Opinion
No. C98-25 MJM
August 16, 2000
OPINION AND ORDER
I Introduction
This case was filed by Plaintiff, Stacey French, for alleged violations of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e, et seq. and the Iowa Civil Rights Act ("ICRA"), Iowa Code, ch. 216, by Defendant, IES Utilities, Inc. Presently before the Court is I.E.S. Utilities' Motion for Summary Judgment.
II Standard for Summary Judgment
The Eighth Circuit Court of Appeals recognizes "that summary judgment . . . must be exercised with extreme care to prevent taking genuine issues of fact away from juries." Wabun-Inini v. Sessions, 900 F.2d 1234, 1238 (8th Cir. 1990). A court considering a motion for summary judgment must view all facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Munz v. Michael, 28 F.3d 795, 798 (8th Cir. 1994); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The standard for granting summary judgment is well established:
Rule 56. Summary Judgment
(c) . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56. The moving party bears the "initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show lack of genuine issue." Celotex, 477 U.S. at 323. Once the moving party has carried its burden, the opponent must go beyond the pleadings and designate specific facts-by such methods as affidavits, depositions, answers to interrogatories, and admissions on file-that show that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. To avoid summary judgment, the nonmoving party does not have to provide direct proof that genuine issues of fact exist for trial, but the facts and circumstances that the nonmoving party relies upon must "attain the dignity of substantial evidence and must not be such as merely to create a suspicion." Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985), cert denied, 474 U.S. 1057 (1986). In essence, the evidence must be "such that a reasonable jury could find a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
With these standards in mind, the Court will review the facts in the light most favorable to the nonmoving party, in the present motion, Plaintiff Stacey French.
III Background A. IES Utilities, Inc.
Because the Plaintiff Stacey French did not submit a detailed account of the facts that underlie her claim, but rather stipulated to the majority of those facts submitted by the Defendant IES Utilities, Inc., the Court's recitation of the facts is largely verbatim from those supplied by the Defendant. Where the Plaintiff has indicated that she "denies" the facts stated by the Defendant, the Court has attempted to decipher precisely which facts are in dispute and view them in the light most favorable to her.
IES Utilities, Inc. ("IES") is a gas and electric company headquartered in Cedar Rapids, Iowa and is engaged in, among other things, the generation of electricity. (Wilson Aff. ¶ 2). IES operates out of Sixth Street Station ("Sixth Street"), an electric generating and export steam facility in Cedar Rapids, Iowa. Sixth Street operates 24 hours a day, seven days a week. (Wilson Aff. ¶ 3). It has a total plant staff of approximately 54 employees, approximately 48 of whom are represented by Local Union 275 of the International Union of Operating Engineers ("the Union"). (Wilson Aff. ¶ 3).
B. Stacey French's Employment History
Stacey French ("French") was first employed by IES on June 12, 1978 as a part-time Student Trainee Clerk in the Corporate Services Department in the Cedar Rapids General Office. (Wilson Aff. ¶ 5). On or about August 31, 1979, French transferred to a regular, full-time position as a Print Machine Operator. (Wilson Aff. ¶ 5).
In December of 1979, French went on maternity leave of absence. (Wilson Aff. ¶ 6). She later notified the Company that she was not returning from leave and her employment voluntarily terminated effective April 1, 1980. (Wilson Aff. ¶ 6). IES rehired French on August 1, 1980 as a Temporary Mail Clerk to work as needed in the Corporate Services Department. (Wilson Aff. ¶ 6).
On September 29, 1980, French transferred to a regular, full-time Utility position at Sixth Street. (Wilson Aff. ¶ 7). Between September 1980 and January 1995, French held a number of positions at Sixth Street including Utility, Sluice Pump Operator, Mechanic Helper, Boiler Auxiliary, Assistant Fire Person, Turbine Auxiliary Operator, Assistant Engineer, and Mechanic Apprentice. (Wilson Aff. ¶ 7).
