Susan Waltman v. International Paper Co.

always out- product almost be will injury weighed by the suffered. the court decided that Halphen society danger to of asbestos out society.

weighed utility away It did its the “state of the art” defense which producers using

asbestos had been to es they

tablish that could not know of the

dangers inherent asbestos at the time it

was manufactured and marketed. The re cost,

duction in on via limitation the need expert testimony, that concerned the

Halphen court related to the “state of unreasonably

the art” defense. dan

gerous per cases, se this defense is no mean,

longer available. This does not how

ever, that the court relieved proving product:

burden of a defect in the

An plaintiffs essential element of a case products liability theory each strict recovery proof that the defendant’s

product unreasonably dangerous

normal use.

Halphen, 484 So.2d at 113. prove pros-

Because Valenti failed to defective,

thesis was the district court

properly granted Surgiteck’s motion for a ruling

J.N.O.V. and a new trial. Our unnecessary

makes it to reach the remain- arguments appeal.

der of Valenti’s

judgment is

AFFIRMED. WALTMAN, Plaintiff-Appellant,

Susan CO.,

INTERNATIONAL PAPER

Defendant-Appellee.

No. 88-4088. Appeals,

United States Court of

Fifth Circuit.

June Gear, Cook, Yancey, King &

A. Richard La., Shreveport, for defendant- Galloway, appellee. THORNBERRY, KING and

Before JONES, Judges. Circuit THORNBERRY, Judge: Circuit Waltman, brought plaintiff-appellant, employer, International Pa- suit her (IPCO), defendant-appellee, Company per (1) alleging for sexual harassment claims under Title VII and sexual discrimination Employment Louisiana Fair Act and the (LFEA); (2) Louisi- tort claims under privacy, as- ana state law for invasion of sault, battery infliction of and intentional granted The district court mental distress. summary judgment in IPCO’s fa- partial (1) grounds on the the acts of vor more than sexual harassment that occurred days before Waltman filed EEOC were time-barred under Title VII be- claim continuing they did not constitute a cause violation; (2) of sexual harassment the acts brought under state law that occurred be- January 1985 were time-barred fore a continu- they did not constitute violation; (3) all the claims under Title VII and the LFEA were invalid because did not and should not have know alleged sexual harassment known prompt remedial and because IPCO took harassment; upon learning of the (4) not state a valid claim and Waltman did discriminatory promote for failure to be- failed to demonstrate cause she motivated promotion decision was discriminatory intent. by a I. Facts. began working at IPCO in

April powerhouse 1982. She worked “B” The first of the mill on the shift. Walker, Lyons, Henry Laurie W. C. instance of sexual harassment occurred Walker, Tooke, Perlman, Clawson, Lyons & Spring employee when an IPCO La., Shreveport, plaintiff-appellant. times directed several broadcast obscenities Mastroianni, E.E.O.C., Peggy publie toward Waltman over the address R. Wash- D.C., ington, system. response, amicus curiae-E.E.O.C. other be- complaints making suggestive comments to Walt- man’s and told gan Garrett to in- supervi- complained man. Waltman form his shift that this behavior was not care of it.” A sor who he would “take said acceptable. Garrett stated that Pardue employee broad- foreman told the never told him that Waltman had accused stop. employee cast obscenities to inappropriate touching him of and sexual regarding punished and no note comments. Garrett also could not recall employment in his placed the incident was instructing Pardue ever him to tell his crew file. stop the harassment. Pardue did not September discipline IPCO moved Walt- anyone nor investigate did he A man to the “A” shift. While on the Rather, Waltman’s claims. Pardue trans- shift, Garrett, supervisor, and ferred Waltman to another shift. urged sex his assistant During the summer of an IPCO occasions, several with a co-worker. On employee a truck told driver that Waltman in an offensive Garrett touched Waltman a get was whore and that she would if hurt pliers pinched her buttocks with manner — keep Later, she did not her mouth shut. in in put tried to his hands her back 1984, the Fall of several other incidents addition, pockets. In Garrett and fellow occurred. A employee, Brown and Root sexually suggestive made often working mill, grabbed who was Waltman, example “I comments to Waltman’s arms while she was carrying a that,” piece referring like a of would liquid; vial of hot another Brown and Root Waltman. tongue then worker stuck his in her ear. shift, During her tenure on the A Walt- incident, separate In a employee an IPCO thirty pornographic man received over told Waltman he would cut off her breast Sexually explicit pic- notes in her locker. and shove it down her throat. The same graffiti tures and were drawn on the walls employee dangled later Waltman over a powerhouse, on the restroom walls stairwell, thirty more than feet from the in the elevator.1 Some of these draw- In employee floor. November one ings Employ- directed were at Waltman.2 pinched In in- Waltman’s breasts. another sexually ees had oriented calendars on the cident, grabbed a co-worker Waltman’s kept and in their lockers which walls were thigh. open. They hung tampons also used from occasion, their lockers. On more than one specific In addition to the recit- incidents propositioned co-workers above, Waltman. ed Waltman’s fellow workers con- stantly suggestive directed lewd and com- reported In October of ments toward her. Waltman estimated Pardue, the incidents recited above eighty percent pow- of the men in the managers. allegedly of the IPCO Pardue sexually suggestive com- erhouse made expect type told her she should this of point. ments to her at some She also testi- working behavior with men. Pardue go by did a fied that week without spoke supervi- claims he with Waltman’s sor, directing Garrett, co-worker a sexual comment at who was one of the men who Waltman, harassing had been about Walt- her. graffiti 1. Waltman testified that in the there that when the could be washed bathroom testified off, "very, very explicit drawings herself, were of women she would do it but that she could legs spread type thing” with their out and this not remove the that was scratched into "pornographic pictures” and that there were paint. lockers, many of the which the men would leave things Waltman further testified that “[t]he open. drawings that there Garrett testified were that were written on the walls were the same of naked men and women on the walls. things put types as that were on the notes in lockers, locker, my every- such as Sue sucks deposition

