Vivienne Rabidue v. Osceola Refining Company, a Division of Texas-American Petrochemicals, Inc.

Warren, In United Refineries of Ohio KEITH, and MIL- Before KRUPANSKY acquired operated Osceola and sepa- it as a BURN, Judges. Circuit 1, 1976, rate September division. On Os- KRUPANSKY, Judge. acquired Texas-American, Circuit ceola was corporation is the defendant in this plaintiff The (plaintiff Rabidue Vivienne lawsuit. Rabidue) timely appealed the district judgment court’s plaintiff initially favor defendant Os- The occupied job Refining (Osceola), ceola Co. a division of classification of secretary. executive In Petrochemicals, (de- position, performed Texas-American Inc. variety she Texas-American), duties, fendant or after attending a bench which included the tele- plaintiff’s charges trial on phone, of sex discrimi- typing, and a limited amount of nation and bookkeeping. sexual harassment. In her com- plaintiff was plaint, plaintiff promoted position asserted of sex of administrative discrimination and sexual harassment in vi- assistant and became a salaried rather than Rights olation of Title hourly employee. position VII the Civil Act Her new enti- hour, longer her to more tied lunch lib- well as other employees, female were an- allowances, together vacation var- noyed eral with by Henry’s vulgarity. In addition to position ious other benefits. her of ad- Henry’s obscenities, employees other male assistant, plaintiff ministrative was re- from time to time displayed pictures of for, duties, sponsible among purchas- other scantily nude or clad women their offices ing supplies, monitoring office and/or dis- areas, and/or work plaintiff which the tributing incoming governmental regula- and other employees exposed. women were tions, contacting and customers. Subse- formally discharged quently, assigned she was additional duties from employment company at the manager manager. as credit and office In- January 1977 as a many result of her plaintiff’s responsibilities cluded new job-related problems, including her irascible assign authority was the work to a num- opinionated and personality and her inabili- employees. ber of other Osceola ty harmoniously to work with co-workers capable, independent, awas and customers. The immediate incidents ambitious, intractable, aggressive, precipitated termination opinionated individual. The su- argument included a heated with Charles pervisors co-employees with whom (Shoemaker), Shoemaker vice-president uniformly interacted almost found Osceola, concerning implementation abrasive, rude, antagonistic, her to accounting practices of certain proce- willful, extremely uncooperative, and irasci- company dures subsequent, and a personality. consistently argued ble She vitriolic confrontation with Robert Fitzsim- company co-workers and with customers in (Fitzsimmons), mons vice-president of supervisory jeop- defiance of direction and Refineries, United one of major Osceola’s relationships ardized Osceola’s business customers, concerning pricing schedules major companies. disregarded with oil She that companies. existed between the The supervisory company policy instruction and proved latter highly incident to be embar- whenever such direction conflicted with her Shoemaker, rassing especially since the personal reasoning and conclusions. plaintiff intruded into his office while he sum, plaintiff awas troublesome em- meeting with A Fitzsimmons. male ployee. employee assumed the former plaintiff’s charged The sexual harass- duties as administrative assistant. primarily ment arose as a result of her Subsequent discharge, plain- to her unfortunate acrimonious relation- applied unemployment tiff benefits ship Douglas Henry (Henry). Henry with appropriate agency, payment with the state supervisor company’s key was a of the company of opposed. which the The punch computer Occasionally, and section. timely charges tiff also filed discrimina- required duties coordination against employer tion her former with Henry’s department personnel, with EEOC and thereafter commenced the in- although Henry supervisory exercised no stant action in the district court. At the authority plaintiff over the nor the five-day conclusion of a bench trial which Henry extremely vulgar over him. was an testimony involved the and crude individual several witnesses customarily who made exhibits, and numerous en- generally, obscene comments about women trial court and, occasion, findings on directed such obscenities tered its of fact and conclusions of plaintiff. Management Rabidue, to the was aware law. See Henry’s vulgarity, but had been unsuc- assigned The several er in curbing personality cessful his offensive findings rors to the trial court’s of fact and during encompassed by traits time this respon conclusions of controversy. law. Mindful of its Henry, sibilities, court, outset, Wiggins, lan. 583 at 886. Accord acquire since it did not Sep- Osceola until court, ingly, having this reviewed the 1, 1976, tember it could not be held liable record, findings concludes that the of the alleged for Osceola’s discrimination which court, (1) district there were no prior acquisition occurred to that date. charges pending of discrimination filed The issue of the liability defendant’s as a before the EEOC at or before the time of disposed by successor is of this circuit’s acquisition Texas-American, by Osceola’s pronouncements in Wiggins Spector v. (2) that Texas-American was unaware Freight System, (6th Inc. 583 F.2d 882 any outstanding contingent