eiser-mann, who then reported it to the plant engineer, Chris Truxel. Ms. Flockhart testified that she prepared a written report of the incident and it was investigated by Mr. Truxel. Ms. Flockhart claims that witness statements were taken from parties who were in the area at the time the incident occurred. Ms. Flockhart claims there was no follow-up and she never received any report back as to the results of the investigation. She also claims that Mr. Wisecup continued to make sexual comments after that.
The second incident Ms. Flockhart recalls occurred in February 1993. Mr. Wi-secup put his hands down her pants and up her shirt. She again reported this to Frank Eisermann. Mr. Eisermann said he would take care of it. Ms. Flockhart heard nothing further about the incident. In the meantime, Mr. Wisecup was promoted to a supervisory position.
Before discussing the third incident, the Court will address one of the issues which caused considerable controversy during this litigation and is a matter of deep concern as it relates to the effectiveness of IBP’s sexual harassment policy. That policy specifically provides that all complaints of sexual harassment are to be investigated, and that a file is to be maintained concerning the results of those investigations. The policy was routinely breached by IBP. Either complaints were not investigated or, if investigated, no records were
The third incident reported by Ms. Flockhart occurred in either 1994 or 1995. There is a dispute about when the incident actually happened. While Ms. Flockhart testified at trial and in deposition that the incident occurred in November 1995, this testimony conflicts with her Iowa Civil Rights complaint in which she stated that the incident occurred in 1994. Ms. Flock-hart maintains that the incident occurred in November 1995 and attributes her misstatement in her Iowa Civil Rights complaint to her extreme emotional distress at the time it was filed.
The record is very conflicting on this issue. As indicated, the easiest way to resolve the dispute would have been to have access to IBP’s records of the investigation which was conducted immediately after the incident occurred. However, those records are not available and have not been produced by IBP. Nonetheless, the Court believes that based upon the best evidence available, Ms. Flockhart’s more recent recollection that the incident occurred in November 1995 is supported by the weight of the evidence.
This date is supported by the testimony of both Ms. Flockhart and Mr. Wisecup. Others who thought it may have occurred in 1994 are individuals who were somehow involved in the investigation, but for whom this was not as significant an event as it was to the two participants. This Court finds particularly relevant defendant’s Exhibit “D”. Exhibit “D” is a report of the investigation of JoDee Flockhart’s complaint conducted after she left IBP in May 1996. This investigation was conducted by IBP’s EEO Coordinator, Gail Kinsey Thompson. In her investigation, Ms. Kinsey Thompson reports on an interview she had with Frank Eisermann on August 29, 1996. Mr. Eisermann reported that the most recent incident with Dave Wisecup occurred one year prior to the date of the interview, i.e., in 1995.
At trial, Mr. Wisecup indicated that he thought the incident occurred in 1994 or 1995, but admitted on cross examination that he had testified at deposition it was in 1995, or before Ms. Flockhart left in 1996. Mr. Wisecup also testified that when he was counseled by Mr. Schwenneker, following the third incident, to stay away from Ms. Flockhart he had already moved into the Main Administration Building and was occupying an office which had previously been occupied by an individual by the name of Mr. Lee. Mr. Schwenneker testified that the counseling session occurred within a day of Ms. Flockhart reporting her complaint about the third incident to Mr. Eisermann. Mr. Lee did not leave IBP’s employment until late 1994. The record is somewhat unclear as to the exact date when Mr. Wisecup moved into Mr. Lee’s office, however, the Court does note that Mr. Wisecup’s personnel file shows that he received a promotion from project engineer to project supervisor on
Having considered all the evidence, the Court finds that Ms. Flockhart’s testimony as to the date the incident occurred, that is, November 1995, is the most credible. Consequently, that is the date the Court will find as the date of the third incident testified to by Ms. Flockhart.
Turning to the incident itself, it is undisputed that Mr. Wisecup sexually assaulted Ms. Flockhart. He groped her breasts and put his hands down her pants. Ms. Flockhart again became very emotionally upset by the incident and immediately reported it to Mr. Eisermann, who reported it to Mr. Schwenneker.
All witnesses agreed that Mr. Schwen-neker was advised of the third incident and conducted some type of investigation. During Mr. Schwenneker’s interview of Ms. Flockhart, Ms. Flockhart asked to see her report of the first incident (the 1992 incident) and the results of that investigation. Mr. Schwenneker advised her that no such records existed. This is the first time Ms. Flockhart became aware of the fact that the records concerning the prior incidents were no longer in existence.
Mr. Schwenneker’s investigation included an interviеw of Ms. Flockhart, Mr. Wi-secup, and other members of the supply department. Mr. Schwenneker claims that Mr. Wisecup denied that the incident occurred, and that he was unable to resolve the conflict in the testimony. Ms. Flockhart was advised by Mr. Schwenneker that Mr. Wisecup denied the conduct and Mr. Schwenneker was unable to determine who was telling the truth. The net result of the investigation was a directive to both parties that they were not to have contact with each other. This was not a satisfactory resolution since it was virtually impossible for Ms. Flockhart and Mr. Wisecup to avoid all contact with each other. Mr. Wisecup’s job required him to frequently be in the supply department. Both parties acknowledged it would be impossible not to have daily contact through the normal course of their job responsibilities.
The facts of Ms. Flockhart’s complaint and Mr. Schwenneker’s subsequent investigation were made known to the plant personnel director, Mark Gordon, as well as the plant manager, Jim Schmitz. It should be noted that although Mr. Gordon had overall responsibility for EEO matters within the plant, he did not ask to see any of the documentation which resulted from Mr. Schwenneker’s investigation, nor did he personally participate in the investigation in any way. Likewise, he did nothing to ensure that the investigation was documented and that a file was maintained as required by IBP’s sexual harassment policy.
One of the central factual disputes in this case concerns when Mr. Wisecup confessed his involvement with Ms. Flockhart to IBP management. IBP takes the position that it was not aware that Ms. Flock-hart’s allegations were true until after this lawsuit was filed when Mr. Wisecup purportedly admitted to IBP’s former attorneys that he had, in fact, groped and assaulted Ms. Flockhart on at least as many occasions as she claimed. IBP then took disciplinary actions against Mr. Wisecup, including loss of bonus and a suspension without pay.
Mr. Wisecup testified, however, that when confronted by Mr. Schwenneker in 1995, he initially denied that the incident occurred but then went back to Mr. Schwenneker the same day and advised him that he had prеviously lied and had, in fact, groped Ms. Flockhart as she claimed. Mr. Schwenneker denies that the subse
That said, in resolving this difficult credibility issue, the Court is inclined to believe Mr. Wisecup. Mr. Wisecup has already come forward, put his career in jeopardy, and admitted that the incidents occurred. It is difficult to believe that Mr. Wisecup would jeopardize his career at IBP by telling the truth in 1998, and then commit perjury about the date that he made his initial admission. In fact, IBP presented testimony that when Mr. Wisecup made the admission in 1998, he was concerned about the Bill Clinton/Monica Lewinsky situation and made a comment to the effect that he did not want to have to lie under oath. It is hard to conceive that an individual who would make a confession in 1998 because of his concerns about perjury would then turn around and commit perjury on the issue of when the admission initially occurred. This Court believes that Mr. Wisecup did make the admission in 1995, and that IBP was aware of the incidents and took no corrective action other than telling the parties not to work together.