On or about January 6, 1995, French successfully completed her apprenticeship and became a journeyworker Mechanic. (Wilson Aff. ¶ 7). As a Mechanic, French's duties included the repair of boilers, turbines, and other equipment, and general plant maintenance. (French Dep. 6-7). French reported directly to Dennis Cobb ("Cobb"), Maintenance Supervisor, who reported to Thomas Bassett ("Bassett"), Plant Manager. (Cobb Dep. Ex. 1).
C. IES Sexual Harassment Policy
French denies paragraphs 2 and 3 of IES' statement of facts. (Pl. Statement of Facts ¶ 2). Those paragraphs detail IES' harassment policy. It is difficult to discern precisely which facts in those paragraphs French disputes. Paragraph 2 states IES strictly enforces this policy. Presumably French, alleging she was a victim of severe harassment, would dispute this fact. The rest of the paragraph describes the issuance of the policy to all its employees and the subsequent training. It is unclear whether she disputes the issuance of the policy, the subsequent training, or simply its effectiveness. Likewise, in paragraph 3, IES describes the policy's definition of sexual harassment as well as the policy's complaint procedure. Here again, the Court is unclear on whether French contends that the policy does not entail these things, or simply that the management at IES does not enforce the policy's provisions. Having said this, the Court will attempt to view the policy in the light most favorable to French.
IES has a written sexual harassment policy. (IES 00273-00296, Ex. K). IES contends, and French denies, that a training on the policy is required and given to all employees annually. (Johnson Dep. 8-9). IES also contends, and French denies, that during the training employees are advised of upper management's commitment to providing a work environment free from sexual harassment, encouraged to report possible harassment and informed that persons engaging in harassing conduct will be subject to termination or demotion. (Johnson Dep. 8-9).
IES contends, and French denies, that the policy against sexual harassment defines sexual harassment and includes a complaint resolution procedure which encourages employees to report possible instances of harassment and provides that reports about harassment will be fully investigated and a finding of wrongdoing will result in disciplinary action up to and including termination of the wrongdoer. (Arb. Tr. 145-47). IES also contends that the policy provides that all employees are protected from retaliation resulting from participation in an investigation or proceeding under the policy. (Arb. Tr. 145-47). Employees are advised that they may address any questions or concerns they may have with their supervisor or a representative from the Human Resources Department. (Arb. Tr. 145-47). Employees of Sixth Street, including management personnel, regularly receive a training related to the sexual harassment policy. (Johnson Dep. 11).
D. Alleged Incidents of Sexual Harassment and Resulting Investigations
In July 1995, French and eight other employees traveled to Vancouver, Washington to dismantle a turbine to be shipped to Sixth Street. (Miltner Dep. 5). Barb Miltner ("Miltner") was acting supervisor of the Vancouver crew. (Miltner Dep. 5). While on the job in Vancouver, French complained to Miltner of an incident involving a male co-worker. (Miltner Dep. 6-7). French told Miltner that she did not want her to take any action as a result French's complaint, but Miltner informed her that she had an obligation to take action. (Miltner Dep. 10). Because French appeared to be upset as a result of the incident, Miltner immediately assigned French and the male co-worker to separate jobs until the incident could be investigated. (Miltner Dep. 7-8).
Miltner maintains that she immediately contacted Patricia Heyer ("Heyer"), the Manager of Staffing and Employee Relations, at home in Cedar Rapids and informed her that French had reported an incident involving potential sexual harassment. (Miltner Dep. 9-11). Heyer and Miltner scheduled conference calls for Heyer to interview both French and the male co-worker. (Miltner Dep. 9-11; Heyer Dep. 20-21.) Prior to the scheduled conference calls, Heyer interviewed Bassett, Plant Manager; Mark Teply ("Teply"), Union Steward; Harriet Johnson ("Johnson"), EEO Coordinator; Roger Lessly, Director of Fossil Generation; and Phil Ward, Vice President of Engineering and Fossil Generation, to determine if there was any history of prior complaints. None of the individuals interviewed recalled any previous sexual harassment complaints by French against the employee in question or any other employee. (Heyer Dep. 22-24).