2. Waltman testified in her that the dick, whore, body's going Sue I am to eat words "Sue in the is whore” were scratched pussy pussy, type Sue’s or Sue has a nice this paint eight on the elevator in inch letters and thing, language "[t]hey things the same that was in the eleva- wrote these several times in the bathroom on the elevators." Waltman tor." [and] confirming by signing the your ate Waltman became In November copy of this letter.” attached result of the sexual ill, allegedly as a alleges that signed the letter. Waltman took a sick leave She harassment. she understood signed the letter when February November until investigation of the that there would be an days for a few hospitalized workers, investigation IPCO but that began seeing psychi- She depression. and informal without confidential would be of December. middle atrist IPCO contends any mention of her name. January Walt- beginning At the investigation into wanted no that Waltman Holt, supervisor, and contacted man involving employ- the IPCO the incidents of sexual all the incidents told him of ees. experienced at harassment she had independent, did not conduct superiors, his spoke Holt with mill. the incidents Walt- investigation internal to discuss Waltman’s several times met any take concert- alleged nor did IPCO man managers also met allegations. Senior porno- prohibit the steps to remove or ed who, manag- Garrett, according to one the mill. On occa- graphic graffiti around er, allegations concern- denied walls, sion, but the they would wash testimony, separate Garrett ing him. fact, only step graffiti persisted. superiors ever told none of his stated that harass- the sexual IPCO took address wrong. anything him that he done require to that all the at the mill was ment any reprimand Garrett or not IPCO did plant policy on sexual supervisors read the Walt- people had harassed the other meeting. at a shift out loud harassment investigate any man, nor did IPCO further disciplinary took no IPCO claims. of Waltman’s IPCO did contact any employees. of its 14, 1985, January Waltman met with On incident involv- Root the Brown and about told plant managers. Waltman senior workers; Brown and ing the Brown Root harassing incidents. them of the various in the em- placed warning letters and Root 18, 1985, plant manager January the On ployees’ files. saying letter that IPCO sent Waltman a pe- noteworthy throughout this It is investigate her claims without could not harassment, in- never Waltman riod identifying her. The letter also stated grievance procedures voked the established begin investigation not the IPCO would plant. at the January it. until authorized On Waltman 21, 1985, with IPCO’s human Waltman met 1985, 4, doctor February Waltman’s On personnel mill’s manager and the resources February on to work released her to return meeting, managers manager. At this the 8, During week back at her first 1985. be detrimental to told Waltman it would work, the sexual observed Waltman investigation of the they pursued her if the walls. She graffiti was still all over charged with IPCO workers Waltman remarks about an- overheard sexual also stated that harassment. Waltman 13,1985, February there On other woman. if managers also that Waltman intimated time the meeting, a shift which was investigation it would hurt pursued an policy IPCO’s supervisor read out loud impos- make it promotion and chances of re- harassment. sexual Several at the mill. laugh- sible for her to work policy statement with sponded to provoke sex- ter and comments that women 24, 1985, manager January plant On wearing tight jeans. At by ual Waltman, stating that drafted a letter resig- meeting, announced her Waltman involv- investigate the incident IPCO would days after the shift meet- nation. A few employees. The ing the Brown and Root grabbed ing, employee an IPCO that, pursuant to Walt- letter also stated high pressure hose and breasts directed wishes, investigate IPCO would not man’s at her crotch. involving employees. the incidents resigna- her official the letter read: “We Waltman submitted The final sentence of 16, day February 1985. Her last appreci- tion on respect your and would will wishes appealed grant partial Waltman effective days later. Waltman’s ten summary judgment 14, IPCO. EEOC 1985. March date was termination urging amicus also filed an curiae brief claims of sexual to her In addition reversal of the district court’s decision. she was alleges dis- Waltman promotion criminatorily denied properly II. Reliance on evidence not respond to co-workers she did the record. denied a was twice Waltman advances. matter, parties preliminary As a dis- alleges operator. Waltman promotion to pute the district court erred in whether promoted before people who were that the refusing evidence that to consider Waltman person and that one qualified less her were with her motion for reconsidera- submitted and, she tolerated promoted because summary judgment. tion of the court’s encouraged, fellow work- perhaps even briefs, the EEOC and Waltman their both ers’ sexual behavior. relied on the evidence attached to Walt- 25, 1985, charges filed April On man’s motion for reconsideration. There is Employment Opportunity Equal dispute regarding deposition a similar evi- (EEOC). The EEOC issued upon dence which IPCO relied its motion Commission opposition December to Waltman’s motion to recon- right to sue on notice of and in its this court. sider brief before filed this suit on Janu- 1985 and Waltman damages sought ary summary judg- IPCO filed its motion for (1) and discriminato- sexual harassment September 1987. After Walt- ment on Title promote VII ry failure granted requested man and the court two LFEA; (2) privacy, invasion of extensions, response filed her assault, infliction of battery and intentional motion on October 1987. On state law. distress under mental granted district court October in partial summary judgment favor of a summary judg- a motion for IPCO filed 9,1987, Waltman filed IPCO. On November ment, partially the district court which pursuant to motion for reconsideration (1) all inci- grounds that: granted on 59(e). Civil Procedure Federal Rule of 1984 were time- prior dents to October documents to attached various Waltman they did not under Title VII because barred motion, including excerpts deposi- her violation; (2) continuing all constitute a tions, affidavit, and several inter- her own 15,1985 January occurring incidents before party Neither nal IPCO memoranda. under state law because were time-barred brought this evidence before previously continuing they not constitute a viola- did district court. tion; (3) an ac- could not sustain Waltman 59(e) al Rule of Civil Procedure Federal harassment under Title VII tion for sexual judgment or amend motions to alter lows not the LFEA IPCO did know entry judg of the days ten of filed within alleged and should not have known pur narrow motions serve the ment. Such learned of harassment and that when IPCO allowing party “to correct mani pose of harassment, prompt it took remedial present or fact or to fest errors of law action; (4) discriminatory fail- the first Corp. Keene newly discovered evidence.” promote untimely claim was and the ure to Co., Fidelity Insurance v. International by was not substantiated evi- second claim (N.D.Ill.1982), 656, F.Supp. 665 561 affd. promote Walt- dence that IPCO’s failure to Cir.1984). (7th F.2d 1367 735 discriminatory man was on a intent. based for sum- urges The court denied IPCO’s motion the material mary judgment on Waltman’s claims of her motion for reconsideration attached to assault, privacy, battery judge’s necessary respond invasion of “to to was which, essence, plain infliction of mental distress ruling intentional in discounted employee issues testimony on the acts of the ... new factual based tiff’s [N]o This statement does not grabbed Waltman’s breasts and directed were submitted.” sought to correct a February her crotch indicate that Waltman the air hose at 474 relied and have not the evidence consider intro to fact or law or of error manifest deciding this case. fact, upon it evidence. newly discovered duce materi all of the deposition, one except for Review. III. Standard for recon motion Waltman’s to al attached grant of court’s reviewing district at the to Waltman available was sideration applies the this court summary judgment, to in opposition motion her she filed time as the district review same standard mate these Because summary judgment. Sales Johns-Manville Ayo court. she when available rials were Cir.1985). (5th 902, 904 Corp., motion summary judgment opposed IPCO’s in answers depositions, pleadings, explana give any not did and because file, to on admissions terrogatories, and the materials not include did why she tion affidavits, must demon any with gether summary opposition motion with any as to issue genuine is no strate there her submission hold we