There is also some support for this conclusion from Mark Gordon’s testimony. Mr. Gordon testified that he had been told by Mr. Schwenneker, at the time of the incident, that there was some truth to Ms. Flockhart’s allegation. Mr. Gordon did not follow up on what Mr. Schwenneker meant by that comment, conducted no further investigation on his own, and, as indicated, did not verify that the investigation was documented. This Court believes that Mr. Schwenneker’s comment lends support to the conclusion that Mr. Wisecup did confess in 1995 and that IBP thought the matter could be resolved by a strong warning to Mr. Wisecup to stay away from Ms. Flockhart. In fact, even Ms. Flockhart acknowledges there were no further problems with Mr. Wisecup after the third incident.
The failure to take corrective action is also significant for the reason that Ms. Flockhart was advised that Mr. Wisecup had denied the incident, and that Mr. Schwenneker was not able to reconcile the differences in the statements. This response, coupled with the fact that Ms. Flockhart was advised all records of her prior complaints were missing, only reinforced Ms. Flockhart’s legitimate concerns that sexual harassment was not taken seriously at IBP, and that she could not expect that IBP would take any effective remedial action.
2. Maintenance Department Harassment
The plaintiff was subjected to almost daily harassment by maintenance department employees. As part of the plaintiffs job responsibilities she would work at the supply counter, log-in deliveries, and assist in unloading trucks. On an almost daily basis, the plaintiff would be called a “cunt,” “slut,” “whore” and “bitch” by maintenance department employees who would come to the counter to pick up parts. Comments would also be made about the plaintiffs breast size. In addition, gender-based comments were made to the effect that the plaintiff should not be working but rather home “servicing her husband.” Also, conduct such as cat calls, lip licking, and crotch grabbing was a frequent occurrence in the presence of the plaintiff. Cartoons which depicted derogatory comments towards women and gays were also frequently passed around.
In addition to the gender based comments and gestures, three employees on
The plaintiffs testimony concerning the comments directed towards female employees was corroborated by a number of other witnesses. For instance, Ann Ma-cheak, a lab еmployee and inventory clerk in the shipping department, corroborated much of the plaintiffs testimony. She said there was frequent use of the word “fuck” and comments about women’s body parts. When she complained to a supervisor, the supervisor responded that: “... it was a slaughterhouse, he was a former Marine, and that made it acceptable.” She corroborated that sex-based profanity was very common in the supply area. Sometimes complaints to supervisors would result in the situation getting better for short period of time, but then the conduct would resume.
John Wilson is a long time employee of IBP, who had frequent contact with the plaintiff. He would regularly hear the plaintiff being called a “dumb bitch” and other derogatory, gender-based comments. It was his recollection that the “groping and feeling” of females was commonplace throughout the IBP plant in Waterloo. Management personnel would often be around when the comments were being made.
Bob Wilson, another IBP employee, testified that JoDee Flockhart was subjected to almost daily insults by co-employees. In particular, he corroborated Ms. Flock-hart’s testimony that Ed Shaw was the person who made particularly derogatory comments. Mr. Wilson recalled one incident when Mr. Shaw had asked Ms. Flock-hart to “... show me your tits.” Mr. Wilson testified that the conduct towards Ms. Flockhart was consistent with the general conduct towards female employees in which they were called “cunt,” “slut,” “whore” and “bitch” on a daily basis. And again, these comments were often made either in the presence of, or by, management employees.
A particularly compelling witness was Sara Hermann. Ms. Hermann worked as a clerk in the personnel department, which is adjacent to the main hallway at the Waterloo IBP plant. During shift changes and lunch breaks, there would often be several hundred people coming and going through that hallway. She testified that the harassment towards females in that hallway was so severe that she would not go to the restroom unless she was accompaniеd by a supervisor. If there was not a senior management person present when she went through the hall, she would be subjected to the same type of comments as testified to by Ms. Flockhart, Mr. Wilson and others. Even Mr. Gordon, the personnel director, conceded the main hallway was a problem at times and that occasionally supervisors would monitor the hall.
Ms. Hermann also testified that she herself was the victim of an inappropriate comment by the plant manager, Jim Schmitz. When she complained to the personnel director, Jack Novak (Mark Gordon’s predecessor), Mr. Novak said Ms. Hermann had been told not to go down to Mr. Schmitz’ office by herself. Consequently, she avoided any contact with Mr. Schmitz for six to eight months. Mr. Novak also indicated to Ms. Hermann that it would be difficult for her to continue her employment at IBP if she pursued a matter against the plant manager.
Without belaboring the issue, there is also testimony by other IBP employees about general harassment of female employees, including female employees who were harassed when they refused to date certain male employees. Witnesses also testified to the frequent placement of “pig penises” between the conduit and wall near the women’s restroom, as well as obscene drawings on the walls by the women’s restrooms. There was also testimony corroborating the plaintiffs statements that she was frequently called a “dumb bitch” by the maintenance employees.
There was also extensive testimony that the taunting, cat calls and derogatory comments directed towards the IBP female employees was a very common occurrence in the company lunchroom. This occurred even when supervisory and management level employees were in the lunchroom eating. Based upon thе totality of the evidence, there can be no doubt that IBP was well aware of the comments being made towards its female employees in general, and the plaintiff in particular. Although there were occasional attempts to temper the tone of the comments, those attempts were sporadic and generally ineffective.
The plaintiff was the victim of this type of gender-based comments, taunting, and physical touching during the entire tenure of her employment at IBP. The Court finds credible her testimony that the cumulative effect of this conduct, coupled with the Dave Wisecup incidents described above, and her treatment by Frank Eiser-mann, led her to a breaking point and her ultimate decision that she could not continue her employment at IBP.
3. Frank Eisermann Harassment
. The third major area of harassment as alleged by the plaintiff involves her immediate supervisor, Frank Eisermann. Ms. Flockhart alleges that she was the victim of verbal abuse and unequal pay. IBP concedes that Mr. Eisermann could be a difficult person to work with, however, it is IBP’s position that Mr. Eisermann did not treat Ms. Flockhart any differently than he did his male subordinates. The Court concludes, based upon all the evidence, that Mr. Eisermann did treat Ms. Flock-hart differently and that this differential treatment was based upon her gender.
In terms of Mr. Eisermann’s treatment of the plaintiff, her complaints basically revolve around Mr Eisermann screaming at her, using profanity towards her, throwing things at her, assigning more duties to her, following her around — including during bathroom breaks, and making general comments about the relative roles of males and females in the workplace.
The evidence is extensive that Mr. Eis-ermann would frequently refer to the plaintiff as a “dumb bitch.” He would yell at her across the supply room calling her a “dumb bitch” or “stupid bitch”. Witnesses such as John Wilson testified that he frequently and regularly heard Mr. Eisermann make comments of this kind in talking to the plaintiff. Other witnesses corroborated that Mr. Eisermann would frequently scream across the room at Ms. Flockhart and regularly use extremely derogatory comments to her in the workplace.
Leroy Wood was a truck driver whо regularly made deliveries to IBP. One of Ms. Flockhart’s duties was to check-in the deliveries as they were made to the supply department. Mr. Wood testified that Ms. Flockhart was an extremely helpful and
The evidence also shows that the plaintiff was often assigned duties that Mr. Eisermann considered “women’s work.” In particular, any typing that needed to be done was assigned to her, as well as any clean-up duties. He would make comments to Ms. Flockhart that the men did a lot more work than women did in the workplace. Ms. Macheak, who worked closely with Mr. Eisermann, felt very strongly that Mr. Eisermann treated Ms. Flockhart differently than the male employees.