charges of Cir.1978). In v. EEOC MaсMillan Bloedel of acquisition discrimination at or before its Containers, Inc., (6th 503 F.2d 1086 Cir. Osceola, clearly were not 1974), erroneous. predated Wiggins by approxi- disposition The district court’s of the suc- mately years, four this circuit enunciated issue, cessorship when considered in the applied evaluating nine criteria to be in pronouncements context of the Wiggins, liability purposes successor for of Title VII. was therefore correct. The balancing court court's MacMillan directed district (1) following conclusion that Texas-American was not factors: notice of the charged legally responsible any by discrimination the successor or claims of unlaw thereof; (2) ability predeces- lack ful sex or sexual of the discrimination harassment relief; (3) provide prior sor to acquisition whether there had to its is AFF Osceola been a continuity substantial of business IRMED.1 premise judgment 1. This court observes that the district court did its in favor of the defend- anchored her standards, discrimination ... it re- of sex discrimination and sexual harass good mains that a number Michigan Rights ment Title VII of the Civil Act of decisions resolve Elliott Larsen issues 1964, seq., 42 U.S.C. 2000e et and the § legal reference to the standards codified Michigan Act, Elliott-Larsen Mich.Comp. Age Title VII and the federal Discrimi- seq. compara Laws Ann. 37.2101 A et § nation Act. analysis foregoing legislation tive of the Rabidue, (footnotes at 426 language disclosed that the of the Elliott- omitted) (citing, alia, inter Adama v. disparate Larsen Act statutory treatment Doehler-Jarvis, 82, Mich.App. provision, enacted some years ten subse (1982), N.W.2d 298 grounds, rev’d on other VII, quent to the effective date of Title 905, (1984); Mich. 353 N.W.2d 438 essentially disparate tracked the treatment Gallaway Chrysler v. Corp., 105 Mich. language of Title apparent VII. It is App. (1981); 306 N.W.2d 368 Michigan similarity Moreover, was intentional. Department Rights Civil Taylor as opinion: the district court indicated in its District, School Mich.App. Michigan Rights Civil Commission [T]he (1980); N.W.2d 161 Michigan Department interpretive regulations has issued indi Rights Civil Corp., v. General Motors of 93 cating that Title VII should used Mich.App. 366, (1979), 287 N.W.2d 240 guide in interpretation of the Elliott aff'd, 412 (1982)). Mich. 317 N.W.2d 16 Rights Larsen Act. Because the Civil light In foregoing, the district Commission is the state’s chief civil court’s conclusion that the Elliott-Larsen rights ‍​​​​​‌​​​‌​​​‌‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‍agency, administrative the Com Act disparate provisions, treatment Mich. guidelines fairly strong mission’s are a Comp.Laws 37.2202(l)(a) (c), Ann. & § argument cutting in applying favor of should be construed the same manner as disparate the Title VII treatment model 703(a)(1) VII, of Title 42 U.S.C. 2000e- § § disparate Elliott Larsen (2)(a)(l) is AFFIRMED.2 treatment claim. Finally, This court has importantly, and most examined the trial Michigan judiciary disposition court’s of the seems inclined toward Title interpretation this of the Elliott Larsen VII and Elliott-Larsen Act sex discrimina Michigan assigned Act. While tion Courts have not claims and the error thereto. adopted employ- arriving decision, wholesale the federal at its the district court solely ant Texas-American on its resolution of Texas-American after its takeover of Osceola Rather, successorship light allega- issue. the district from United Refineries. of these tions, proceeded independently court resolve each court constrained to address the claims, counts, plaintiffs i.e., charged totality of the substantive substantive treatment, pursuant Rights harassment, disparate to Title VII of the Civil Act of re- conduct, seq., Michigan taliatory alleged 42 U.S.C. 2000e et to have occurred after Act, Comp. Elliott-Larsen Mich. Laws Ann. acquisition, despite the Texas-American the fact Act, seq., Equal Pay § 37.2101 et and the 29 liability that resolution of the successor issue in 206(d), U.S.C. as those claims concerned de- § favor of the defendant absolved Texas-American fendant Texas-American. liability any pre acquisition of for discriminato- ry actions. plaintiff charged in the district court and argued appeal alleged on that the sex discrimi- This court also endorses the district court's nation, specifically alleged sexually the hos- that, express successorship conclusion absent an environment, ongoing tile work were of an na- provision in either Title VII or the Elliott-Larsen employment by ture of from the time her Osceo- considering Michigan Rights Act and the Civil la in 1970 and that such conditions continued to guidelines Michigan judi- Commission and the prevail for several months after Texas-American ciary’s generally adopt inclination Title VII acquired employee Osceola while she was an оf interpretation standards in the of the Elliott- appeal, plaintiff Texas-American. On the not Act, justification Larsen sufficient existed for only argued that Texas-American was liable as a applying successorship Title VII doctrine to the Osceola, successor to United Refineries and but Elliott-Larsen Act sex discrimination and sexual specifically urged that Texas-American was lia- Rabidue, F.Supp. harassment claims. See 584 at ble for its own acts of commission and omission 427, 435 n. 58. during period employment effected the her of 618 plaintiff’s disparate