judgment, moving party is fact and material recon motion with materials these law. matter of as a judgment entitled the same untimely. For sideration Catrett, 477 Corp. v. also Celotex Id. See depend reasons, hold that also we 2552-54, 2548, 322-24, 106 S.Ct. U.S. testimony it did deposition on ence — U.S. (1986), denied cert. 265 91 L.Ed.2d during the court district to the submit (1988); 992 L.Ed.2d -, 98 108 S.Ct. judg summary motion pendency standard, 56(c). this Under Fed.R.Civ.P. Corp. v. See Harsco improper. ment defer with are considered questions fact Cir.1985), (3rd cert. Zlotnicki, F.2d 906 v. State Reid to the nonmovant. ence 106 S.Ct. 476 U.S. denied Co., Insurance Automobile Farm Mutual Digi Marques v. (1986); Mas L.Ed.2d Cir.1986). 577, 578 F.2d (1st F.2d Corp., 637 Equipment tal Cir.1980). Claim Violation—Federal Continuous IV. did for reconsideration motion Sexual Harassment. com- that was not deposition include claim a Title VII sustain In order to days two October pleted until file plaintiff must of sexual opposing her motion filed after the EEOC of discrimination charge Although Waltman summary judgment. “alleged unlawful days of the within accurately relied not have could 42 U.S.C. practice.” employment oppos- her motion when she filed deposition period com 2000e-5(d). limitations The § summary judgment, could discriminatory that the on the date mences the before to court evidence presented this College v. Delaware State act occurred. reconsideration. 504, for her motion 101 S.Ct. Ricks, 449 U.S. a continuance filed a motion could have filed (1980). Waltman 431 L.Ed.2d 66 56(f) of Procedure Rule Civil Federal on under with the EEOC discrimination charge of remaining depose the her time to the 24,1985, years to after allow almost three April the Although evidence prepare the harassment. witness of first incident addition, asked cannot she could have that Waltman suggest court. these facts supplement upon incidents to based permission her claims court for sustain judgment days before summary 180 more than opposition in that occurred motion recognized Be- 25, 1985, has available. circuit deposition April became this when day limi 180 proper exception to take the equitable failed to an cause Waltman eq This deposi- period. of the actionable this on insure consideration tation steps “[wjhere the un slip exception it into arises her to tion, to allow uitable decline we it practice manifests employment reconsid- through motion for lawful the record of time, than as a series rather Lear Petrole- self over v. Pasternak eration. See College Baylor v. acts.” Inc., discrete Abrams 790 F.2d Exploration, um (5th Cir. Medicine, IPCO, 805 F.2d Walt- Cir.1986). the extent To of a claim 1986). to sustain In order on evidence relied the EEOC man and viola- continuing as a exception, known record, have declined we properly tion, people only least man and plaintiff must show that at some harassed her on occasion; (4) occurred within incident of harassment one too much time Berry day period. elapsed specific Id. at 583. between the incidents of Supervisors Louisiana State Board harassment. of of (5th Cir.1983), F.2d 971 University, 715 232, 93 479 U.S. 107 S.Ct. cert. denied 1.Conspiracy. (1986), this court discussed L.Ed.2d argument IPCO’s first is not rele determining whether factors to consider continuing vant to Waltman’s violation plaintiff support can a claim for a con a suggested claim. court This has never tinuing violation: plaintiff bringing a a claim of sexual necessity, turns on the inquiry, This of conspiracy among harassment must show a particular and context of each case. facts prove the harassers to a continuous viola Relevant to the determination are the tion. factors, following we dis- three which cuss, by no means consider to be but 2.Company policy. subject The matter. exhaustive. first is claim that Waltman failed to alleged type Do the acts involve the same company policy per show that there was a discrimination, tending to connect mitting is irrel sexual harassment likewise continuing in a The sec- them violation? plaintiff prove evant. A does not have to alleged frequency. ond is Are the acts policy that the defendant had a of discrimi recurring (e.g., biweekly paycheck) or support nation to a claim based on a con more the nature an isolated work tinuing prove A can violation. assignment employment or decision? factor, continuing by producing either ev perhaps impor- The third of most violation tance, degree permanence. discriminatory idence of a series of acts or Does degree permanence by demonstrating that the defendant has a act have trigger employee’s discriminating. which should policy of See Bruno v. duty Co., awareness and to assert his or her Electric Western rights, (10th Cir.1987). should indicate to the or which employee that the continued existence of consequences of the act is to adverse people. different 3.Incidents involved expected being dependent without be The fact that not all the incidents of continuing intent to discriminate? people the same does harassment involved added). (emphasis at 981

Id. frequency. not show a lack of recurrence court discussed recurrent acts Berry Subject A. Matter. discrimination, not recurrent actors. undisputedly Waltman’s claim meets the subject The focus is whether Waltman was Berry alleged first element that the acts discrimination, not recurring ed acts of matter; subject every involve the same in- given individual harassed Walt- whether reported by cident Waltman involves sexu- Ruder, recurrently. Broderick v. man See al harassment. (D.D.C.1988) F.Supp. 1271-72 (the plain court ruled in favor of a district Frequency. B. subject tiff to sexual harassment who was pro- asserts that has not IPCO time, involving six-year period of over a duced sufficient facts to raise an issue re- people, some of whom different several garding Berry the second the factor: inci- occasion). approached only her on dents of sexual harassment must be recur- ring urges (1) and not isolated. IPCO elapsed. 4.Time there was no evidence to demonstrate that too much people harassing acting finally asserts that the Waltman were concert; (2) specific incidents management elapsed in time between the there was not a finding of a behavior; (3) support a policy encouraging level of harassment such fact that there harassing continuing violation. The person it was not the same Walt- (1) specific permanence look at the gaps the incidents whether were between trigger employee’s does not demon- act “should aware- which Waltman testified (2) Abrams, rights;” and continuity. duty In ness and to assert her strate a lack of continuing consequences found a whether the of the act would F.2d this court intent to discriminate. Jewish doctors were ex- continue absent an violation where several 715 F.2d at 981. Acts of harassment that cluded on numerous occasions over in an overseas create an offensive or hostile environment years participation from degree through Baylor generally do not have the same program medical services courts, as, example, in- the loss of Similarly, permanence other Medical School. promotion. person harassing plain- If the a cluding Supreme Court have heard sex- ends; involving separate job, tiff his the harassment claims leaves ual harassment many years dependent without the harassment is on a continu- spanning incidents contrast, In when mentioning the timeliness issue. intent to harass. even See Vinson, person plaintiff promotion 477 U.S. denies a Savings Bank v. Meritor (1986) leaves, plaintiff pro- 91 L.Ed.2d 49 is still without a 106 S.Ct. though longer any (plaintiff’s for sexual harassment en- motion even there is no claim year peri- exam- compassed incidents over a four intent to discriminate. this latter od); Ruder, F.Supp. ple, permanence to there is an element of Broderick action, should, discriminatory (plaintiffs claim was based on incidents which cases, rights spanning years). plaintiff most alert a that her six find in the have been violated. We noteworthy It that since this case, instant a material there is issue Supreme Berry, court’s decision in harassment, whether the acts of sexual had Bank, Savings Court decided Meritor quality “permanence” Berry bring that a can which established rights would alert Waltman that her a claim for sexual based been violated. acts that created a “hostile environment.” alleged Because Waltman has sufficient Savings The Meritor Bank decision is rele facts to demonstrate that there exists a continuing theory to the violation be vant regarding genuine issue of material fact usually cause a hostile environment claim violation, continuing the existence of a continuing involves a violation. a hos summary judgment on this issue was im- environment, tile an individual feels con proper. stantly threatened in the absence of even Thus, looking constant harassment. V. Continuous Violation—State Claim frequency the focus Sexual Harassment.

should not a mechanical calculation. be Rather, Bank, light Savings of Meritor Code, plaintiffs Under the Louisiana Civil pattern the court should review the year must file their claims within one frequency deter of the harassment and injury damage. the date of the La.Civ. person mine would whether reasonable (West Supp.1988). Ann. art. 3492 Code feel the environment was hostile Supreme recog The Louisiana Court has throughout period that formed the ba equitable exception pre nized an to this plaintiff’s sis of the claim. Waltman’s evi scription period, holding that “when dence of incidents of harassment individual resulting damages conduct tortious coupled with the evidence of sexual continue, prescription begin does not until throughout support powerhouse could causing damage the conduct is abat finding that the acts of harassment were injury ed.... Where the cause of the is a sufficiently recurrent to create a continu giving continuous one to rise successive ously hostile environment. damages, prescription dates from the ces wrongful causing sation of the conduct