Another example of Mr. Eisermann’s attitude toward Ms. Flockhart is an incident involving Ms. Flockhart’s telephone. As a supply clerk, she had the need to frequently make phone calls to vendors and other departments within the IBP plant. She had a telephone at her desk for that use. Mr. Eisermann claims that Ms. Flockhart was making excessive personal phone calls. As a consequence, he disconnected her phone. A manager clearly has the right to disconnect a telephone if he believes an employee is making excessive personal phone calls and abusing the privilege of having a phone at her desk. However, in Ms. Flockhart’s case, Mr. Eisermann did not tell Ms. Flockhart that he had disconnected the phone, but rather allowed her to believe that the phone was malfunctioning. Consequently, Ms. Flockhart made many efforts to have the phone fixed before it was ultimately revealed to her that Mr. Eisermann had disconnected the phone. If Mr. Eisermann truly disconnected the phone because of his concern that Ms. Flockhart was making too many personal phone calls, then why didn’t he tell Ms. Flockhart the real reason? In addition, the disconnecting оf the phone had the effect of making it more difficult for Ms. Flockhart to perform her duties. While it is not the province of this Court to second guess a management decision, it certainly is curious that Mr. Eisermann would not have selected some other method of discipline other than one that made it much more difficult for Ms. Flockhart to effectively perform her responsibilities. The phone was never turned back on before she left her employment at IBP. The Court believes that this is a further indication of Mr. Eisermann’s attitude towards female employees.
The fact that Mr. Eisermann treated the plaintiff differently, used gender specific terms such as “dumb bitch” to refer to the plaintiff, and made gender-based derogatory comments, all lead to the conclusion that Ms. Flockhart was treated differently and much more severely by Mr. Eiser-mann. This was further corroborated by the fact that Mr. Eisermann made comments such as “don’t piss off the guys” when Ms. Flockhart made a suggestion for a change in procedure shortly before she left her employment at IBP.
The Court’s conclusion that Mr. Eiser-mann treated Ms. Flockhart differently than male employees is reinforced by the unequal pay issue in this case. Ms. Flock-hart testified, as was corroborated by Mr. Schwenneker, that she complained frequently to Mr. Schwenneker about the fact that she was being paid less than her male counterparts. 2
As previously discussed, management support personnel are paid within certain wage categories. A supply clerk, which was Ms. Flockhart’s job title from the time she started at IBP until her promotion to senior supply clerk on October 24, 1994, is paid at the “DD” pay rate. Senior supply clerks are paid at the “BB” rate. The evidence shows that once she had been promoted into the “BB” pay class, Ms. Flockhart was consistently paid below the minimum rate for her job classification. For example, when she was promoted in 1994, the bottom rate for a “BB” employee was $8.30 per hour but plaintiff was paid only $8.20 per hour. She received a raise in February 1995, to $8.50 per hour. However, the minimum rate for “BB” employees went up at the same time to $8.72 per hour. 3 The evidence also shows that none of the male senior supply clerks were ever paid below the prescribed minimum rate. The only other senior supply clerk who had ever been paid less than the minimum “BB” rate was Ms. Flockhart’s female predecessor, Lucinda Gleason.
IBP attempts to respond to this testimony by arguing that the pay rate scale is only a guideline. It is IBP’s position that plant managers are not bound to pay within the guidelines. However, Rich Jochum, Assistant Vice-president for IBP’s legal division, gave very interesting testimony in this regard. He testified under direct examination that the corporate home office sets the wage scales for management support personnel, that the plant personnel manager assists in making certain that the rate structure is followed, and that there is very little discretion on how the rates are applied. He went on to state that the plant manager has the ultimate responsibility for setting wages, and testified: “... if he goes outside those guidelines I whack him back into shape.” During the cross examination of Mr. Jochum, the Court took a morning recess. After the recess, the cross examination concluded, and then, on redirect examination, Mr. Jochum attempted to change his testimony about the binding effect of the pay structure. He testified that what he meant to say was that it was only binding at the top end, but that plant managers were free to pay less than the minimum of the pay scale for employees within a particular pay classification.
All three employees, that is, Ms. Flock-hart, Mr. Northey and Mr. Peters, started at about the same wage in 1990, that is, around $6.00 per hour. They received fairly comparable pay increases through the end of 1993. However, starting in 1994, Mr. Northey and Mr. Peters began to receive more significant increases than Ms. Flockhart. This is particularly compelling given the fact that Ms. Flockhart had received a promotion and theoretically should have been receiving a higher wаge as a senior supply clerk than as a supply clerk. IBP’s own records show that on February 28, 1994, Ms. Flockhart and Mr. Northey were each being paid $8.20 per hour, while Mr. Peters was being paid $8.25 per hour. That pay structure continued even after Ms. Flockhart’s promotion in October 1994. On February 27, 1995, Ms. Flockhart went to $8.50 per hour, while Mr. Northey and Mr. Peters were paid $8.55 per hour. On February 26, 1996, Mr. Northey went to $8.75 per hour, while Mr. Peters and Ms. Flockhart were each given raises to $8.80 per hour.
Ms. Burnielle Ott, EEO manager for IBP, testified that she felt there was no pay disparity between males and females. However, when asked why Mr. Peters, who had virtually identical performance evaluations as Ms. Flockhart, was being paid the same or more than Ms. Flockhart when plaintiff was a senior supply clerk and Mr. Peters was only a supply clerk, Ms. Ott’s only explanation was that Ms. Flockhart had the benefit of regular hours on the day shift. IBP also suggests that differences in the individuals’ work experience — e.g., Mr. Peters worked in a parts department at another company for 9 years prior to joining IBP — easily account for the minimal differences in wage at issue in this case.
For reasons which will be discussed later in the opinion, the Court concludes that the plaintiff has failed to carry her burden on the Equal Pay Act claim. That said, however, the evidence on the unequal treatment of females as it relates to pay in the supply department is far from insignificant — particularly in light of the key role that Mr. Eisermann played in the chain of command for setting wages and pay increases. Coupled with the other evidence regarding Mr. Eisermann’s conduct toward the plaintiff, the Court concludes that the plaintiff was treated differently by Mr. Eisermann than her male counterparts.
4. JoDee Flockhart’s Response and Notices to IBP
As has already been indicated, Ms. Flockhart made numerous complaints to management personnel at IBP concerning her treatment by Mr. Wisecup, Mr. Eiser-mann, and her co-employees. IBP’s sexual harassment policy, which is posted
Specifically, in Ms. Flockhart’s case, she complained to Mr. Eisermann, her immediate supervisor, about the Wisecup incidents. Mr. Eisermann relayed the Wisec-up complaints to the plant engineer, Mr. Scwhenneker, and his predecessor, Mr. Truxel. Ms. Flockhart also complained about Mr. Eisermann and the co-employee conduct directly to Mr. Schwenneker and Tim Schelle, the maintenance superintendent. Both Mr. Schwenneker and Mr. Schelle confirmed that Ms. Flockhart did make frequent complaints, however, there is some dispute as to the exact frequency and of the substance of their conversations. That said, there is no dispute that she complained about the comments and conduct of co-employees towards her, Mr. Eisermann’s abusive language, and her feeling that she was being paid less than her male counterparts.
During the last one to two years prior to leaving IBP, Ms. Flockhart had a number of meetings with Mr. Schwenneker. She considered Mr. Schwenneker somewhat of a confidant regarding her problems at IBP. Initially, she would meet with Mr. Schwenneker every two to three months. During the last several months prior to her leaving IBP, the frequency of those meetings increased to approximately once a month. At those meetings, Ms. Flock-hart would complain about the conduct of the co-employees towards her, Mr. Eiser-mann’s extremely abusive language and conduct, and the pay issue. Generally, Mr. Schwenneker would try to be supportive, tell her to “hang in there” and say that he would talk to Mr. Eisermann about trying to make the work environment more tolerable. Beyond that, there was no investigation made about any of her complaints nor were any concrete steps taken to address her concerns.