viewed the treatment treatment claim that resulted from her dis charge alleging sex as discrimination con- charge under either Title VII or the Elliott- tinuing discriminatory sex-based conduct Rabidue, Larsen Act. 584 F.Supp. 426- at part culminating the of the defendant 27. The lower court’s that determination discharge. Rabidue, plaintiffs 584 plaintiff’s discharge was not the result 424. A review of the record gender-based of discrimination was factu findings, disclosed that the trial court’s finding al subject clearly to the erroneous namely company’s predischarge that standard of review. v. Pullman-Standard plaintiff actions toward the did not evince Swint, 273, 287-88, 102 1781, U.S. S.Ct. animus, an anti-female were clearly 1789, (1982); 72 L.Ed.2d 66 Jackson v. Consequently, erroneous. the trial court’s Toledo, Inc., RKO Bottlers 743 F.2d conclusion that the failed to estab- 370, (6th Cir.1984). court, This having lish violations Title VII the Elliott- record, scrutinized the opinion is of the that regard Act in this Larsen is AFFIRMED. findings of fact and conclusions of law addressing dis articulated in cogent the trial court’s rea claim, criminatory discharge the trial court soning clearly are not erroneous and are plaintiff’s allegations paral noted that the accordingly AFFIRMED.3 disparate leled classic charges treatment claim of sexual harass 703(a)(1) addressed of Title VII and ment derives proscription from Title VII’s articulated the classic assertions that she that shall unlawful employment “[i]t discharged she was a because female. practice for an employer ... to discrimi Subsequent applying the criteria and against nate any individual with respect to procedure Supreme mandated Court terms, his ... privileges conditions or Green, Douglas Corp. McDonnell v. employment, because of such individual’s 792, 1817, 93 S.Ct. 36 L.Ed.2d 668 ... sex....” 2000e-2(a)(1) U.S.C. § (1973), Department Texas Community (§ 703(a)(1) VII). of Title The case law in Burdine, v. 248, 450 U.S. 101 S.Ct. Affairs this area recognized has two basic variants (1981), 67 L.Ed.2d 207 and United of sexual harassment: “harassment that States Postal Service Board Governors (‘condi creates an offensive environment Aikens, v. 460 U.S. work’) tion of and harassment in which a (1983), L.Ed.2d 403 the trial court conclud supervisor demands sexual consideration in ed had failed to satisfy exchange (‘quid pro job her benefits burden of support her conten ’).” quo City Dundee, Henson tion that the defendant’s legit advanced imate, (11th Cir.1982) nondiscriminatory (citing reasons for her C. Mac pretextual Kinnon, termination were and conse Sexual Harassment of Working quently had disparate failed to sustain a (1979)). Women 32-47 See Meritor Sav 3. The developed dissent has cited evidence ex- actions after acquisition the Texas-American clusively by noting without the extent and alleged circumstances of that disparity wide between the evidence discriminatory harassment, conduct compared totality when to the of the record as it if it did persist, in fact purportedly impli- upon treatment, disparate bears Moreover, where, cated Texas-American. environment, sexually hostile work and discrim- here, conflict, credibility was in evidence inatory discharge. particularity, With the dis- issues come within discretion of the district Henry’s vulgarity sent has alluded to and ob- case, court for resolution. In the instant scene purported characterizations as well as clearly assigned greater district court credibility disparate gender-based acts of treatment and weight defendant’s witnesses and its which, discrimination tively trial record affirma- testimony than to the and her witnesses disclosed, operat- occurred while Osceola court, by opinion. as is evidenced its This hav- independent company ed as an during or its ing interpretation reviewed the district court’s ownership by United Refineries—all before the assignments the evidence and its of credibili- acquisition. Apart Texas-American from the ty pursuant standard, clearly to the erroneous disclosures, foregoing transcript cannot interpreta- conclude the trial сourt’s evidence, best, probative vague was and ob- clearly tion of the was evidence erroneous. failing scure in a reflect continuation of those — Vinson, -, ings Bank v. U.S. 106 court’s attention is initially directed to the 2399, 2405, (1986); S.Ct. 91 L.Ed.2d 49 guidelines by issued Equal Employ- Downes v. Federal Aviation Administra ment Opportunity (EEOC) Commission as (Fed. tion, Cir.1985); 775 F.2d 290-91 an informed source of instruction to assist Dole, (4th Katz v. 709 F.2d Cir. its probe efforts to parameters of Title 1983). Larson, See also 1 Employment VII sexual harassment.4 guidelines Those 41.64(c)(1985); Discrimination K. McCul define sexual harassment in the following loch, Employment ¶ 10,103 Termination of terms: (P-H 1984); Comment, Sexual Harassment (a) Harassment on the basis of sex is a Claims of Abusive Work Environment un violation of Sec. 703 of Title VII. Unwel- VII, der Title 97 Harv.L.Rev. 1454-55 advances, come requests sexual for sexu- Annot., (1984); (1980 46 A.L.R. Fed. 224 & favors, al and other physical verbal or 1985). Supp. conduct of a sexual nature constitute This circuit has entertained cases involv (1) sexual harassment when submission ing spectrum a of sexual harassment is to such conduct is made explicitly either sues; however, directly it has not ad implicitly or a term or condition of an asserting drеssed a claim a violation of (2) employment, individual’s submission ‍​​​​​‌​​​‌​​​‌‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‍Title upon alleged VII based an sexually to or rejection of such by conduct an discriminatory work environment which individual is used as the basis for em- not in tangible job had resulted detriment ployment affecting decisions such indi- joined by issues of the vidual, (3) or such pur- conduct has the See, e.g., herein. Jeep Easter v. pose or effect of unreasonably interfer- (6th Corp., Cir.1984); 750 F.2d 520 EEOC ing with an individual’s perform- work Co., (6th Cir.1984); v. Maxwell 726 F.2d 282 creating or intimidating, hostile, ance an Co., (6th Held v. Oil 684 F.2d 427 Gulf working or offensive environment. Cir.1982). Although quid pro quo cat 1604.11(a) (footnote omitted). C.F.R. § egory of sexual appears harassment given greatest proliferation have rise to the having After considered the EEOC date, of case law to other circuits have guidelines having and after canvassed ex recognized that an offensive work environ isting legal precedent that has discussed could, appropriate under circumstanc issue, this plain court concludes that a es, constitute Title VII sexual harassment tiff, prevail in a Title VII offensive work necessity asserting without the prov or action, environment sexual harassment ing tangible job detriment the harassed prove (1) must assert and employ that: employee, quid underlies the class; (2) ee was a of protected member pro quo variant of sexual harassment. See employee subjected to unwelcomed Henson, 902; Bundy 682 F.2d at v. Jack sexual harassment in the form of sexual son, (D.C. Cir.1981). 641 F.2d 943-44 advances, requests favors, for sexual Moreover, Supreme recently Court has physical other verbal conduct of a sexual permitted pursue a Title VII nature; (3) complained the harassment arising cause of action as a result of dis sex; (4) upon charged was based sexual upon crimination sexually based hostile or harassment unreasonably had the effect of abusive work environment. Meritor Sav interfering per with the work — ings Vinson, -, Bank v. creating intimidating, formance and hos 2399, 2404-06, S.Ct. (1986). 91 L.Ed.2d 49 tile, or offensive environment that In addressing presented seriously psycho logical issues affected well- such a sexual charge, being (5) harassment plaintiff; the existence however, guidelines intra-agency suggest- 4. The EEOC are a number оf courts have accorded interpretive regulations binding ed are resolving them favorable consideration in issues courts, Vinson, 2405; upon harassment, charged Vinson, see 106 S.Ct. at Gen- see Gilbert, 125, 140-45, 2405; Downes, 291; Henson, eral Electric Co. v. 429 U.S. S.Ct. at 775 F.2d at 401, 410-12, (1976); 903; S.Ct. 50 L.Ed.2d Bundy, 682 F.2d at 641 F.2d at 947. 620 liability. respondeat superior See Vin tion to a similar environment under essen- 2404-06; Downes,