French denies these facts taken directly from paragraph 14 of the Defendant's statement of facts. She does not however, state with any specificity which facts she denies. Because French points to a portion of Cobb's deposition testimony that concedes he was aware of one incident when her truck was vandalized, the Court will presume French denies the portion of the paragraph that states IES management was not aware of prior sexual harassment complaints made by French.
However, French maintains that management personnel was aware of prior complaints made by her. French points out that Cobb, French's supervisor, was aware of a prior incident where French's truck was vandalized. (Cobb Dep. 16-17). Although Cobb claims to have informed the plant manager, Bassett, of this incident, Bassett denies any knowledge of it. (Cobb Dep. 16-17; Bassett Dep. 17). Johnson, of human resources, admits to receiving a call from French about this incident as well. (Johnson Dep. 26).
Additionally, Greg Hudson ("Hudson"), a supervisor who occasionally replaced Cobb in his absence, used the phrase "Dr. Soot and Nurse Blower" to refer to French and her co-worker, Chris Stolz ("Stolz"). (French Dep. 38). Cobb was also aware that French and Stolz were referred to as "Dr. Snoot and Nurse Blower." (Cobb Dep. 25). In fact one employee testified that he knew as early as the 1980's that French was touched in the crotch or breast or buttocks by Louis Stalba, another co-worker. (Arbitration Transcript Dennis Roth 425). And yet another testified that it was common knowledge that Roth placed his hands in an inappropriate place while French was descending a ladder. (Arbitration Transcript, Loren Wood 464-65). This is also evinced by the plant manager's 1995 statement that he felt that some of the behaviors at Sixth Street were juvenile. (Johnson Dep. 41).
After Heyer interviewed management personnel about any history of sexual harassment complaints involving French, she then interviewed French via telephone. (Heyer Dep. 24). At French's request, Doug Kula, who was the assigned union steward for the Vancouver crew, participated in the conference call. (Heyer Dep. 24; Miltner Dep. 11). French told Heyer that after work one evening, she was swimming in the hotel pool and the male co-worker in question tried to pull down her swimsuit. (Heyer Dep. 22-24; French Dep. 28-30). Later that evening, the same male co-worker came to her hotel room door to borrow a sandwich bag. (Heyer Dep. 22-24; French Dep. 28-30). Later, French noticed her swimsuit top, which had been laid out on a counter near the door, was missing. (Heyer Dep. 22-24; French Dep. 28-30). The next morning, French went to the co-worker's room, asked if the swimsuit top fit him, and got it back. (Heyer Dep. 22-24; French Dep. 28-30). Later that day at work, she came across the male co-worker talking to other co-workers. (Heyer Dep. 22-24; French Dep. 28-30). She felt they had been talking about the swimsuit incident and was upset that others may be aware of the incident. (Heyer Dep. 22-24; French Dep. 28-30).
Heyer then interviewed the male co-worker via telephone. (Heyer Dep. 28; Miltner Dep. 12). He denied trying to pull down French's swimsuit, and said that he may have jumped into the pool near French and she may have perceived that he tried to touch her. (Heyer Dep. 28; Miltner Dep. 12). He admitted to taking French's swimsuit top from her hotel room, but stated that he and French joked around with each other quite a bit. (Heyer Dep. 28; Miltner Dep. 12). He stated that he gave the swimsuit back to her willingly and he and French kidded around about it that morning. (Heyer Dep. 28; Miltner Dep. 12). He felt that French had overreacted to the incident. (Heyer Dep. 28; Miltner Dep. 12).
After the investigation was completed and while the crew was still in Vancouver, Kula, the union steward, counseled the co-worker that his actions were inappropriate. (Heyer Dep. 30). The conduct was not repeated. (Heyer Dep. 30). French indicated that the situation had been resolved to her satisfaction and that she did not want to pursue any further action. (Heyer Dep. 24-25, 30; Miltner Dep. 13; French Dep. 36).
IES contends that Heyer scheduled a follow-up meeting attended by French, Heyer, Bassett, and Johnson upon French's return from Vancouver. (French Dep. 32; Heyer Dep. 34). French again expressed that the Vancouver situation had been resolved satisfactorily and that she believed she would have no further problems with the co-worker because management had talked to him. (French Dep. 32-33. 36-37).