Over the course of Ms. Flockhart’s employment at IBP she became increasingly frustrated and emotionally distraught by the sexual harassment that she was subjected to. The emotional distress resulted from a combination of factors: the Wisec-up incidents, the lack of any effective response to her complaints about Mr. Wisec-up, the harassment and belittlement by Mr. Eisermann, the daily abuse and harassment by co-employees, the general working environment for females at the IBP plant, and IBP’s failure to effectively respond to any of her complaints. Ms. Flockhart became angry, couldn’t sleep and cried frequently. She also became depressed and was prescribed depression medication.
There is considerable testimony which supports Ms. Flockhart’s testimony about the deterioration of her emotional state. Leroy Wood testified about the times he saw Ms. Flockhart with tears in her eyes and appearing extremely emotional. Scott Belden testified about occasions when he saw the plaintiff very emotionally upset concerning situations with co-employees' and some of the comments that were being made to her.
The plaintiffs former partner, Meg Heatley, also corroborated the deterioration in the plaintiffs emotional well being. Ms. Heatley is a physician’s assistant and
During the last six months of Ms. Flock-hart’s employment the situation got worse. Ms. Flockhart gained weight so she would appear less attractive to the male employees, and experienced physical problems, insomnia, depression, and anxiety. It was during this period that Ms. Heatley arranged to have medication prescribed for Ms. Flockhart that would address her anxiety and depression.
The harassment and deterioration of the plaintiffs mental condition culminated in the events of Friday, May 10, 1996. On that date, the plaintiff was late for work because there had been a power failure and her alarm clock had not gone off on time. When she arrived, she went back to her desk, and then saw Mr. Eisermann writing up what she thought to be a reprimand for tardiness. She became very upset about the reprimand for two reasons. First, it was common practice, as corroborated by testimony of other witnesses, for Mr. Eisermann to call employees who are late. Mr. Eisermann had not done that for Ms. Flockhart. Secondly, it is Ms. Flockhart’s understanding that a reprimand was not to be issued unless there were three tardy’s within a year. This was Ms. Flockhart’s first tardy in 1996. At that point, Ms. Flockhart told Mr. Eis-ermann what he could do with the job and indicated she was quitting. She left the supply area and went down to the Personnel Office.
At the Personnel Office, Ms. Flockhart met with Mr. Gordon and Mr. Schmitz. She told them about her complaints regarding Mr. Eisermann and indicated that she was quitting. Mr. Gordon asked that she not make a final decision until the following Monday. He indicated he would conduct an investigation and asked Ms. Flockhart to call him back on Monday. Mr. Gordon told Ms. Flockhart to go home and take the day off. Mr. Gordon testified it would have been a day without pay but Ms. Flockhart would not have been charged with an unexcused absence.
When Ms. Flockhаrt called on Monday, she was advised by Mr. Gordon that he had done an investigation and felt there was no merit to her claim that she was being paid less than the males. He did indicate that he was able to confirm that Mr. Eisermann used abusive language and suggested Ms. Flockhart transfer to another department within the plant. There is a dispute as to what exactly was offered to Ms. Flockhart. Ms. Flockhart testified that she was offered a production job at $2.00 per hour less in pay, which she found to be unacceptable. Mr. Gordon testified that there was no specific discussion about which position she would be transferred into or what she would be paid. The Court believes that Ms. Flockhart’s version is closer to the truth. Referring to Ms. Kinsey Thompson’s investigation of the incident, defendant’s Exhibit “D”, Ms. Kinsey Thompson advised the Iowa Civil
Ms. Flockhart declined the transfer and indicated that she did not desire to work at IBP any longer. Certainly, by that point her resignation from IBP became final. There is some evidence of a discussion a few days later between Ms. Kinsey Thompson and Mr. Schwenneker about Mr. Schwenneker approaching Ms. Flock-hart to see if something could be worked out to have her come back to work at IBP. However, nothing was done to follow through on that suggestion.
5. IBP’s Response
One of the most telling pieces of evidence in this case came from the testimony of Mark Gordon, IBP’s personnel director in Waterloo. Mr. Gordon testified that when Ms. Flockhart came to his office on May 10, 1996, Mr. Schmitz, the plant manager, was standing outside the office. Ms. Flockhart advised Mr. Gordon and Mr. Schmitz about her complaints concerning Frank Eisermann, and the reasons she wаs quitting IBP. Mr. Gordon testified as follows concerning Mr. Schmitz’s response:
Q. Did you have any further conversation with [Ms. Flockhart] that day?
A. Another piece of the conversation that I didn’t bring up was Jim [Schmitz] had mentioned that Frank [Eisermann] had been a good manager and he was probably one of the best supply managers that he had experienced in his work history with IBP through the plants that he had been in and that he wasn’t planning on doing anything as far as his employment or letting him go.
Q. He said that in front of Ms. Flock-hart?
A. That’s correct.
This Court believes that Mr. Gordon’s testimony speaks volumes about IBP’s attitude towards sexual harassment complaints and why Ms. Flockhart’s prior complaints had never been adequately addressed. Here we have a situation where an emotionally distraught female employee advises the plant manager that she is quitting because she has been harassed and the victim of unequal pay. One of the first statements made by the plant manager, before any investigation has been conducted or any facts known, is that the alleged perpetrator is too valuable an employee to take any action against.
The consistent theme throughout the testimony in this case was that Mr. Eiser-mann was one of the most efficient supply managers in the IBP organization and nothing was going to be done to address his treatment towards female employees. In other words, if mistreatment of female employees was the price that had to be paid for corporate efficiency, then so be it.
Mr. Schmitz’s attitude towards this investigation explains much of what happened over the months that followed Ms. Flockhart’s resignation. IBP had the option at that point of either conducting a fair and thorough investigation, or stonewalling and presenting a defense to the Iowa Civil Rights Commission that was either knowingly false or, at best, grossly negligent in its recitation of the facts. IBP chose the latter. Even Burnielle Ott, IBP’s current EEO coordinator, admits that the investigation in this case was flawed. Given IBP’s treatment of Ms. Flockhart, this Court finds it difficult to
In discussing IBP’s response to Ms. Flockhart’s complaint, this Court does not mean to imply that the respondent to a complaint, or ultimately a defendant in a lawsuit, does not have the right to aggressively advocate its position. However, there is a difference between “hard ball” litigation and “hide the ball.” In addition, IBP’s investigation of Ms. Flockhart’s complaint, both before and after she left IBP, and its failure to maintain records, or their ultimate destruction, all go to the issue of whether IBP has a fair and effective discrimination policy.
IBP’s position paper to the Iowa Civil Rights Commission is authored by Ms. Kinsey Thompson and contains a number of factual errors. For instance, she states that in Ms. Flockhart’s calls and letters to IBP officials Ms. Flockhart asks for an investigation only, but that in Ms. Flock-hart’s complaints to Personnel Manager Gordon she asked that her supervisor, Frank Eisermann, be fired. Both Ms. Flockhart and Mr. Gordon agree that no such request was ever made by Ms. Flock-hart and at no time did Ms. Flockhart request that Mr. Eisermann be fired. In fact, they agree that all Ms. Flockhart ever asked for was to have the harassment stopped.