C. Permanence. damage.” Telephone Bell South Central Texaco, Inc., 531, discussing permanence (La. v. 418 So.2d 533 factor, 1982); Berry Reynolds court instructed courts to see also R.J. Tobacco

477 Hudson, (5th Dundee, 314 Company v. F.2d 776 Cir.1982); 682 F.2d 897 see Cir.1963). For same reasons recited Bank, also Meritor Savings 477 U.S. at above, 66-67, 106 that we hold Waltman has intro- (established S.Ct. at 2405-06 sufficient duced evidence raise an issue bring can a sexual harassment engaged under state whether law quid claim based pro quo harassment or continuing violation. environment). a hostile The district granted court summary VI. Prima Facie Case of Sexual Harass- judgment for grounds IPCO on the ment. produce Waltman did not sufficient evi- Rights Title VII of the Civil Act of 1964 (1) dence of the existence of a hostile envi- prohibits “against discrimination any indi- ronment; (2) knowledge respect vidual with compensation, his harassment; (3) and IPCO’s failure to ade- terms, conditions, privileges or employ- quately remedy the situation. ment, because of such individual’s ... Although Waltman must state a 2000(e)-2(a)(l). sex.” 42 U.S.C. This cir- § prima facie case of sexual harassment cuit has established five elements neces- shift trial, the burden onto IPCO at sary prima to state a facie case of sexual prove need not prima facie case to suc harassment: appeal. Rather, ceed in this pro she must (1) employee belongs protected to a [t]he vide evidence that genuine raises a issue of ...; group concerning material fact each element of (2) employee subject to unwel- [t]he prima facie case. Thornbrough v. Co come sexual i.e. sexual ad- Co., lumbus & Greenville R.R. 760 F.2d vances, favors, requests for sexual and 633, (5th Cir.1985). 640-41 physical other verbal and conduct of a sexual nature that is unwelcome in the A. sense that it is Existence a hostile unsolicited or unincited environment. and is undesirable offensive to the A hostile environment claim arises employee; plaintiff alleges when a harassment “suffi (3) complained harassment of was [t]he ciently pervasive severe or to alter the con ...; upon based sex employment ditions of [the victim’s] (4) complained of af- [t]he create an working abusive environment.” “term, fected a privilege condition or Bank, 67, Savings Meritor U.S. i.e., employment,” the sexual harassment S.Ct. at 2406. Waltman introduced evi sufficiently must be severe as to alter dence that several different employment conditions of and create touched her in a sexual manner and direct working environment; abusive ed sexual comments toward her. addi (5) [rjespondeat superior, i.e., that tion, ongoing there was evidence of employer knew or should have known of graffiti walls, on the and in the elevator question the harassment in and failed to Although bathroom of the mill. not all prompt take remedial action. Waltman, graffiti was directed at it is Flagship International,

Jones v. 793 F.2d all relevant to her claim.3 theAs D.C. 714, (5th Cir.1986), 719-20 cert. Circuit held in Taylor, denied 479 Vinson U.S. (D.C.Cir.1985), S.Ct. 93 L.Ed.2d 1001 477 U.S. affd. (1987), quoting from (1986), Henson v. City 106 S.Ct. 91 L.Ed.2d 49 Although offensive, suggests the dissent sexually held that "while oriented and may which includes male references tute discrimination on the basis of sex because not consti- they plaintiff.” were not based on the sex of the court, appeal, On this court reversed the district it does not differentiate between men and wom- holding "any person reasonable would have en, previously rejected argu- this court has regard highly these cartoons as offensive to a Corp., ment. Bennett v. Corroon & Black woman who seeks to deal with her fellow em- (5th Cir.1988). graffi- F.2d Most sexual ployees professional dignity and clients with ti will include both male and female “referenc- and without the barrier of sexual differentiation Bennett, depicted es.” In the cartoons at issue and abuse.” Id. both men and women and the district court by supervisors, that harassment but never herself sexual who was a woman “[e]ven employer does not of notice to an might a Title “absence object harassment of

the employer from lia- necessarily insulate in an if she were forced work claim VII 72, 2408. The bility.” at 106 S.Ct. at Id. harassment was atmosphere in which such of held that “the mere existence Court also pervasive.” grievance procedure policy and a a 899, Henson, at the Eleventh 682 F.2d discrimination, respondent's coupled with plaintiff the estab found that Circuit procedure failure to invoke that not] [does a hostile envi prima case of lished a facie liability.” insulate defendant] [the subjected employer had where the ronment 72, need at 106 S.Ct. at 2408-09. We Id. harangues of plaintiff numerous the “to uncertainty in the law at not resolve the vulgarities inquiries and demeaning sexual proved suf- time Waltman has that she have repeatedly requested ... and that there is an ficient facts to demonstrate Waltman, him.” relations with sexual IPCO had constructive issue as to whether than more harassment arguably suffered knowledge. actual Henson, not have to in does plaintiff the only by need prima make a facie case. She can show actual notice dispute higher con prove complained there is a factual proving that she a hostile environ cerning management. reported the existence of the inci higher management v. Servic ment. Barbetta Chemlawn dents of harassment to See 569, (W.D.N. First, F.Supp. report 572-73 Corp., es on three occasions. Y.1987) (denying public the defendant’s motion ad comments on the ed lewd shortly in summary judgment system supervisor where af dress Second, in the pornography troduced “evidence ter the incident occurred. Walt- Pardue, partially nude or workplace picturing 1983 incidents to reported man women, by employ vulgar managers, comments 1983. naked October requirement that supervisors, Third, the harassment to reported ees all of Holt, managers, skirts or dresses on supervisor, female wear and other visiting super January certain occasions because legs, and liked to look at unwanted visor constructive Waltman can demonstrate by of a sexual nature physical contact by “showing pervasiveness notice employee”); Hayden v. Atlanta male gives rise to the which (N.D.Ga. F.Supp. 1166 Newspapers, 534 knowledge inference of or constructive 1982)(denying summary judg a motion for Henson, knowledge.” 682 F.2d at cit- plaintiff produced evidence ment where Jones, ing 653 F.2d Taylor v. occasions, employees separate on two Inc., (8th Cir.1981); Air, Swentek U.S. manner). her in a sexual bumped into (4th Cir.1987). Wait 830 F.2d Viewing specific incidents of harass- there testimony, supra, man’s note ongoing at ment and the graffitti at her in nu- was sexual directed law, light existing case we hold merous locations indicates there is a factu- regard- that Waltman has raised an issue per- al issue whether the harassment was thus, the existence of a hostile environment has, vasive. Waltman adduced suffi- at IPCO. raise summary judgment cient evidence to issue, theory of either actual fact Knowledge

B. IPCO’s the Harass- notice, regarding or constructive ment. knowledge alleged harassment. Summary judgment point on this uncertainty in There is some the law inappropriate. therefore concerning type and extent of notice necessary employer to sustain a sexual Adequately C. Rem- IPCO’s Failure to claim under Title VII. In Meri edy the Situation. 72, 106 Bank, 477 at Savings tor U.S. S.Ct. Jones, held Supreme Court that an at 719- Under automatically case, liable for employer prima is not in order to establish a facie