French instead maintains that after the Vancouver incident, she had told human resources that "management doesn't control anyone, and things go too far." (Heyer Dep. 26). Indeed, immediately after the Vancouver incident, the plant manager did not monitor French's treatment. (Bassett Dep. 23-24). Instead, he left that to her direct supervisor, Cobb. (Bassett Dep. 23-24). However, the only information that Cobb received regarding the Vancouver incident was hearsay. (Cobb Dep. 22). Cobb's superiors did not inform him of the incident, nor were there any formal meetings involving French's supervisors regarding the Vancouver incident. (Cobb Dep. 22).
After the Vancouver incident Bassett and Heyer met with French, at which time she apprised them of other incidents of harassment which occurred prior to the Vancouver incident. (Heyer Dep. 36). Plant Manager Bassett, along with other management personnel, tried to determine if further action needed to be taken but Bassett expressed some concern about whether taking specific action could lead to retaliation. (Bassett Dep. 27-28). Even though French expressed concerns about previous problems at Sixth Street, the human resources department at IES failed to investigate these problems with any of the supervisory personnel. (Heyer Dep. 14-19). In 1995, French requested that the human resources staff enforce the policies at Sixth Street. (French Dep. 36). Heyer testified that without specific allegations and only a general complaint it would be too "awkward" to investigate. (Heyer Dep. 14-19).
On June 13, 1996, French contacted Sandee Ballou ("Ballou"), then manager of Staffing and Employee Relations, and reported that within the last week or so she had been subjected to inappropriate actions by co-workers. She refused to identify the co-workers or provide any other specific information, although Ballou spent considerable time urging her to provide the names so that an investigation could be conducted and the conduct stopped. French said she wanted a job away from Sixth Street before she would provide additional information. Ballou told French that an investigation would need to be conducted before it could be determined if a transfer was appropriate, but that IES would offer other options, such as placing French on paid leave status while an investigation was completed. French refused the offer of a paid leave status and declined to identify the individuals in question. (Arbitration Transcript 41-16; 148-51; French Dep. 46-49; Ballou Aff. ¶¶ 3-4).
Ballou immediately met with Hudson, Operations Supervisor at Sixth Street, who was at that time in charge of Sixth Street. Ballou questioned Hudson about whether he was aware of any possible inappropriate action directed toward French or if he could identify the individuals about whom French complained. Hudson stated that he did not know who the individuals were and that he saw French nearly every day. He stated that French had not communicated any problems to him. Hudson further stated that French had seemed to be in a good mood at work over the past several weeks and gave no indication of any difficulties at work. (Ballou Aff. ¶¶ 5-6).
Ballou called French the next day to again urge her to provide the names of the co-workers about whom she complained. Ballou informed French that IES's ability to remedy the situation would be severely limited by her unwillingness to identify the co-workers in question. French told Ballou that she was not going to provide the information until she met with her attorney. She said that she would be meeting with her attorney in July and would contact Ballou after that meeting if she was willing to provide further information. (Arbitration Transcript 46-47, 151-54; French Dep. 61; Ballou Aff. ¶ 9). On June 19, 1996, Ballou sent a follow-up letter to French outlining the complaint and investigation procedures of IES' no harassment policy and urging French to cooperate with an investigation of the alleged harassing conduct. (Arbitration Transcript 47, 154; French Dep. 49-50; Ballou Aff. ¶ 10).
Ballou advised Rick Hannen ("Hannen"), Facility Team Leader at Sixth Street, and Jeralyn Linnan ("Linnan"), Diversity Specialist, of French's allegations. Ballou, Hannen and Linnan discussed ways to investigate French's allegations. (Ballou Aff. ¶ 9). On June 19, 1996, Ballou sent a follow-up letter to French outlining the complaint and investigation procedures of IES' no harassment policy and urging French to cooperate with an investigation to prove the alleged harassing conduct. (Arbitration Transcript 47, 154; French Dep. 49-50; Ballou Aff. ¶ 10).