Ms. Kinsey Thompson goes on to state that there were no other complaints to support Ms. Flockhart’s allegations against Mr. Eisermann. While this may be technically true, it misstates the investigation that was conducted. While there may not have been other complaints, Mr. Gordon acknowledged in his testimony that his investigation showed there was evidence to support Ms. Flockhart’s complaints about Mr. Eisermann’s abusive conduct towards supply room employees.
Ms. Kinsey Thompson also states in the letter that Ms. Flockhart never made any allegations that anyone at IBP had ever touched her. This, of course, was blatantly false. By IBP’s own admission, Ms. Flockhart had made at least one complaint against Mr. Wisecup. This complaint was sufficiently serious that it was reported all the way through Mr. Gordon to Mr. Schmitz. The Personnel Office at the Waterloo IBP plant which was involved in preparing IBP’s response to Ms. Flock-hart’s complaint was certainly well aware of the Wisecup incident and was aware that she had made comрlaints of physical touching at the same time they were advising the Iowa Civil Rights Commission that no such complaints had ever been made.
The response also stated that the complainant [JoDee Flockhart] did not complain about sexual harassment to management while still employed at IBP. This is contrary to the testimony of Ms. Flockhart and Mr. Schwenneker. Mr. Schwenneker, who was interviewed extensively by Ms. Kinsey Thompson, acknowledged Ms. Flockhart had made a number of complaints concerning both her co-employees and Mr. Eisermann. Her notes of the May 14, 1996, interview with Mr. Schwen-neker specifically state that Mr. Schwen-neker had been advised that Mr. Eiser-mann swore at Ms. Flockhart and threw things at her. Mr. Schwenneker claims that Ms. Flockhart never used the words “sexual harassment;” however, it is clear from the context of all the comments, that Ms. Flockhart was complaining to Mr. Schwenneker about her treatment by Mr. Eisermann, the fact that she was treated more severely than male employees, her unequal pay, and the gender-based derogatory comments by co-employees.
Finally, Ms. Kinsey Thompson states: “A review of IBP files revealed no complaints of any kind lodged against Supervisor Eisermann in the five years he has been a supervisor with IBP.” That state
In addition, IBP generally tried to make life difficult for Ms. Flockhart after she terminated her employment. She applied for unemployment compensation benefits and made several requests for her personnel file from IBP so that it could be used as part of the unemployment compensation hearing. Initially, IBP indicated they would give her the file but then refused to do so. Ultimately, one, and possibly two, subpoenas had to be issued by the Iowa Unemployment Compensation Board before the file was produced. Once produced, the file was incomрlete.
Ms. Flockhart prepared her complaint for filing with the Iowa Civil Rights Commission on May 13, 1996, the Monday she had her final conversation with Mr. Gordon. In the complaint as initially filed, she did not mention the David Wisecup incidents. She only complained generally of being the victim of sexual harassment, and receiving less pay than her male counterparts. She later amended her complaint to include the allegations against Mr. Wi-secup.
II. CONCLUSIONS OF LAW
This Court ultimately concludes that the plaintiff has met her burden of proving violations of Title VII and the Iowa Civil Rights Act (“ICRA”), and is entitled to monetary damages as to those claims. In addition, the Court intends to set a hearing on the issue of what equitable relief, if any, should be entered in this case. As to the plaintiffs claim under the Equal Pay Act, although it is a very close question, the Court concludes that the plaintiff has failed to prove a violation under the Act. As the undersigned indicated at the conclusion of the trial, the facts of this case reveal a sad and disturbing pattern of conduct by IBP employees and management. Not only was the plaintiff the victim of pervasive sexual harassment, it is clear that the harassment took place in a climate in which women were routinely the subject of sexual taunting, groping, and extremely demeaning conduct. More troubling is the fact that IBP seems to take the attitude that it is powerless to address the issues of sexual harassment and, when confronted with complaints made by persons such as Ms. Flockhart, any investigation was directed more towards disproving the claim, as opposed to a search for truth and implementation of effective remedial measures.
A. Sexual Harassment and Constructive Discharge
The plaintiff has brought her sexual harassment claims under the Iowa Civil Rights Statute and Title VII. For purposes of analyzing the claims of liability, the standards under both statutes are the same.
See Madison v. IBP, Inc., 257
F.3d 780, 799 (8th Cir.2001);
Board of Supervisors of Buchanan County v. Iowa Civil Rights Comm’n,
Thе plaintiff claims that she was sexually harassed by supervisors and non-supervisors and that the harassment and IBP’s inadequate response resulted in her constructive discharge in May 1996. The sub
To establish a claim for sexual harassment, the plaintiff must prove that “she was a member of a protected group, that she was subjected to unwelcome sexual harassment, that the harassment was based on sex, and that the harassment affected a term, condition, or privilege or her employment.”
Beard v. Flying J., Inc.,
The Court finds that the plaintiff has proven all the factors required to establish a claim of sеxual harassment under Title VII and the Iowa Civil Rights Act. It is undisputed that the plaintiffs gender places her in a protected group for purposes of Title VII and it is the Court’s conclusion that the plaintiff has proven she was the victim of unwelcome sexual harassment, that the harassment was based on sex, and that the harassment affected a term, condition or privilege of her employment.
See, e.g., Beard,
One of the defenses set forth by IBP is that the conduct was not unwelcome. In support of this argument, IBP points to instances in the record where employees had testified that Ms. Flock-hart, on occasion, used coarse language when some of the co-employees were taunting her.
See Beard,
Ms. Flockhart has also amply demonstrated that the unwelcome harassment was based on her gender. Clearly, Mr. Wisecup’s groping incidents were based upon the plaintiffs gender. Likewise, as this Court has indicated, Mr. Eisermann treated the plaintiff differently and the Court finds that his frequent references to her as a “stupid bitch” constitute clear evidence of conduct based on the plaintiffs gender — particularly in light of Mr. Eisermann’s presence and/or awareness of the comments and conduct of the plaintiffs co-employees, which were arguably more gender-specific and extreme. Those included frequent references to Ms. Flockhart as, among other things, a “slut,” “whore,” “bitch,” and a “cunt,” and requests on more than one occasion to touch her breasts.
Finally, the Court finds that Ms. Flockhart has easily demonstrated that the harassment affected a term, condition, or privilege of her employment; i.e., it was “severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive.”
Harris,
Testimony by other employees, most notably Sara Hermann, Ann Macheak and Bob Wilson, further attests to the pervasive nаture of the environment faced by the plaintiff — both as to Frank Eiser-mann’s abusive and derogatory treatment of the plaintiff in comparison with male employees and as to the ongoing comments and conduct directed at the plaintiff and female employees in general.
See Madison,
In sum, the evidence shows that the plaintiff was a victim of near continuous sexual abuse and harassment during her entire tenure of employ.
See id.
(finding relevant that abusive behavior began shortly after the plaintiff started working and continued throughout her employ). No reasonable person could possibly find that a work environment which involved being called a “stupid bitch” by her immediate supervisor on a daily basis, being called a “cunt, slut, whore and bitch” by her co-employees on a daily basis, and physical assault and groping by a male co-employee was not a hostile or abusive environment.