son, tially Thus, 775 like or similar circumstances. 292-95; Katz, 254; 709 F.2d at F.2d at in the absence of conduct in- which would Henson, F.2d at 903-05. Erebia v. hypothetical 682 terfere with that reasonable Cf. Corp., Chrysler Products 772 F.2d performance Plastic individual’s work and affect Cir.1985) (racial 1250, (6th hostile seriously 1253-59 psychological well-being the claim); work environment Torres v. Coun person that reasonable under like circum- Oakland, 147, (6th 758 F.2d 152 ty Cir. stances, plaintiff may prevail a not on as- (national 1985) origin hostile work environ serted of sexual an- harassment claim). alleged chored in an hostile and/or abusive regardless work environment of whether Thus, prove a claim of abusive plaintiff actually by the offended the premised upon environment sexual work Assuming defendant’s conduct. that the harassment, plaintiff must demonstrаte successfully has satisfied the bur- object that she would not have been the proving den of that the defendant’s con- Henson, harassment but her sex. duct would have interfered with a reason- (citations omitted). F.2d at 904 It is of performance able individual’s work and significance to note that instances of com seriously would affected psycho- have plained prove equal of sexual conduct that logical well-being employ- of a reasonable ly offensive to male and female workers ee, particular plaintiff would neverthe- support a Title VII sexual would required less also be to demonstrate that charge men harassment because both and actually by she was offended the defend- women were accorded like treatment. Id. ant’s conduct and that she suffered some alia, Costle, (citing, inter Barnes v. degree injury as a result of the abusive 983, (D.C. Cir.1977); n. Brad and hostile work environment. Co., Paper Sloan ford (N.D. Ala.1974); Note, Sexual Harass Accordingly, proper assess VII, ment and Title 76 U.Mich.L.Rev. employment ment or evaluation of an envi (1978); 1020-21 & n. n.& 178 gives ronment that rise to а sexual harass Comment, Sexual Harassment and Title ment claim would invite consideration of VII, (1976)). 51 N.Y.U.L.Rev. 151-52 objective subjective such and factors as the harassment, alleged nature of the the back quid pro quo