Ballou advised Hannen, who at the time was transitioning in as the new Plant Manager of Sixth Street, of French's allegations and directed him to be particularly observant of the work environment to ensure that there was no inappropriate conduct or retaliation. (Arbitration Transcript 153-54, 264; Hannen Dep. 12-14; Ballou Aff. ¶ 11). Hannen and Ballou continued to follow-up with French and encourage her to identify the alleged harassers, although she continued to decline to do so until she could meet with her lawyer. (Arbitration Transcript 52-54, 154-55, 265, 291; Ballou Aff. ¶). For example, French testified that in late July 1996, Hannen called her into the lunchroom to talk. French said that Hannen "did ask me at that time if I could give him any names. I told him no, not yet. I didn't trust — I didn't want it to break out in the plant yet." (Arbitration Transcript 53-54).
Ballou and Hannen also remained in contact with French to ensure that she experienced no further problems. French reported no additional problems. (Ballou Aff. ¶ 13).
On August 9, 1996, IES named Mike Hagen ("Hagen"), formerly the business agent for the Union, to be the new Maintenance Manager and French's new supervisor. French did not get along with Hagen. Shortly after it was announced Hagen would be the Maintenance Manager, French asked to meet with Hannen, Bassett, and Ron Rowe ("Rowe"), Environmental Safety Manager, to report inappropriate actions by a co-worker. (Arbitration Transcript 48-49, 265-66; Hannen Dep. 16-17). French was very emotional during the meeting. She stated that her work situation was intolerable; however, she would not provide any specifics. (Arbitration Transcript 50-51, 266-68; French Dep. 57; Hannen Dep. 16-17). Hannen sent French home at the end of the meeting on paid administrative leave and informed her that she would remain on leave and not to report until further notice. (Arbitration Transcript 52, 268; Hannen Dep. 18). Hannen thereafter contacted Ballou to let her know what happened and asked that she follow up with French. (Arbitration Transcript 269-70; Hannen Dep. 19-22; Ballou Aff. ¶¶ 14-15). Ballou then contacted French and informed her that she could continue on paid administrative leave and asked her to provide detailed information about her allegations so that a proper investigation could be conducted. French agreed to meet provided her lawyer could be present. (Arbitration Transcript 155-56; French Dep. 61; Ballou Aff. ¶¶ 15-16).
At no time was French's direct supervisor, Cobb, involved in any discussions regarding the incidents in June 1996. (Cobb Dep. 29). After incidents in June, 1996, management personnel at Sixth Street failed to do any investigation or inquiries prior to French naming names because, as Hannen explained, he felt random inquiries would be detrimental to the accuser. (Hannen Dep. 14).
On August 14, 1996, French met with Ballou and Linnan, Diversity Specialist, and with French's attorney, John Riccolo, and IES' attorney, Deborah Neyens, present as observers. (Arbitration Transcript 55-56, 16, 217-18; Ballou Aff. ¶ 17). Ballou began the meeting by summarizing her understanding of the incidents which French alleged occurred in June 1996, as related by French in her conversations with Ballou on June 13 and 14, 1996. Ballou again requested that French provide the names of the individuals about whom she complained, as well as any other information about her complaints, so IES could fully investigate her allegations. (Ballou Aff. ¶ 18). Ballou and Linnan also reiterated IES' commitment to treat the investigation as confidentially as possible, consistent with a proper investigation, and to ensure that French did not experience retaliation as a result of having brought a complaint of harassment. (Arbitration Transcript 219; Ballou Aff. ¶ 19).
French then related three incidents of touching involving two male co-workers that occurred in June 1996, including the identities of the co-workers. She also stated that a third male co-worker had inappropriately touched her during the course of work activities and that she had told him not to help her with work activities in order to avoid further incident. (Arbitration Transcript 57, 258-59, 3218-25; Ballou Aff. ¶¶ 20-21). French also mentioned the incident in Vancouver in 1995, and acknowledged that after IES' action in response to her concerns she had no further problems with the co-worker who had been involved in that incident. (Ballou Aff. ¶ 22).
Ballou told French that she would remain on paid leave status while the investigation continued and reiterated IES' commitment to a workplace free of harassment. Ballou asked French to contact her or Linnan immediately with any additional information. (Ballou Aff. ¶¶ 23-24).