See id.
at 573-74 (“A workplace permeated with ‘discriminatory intimidation, ridicule and insult’ is sufficiently severe to establish a hostile work environment.”) (quoting
Harris,
The plaintiffs constructive discharge claim is equally meritorious. The elements of constructive discharge were most recently set out by the Eighth Circuit in
Jackson v. Arkansas Dept. of Ed.,
“Constructive discharge occurs ‘when an employer deliberately renders the employee’s working conditions intolerable and thus forces [her] to quit [her] job.’ ” Phillips [v. Taco Bell Corp.,156 F.3d 884 , 890 (8th Cir.1998) ] (quoting Johnson v. Bunny Bread Co.,646 F.2d 1250 , 1256 (8th Cir.1981)). To be liable, the employer must have intended to force the employee to quit, or at least have reasonably foreseen the employee’s resignation as a consequence of the unlawful working conditions it created. See id.; see also Tidwell v. Meyer’s Bakeries, Inc.,93 F.3d 490 , 494 (8th Cir.1996) (“To constitute a constructive discharge, the employer must deliberately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit.”). Furthermore, the employee must also show that a reasonable person, from an objective viewpoint, would find the working conditions intolerable. See Phillips,156 F.3d at 890 ; Allen v. Bridgestone/Firestone, Inc.,81 F.3d 793 , 796 (8th Cir.1996). To be reasonable, an employee must give her employer a reasonable opportunity to correct the problem. See Phillips,156 F.3d at 890 .
Jackson,
Again,
Kimzey v. Wal-Mart
is instructive — particularly with regard to the ongoing nature of the harassment and the failure of IBP management to make any concerted efforts to address the plaintiffs concerns.
See Kimzey,
B. Equal Pay Act
Section 206(d)(1), United States Code, Title 29, prohibits an employer from discriminating
between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to ... (iv) a differential based on any other factor other than sex
29 U.S.C. § 206(d)(1).
See also Sowell,
The Equal Pay Act identifies considerations to be explored in determining whether otherwise similar jobs require equal work: skill, effort, responsibility and working conditions.
Usery v. Richman,
At trial, the plaintiff attempted to prove gender-based unequal pay when compared with contemporaneously-employed male supply clerks and when compared with preceding and succeeding male senior supply clerks. Although it is a very close question, for the reasons discussed below the Court concludes that the plaintiff has failed to establish an Equal Pay Act violation under either theory.
1. Comparison with other “supply clerks:”
The Court first addresses the relevancе of Noreen Bradfield, a female supply clerk who made more than both the plaintiff and male supply clerks during at least part of the relevant time period. IBP contends that Ms. Bradfield’s position and wage history refute any prima facie showing of an equal pay violation. The plaintiff insists that Noreen Bradfield is not an appropriate comparator under the Act as her duties were essentially secretarial and did not involve the same skill or effort as the plaintiffs even though both held the same title for much of the plaintiffs tenure. The plaintiff is correct that the case law and regulations make clear that title alone is not indicative of whether two jobs require equal work.
See
29 C.F.R. § 1620.13(e) (1998) (“Application of the equal pay standard is not dependent on job classifications or titles but depends rather on actual job requirements and performance.”); 29 C.F.R. § 1620.13 (“Job titles are frequently of such a general nature as to provide very little guidance in determining the application of the equal pay standard. For example, the job title ‘clerk’ may be applied to employees who perform a variety of duties so dissimilar as to place many of them beyond the scope of comparison under the Act.... In all such situations, the application of the equal pay standard will have to be determined by applying the terms of the Act to the specific facts involved.”).
See also EEOC v. Universal Underwriters Ins. Co.,
653 F.2d
Even excluding Bradfield, however, the Court is left with insufficient proof that the plaintiff was paid less than her male counterparts for equal work or that any marginal differences were not based on factors other than gender. Assuming that the appropriate comparator class based on the nature of the supply clerk duties consists of Thomas Northey and Mark Peters,
5
the evidence shows that, for an approximately two-year period, a five-cent discrepancy existed between the wages paid the plaintiff and those paid her male counterparts.
6
The Court was not particularly impressed by IBP’s proffered explanations for the difference — e.g., Peters worked the night shift and/or had more experience prior to coming to IBP. However, given the extremely small comparator class and the marginal difference at issue, the Court is not persuaded that the plaintiff can or has proven that this differential is based on gender. IBP’s pay structure clearly contemplates some pay variation and flexibility within job classifications and/or among employees ostensibly doing equal work. Such a scheme, and the resulting wage differences, reflects myriad variables which could reasonably go into initial pay determinations as well as subsequent increase determinations. To find that the circumstances before the Court— a five-cent differential by two male employees over a period of two years — violates the Equal Protection Act would circumscribe employer personnel decisions beyond that contemplated by the Act.
See Brousard-Norcross v. Augustana College Association,
2. Comparison with other “senior supply clerks:”
The plaintiff also argues that male senior supply clerks were рaid more than females for equal work in violation of the Act. As noted above, the Court concludes that the plaintiff has failed to carry her burden of proof as to this claim. During the plaintiffs tenure at IBP, three persons were named as successive “senior supply clerks:” Chris Blumenstein, a male, from October 1991 to March 1992; Cindy Gleason, a female, from June 1992 to February 1994; and the plaintiff, from October 1994 to May 1996. The plaintiffs immediate nominal successor was Noreen Bradfield, who held the senior supply clerk position from September 1996 to March 1999. Finally, in April 1999, Mark Peters was promoted to the senior supply clerk position. The Court finds that the plaintiff has failed to prove that the marginal differences in wages paid to senior supply clerks over the period from 1991 through 1996 can establish an Equal Pay Act violation or that any such differences were gender-based. Each successive senior supply clerk, from 1991 through the plaintiffs departure started at a rate lower than the ending rate of his or her predecessor but ended up at a rate higher than his or her predecessor’s highest rate. Further, each received comparable raises during his or her tenure: over a six month period, Blumen-stein’s hourly wage increased by 20 cents; over a nineteen month period, Gleason’s wage increased by 55 cents (in two steps); and over an 18 month period, the plaintiffs wage increased by 60 cents. Looking at these individuals’ wages as a percentage of the maximum wage available under IBP’s classification system proves equally inconclusive. All paid wages ranged between 62.1 and 66.4% of the classification maximum — a relatively small variation. In sum, the Court is not persuaded that this evidence demonstrates the plaintiffs argument — that male senior supply clerks earn more than their female counterparts for equal work. Finally, with regard to Peters’ $12 salary in 1999, although comparison with non-immediate successors will under some circumstances be appropriate,
see Broadus v. O.K. Indus., Inc.,
C. Damages
1. Back pay and front pay
Based upon the plaintiffs constructive discharge, Ms. Flockhart is entitled to back pay under both Title VII and
IBP claims that Ms. Flockhart has failed to mitigate damages in this case.
See Excel Corp.
a. May 10, 1996 to February 28, 1997.
Turning to the actual computations themselves, the Court finds that between May 10, 1996, and February 28, 1997, there were 42 work weeks at 40 hours per week for a total of 1,680 work hours at $8.80 per hour. The total loss of wages for that period was $14,784.
b. February 28, 1997 to February 28, 1998.
Using a 6% increase in Ms. Flock-hart’s hourly rate results in an increase to $9.32 per hour. Based upon 52 weeks of work, 40 hours per week totals 2,080 work hours. The total loss of wages at $9.32 per hour is $19,386.
c. February 28, 1998 to Febmary 28, 1999.
A 6% increase from the $9.32 per hour rate results in a new hourly rate of $9.88 per hour. Assuming a 2,080 hour work year results in a total wage loss of $20,550.
d. Febmary 28, 1999 to Febmary 25, 2000, 7
Again, using a 6% increase in the hourly rate results in a new hourly rateof $10.47 per hour. Fifty-two work weeks at 40 hours per week results in a total wage loss during that period of $21,778.
e. February 25, 2000 to December 31, 2000.
Ms. Flockhart’s hourly rate at a 6% increase would result in a new hourly wage rate at IBP of $11.10 per hour on February 25, 2000. There are 44 weeks between February 25, 2000, and the end of calendar year 2000. At 40 hours per week, this results in a total wage loss of $19,536.