Unlike ground experience plaintiff, and of the may harassment which evolve from a sin coworkers, supervisors, totality incident, gle sexually hostile or intimidat physical plaintiff’s environment of the ing environments are characterized mul area, obscenity work the lexicon of that frequen tiple and varied combinations and pervaded workplace the environment of the exposures, cies of offensive charac and after both before intro teristics would dictate an order of environs, coupled duction into its with the placed the upon burden expectation plaintiff upon reasonable of the injury demonstrate that from resulted not voluntarily entering that environment. single incident, or isolated com offensive Thus, presence of actionable sexual ment, conduct, incidents, but from com depending harassment would be different ments, or conduct that occurred with some upon personality frequency. appropriate protec To accord prevailing work environment and must tion to in a both and defendants upon be considered and evaluated an ad hostile and/or abusive environment work Judge aptly hoc basis. As Newblatt stated case, fact, sexual harassment the trier of opinion in his the district court: judging totality when of the circum Indeed, impacting upon seriously disputed stances abu it cannot asserted environments, placed and hostile sive environment issue some work humor language charges, adopt rough must are hewn and vul- perspective person’s gar. jokes, of a reasonable reac- Sexual sexual conversations

621 girlie magazines ment). may abound. Title See generally Larson, 1 Employ VII change was not meant to—or ment Discrimination (1985). 41.65 can— § The this. It forgotten must never be that promptness and adequacy of the employ Title mainstay VII is the federal court in er’s response to correct instances of al struggle the equal employment ‍​​​​​‌​​​‌​​​‌‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‍op- for leged sexuаl harassment significance of is portunity for the female workers of in assessing a sexually hostile environment quite America. But it is different to claim and the employer’s reactions must be claim designed that Title VII was to upon evaluated by a case See, case basis. bring magical about a in transformation e.g., Barrett, 726 F.2d at 427.6 the social of mores American workers. Clearly, qualification the Court’s is nec- considering In proof order of to essary 1604.11(a)(3) 29 enable C.F.R. implement the resolution of Title VII sexu to function as a judicial workable stan- ally hostile working environment controver dard. sies, this court has procedure the reviewed Rabidue, 584 at 430.5 enunciated in Douglas McDonnell Corp. v. prevail To in an action that as Green, 792, 1817, U.S. 93 S.Ct. charge serts a of offensive work environ (1973), L.Ed.2d 668 Department Texas harassment, ment sexual the bur ultimate Community Burdine, of Affairs proof den of upon is the to addi 248, 1089, 67 L.Ed.2d 207 tionally respondeat superior demonstrate li (1981), and has concluded that the order of ability by proving employer, that the proof procedures enunciated therein through agents its supеrvisory person readily are not adaptable developing the nel, knew should have known of the proofs and in defenses this type of Title charged sexual harassment and failed to VII appear action. It would that the most implement prompt and appropriate correc effective and procedural efficient format tive action. See Barrett v. Na Omaha implement would the practice traditional Bank, tional (8th 427-28 placing the ultimate burden by Cir.1984); a Dole, Katz v. 709 F.2d 255- preponderance (4th of the Henson, Cir.1983); upon evidence 682 F.2d claimant by proffer 910 n. 20. followed a Chrysler Erebia v. Plastic defense Cf. Corp., Products (6th and an opportunity 772 F.2d for a plaintiff’s rebut Cir.1985) (racial working hostile environ- tal. approach 5. Such an is not inconsistent with in accorded the first instance district guidelines, emphasize EEOC any particular court individu- factor. probative inquiry: alized nature of a Although Supreme Court in Vinson de- (b) determining alleged whether conduct clined to employer issue a definitive rule on harassment, constitutes sexual the Commis- liability arising supervisory from the аcts of sion will look at the record as a and at whole personnel cases, sexually in hostile environment circumstances, totality of the as the such Congress it that stated intended courts to nature of the sexual advances and the context look to principles agency common law alleged in which the incidents occurred. guidance in this area. 106 S.Ct. at 2408. legality particular determination of the of a emphasizes This court that the instant case facts, action will be made from the aon case alleged does not involve acts sexual harass- by case basis. supervisor. Henry ment exercised no su- 1604.11(b). 29 C.F.R. § pervisory authority over the nor the The dissent's focus on certain of the above him, parties over but rather two misplaced. factors in isolation district peers were pertinent at Osceola and at all times possesses court broad discretion as to the evi- Accordingly, hereto. majority opinion, like evaluating dence to be totality in considered Court, expresses the Vinson no view as to the of the circumstances and the context of the scope respondeat superior liability in the alleged merely incidents. This court has at- charge sexually context of a of a hostile tempted identify general terms crite- some alleged environment where by acts harassment may potentially ria case-by-case enter into a not, supervisor at issue and are totality examination of the evidence here, alleged peer acts of the work- case, inferring such a weight without to be place. television, newsstands, prime-time at the YII sexual harass- the Title A review of sum, judice cinema, places. in the matter sub public issue and in other to conclude this court prompts vulgar language, coupled with the Henry’s proved nor a asserted plaintiff neither sexually posters, did not result in oriented advances,” “sexual fa- of “sexual claim that could be con- a environment conduct,” or vors,” sexual “physical or hostile, intimidating, or offensive sidered (a)(1) subparts or implicating harassment 1604.11(a)(3) as elabo- under C.F.R. § definition, specifi- (a)(2) more of the EEOC upon by court.7 The district rated this typically at issue in a elements cally, those findings supporting its con- court’s factual quo sexual harassment. quid pro of case clearly clusion to this effect were not erro- Thus, prevailed in her plaintiff to have necessarily neous. It follows that defendant on against the cause of action plaintiff failed to sustain her burden proved she had must have this record victim of a Title VII that she was the con- subjected to verbal been unwelcomed Accordingly, sexual harassment violation.8 displays of sexual nature poster a duct and disposition the trial court’s of this issue is unreasonably interfered with which had AFFIRMED. in- performance and created an her work hostile, working en- timidating, or offensive The relevant Elliott Larsen Act seriously psy- affected her vironment that provision sexual harassment attendant chological well-being. Comp. this action arises from'Mich. Laws bar, In at the record effec the case 37.2103(h)(iii), reads as fol Ann. § obscenities, tively Henry’s disclosed lows: startling as although annoying, were not so (h) in- Discrimination because sex psyches seriously the to have affeсted means cludes sexual harassment which employees. plaintiff or other female advances, requests unwelcome sexual evidence did not demonstrate that this The favors, physi- sexual and other verbal vulgarity substantially single employee’s or communication of a sexual cal conduct totality workplace. affected the of the The (iii) nature when ... Such conduct or poster sexually displays oriented had a de purpose or communication has the effect minimis effect on the work envi substantially interfering with an indi- ronment when considered in the context of creating employment vidual’s ... or society publicly that condones and fea hostile, intimidating, employ- or offensive commercially exploits open dis tures and pictorial ment ... environment. plays of written and erotica at him, super- addressing sexually precedential from and the cases harassment 7. having the con- visor admitted heard co-workers direct hostile and abusive environment within plaintiff. Rights of the Act of obscenities to the at 253-54. text of Title VII Civil bar, charges sexually seq., et and C.F.R. 1604.- In the case at hostile § § 42 U.S.C. 2000e 11(a)(3) developed compelling picto- and abusive environment were limited to have all more displays presented type herein. In rial calendar office wall of semi- circumstances than are Henry’s plaintiffs co-employees Bundy, and su- nude and nude females and off-color both the Henson, language. Bundy, pervisors her with conduct that includ- Unlike the facts harassed Katz, proposi- personal telephonic this involved no sexual ed and sexual and case continual tions, touchings, propositions and at her home and offensive sexual conduct both work plaintiffs complaints inspired supervi- systematically a similar nature that was directed proposition protracted period F.2d at to the over a of time. sor to also her. 641 939-40. Henson, subjected to numer- harangues demeaning inquiries into her ous opinion, As noted in the trial the suc- court's vulgarities, repeated proclivities, re- cessorship precluded preac- defense have would supervisor, quests for sexual relations from her quisition liability if the sexual harassment even Katz, police chief. 682 F.2d at 899-901. ruling in favor of the defendant. had not been However, supervisory personnel Rabidue, several and co-workers at 433. slurs, in- bombarded the with sexual disposition of the sexual court's harassment sults, innuendo, plaintiffs propositions, successorship argument renders the generated complaints supervisor to her further defense. redundant again Here it is obvious that the text of the not rise to the prima level of a facie case.9 closely above subsection was modeled after The disposition district court’s 1604.11(a)(3). 29 C.F.R. only appar- Equal tiff’s Pay Act claim is AFFIRMED. ent difference provisions between the two Finally, the having record failed to devel- guidelines that the incorporate EEOC op probative evidence of retaliatory con- phrase “unreasonably interfering” rather duct the defendant Texas-American, the than the phrase Elliott-Larsen Act’s “sub- plaintiff’s inartfully pleaded cause of action stantially Thus, interfering.” for the rea- arising thereunder is accordingly dis- sons hereinbefore articulated in compa- missed. See Peрsi-Cola, Jackson v. Dr. analysis rative of Title VII with the Elliott- Pepper Co., Bottling (6th 783 F.2d Act, Larsen exposure to Hen- Cir.1986).10 ry’s language obscene and the sexually ori- For the posters herein, ented reasons did not rise stated to a level sub- stantially having tiff interfering failed to plaintiff’s with the sustain any of the performance work claims that which asserted, created an intimi- she has judg- hostile, dating, or offensive ment of work environ- the district court in favor of de- ment which seriously affected her psycho- fendant is hereby AFFIRMED.