Based on the information by French, Ballou and Linnan took additional steps to investigate French's claims on August 21, 1996. (Arbitration Transcript 160-62; French Dep. 67). They interviewed approximately 28 witnesses, including everyone French identified as a possible witness, the three employees about whom French had complained, and other bargaining unit employees of Sixth Street. (Arbitration Transcript 162, 181, 191; Ballou Aff. ¶¶ 25-26).
During the course of the investigation, Ballou and Linnan learned that French had several times engaged in sexually explicit actions or verbal conduct over the course of her employment. (Arbitration Transcript 176, 182, 209-10). French admitted to Ballou and Linnan that she freely participated in such conduct. (Arbitration Transcript 209, 212, 226). French also testified that she actively participated in jokes and conversations of graphic sexual nature during the course of her employment. (Arbitration Transcript 89-90, 119-23, 125; French Dep. 79). For example, she talked about sexual experiences she had with her various husbands and boyfriends. (Arbitration Transcript 119; French Dep. 79). She told her co-workers that one of her ex-husbands masturbated and liked to use Crisco for various sexual acts. (Arbitration Transcript 122, 125; French Dep. 80-81). She once brought a pornographic movie to work for her co-workers to watch. (Arbitration Transcript 120-21; French Dep. 80).
French testified that, "I'm not offended by what is said, but I'm offended by physical touchness [sic]. That's to me two different things. I mean, when I started there, you've got to learn how to swear just to fit in. . . ." (Arbitration Transcript 90). She further testified that over the years she had communicated to her co-workers that, "I'd joke and get right in the jokes with them, but when it come to anything with touching, they ain't supposed to do it." (Arbitration Transcript 95).
There was never any allegation that French herself engaged in any inappropriate physical conduct or contact. (Arbitration Proceeding, Ballou, 181). Ballou believed that this was one of the strongest most straightforward cases of sexual harassment that she had ever seen. (Arbitration Transcript, Ballou, 184).
Ballou and Linnan concluded as a result of their investigation that the events about which French complained more likely than not had occurred and that disciplinary action was appropriate. (Arbitration Transcript 184, 244; Ballou Aff. ¶ 27). They reported the results of their investigation to Hannen. (Arbitration Transcript 182, 271-72).
As a result of the investigation, Hannen discharged one of the male co-workers in question and suspended the other two for thirty-days without pay. (Arbitration Transcript 277-79; Hannen Dep. 28-29; Wilson Aff. ¶ 9; Ballou Aff. ¶ 28). The Union filed grievances protesting the discipline. (Wilson Aff. ¶ 10). After a two-day hearing with both sides represented by counsel, an arbitrator upheld the discharge and one of the suspensions, but reversed the other suspension and awarded back pay. (Wilson Aff. ¶ 10-12). The arbitrator ruled that the discipline given with respect to one of the co-workers was too severe in light of French's inappropriate actions. (Wilson Aff. ¶ 12).
Following the investigation, additional training was held for Sixth Street employees to reinforce IES' policy against sexual harassment. (Hannen Dep. 3032; Arbitration Transcript 353).
E. French's Removal From Sixth Street
French indicated that she did not want to return to Sixth Street, even after the completion of the investigation and issuance of discipline. (French Dep. 70-71). IES therefore began working with French to explore career alternatives for her within IES organization. (French Dep. 71-72). These efforts included a vocational assessment at the Kirkwood Career Development Center at IES' expense. (French Dep. 72; IES 00379-81).
After the vocational assessment was completed, IES identified three job opportunities available for French within IES: a position as an Engineering Technician located within the IES corporate headquarters, a Meter Reader position located at Cedar Rapids Operations, and a return to her former position at Sixth Street. (IES 00370-71). French took the Engineering Technician position and received a pay increase of one dollar per hour. (French Dep. at 73-74).