479 having despite may be liable employer em- the that the demonstrate must plaintiff steps if the can ac- remedial remedial taken prompt take to failed ployer response was employer’s harassment. that the to the establish response tion in to halt to the in this case “reasonably calculated” record reviewing the not sufficient alleged if Waltman determine harassment. regarding the issue genuine raise to facts claims, her to response of IPCO’s adequacy public over comments report of 1982 1. Jackson, 641 Bundy v. by guided we are system. address the where (D.C.Cir.1981), 934, 947 F.2d the sexu- supervisor of told her Waltman should employer] held that “[an court public her on the toward made al comments to steps inves- necessary all take promptly supervising The foreman system. address harassment, includ- any and correct tigate comments told made who the employee the di- discipline appropriate and warnings making the com- stop employee to should and offending party, at the rected the em- reprimand not IPCO did ments. prevent- means develop other generally a note make company did the nor ployee, Con- agency.” within ing harassment file. The employee’s in the the incident an that held have Bundy, we with sistent factual issue is a there indicates evidence appropri- and prompt take must employer further taken should have IPCO whether “reasonably action, calculat- ate remedial See the harassment. to end measures Jones, 793 the harassment. end to ed” (1st Cir. n. 5 DeGrace, at reme- appropriate isWhat 719-20. F.2d 1980). necessarily depend on action will dial severity case—the of the facts particular of several Pardue report and to 2. of the persistence and steps. harassing incidents. any initial remedial effectiveness F.2d Rumsfeld, 614 DeGrace See acts of reported numerous Waltman that Cir.1980) (concluding (1st n. 5 manager, Pardue, chastisements mere verbal than “more told she Pardue 1983. in October epithets used racial employees those because she expect such behavior should defendant] in order needed [the was stated He also working with men. that rac- message convey the forcefully to determining who ofway no there was that tolerated”). also See not be would ism graffiti. writing the & Nemours Dupont De v. E.I. Garziano Waltman’s alleges he discussed Pardue Cir.1987)(noting Co., F.2d Garrett, supervisor with complaints duty an affirmative “employers had harassed men who of the en- work offensive’ ‘hostile or to eradicate con- this not recall does Garrett Waltman. vironments”); v. Public Service Tomkins alleged discus- than this Other versation. 1044, 1048-9 Co., 568 F.2d & Electric Gas did investi- Garrett, not Pardue with sion “Title Cir.1977) (holding VII (3rd reported Waltman the incidents any of gate take does not employer ... violated [if] claims Waltman’s he discuss did nor af- remedial appropriate prompt of ha- she accused any harass- knowledge ... acquiring [of ter any- discipline not did Pardue rassing her. ev- that not indicate cases ment]”). These Waltman Instead, transferred he one. suffi- will be employer by an response ery shift.4 Rather, another duty. legal discharge its cient to D transfer of her advised issue, point that when only and not Addressing the factual 4. be transfer- shift, instead she could asked if she requests, we plaintiffs significance legal any "never had to B shift because red argu- heavily on an relies dissent that the note previously. working there problems” when re- by Waltman IPCO—that not raised ment Elsewhere, "insisted” that she states shift in a different quested a transfer shift. to a different on a transfer record, Dempsey according to the noteWe accuracy of event, factual any whatever he discussed recall whether could not Pardue dispose of the specific point, it does in advance and with Waltman transfer steps were remedial question whether testimony deposition own above, has ad- adequate. hold As we at one conflicting. testified subject is merely ter indicated that she did not duty address the harass- want had to IPCO investigation. testimony formal This indi- alleged. Waltman’s ment Waltman that by dispute there is a whether only action taken cates Waltman that the evidence discharged respond from its duties to her another shift IPCO to transfer to IPCO was The effec- adequately to her claims of harassment. question whether IPCO raises a the hostile tiveness of the letter as a waiver is further duty to eradicate exercised its question by sugges- called into environment. actively discouraged that her tion IPCO regarding all report to Holt 3. 1985 pursuing investigation. an of harassment. incidents Summary judgment ground on the that reported all January In responded precisely IPCO as Waltman re- Holt, to her the incidents of quested and acted out benevolent con- by contacting responded supervisor. Holt well-being cern for her emotional would be met with management personnel, who given disputes inappropriate that Waltman allegations. These to discuss propositions, each of these factual and has Accord- managers met with Garrett. also adduced sufficient evidence to indicate that manager, denied Walt- ing to Garrett might to be able establish version said none of the charges. man’s Garrett of the facts at trial. any- him he had done

managers ever told 4. Graffiti. wrong. managers The did not thing IPCO accusations concern- investigate Waltman’s duty had a to address the sexual IPCO they investigate any of nor did Garrett mill, graffiti throughout par- the of harassment. the other incidents ticularly graffiti the that was directed at IPCO failed to demonstrate that Waltman. manager plant The did write Walt- IPCO company determine the tried to who was investigate stating they could not man addition, writing graffiti. fact the the identity. revealing her her claims without occasionally that IPCO washed the walls of managers allegedly informed Two also summary judg- plant the is not sufficient investigation would Waltman that an be proof company attempted ment that the to suggests detrimental to her. This evidence graffiti prohibit remove and the attempted dissuade her from that IPCO served to harass Waltman. a recent seeking investigation. court, decision of this we held an em- January, plant manager In late draft- ployer prompt adequate failed to take stating that ed a letter to Waltman IPCO day he waited one to remove when understood that Waltman wanted an inves- depicting offensive cartoons tigation employees, of the Brown & Root Bennett, from the men’s bathroom. any inquiries regarding but did want Bennett we light F.2d 104. In hold that involving employees. the incidents IPCO prohibit IPCO’s failure to remove letter, plant manager In the asked regarding the ade- raises an issue sign page Waltman to bottom quacy of remedial measures. its agreed that she the contents confirm signed the letter. of the letter. Waltman fact that IPCO had all alleges signed supervisors policy IPCO that when Waltman read the IPCO letter, she indicated that she did not sexual harassment to their crews does not finding investigation genuine want an and waived her claim alter our that there is a remedy the regarding that IPCO failed to situation. issue of material fact the ade management quacy testified that IPCO of IPCO’s remedial measures. Un informal, above, they told her would conduct an der the standard outlined IPCO investigation duty steps reasonably confidential of the incidents to take calculated involving employees Although and that let- halt the harassment. a court summary judgment response

duced sufficient evidence to to the sexual harassment. regarding adequacy raise a fact issue may find after a reading full trial that den of proving “legitimate reason for the policy against sexual harassment to the action.” Id. 101 S.Ct. at 1095. The ulti- action, was sufficient remedial mate persuasion burden of in a pretext question there we believe is some whether case rests with the plaintiff persuade requirements IPCO’s actions meet the set “the court that she has been the victim of and, therefore, forth above hold that IPCO intentional discrimination.” Id. summary judgment cannot sustain a on the grounds supervisors that the read the sexu- A. The Standard of Proof. policy al harassment to their crews. Sim- One circuit has held that the standard of ilarly, we hold that the fact that Waltman proof should be reduced plaintiffs did not follow IPCO’s sexual harassment bring sex discrimination pre claims after grievance procedure support not alone does vailing on a claim of sexual harassment. summary judgment. Meritor Savings See The D.C. Circuit has held that where a