logical well-being in violation of the Elliott- Larsen Act and the district court’s conclu- KEITH, Judge, Circuit concurring in respect sion in this is AF- therefore part, dissenting part. in FIRMED. I in portion concur majority addressing Equal Pay Act opinion which finds no liability. successor plaintiff, violation asserted this However, as I believe the majority errone- court agreement also finds itself in with ously plaintiff’s resolves substantive the district court’s plain decision that the claims, I dissent. tiff failed to meet her burden of I First, dissent for several reasons. af- prima establish a facie case under the Act ter review of the entire firmly recоrd I am by demonstrating performed that she joba convinced, although supporting evi- required substantially equal skill, ef exists, dence the court is in mistaken af- fort, and responsibility, but that she re firming findings that defendant’s treat- equal ceived pay. less than Corning See ment of evinced no anti-female Brennan, 188, Glass Works v. 417 U.S. gender-based animus and that discrimina- 195, 2223, 2228, 94 S.Ct. 41 L.Ed.2d 1 played tion no discharge. role in her (1974); The Bence v. Detroit Corp., Health 712 overall circumstances of 1024, 1029 work- (6th Cir.1983), F.2d denied, cert. place evince an anti-female environment. 79 L.Ed.2d years plaintiff For seven (1984); worked at Osceo- Nucare,Inc., Odomes v. (6th Cir.1981). la as the sole manage- woman a salaried generally See Larson, position. Employment In common work Discrimination areas (1985). 29.60 testimony employees other female were concerning perception her exposed daily displays distribu partial- nude or tion of fringe isolated simply ly benefits did belonging clad women to a number Act, Equal Pay 9. part VII, 2000e-3(a), of'the Fair Labor of Title 42 U.S.C. § on which Act, prohibits Standards pay differences in on expressly appeal suggest- she later relied on equal jobs the basis of sex "for work on ing proved retaliatory that she had a case of skill, performance fort, requires equal of which ef- conduct, complaint nor did she in fact in her responsibility, per- and which are allege underlying upon facts which she later conditions," formed under similar sub- appeal, on support relied nor does the record ject specified exceptions. to certain See 29 pressed retaliatory the fact that she conduct as 206(d)(1). U.S.C. § independent general- claim distinct from her pleaded allegations, ized Title VII dis- 10. This court notes that the did not trict court did not address the issue as a distinct allege any retaliatory claim of conduct in her opinion. claim in its complaint arising “opposition under the clause” Muetzel, poster, leges, supervisor, replied One Mr. employees at Osceola. male eight years, improper remained on the wall that it would be for a woman to golf prone who had a ball showed a woman take male customers to lunch and that she standing man over with a her breasts “might hаve car trouble on the road.” her, hand, golf yelling “Fore.” And club occasion, reported Plaintiff that on another chau- plaque declared “Even male one desk Muetzel asked her “how would it look for Plaintiff testified pigs vanist need love.” me, man, you, a married to take a divorced posters her and her female offended woman, Country to the West Branch Club co-workers. However, in such a small town?” defend- apparently problem no in male addition, ant saw Computer Supervi- Division managers entertaining Doug Henry regularly spewed anti-fe- female clients re- sor obscenity. Henry routinely gardless referred of marital male status. Plaintiff's sub- “whores,” “cunt”, “pussy” Shoemaker, sequent supervisor, to women as Charles Osceola, 584 worker, and “tits.” See Rabidue v. Joyce stated to another female (E.D. Mich.1984). Of Solo, (plaintiff) doing that “Vivienne Henry specifically “All plaintiff, remarked good job manager, really credit but we good lay” is a and called that bitch needs job,” adding need a man on that “She can’t arranged at her “fat ass.” Plaintiff least take customers out to lunch.” Aside from mеeting employees one of female to dis- Catch-22, Mr. Shoemaker also re- Henry repeatedly cuss and filed written plaintiff enough marked was not forceful complaints and other on behalf of herself slow-paying jobs. plaintiff to collect How employees losing female who feared their aggressive can be so abrasive and as to complained directly. if jobs they Osceola require firing but too timid to collect delin- Vice President Charles Muetzel stated he is, view, quent my enigma. accounts an employees “greatly knew that were dis- My review of the record also shows However, by Henry’s language. turbed” plaintiff consistently was accorded second- Henry’s computer because Osceola needed ary status. Plaintiff recounted that at a expertise, reprimand Muetzel did not meeting convened to instruct clerical em- Henry. response subsequent fire In to ployees on their duties after United complaints supervisor, Henry, about a later takeover, plaintiff States Refineries was Shoemaker, gave Charles testified that he hourly employees. seated with female Henry fatherly “a little Hen- advice” about employees, apparently pre-in- male salaried ry’s prospects if he learned to become “an post-takeover procedures, formed of the type person.” executive stood at the front of the room. Plaintiff tolerating In addition this anti-female to express surprise Muetzel confronted to behavior, plaintiff, defendant excluded being employee addressed as a clerical and management, sole female from activities post-takeover her to ask what role would perform she needed to her duties and responded plaintiff entail. Muetzel would progress in her career. Plaintiff testified role to her. have whatever was handed At employees, that unlike male salaried she boss, suggestion of her former Mr. lunches, gasoline, did not receive free free Hansen, plaintiff wrote a memo summariz- telephone credit card or entertainment ing qualifications pleading her and for non- privileges. Nor she invited was to post-takeovеr sex based consideration for weekly golf addressing matches. Without positions. response She received no to this disparate plain- defendant’s treatment of memo. tiff, perks the district court these dismissed supervisors’ contrast to the reluctance fringe and business activities as benefits. behavior, Henry’s outrageous address to plaintiff manager After became credit de- frequently told to tone down prevented ‍​​​​​‌​​​‌​​​‌‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‍plaintiff visiting fendant from discouraged executing proce- and from taking previous customers to lunch as all managers male dures she felt were needed to correct waste credit had done. Plaintiff required. upon requesting privi- improve efficiency job testified that such as her — only Not did sup- receive agency minimal principles. Id. -,U.S. port, repeatedly but she was undermined. S.Ct. at Agency principles establish example, supervisor For Doug Henry once employer that an is normally liable for the ignore directed his employees acts supervisors of its agents. Id. procedures logging invoices, for time and supervisor Because a is “clоthed with the particularly damaging given plain- directive employer’s authority” and responsible responsibility tiffs coordinating “day-to-day for the supervision of the work Henry’s computer work of staff. In anoth- environment and with ensuring safe, pro example, er plaintiff returned from her va- workplace,” ductive his abusive behavior in cation to find that none depos- of the check violation duty of that imputed be should iting procedures agreed upon had im- been employer just as with any super other plemented and that some of her duties had visory action which violates Title VII. Id. permanently been transferred to the male — at -, (J. S.Ct. at 2410-11 during who filled in her vacation. In con- Marshall concurring, joined by Brennan, JJ. fatherly trast to the praise advice and the Stevens). Blackmun and The creation of a potential Henry received, discriminatory work environment a su tiff was she had goals informed set her too pervisor only can through achieved high. dismissal, prior After but to final power accorded him by employer. I notice, plaintiff received not to instructions see insufficient reasоn to add element of contrast, return to the refinery. male imposed any other discrimina employees fired for embezzlement were al- victim, tion particularly agency prin where lowed to return clean out their desks. ciples “goals of Title VII law” Upon dismissal, plaintiff reported that preclude imposition of automatic liabili get Shoemaker advised a secretarial ty in all circumstances. Id. As Justice job. Marshall concludes: record pos- establishes There is justification therefore no for a negative personal sessed traits. These rule, special applied to be only in “hostile not, however, traits did justify the sex- cases, environment” that sexual harass- disparate based treatment recounted above. ment does create employer liability Whatever undesirable behavior ex- until employee the suffering hibited, the discrimi- it was clearly no worse Hen- than nation notifies other ry’s. supervisors. I No the misogynous language conclude requirement such appears statute, in displays decorative the tolerated the re- at (which finery requirement and no such coherently the district can even court found constituted a “fairly significant” be drawn from the law of part agency.... job environment), the primitive views I apply in would this case the same rules working expressed women by su- Osceola we in apply cases, all other Title VII pervisors and defendant’s treatment hold that sexual by super- harassment only as the female salaried em- employee visor of an under supervi- his ployee clearly evince anti-female animus. sion, leading to a discriminatory work Second, I dissent because I am unable to environment, imputed should be to the accept key elements of the standard for employer purposes for Title VII regard- sexual harassment set forth in the majority less of employee whether the gave “no- opinion. Specifically, I impose would not tice” offense. alleging hostile environ- Id. an harassment additional burden of In cases of hostile work environment proving respondeat superior liability where coworkers, by harassment I would follow supervisor responsible is for harm. guidelines sеt forth Equal Employ- — In Meritor Savings Vinson, Bank v. ment Opportunity Commission: -, 91 L.Ed.2d 49 (1986), Supreme respect Court With courts instructed conduct between fellow to determine employer liability according to employer employees, responsible is in the change of sexual harassment VII was not meant to—or for acts can— (or employer forgotten It must never