In summary, the plaintiffs loss in total wages between May 10, 1996, and December 31, 2000, equals $96,034. Adding 25% for lost bonuses, overtime, 401 (k) Plan, and fringe benefits, results in a total wage loss of $120,043.
The plaintiff has presented, as part of the evidence in this case, a back pay calculation spread sheet. While the Court has not used the numbers for purposеs of determining the gross wage loss in this case, the Court will use the plaintiffs figures to determine the amount of wages earned through other employment for purposes of mitigation. That figure through December 31, 2000, totals $82,192. This results in a net wage loss of $37,851.
The plaintiff has also included in her back pay computation sheet a request for interest on the lost back pay. Interest is not included in the back pay award in order to avoid duplication of damages. The Court is awarding pre-judgment interest on the entire award of back pay and emotional distress damages, so no interest is factored into the initial determination of the back pay award.
2. Emotional distress damages
“An award of damages for emotional distress must be supported by competent evidence of ‘genuine injury.’ ”
Forshee v. Waterloo Indus., Inc.,
Essentially, IBP argued that any claim for emotional distress damages was limited under Title VII to the period from and after a date 300 days prior to the filing of Ms. Flockhart’s claim with the Iowa Civil Rights Commission. It was that contention that formed one of the grounds for the dispute over the date of the last Wisecup incident. If the incident occurred in 1994, then it would have been outside the 300 day window and, under IBP’s theory, no emotional distress damage could be awarded for any of the Wisecup incidents. On the other hand, if the incident did occur in late 1995, as this Court has found, then the complaint would have been timely filed and would have allowed for recovery of emotional distress damages.
The plaintiff countered by arguing that even if emotional distress damages are limited to the 300 day period under Title VII, they are recoverable under the Iowa Civil Rights Act for the entire period of any harassment suffered by the plaintiff. Since the trial of this case, that issue has been essentially resolved by
Madison v. IBP, Inc.,
The Court has previously catalogued the harassment the plaintiff suffered during her entire term of employment at IBP, as well as the severe emotional distress that she suffered as a result. In summary, the evidence, as presented in testimony by Ms. Flockhart and others, clearly shows that Ms. Flockhart was suffering from extreme anxiety and depression leading up to the date of her termination. She was eventually prescribed a prescription anti-depressant and anti-anxiety medication to address those problems. Ms. Flockhart also suffered serious emotional distress as a result of her constructive discharge. This emotional distress impaired her ability to immediately seek and obtain alternate employment. In addition, the Court finds credible Ms. Flockhart’s belief that she has repressed many of the incidents at IBP and that this loss of memory has contributed to her anxiety and distress over the harassment she suffered there.
There was also testimony from both Ms. Flockhart and her former partner, Meg Heatley, that the deterioration of the plaintiffs emotional state, both before and after she left IBP, contributed to the break-up of their relationship. Ms. Heat-ley and Ms. Flockhart both felt they were in a very committed relationship and intended that relationship be permanent. However, Ms. Flockhart’s depression, anxiety and other emotional reactions to the situation at IBP and her eventual constructive discharge led to a deterioration of her relationship with Ms. Heatley and their eventual break-up.
Ms. Flockhart has seen a counselor on and off since the date of her constructive discharge. She continues to feel аnxiety, resentment and anger towards IBP over the way she was treated. All these factors support the award of a substantial amount of emotional distress damages in this case.
The Court will temper the award, somewhat, due to the fact there also appear to be other factors in Ms. Flockhart’s life which contributed to her emotional distress. While the Court has no doubt that the problems at IBP were a significant contributing factor in the break-up of her relationship with Ms. Heatley, it appears there were other factors and other issues the couple were dealing with. Many of the clinical notes from the counselor who treated Ms. Flockhart indicate that the center of her concerns revolved around her relationship with Ms. Heatley. ■
In making the award of emotional distress damages, the award is made under the Iowa Civil Rights Act. To avoid any duplication of recovery, the Court is explicitly indicating that no award is made under Title VII. The award under the Iowa Civil Rights Act encompasses all of the harassment back through at least 1992, the date of the initial Wisecup incident. The award is intended to compensate the plaintiff for the emotional distress caused by the sexual assault by Mr Wisecup, the harassment by co-employees, and the treatment of her by her supervisor, Frank Eisermann.
3. Punitive damages
“Punitive damages are allowed under Title VII if the defendant discriminated ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’ ”
Beard,
“[I]ntentional torts are within the scope of an agent’s employment if the conduct is ‘the kind [the employee] is employed to perform,’ ‘occurs substantially within the authorized time and space limits,’ and ‘is actuated, at least in part, by a purpose to serve the’ employer. [S]o long as these rules are satisfied, an employee may be said to act within the scope of employment even if the employee engages in acts ‘specifically forbidden’ by the employer and uses ‘forbidden means of accomplishing results.’” Kolstad,527 U.S. at 543-44 ,119 S.Ct. 2118 (citing Restatement (Second) of Agency, §§ 228, 230).
Ogden,
An employer may escape vicarious liability for the discriminatory employment decisions of managerial agents where those decisions are contrary to the employer’s “good faith efforts to comply with Title
In this case, the Court finds that the plaintiff has demonstrated that an award of punitive damages is appropriate. In this respect, the Court notes that the Eighth Circuit Model Jury Instructions characterize the plaintiffs burden of proof on punitive damages in a Title VII action as the “preponderance or greater weight of the evidence” standard. See Instruction Number 5.04, Eighth Circuit Manual of Model Jury Instructions, Civil (2001). However, even under the more exacting “clear and convincing” standard, the Court’s analysis and conclusions would remain the same.
As detailed in the Court’s factual findings, the plaintiff repeatedly made complaints to IBP managerial employees about the conduct to which she was subjected. Those complaints were for the most part ignored or, in some cases, she was lied to about the results of the investigation. Specifically, the Court has previously found that following Ms. Flockhart’s complaint regarding the sexual assault against her by Mr. Wisecup, and Mr. Wisecup’s admission with regard to her claims, she was falsely told that he had denied the allegations and they could not be substantiated.
The Court also finds that IBP’s attitude concerning the incidents with Mr. Eiser-mann, as most notably evidenced by Mr. Schmitz’s comments to Mr. Gordon that nothing would be done about Mr. Eiser-mann, warrant the award of punitive damages. Mr. Schmitz’s comments reflect, and are consistent with, the pervasive atmosphere of harassment and degradation of women at the IBP plant. The evidence is overwhelming that at IBP’s Waterloo plant, sexual harassment complaints were not taken seriously and little, if any, effort was made to address legitimate concerns.
IBP’s argument that it has an effective employment discrimination policy which shields it from liability for punitive damages is thoroughly refuted by the evidence. Although IBP has a written policy, it was rarely enforced, and certainly, as applied to Ms. Flockhart, a total failure. It is undisputed that Ms. Flockhart made repeated complaints to IBP management as required under the anti-discrimination policy. Yet, those complaints were never acted upon. In addition, the policy clearly provides that all complaints are to be investigated and documented. Ms. Ott testified that it is the policy of IBP, as outlined in its training materials, to “document, document, document.” Yet, IBP was unable to produce any documentation concerning any of the numerous complaints made by Ms. Flockhart. This is either a gross violation of IBP’s own policy, or worse, a deliberate attempt to hide the facts of the Wisecup and other investigations which would support Ms. Flockhart’s allegations.