Bank, 477 U.S. at 106 S.Ct. at 2408-9. plaintiff already proven has illegal discrimi nation based on and is Discriminatory Failure VII. to Promote. making a claim for discriminatory failure recognize light We that in of Price Wa promote, she only prove “(1) need that — Hopkins, -, v. terhouse U.S. 109 was she a victim of a pattern practice of 1775, 104 (1989) S.Ct. L.Ed.2d 268 the ele sexual harassment attributable to her em proof ments of in a sex discrimination claim (2) ployer; and that applied she for and vary depending will on whether the evi promotion was denied a for which she was dence leads to a discrimination claim based technically eligible of and which she had a “pretext.”5 on “mixed motives” or In a expectation. reasonable Bundy, 641 F.2d case, mixed motive employer may an 953. The Bundy at formulation does not legitimate and discriminatory reasons for require plaintiff prove that the the defen taking injurious plaintiff. to a In a dant intended to against discriminate in her pretext case, an employer has either a dis failing promote if already she has criminatory or a non-discriminatory ratio successfully proven this intent in the con nale for its par actions. The elements the text of her sexual harassment claim. Id. at prove depend ties must upon the classifica Although 952-53. the Bundy pre decision tion of the claim as a mixed motive case or ceded Supreme Court’s in decisions pretext a case. Hopkins, Burdine and the D.C. Circuit has case, a mixed plain motive “[o]nce not retreated from its Bundy holding. See gender tiff ... shows that played a moti Brock, (D.C.Cir. v. Johnson vating part decision, in an employment 1987). may defendant finding avoid a liability partWe only by proving company with the D.C. [by preponderance of the Circuit on this issue and hold that it that Waltman would have made the same evidence] satisfy must Hopkins decision if even it had Burdine ele gender not allowed ments to play at -, such sustain her a role.” claim for discriminato Id. S.Ct. ry case, promote at failure to pretext prevails 1787. even if she must show “that she on her sexual applied for harassment claim. an available See Hen son, position (Eleventh for which 682 F.2d at qualified, she was 906-07 but Circuit rejected rejecting analysis). the Bundy circumstances which give rise to an inference claim of unlawful dis of sexual discrimination is distinct crimination.” Department Texas her claim for wrongful Com pro failure to munity Burdine, v. 450 U.S. mote. Each claim its has own elements Affairs 1089, 1094, 101 S.Ct. 67 L.Ed.2d 207 each of proven which must independent be (1981). The defendant then ly. bears the bur- finding A that IPCO discriminated It distinguish course, is not essential proceedings, that Waltman the district court must point nature of proceed her claim at this in the particular decide whether a case involves mixed — at -, ings. U.S. n. S.Ct. motives"). 12, (noting point n. some "[a]t in the First, her. to discriminate sexually tended when against Waltman role in decid play important co-workers conclu- not lead to the her does harassed promoted. Waltman testi be who will against Walt- discriminated that IPCO sion who had fied some workers her. promote failing to

man in decision participated harassed raises This fact alone her. promote not to Discriminato- Facie Case B. Prima intent to Sec discriminate. an inference Promote. Failure to ry pro to make ond, criteria IPCO used asserts subjective, highly decisions was motion that were promotions passed over twice previous which, court has held as this less-qualified em other ultimately given to to discriminate. cases, it easier makes a co-worker promoted first ployees. Co., Sears, F.2d Roebuck & Carroll August 1984. Waltman’s over Waltman Cir.1983). evidence is time- promotion regarding claim Waltman who harassed co-workers 180 more than it occurred barred pro in the decision whether participated her Waltman filed the date days before pro that the and the evidence mote her Berry, 715 EEOC. See charge with the subjective is sufficient criteria were motion at 971. F.2d on this is summary judgment to defeat a promoted time IPCO The second Air American Bienkowski v. sue. See February was in over Waltman co-worker Inc., Cir. lines, de that she was asserts Waltman 1988)(although plaintiff’s evidence she refused promotion because nied a jury issue of “barely sufficient create and sexual advances respond to co-workers’ discrimination,” the court age intentional reviewing evi Waltman’s propositions. In summary judg district court’s reversed the warning court’s dence, heed this must us, we ment.) on the evidence before Based particularly are summary judgments raised an issue has that Waltman we find dis employment in cases of questionable concerning motiva fact of material F.2d at Thornbrough, 760 crimination. promotion under denying her tion behind 640-41, that: we held Burdine by both established the standards judgment is an summary Hopkins. general, and [i]n resolving of tool for claims inappropriate reasons, RE- foregoing we For discrimination, in- which employment REMAND district court and VERSE questions motivation nebulous volve on the trial merits. full in- motivation and ... Often and intent through circum- only proved tent can be JONES, Judge, H. Circuit EDITH evidence; regard- determinations stantial dissenting: depend on com- and intent ing motivation Ricky Silberman Vice Chairman EEOC and from the evidence plicated inferences recently agency’s revised described prov- peculiarly within the are therefore as “a against sex harassment guidelines ince of the factfinder. Savings logical extension [Meritor evidence she presented used to Waltman that will be Bank Vinson1 v.] for the necessary qualifications harass- protection against had all the sexual maximize observed, promotion and had been February 1985 further “sex harass- ment.” She required in less power supervisors on tasks and “certified” all about ment is person (emphasis violating it took the IPCO half the time are Title VII.” than use it addition, except added) Reporter De- of her. In BNA Labor Current promoted ahead leave, (Oct. 18, 1988). velopments medical period her was con- good record and had a attendance exerted over cannot be Power good worker. sidered “power” and unknowingly. “Harassment” embody an exercise nouns that pieces of evi- are active produced two has question in this case principal in- of will. claim that IPCO support dence (1986). Vinson, S.Ct. L.Ed.2d 1. Meritor Sav. Bank v. U.S. First, specific all one of the incidents of co- but acts circumstances what non-employees or plaintiff, coworkers involved workers, supervisors, of Only man in more liable for sex IPCO.3 one was involved employer can render physical incident. The incidents the noxious exercise than equally apart chronologically. spaced An well Title VII forbids. were power that began plant April extent to which question is the work at important employ- of an probative complained supervisor graffiti are 1982. She about sexual and, environ- knowledge of a hostile in October 1983 er’s Garrett’s behavior disagree that Waltman immediately re-assigned I request, ment. Because pivotal on a fact issue admitted that 13 has established to another shift. She liability, and because employer physical elapsed any issue of until other months concerning actionable sex- majority’s pattern, dicta occurred. There is no incident overbroad, respectful- I are ual harassment conspiracy consistency to the offensive ly dissent. physical incidents.4