workplace its this. where is the agents employees) mainstay Title VII federal court supervisory knows conduct, struggle equal employment op- known of the or should have portunity for the female it workers of unless it can show that took immediate quite America. But is different to claim action. appropriate designed that Title VII was bring 1604.11(d)(1985). 29 C.F.R. §§ magical about a transformation in the majority holding agree Nor do I with social mores of American workers. considering hostile that a court environ- Clearly, qualification the Court’s is nec- adopt perspective ment claims should essary 1604.11(a)(3) to enable 29 C.F.R. person's reaction to a of the reasonable judicial to function as a workable stan- my In similar environment. At 619. dard. view, pеrson perspective the reasonable (quoting opinion, At 620 the district court divergence fails to account for the wide Rabidue, 430.) Osceola v. at appropri- most views of between women’s view, my precise purpose Title VII’s is and those of men. ate sexual conduct See prevent such behavior and attitudes Comment, Sexual Harassment Claims of poisoning from the work environment of Abusive Environment Title Work Under protected classes under the Act. To con- (1984). VII, 97 Harv.L.Rev. As majority’s done the “prevail- notion of the Comment, suggested by the I would have ing workplace” I agree would also have to adopt perspective courts of the reason- employer that if an maintains an anti-semit- simultaneously able victim which allows ic workplace workforce and tolerates a sociological courts to consider salient dif- jokes, displays which “kike” of nazi litera- employers ferences as well as shield from ture and “may anti-Jewish conversation complainant. the neurotic Id. abound,” employee a Jewish assumes the Moreover, unless the outlook of the reason- there, risk of and a court must adopted, able the defendants as woman “pre- consider such a work environment as permitted well courts are as the sustain it, vailing.” I I job cannot. As see related- ingrained notions reasonable behavior only ness is the additional factor which offenders, case, fashioned legitimately inquiry bears on the men. Id. finding tiff’s reasonableness in her work brings majority’s Which me to the man- words, environment offensive. other “prevailing date to consider the work envi- only question additional I would find ronment,” obscenity “the lexicon relevant is whether the behavior com- pervaded the environment both and before plained required perform of is to the work. after introduction into its envi- example, depending job For on their de- rons,” expecta- and reasonable scriptions, employees pornography of soft entering upon “voluntarily” tions that envi- publishers or other sex-related industries suggests ronment. At 620. majority The reasonably expect exposure should to nudi- through these factors that a woman as- ty, sexually expliсit language or even sim- abusive, working the risk of sumes an aspects ulated working sex as inherent Moreover, anti-female environment. However, in that expo- field. when that majority such contends that work environ- goes beyond required profes- sure what is right ments an somehow have innate sionally, industry employees even sex are perpetuation and are not to be addressed protected non-job under the Act from relat- under Title VII: demands, language ed sexual or other of- Indeed, seriously disputed it cannot by supervisors fensive behavior or co-work- environments, that in some work humor ers. As I believe no woman should be language rough and are and subjected hewn vul- to an environment where her sex- gar. jokes, dignity Sexual sexual conversations ual and reasonable sensibilities are girlie magazines may and visually, verbally physically abound. Title assaulted as prevailing a matter of prerogative, male I cinema and in public places.” other At dissent. 622. “Society” in this pri- scenario must marily refer to unenlightened; I hardly majority would also have courts con believe reаsonable women per- condone the sider background co-work degradation vasive exploitation and of fe- supervisors ers and in assessing pres sexuality perpetuated male in American ence of actionable work environment sex fact, culture. pervasive approv- societal only inquire harassment. The reason to al thereof and of other stereotypes stifles backgrounds into the of the defendants or potential female and instills the other is debased co-workers to determine if the be sense of self worth which accompanies havior employees stig- tolerated toward female matization. presence light is backgrounds. pin-ups reasonable those and misogynous it, language I subjective As see these in the workplace factors create can only evoke and confirm the by requiring debilitating unworkable standard norms perspec morass of which a women are primarily courts to balance and contemptuously objects tives. But more valued as importantly, of male back sexual ground fantasy. That of the defendants some men or other would con- workers done and perpetuate wish to analyzes irrelevant. No court such the back behavior surprising. However, is not ground experience supervisor and who relevant inquiry at promote refuses to hand is what employees black before reasonable finding offensive, woman would find society, actionable race discrimination un point at one equally der Title VII. An also disturbing impli slavery. condoned I conclude that posters cation of considering and defendants’ back anti-fe- language male grounds seriously can is the affect workplaces psy- notion that with chological being well sophisticated the least employees are reasonable woman and prone interfere with her ability most anti-female environments. * perform job. her arguendo this notion is Assuming true, by applying prevailing workplace Finally, probative I find sup- evidence factor, this court majority locks the vast of ports plaintiff’s retaliation claim. Plaintiff workplaces women into which to presented substantiаl evidence that her su- lerate anti-female behavior. I conclude pervisor Charles Shoemaker withheld her that for actionable offensive environment unemployment benefits because she filed a claims, the inquiry relevant is whether the complaint. Solo, sex discrimination Joyce complained conduct of is offensive to the co-worker, right testified that after reasonable woman. Either the environ charges, tiff was fired and filed Shoemaker ability perform affects her or it stated he [plaintiff] “would have let have backgrounds does not. The experience unemployment, except she filed sex supervisors employ defendant’s discrimination and it made me mad ees is irrelevant. charged so I her with misconduct.” Anoth- agree