Although IES claims that French was given the choice of the aforementioned three options, two of the three options were not viable. (French Dep. 72-73). She knew that she could not return to Sixth Street because she believed that the investigation had not remained confidential. (French Dep. 72-73). She was told that the meter reader position was not an option because it would have required bumping into another union and Linnan told her she did not think that was possible. (French Dep. 72-73). That left the engineering position made available to her by IES. (French Dep. 70-73).
Prior to transferring to the Engineering Technician position, French received computer training, at IES' expense. (French Dep. 71; IES 00368-69). IES made a laptop computer available for French to use in her home to practice the lessons learned in the computer training. (French Dep. 74).
French believes that the engineering position offered by IES is an inappropriate and undesirable assignment. (French Dep. 71-75). She does not believe she is qualified for the position. (French Dep. 71-75). She is uncomfortable in the position, and she feels she does not have the appropriate clothing for the position. (French Dep. 71-75, 84).
Dr. Schroeder, French's psychiatrist, testified that the position where she is now working "is as detrimental to her psyche as if she were still being sexually harassed and abused in the work setting." (Schroeder Dep. 31). Dr. Schroeder further testified "[t]o take her from an extremely physical position to one where she is sitting behind a desk and given nothing to do, having no knowledge about what she is doing, why she is doing it, is damaging to her physical nature. This is an individual who is extremely physical and now to be put behind a desk within her own mind nothing to do is abusive." (Schroeder Dep. 33). IES' own expert testified that French is suffering from Post Traumatic Stress Disorder, and that she "[n]ot be placed in any setting which triggers flashbacks, intrusive thoughts or other PTSD symptoms until these symptoms are under better control. By her report this involves any contact with individuals who are related in any way to the harassing situations." (Hall Report).
IES maintains that French has received her regular pay the entire time she was on administrative leave. (French Dep. 58, 69). However, French reports that since moving to the engineering department, other than the one time raise, she has not received the raises that she would have received under the union contract. (French Dep. 88).
French is currently employed by IES in the Engineering Technician position. (French Dep. 6).
IV Discussion A. Timeliness of ICRA claim
IES maintains that French failed to file her ICRA claim within the statutory period of limitations and it should therefore be barred. This issue was raised in IES' motion to dismiss and decided in the Court's Order of August 10, 1998. In that Order the Court ruled that French's ICRA claim arose out of the same conduct, transaction, or occurrence as the Title VII claim and for that reason fell within the statutory limitations period. While the analysis of a motion for summary judgment is distinct from that of a motion to dismiss, as IES points out, the facts relied upon by IES in its motion for summary judgment are precisely those which were relied upon by IES in its motion to dismiss. As such, the Court finds nothing qualitatively different in the present motion and therefore relies on in the analysis and findings of law in its Order of August 8, 1998.
B. Prima Facie Case of Discrimination
To state a claim for sex harassment by a non-supervisory co-worker, a plaintiff must first establish that:
(1) she belongs to a protected group;
(2) she was subject to unwelcome sexual harassment;
(3) the harassment was based on sex;
(4) the harassment affected a term, condition, or privilege of employment;
(5) the employer knew or should have known of the harassment and failed to take proper remedial action.See Klein v. D. McGowan, 198 F.3d 705, 709 (8th Cir. 1999) ; Phillips v. Taco Bell Corp., 156 F.3d 884, 888 n. 4 (8th Cir. 1998).
For purposes of this motion, the sole issue before the Court is whether French has satisfied element five of the prima facie case — that IES knew or should have known about the harassment and failed to take proper remedial action. As initial matter, the parties dispute whether this showing is an element of the prima facie case or an affirmative defense. From the Court's reading of the case precedent, both parties appear to be correct.
The Eighth Circuit has made clear that French has the initial burden of showing that IES knew or should have known about said harassment and failed to take the proper action. See, e.g., Klein, 198 F.3d at 709 (stating fifth element of prima facie case as "his employer knew or should have known of the harassment and failed to take prompt and effective remedial action"); Carter v. Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999) (same) ; Phillips, 156 F.3d at 888 n. 4 (same).