See Ogden,
In this respect, the Court notes the striking similarities between the way the plaintiff was treated in this case and the conduct outlined in
Madison v. IBP, Inc.,
In summary, the Court believes that only a substantial award of punitive damages in this case will ensure that IBP ■takes seriously its obligations towards its female employees and implements the policies it claims are in force. Accordingly, the Court will award the statutory maximum punitive damage award allowed under Title VII: $300,000 in punitive damages will be assessed against IBP.
D. Interest
Judge Celeste Bremer has very thoroughly outlined the law on the award of prejudgment interest under both Title VII and the Iowa Civil Rights Act. See
Madison v. IBP, Inc.,
Post-judgment interest is government by 28 U.S.C. § 1961. Interest shall accrue on the entire award, including punitive damages, from and after the entry of judgment at the federal judgment rate.
E. Attorneys’ Fees and Equitable Relief
The plaintiff has requested equitable relief in this case. The Court believes that such relief may very well be appropriate. In light of the documented failure of IBP to have an effective and meaningful anti-harassment policy, the Court will give serious consideration to granting equitable relief which will force IBP to implement such a policy.
Thе Court is aware that many of the events that were testified to in this case occurred several years ago. There is testimony, however, that many of the deficiencies in IBP’s anti-harassment policy continued up until the date of trial. That said, the Court does not believe it is in a position to adequately address the issue of equitable relief without the benefit of a further evidentiary hearing as to IBP’s
The plaintiff, as a prevailing party, is presumptively entitled to attorneys’ fees.
See Kline v. City of Kansas City, Missouri, Fire Dept.,
F. Other Issues.
To the extent there are any other defenses or issues raised by the defendant which have not been explicitly addressed in this Order, those defenses are denied. Specifically, all grounds asserted by the defendant in support of its motion for judgment as a matter of law at the close of the plaintiffs case, and again at the close of all the evidence, are denied.
The plaintiff forwarded to the Court a number of exhibits after the completion of trial, including a tape of a conversation involving Mr. Gordon. (Exhibits 555 and 556). The defendant objects to the introduction of any of those exhibits into evidence. The Court finds the exhibits to be irrelevant and more prejudicial than probative. They are not admitted and have not been considered in the Court’s decision.
The Court is also denying the plaintiffs motion for sanctions for discovery abuses in this case. An issue that consumed an unnecessary amount of time at trial in this casе related to IBP’s failure to comply with the magistrate judge’s discovery orders, or, literal compliance without making a meaningful effort to comply with its obligation under the discovery rules or the spirit of Magistrate Judge Jarvey’s discovery orders. One such issue that consumed an inordinate amount of time was IBP’s response to the plaintiffs legitimate request for documentation concerning complaints made by other females at the Waterloo IBP plant. IBP went from initially claiming it had no such records (other than complaints that resulted in actual filings with city, state, or federal EEO officials) to a position that they were contained in various notebooks, to a position they were intermingled vnth thousands of other incident reports in various banker boxes at the Waterloo plant. In addition, the plaintiff very specifically asked for copies of complaints maintained at corporate headquarters that were prepared in response to calls made on the toll free number to the corporate EEO office. The evidence at trial showed that even after years of litigation, IBP has still not done a thorough search to determine how many, if any, of those complaints may be in existence at the corporate offices. Although this Court found many of the discovery issues to be extremely frustrating, it is also the ultimate conclusion of the Court that no sanctions should be imposed. The Court does note, however, that is will not be overly sympathetic to IBP if it argues in opposition to any fee application in this case that the plaintiffs attorneys spent an excessive amount of time on discovery issues. Likewise, the Court will consider IBP’s deficiencies in its record keeping system that led to many of the discovery disputes in connection with the award of any equitable relief.
In summary, the Court finds that the plaintiff has proven by a preponderance of the evidence that she was constructively discharged from IBP, Inc. In addition, the plaintiff has proven by clear and convincing evidence that she is entitled to punitive damages. Finally, the Court finds that the plаintiff has failed to prove an Equal Pay Act violation.
The Court will award damages for back pay in the total amount of $37,851, emotional distress damages in the amount of $200,000, and punitive damages in the amount of $800,000. Prejudgment interest shall be awarded on the back pay and emotional distress damages from the date of the filing of this lawsuit to the date of the entry of judgment at the statutory rate set out in Iowa Code § 668.13(3). The award of back pay is made under both Title VII and the Iowa Civil Rights Act; the emotional distress damages are made pursuant to the Iowa Civil Rights Act; and the punitive damages award is made pursuant to Title VII. The Court is awarding no damages for front pay or future emotional distress.
Finally, the Court will set a hearing by separate notice to take up the issues of equitable relief and attorneys’ fees.
ORDER
IT IS THEREFORE ORDERED that judgment shall enter in favor of the plaintiff and against the defendant in the total sum of $237,851, plus interest from the date of the filing of this complaint to the date of the entry of the judgment at the Iowa judgment rate. Judgment shall also enter in favor of the plaintiff and against the defendant for $300,000 in punitive damages without interest. Interest on the total award shall accrue from and after the date of the entry of the judgment at the federal judgment rate. The plaintiff shall recover her costs of this action.
IT IS FURTHER ORDERED that judgment shall enter in favor of the defendant on the plaintiffs Equal Pay Act claim.
IT IS FURTHER ORDERED that a hearing on the award of equitable relief shall be set by separate notice.
Notes
. The sex based language at IBP was extremely coarse and the conduct very degrading. While the Court will certainly not engage in gratuitous use of offensive language, it is necessary to set forth in some detail the conduct which Ms. Flockhart was subject to, including some of the very graphic language which was used by employees and management of IBP.
. This issue also underlies a separate claim in this lawsuit based upon an alleged violation of the Equal Pay Act. While the Court has ultimately determined that the plaintiff has failed to carry her burden of proof on her equal pay claim, Ms. Flockhart’s evidence on the issue raises serious concerns which, when viewed in the context of all the evidence, lends further support to the Court’s conclusion that
. Shortly before leaving IBP, Ms. Flockhart’s pay rate was increased to $8.80 per hour, which placed her marginally above the prescribed minimum of $8.72.
. This conclusion is qualified, however, by the observation that to so conclude is somewhat inconsistent with other evidence offered by the plaintiff in support of her wage claim. Much of the plaintiffs wage differential showing relies on mathematical comparisons of individual supply clerk wages against "standard” IBP job and maximum wage classifications. Within such an impersonal scheme, it would seem that the specific nature of a "supply clerk's” or "senior supply clerk's” duties are less relevant than the title and concordant classification. In other words, if the wage rate authorized by IBP for all "supply clerks” — regardless of the nature of their duties — falls between X and X+5, for example, then perhaps it is appropriate to take a more macro approach to the comparison by including all supply clerks within the pool.
. Northey's and Peters’ job titles were that of "supply clerk” during the relevant period while the plaintiff was, nominally, a "senior supply clerk.” The evidence supports a finding that, aside from some minimal and infrequent additional responsibilities, their duties were substantially similar and they performed equal pay for purposes of analysis under the Equal Pay Act. Thus, in this portion of the discussion and consistent with the Act's regulatory directives, the court will disregard "titles” and assume that Northey and Peters are appropriate comparators. Following this discussion, the court will address the plaintiff’s assertion that she was paid less than other senior supply clerks who performed equal work.
.In 1994, Peters earned $8.25 per hour while Flockhart earned $8.20 per hour. In 1995, Peters and Northey each earned $8.55 per hour while Flockhart received $8.50 per hour.
. By this time, Mr. Peters, a non-immediate successor senior supply clerk, was earning $12.00 per hour. Consequently, the Court