Second, complained par- about when Harassment. Preface Sexual conduct, respond- 1. A ticular unwelcome the P.A. ed. The comments over obscene its best claim, viewed in even system brought as soon as she them ceased de- summary judgment purposes,2 light for Dempsey supervisor’s attention. Par- to a years a half veloped two and over placed due her on a different shift—at un- incidents of of several isolated consists request she took issue with the at- —after contact, an state- physical obscene wanted “A” The mosphere on the shift. calendars plant public address over the ment made photographs were removed from the and to remarks system, plus several addressed her at men’s lockers. IPCO counselled sev- complains of her. She also sexual management and tried to eral levels resolve walls, did not plant most of which on the 1985, January, complaints while avoid- anatomy, and her or the female involve her. ing undue stress on emotional She lockers, hanging in men’s “girlie” pictures requesting no formal signed a letter inves- depicting as a calendar as well bikini-clad however, IPCO, tigation of her coworkers. shop I would displayed on a wall. women permission, informed Brown & with her any of the incidents she not suggest employees. charges against its Root of her are or that the male inoffensive describes manager met all ex- with IPCO’s resident graffiti or was choice of calendars workers’ personnel to reiterate empt salaried cause tasteful. But a hostile environment against sex company policy comprised of more than one of action meeting by attended and a crewshift offense, at alleged and I think several factors work, to just after she returned allowing environ- Waltman counsel a hostile policy also stressed. proceed to in this ment claim case. sufficient;” generally conflicting be will not in the record lated incidents 2. There is evidence assertions, may but we not con- and must be "sustained nontrivi the harassment assume, stage Admin., at this of the case. I al’’); sider it Aviation 775 Downes v. Federal instance, “touching" she re- incidents (D.C.Cir.1985) (not every F.2d 293-94 crude in nature. lates sexual actionable; are joke sexually explicit remark is a ‘condi must be "routine” to "become conduct any to see how IPCO could under It is difficult City anyone’s employment"); Sapp v. tion’ of be liable for the involv- incident circumstances Warner-Robins, (M.D. F.Supp. 1049 655 employees. Brown & Root & Root Brown Standard, Ga.1987); 41 v. American Freedman being reprimanded informed its after 471, 476, (D.N.J.1986) 1986 WL 7825 FEP Cases "tonguing” incident. occasion, (“an message on one obscene sent Co., Sears, & 798 F.2d 4. See Scott v. Roebuck ..., accepted do an refusal of date rudeness (coworkers’ Cir.1986) offensive 214 equate ‘sexual which creates not "too and conduct and comments were isolated ”); Hollis v. a hostile or offensive environment’ repetitive debilitating nec- lacking the effect Inc., (M.D.Tn.1987); F.Supp. Fleetguard, 631 essary a hostile to maintain environment C(2). Policy § also Guidance see EEOC claim’’); County, Moylan F.2d v. Maries (8th Cir.1986) ("a single or iso- 749-50 incident cautions, actionable, the Third, complained of un- ment is not Court never ” as “to by pervasive her cowork- unless it is so “severe or sexual comments welcome heard almost ers, allegedly alter the conditions the victim’s em which she majority acknowledge, ployment working weekly. As create abusive company 67, 106 to the resorted Waltman never environment.” U.S. at S.Ct. added). procedure. qualifica grievance (emphasis These tions, me, are intended to set an it seems to majority overlook or only do the Not objective allegations floor on of sexual circumstances, they go fur- these minimize not, language harassment. Such does ther, graffiti not directed at stating that instance, suggest that whenever victim claim,” to her as “is relevant abused, she has a cause of feels approval from Vinson v. they quote with Title conclusion seems not VII. This (D.C.Cir.1985), F.2d Taylor, 753 only logical necessary. have so but We decision to predecessor the D.C. Circuit’s mores little social consensus sexual now “[ejven a who was never Meritor: woman that, adays involving un short of incidents might object of harassment herself contact, physical impossible wanted it is if she were forced to a Title claim VII generally categorize unacceptable atmosphere in which such work in an etiquette.6 impossible It is likewise pervasive.” harassment was eradicate sexual conduct from the work decision in Meritor Supreme Court’s place unthinkable intrusiveness. —without of the D.C. superseded the discussion Cir- Compare Taylor, Vinson cannot rec- point. cuit on this Meritor be (Bork, J., dissenting from the 1331 n. 3 majority’s open-ended and onciled with the Thus, rehearing).7 denial of en banc of an claim gratuitous extension actionable severe, pervasive properly law is attuned to encompass harassment of which the results. and abusive conduct and target. The Court even guideline adopted in Meritor the EEOC’s may present This case a fact issue con- harassment as defines sexual so cerning whether Waltman suffered advances, “[ujnwelcome requests sexual many pervasive to her severe and insults favors, phys- or for sexual and other verbal personal integrity as to result in an abusive nature.” 29 C.F.R. ical conduct of a sexual working alleges environment. Waltman Further, 1604.11(a) (1988). guide- § required hospitalization a result that she as provide lines that sexual misconduct consti- any experiences. of her It does not raise prohibited tutes sexual wheth- question was not whether woman who quid er or it is linked to an economic not or target physical of unwanted contact pro quo, pur- the conduct “has the where graffiti might obscene remarks or assert pose unreasonably interfering or effect of Title VII claim. To render such a claim performance or with an individual’s work actionable, does, only majority as the not creating intimidating, an hostile or offen- creates the contravenes Meritor but also 1604.11(a)(3). working sive environment.” § might unpalatable possibility that woman at 106 S.Ct. at 2405. U.S. employer sue her for consensual conduct among sure, that others undertook themselves. reliance on the To be Court’s privacy Surely, such invasions of cannot phys- or “unwelcomeness” of sexual verbal object banning sexual subjective component have been the ical conduct lends a However, workplace. harass- in the to the definition.5 sexual instance, instance, majority suggests, argued, that the exist- 6. The for Walt- 5.It could be alone, language graffiti “arguably ence of sexual or lewd suffered more harassment than man ear, eye plaintiffs are Dundee, where unwelcome to a prohibited or plaintiff1 City in Henson v. by Determining such a Title VII. vio- (11th Cir.1982), repeatedly who was F.2d 897 intensely subjective. lation would become That by comparison propositioned is her boss. This guidelines explicitly exempt inciden- the EEOC highly subjective. itself language tal of offensive and do not refer uses graffiti suggest matters at all to me that these guidelines recognize also. 7. The EEOC may pervasive or as to consti- not be so severe tute actionable sexual harassment. regard supervisors, Employer’s Liability. role with because of responsibility power their for and over the in find- stray far afield majority also Coworkers, working by environment. con exist in the last element ing that fact issues trast, working may influence the environ test: IPCO knew of the whether Jones8 ment, they authority no but over each of the harassment have known should reason, then, other. It stands to co remedial action. prompt took “agents” employer workers are not Meritor, court cases most of the federal supervisors they in the same sense as if date, guidelines9 assume and the EEOC advances, make unwelcome sexual and em perpe- sex harassment that actionable ployer liability consequently must turn on supervisors, exert control by trated employer’s knowledge of coworker be employee’s working conditions. over an prompt havior and its failure to afford re cases, Supreme Court seemed to such availability medial action. The of a formal agency principles, conclude that grievance procedure to address coworkers’ supervisor’s con- employer is liable for a offensive should be counted more behavior known that it knew or should have duct because, favor, strongly employer’s in the cautioned, unequivocally The Court about. grievance of a contrary to situation however, Appeals erred that “the Court of against supervisor, there is no disincen always concluding employers are being to its used a coworker. automatically liable for sexual harassment tive Meritor, 71-74, supervisors.” Compare 477 U.S. at by their U.S. majority’s 2408. The decision (grievance procedure S.Ct. at S.Ct. at 2408-09 does virtually imposes liability strict on this case necessarily employer not exonerate from Meritor, contrary to for two employers, harassment). liability supervisor’s conduct here was reasons: the offensive prompt received remedial ac- undertaken, exception, by one minor every complained time she tion from IPCO coworkers, supervisors; public action: the ad- about an offensive “pervasiveness” of “knowledge” of the stopped; system remarks were dress to IPCO imputed actions is coworkers’ transferred, “A” request, at her of sexual only of the existence shift, “D” and the “A” shift em- shift to manage- plant in the and because ployees instructed to remove were complaints of her ment was advised lockers; their Brown & calendars from a half spaced over two and three occasions investigate employ- its Root asked to years. ees; her re- management followed and other harassment differs from Sexual acknowledged January in the 25 let- quest, em- types employee of torts for which an complaints ter, redress her as to how to is nev- ployer may become liable because it about her coworkers. employer’s out to further the er carried these ac- minimize each of majority The Quid harassment, for pro quo business. tions, the offenders should suggesting that instance, fortuitously occurs and usually formally reprimanded or disci- been have gratification of the individual solely for the that, though plined in each case or even Thus, in Meri- made sexual advances. who superiors and her were Waltman’s doctor recognized tor, Supreme that the Court fragile psychological her concerned about place “surely evinces an intent to Title VII 1985, complete investiga- January state in of for limits on the acts some re- actions was tion of the coworkers’ respon- employers ... are to be held which whether, in point the quired.10 It is beside Agency principles fulfill this sible.” Id. 1049; Hollis, 214; International, F.Supp. at Flagship Sapp, 655 793 F.2d 8. Jones v. 12; Policy Cir.1986), denied, (5th F.Supp. EEOC Guidance at 636 n. cert. 479 U.S. 719-20 (1987). D.§ 107 S.Ct. L.Ed.2d 1001 2407-08; Meritor, majority not advocate the would 10.I assume 477 U.S. at 106 S.Ct. at 905; any prior Dundee, disciplining without City the coworkers F.2d at Jones Henson v. 718-20; investigation Internat., oc- investigation. had If such an Flagship at 793 F.2d curred, 5; Scott, impossible. Downes, confidentiality Walt- was F.2d at 294 n. Using evidence references.13 and female done management should have hindsight, graffiti to an sexual bolster generalized complained, be- each time Waltman more complaint exactly non-actionable responded as otherwise they time cause each subjectivity of highlights time, the management’s employer an Each requested.11 successful, holding. I observed ear- majority’s be- As the to have been appears in society in are lier, difficul- mores our experienced never sexual cause only that re- majority Depictions The were again. rapid flux. person ty with that in movies and suggesting cently regarded that a as taboo sequitur argue a non rigeur programs remarked about are now de man who television reprimand the public April The system in children will watch. P.A. that even over suggestive language is as prevented Garrett use of lewd 1982 would pock- in the commonplace playground in her on the as his hand back playfully putting unless, trends, it Against of workplace. such eighteen months et later — employ- harass- that course, reprimands for sexual also naive to rule quaint all but employee type of to eradicate all ment, every legally required other unlike ers are displayed. publicly discipline, graffiti are to be from their establishments. sexual policy statement guidelines and The EEOC majority’s conclusion forecasts The case, moreover, is This so far. go never employ- remedial action no matter what distinguishable from v. Corroon Bennett complaint er when faced with takes Cir.1988), F.2d 104 Corp., 845 & Black coworker, any fur- by a viciously sati- employee was which by any alleged harassment ther incident solely injury suffered emotional rized and lays predicate other coworker Here, her. graffiti about because Moreover, employ- Title VII violation. mere to Walt- graffiti are a addendum prescribed employ the ee’s utter failure graffiti proba- claims. Similar man’s other procedure with- company grievance —even everywhere. workplace bly appear on walls showing it be ineffectual that would out a majori- contemplate the It is incredible impact on her legally adverse no—has of sexual that the existence ty’s implication claim. summary graffiti is sufficient avoid compounded this rule is The breadth of plaintiff’s claim that judgment on a holding that the by majority’s existence so that sexual conduct was employer knew plant put graffiti throughout of sexual of her em- alter the terms pervasive as to notice” of sexual- management “on IPCO working create an abusive ployment and From environment. ly degrading work environment. most testimony, appears it did not have Because I believe nothing to do graffiti constructive actual or notice arguably graffiti The personally.12 pervasively subjected to a abusive it male non-discriminatory included She had no idea she found offensive. into its vortex have been drawn man would plant employed graffiti. working only wrote woman because she was people. over 350 her area. majority suggests our decision in 13.The Prix Compare v. Malibu Grand Dornhecker 11. Black, & 845 F.2d Bennett v. Corroon Cir.1987) (no (5th construc Corp., F.2d 307 1988) graffiti depicting holds that both Cir. responded discharge employer tive where supports a woman’s claim of a sexes somehow complaint). promptly Other to sex harassment implication doubly This environment. hostile liability rejected employer on hos courts legal conse wrong. Bennett dealt with finding Title VII claims after tile environment particular quences of offensive cartoons prompt employer’s remedial majority employee, inferen as the here woman to cease. Steele v. caused incidents acknowledge opinion. tially Offshore More later their Inc., (11th Cir. Shipbuilding, F.2d 1311 significantly, suggestion that such car Bennett’s Air, Inc., 1989); 830 F.2d 552 dicta, Swentek v. U.S. pure a Title claim is toons alone raise VII (4th Cir.1987). ultimately that the “record court held as the meager proof re presents the conditions phrase quired by denied the exception Meritor ...” and 12. With the of a scratched wall, ground. at 106. simply wiped away another paint relief on I environment, and because work hostile to each promptly responded