Similarly, as argued by French, an employer subject to vicarious liability to a victimized employee for actionable hostile environment created by co-employee, when no tangible employment action is taken, may raise an affirmative defense to liability or damages, subject to proof by the preponderance of the evidence. See Burlington Industries v. Ellerth, 524 U.S. 742, 764-65 (1998); see also, Todd, 175 F.3d at 597. This affirmative defense puts the burden on the employer to establish two necessary elements: (a) that employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by employer or to avoid harm otherwise. Burlington Industries, 524 U.S. at 765.
Thus, once French has established the aforementioned elements of the prima facie case, IES may then assert an affirmative defense to escape vicarious liability by establishing the necessary elements delineated above. Having said this, the facts underpinning both the prima facie case and the affirmative defense appear to be same. For this reason the Court will deal with the prima facie showing and the affirmative defense showing simultaneously, bearing in mind that the threshold of proof necessary to make a prima facie showing in a discrimination case is minimal. See, e.g., Young v. Warner-Jenkinson Company, 152 F.3d 1018, 1022 (8th Cir. 1998) (stating "[t]he prima facie burden is not so onerous"); see also Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 944 (8th Cir. 1994).
French establishes that she alerted IES management personnel about the 1995 Vancouver incident which entailed unwanted touching and stealing her bathing suit. Following the reporting of that incident, IES management conducted an preliminary investigation. During the investigation, French informed management personnel of previous incidents of harassment which included: a co-worker who fondled her while descending a ladder; 1980 incidents when she was fondled in the crotch and buttocks. She also informed them of her general belief that things were going too far at the plant. Although, IES contends that they honored French's wishes by not taking any affirmative action after the Vancouver incident, French produces facts which show that IES failed to adequately monitor French's treatment after its knowledge of the Vancouver incident, as well as the incidents she made IES management personnel aware of during the investigation.
In response to these particular allegations, IES argues that conduct prior to January 31, 1996 is not actionable because it falls outside the statutory period of limitations. French contends however, that the actions prior to January 31, 1996 are sufficiently related to the harassment which occurred after that date and therefore constitute a continuing violation. IES retorts that many of these allegations are about persons no longer employed by the company, and in no way are connected to the incidents that occurred after January 1996. The Court finds that all the factual allegations in French's complaint are sufficiently related to those made within the statutory period of limitations so as to prevent a grant of summary judgment on those facts at this time. This decision is premised, in part, on the Court's reluctance to rule on individual facts underpinning a viable sexual harassment claim prior to trial. The role these facts will play is unknown to the Court at this time. For this reason, a ruling on the admissibility of particular allegations of sexual harassment is more appropriately made at trial.
Having said this, however, even relying on only those actions occurring after January of 1996, significant fact issues remain as to whether IES' remedial actions could be considered appropriate, that would preclude summary judgment. French explained to IES management that she was being harassed but temporarily refused to reveal who the perpetrators were. With this knowledge, IES management discussed the situation with the Operations Supervisor, but did nothing else prior to French's full cooperation. Once French explained what precisely happened, IES conducted an investigation and placed French on paid administrative leave until its completion. IES punished three employees as a result of the investigation.
In the meantime, French was placed in a position in corporate headquarters in the engineering department and has never returned to her position at Sixth Street. Much debate centers around French's ability to safely return to Sixth Street, and the appropriateness of IES' removal of the victim of harassment to another department, in an entirely different type of position. IES maintains the choice not to return to French's original position at Sixth Street was hers to make and that once she made the choice not to return, IES provided her with appropriate training to prepare her for her current job. After thorough review of the record, it seems abundantly clear that there are many facts in dispute regarding the appropriateness and the expedience of IES' action. For these reasons, the Court finds that French has met her minimal burden of establishing the fifth element of her prima facie case — that IES knew or should have known of the harassment and failed to take proper remedial action. Likewise, the Court finds there are sufficient facts in dispute preventing judgment as a matter of law on whether IES has satisfied the necessary elements of its affirmative defense.
IV Conclusion
In summary, the Court finds French's ICRA claim is not time barred, and genuine disputed facts prevent a grant of summary judgment on French's claim of sexual harassment.
ORDER
For the reasons mentioned herein, Defendant's motion for summary judgment is DENIED.