Nor can I majority’s employee with the no- er also testified that Shoemaker tion that the pin-up posters effect of instructed employees up Osceola to write misogynous language workplace in the negative can encounters they with only have might minimal effect on female em- have to have her return to work. ployees Thus, plaintiff presented should not be deemed hostile showing evidence or offensive “when considered in the con- Shoemaker accorded her adverse treatment text of a society publicly condones and she because filed a sex discrimination features commercially exploits open charge. prima This is a facie case of retali- displays of pictorial written and erotica at ation which should have been addressed newsstands, prime-time television, at the the district court and not dismissed * any I do not assert correlation exists between work environment and anti-female behavior. sophistication present the level of social in a pleaded” “inartfully

court as an cause of

action. conclusion, I dissent because the that defendant’s treatment

record shows

plaintiff evinces anti-female animus and gender played a role in her hostile

dismissal. I also believe the envi- majority in the

ronment standard set forth

opinion shields and condones behavior Title ‍​​​​​‌​​​‌​​​‌‌​‌‌‌​‌‌‌​​‌​​‌‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‍courts redress. Final- would have the

VII view, my the standard fails to encour-

ly,

age employers up complaint internal set seriously

procedures or otherwise address in the problem sexual harassment

workplace.

COMMONWEALTH OF KENTUCKY

the Benefit of UNITED PACIFIC IN COMPANY and Pa

SURANCE United Company,

cific Insurance Plaintiffs-

Appellees,

v. County

LAUREL and Laurel COUNTY Court,

Fiscal Defendants Third

Party Plaintiffs-Appellants.

LAUREL COUNTY BOARD OF EDU

CATION, Defendant-Appellant, America,

UNITED STATES of Third

Party Defendant-Appellee. 85-5498,

Nos. 85-5499. Appeals,

United States Court of

Sixth Circuit.

Argued July 1986.

Decided Nov. the occаsions at the notes exposed when their duties other, constantly findings them to each were in a that the district court’s factual are posture. plaintiff, subject clearly confrontation to a erroneous standard of (4) provides: operations; employer review. Federal Rule “Find- whether the new fact, ings (5) whether based on oral or plant; continued to utilize the same evidence, documentary shall not be set the successor employ whether continued to erroneous, clearly aside unless and due re- substantially force; (6) the same work gard given opportunity to the shall be employer whether the new continued to use judge credibility of the the trial court to substantially supervisory person- the same 52(a). finding A Fed.R.Civ.P. witnesses.” nel; (7) jobs whether the same remained in clearly although when there is erroneous existence under substantially the same con- it, support reviewing evidence to court ditions; (8) employer whether the continued is left with the defi- on the entire evidence machinery, equipment, to use the same nite and firm conviction that a mistake has prоduction; (9) methods and whether the been committed. Anderson v. Bessemer produce successor continued to the same 1504, 1511, 84 105 S.Ct. City, 470 U.S. products. Id. at 1094. generally See (1985); L.Ed.2d 518 United States Unit- Larson, Employment Discrimination 5.33 Co., 364, 395, Gypsum ed 333 U.S. States (1985); Annot., (1984 67 A.L.R. Fed. 806 & (1948). 92 L.Ed. 746 This Supp.1985). permit reviewing standard does not court finding subsequent to reverse the of the trier of fact its decision in Wig simply gins, because it is convinced that it would balancing this circuit reaffirmed the differently. have decided the case test of MacMillan with the caveat that Anderson, 105 at 1511. upon finding (1) S.Ct. Where there a factual evidence, permissible are two views discrimination had not been filed with the assigned interpretation the fact-find- acquisition, EEOC at or before the time of adopted. er must be Id. at 1512. Rule (2) 52 and the successor had no notice of con greater demands even deference to the tri- tingent charges of discrimination at or be findings they al court’s where are based on acquisition, fore the time of the case was credibility determinations. Id. removed from the rationale of MacMillan attach, liability and successor would not Initially, this court’s attention is directed relieving thus court from applying trial to the defendant Texas-American’s assert- balancing test mandated MacMil ed successorship argued defense. It

Case Details

Case Name: Vivienne Rabidue v. Osceola Refining Company, a Division of Texas-American Petrochemicals, Inc.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Nov 13, 1986

Citation: 805 F.2d 611

Docket Number: 84-1362

Court Abbreviation: 6th Cir.