believe made, I dissent that she

complaint on Wait- summary judgment

reversal claim.14 Title YII

man’s Petitioner, COMPANY, OIL

PLACID REGULATORY ENERGY

FEDERAL

COMMISSION, Respondent.

No. 88-4349. Appeals, States Court

United

Fifth Circuit. 16, 1989.

June Sol., Feit, O’Hara, Jerome

Hanford D.C., respondent. FERC, Washington, Jr., Morgan, & Saponaro, Lewis P. Frank D.C., petitioner. Washington, Bockius, CLARK, Judge, Chief Before JOHNSON, Circuit BROWN and Judges. hostile, continuing oc- verely violation holding majority’s disagree with the I also Baylor College Abrams v. curred? Unlike Medicine, continuing may prove violation that Waltman (5th Cir.1986), cases F.2d 528 180-day limitations avoid its VII so as to of Title discriminatory conduct is hidden where the signifi- impact case is period. in this had to plaintiff, Waltman know from the cant, physical in- one or two incidents being psychologically abused. If she she was 180-day period. volving her occurred within not, credibility of her claim diminishes. did actionable, bar no are limitations If her claims however, points majority’s holding, Finally, disagree majority’s with the reversal I exists. The discriminatory promotion inconsistency claim. There claim. up in Waltman’s a serious promotion that she was denied that her is no evidence have been so unaware How can sex. pervasively se- because of her at IPCO was environment

Case Details

Case Name: Susan Waltman v. International Paper Co.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jun 16, 1989

Citation: 875 F.2d 468

Docket Number: 88-4088

Court Abbreviation: 5th Cir.