Stricker v. Cessford Const. Co.

Page 987

179 F.Supp.2d 987

Nancy STRICKER, Tania Stricker, and Sharon Austin, Plaintiffs, v. CESSFORD CONSTRUCTION COMPANY and John Marks, Defendants.

No. C 00-30220MWB.

United States District Court, N.D. Iowa, Central Division.

September 7, 2001.

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Mark D. Sherinian of Mark D. Sherinian, P.C., West Des Moines, Iowa, Mindi M. Vervaecke of Fitzsimmons & Vervaecke Law Firm, P.L.C., Mason City, Iowa, for Plaintiffs.

Paul C. Peglaw of Johnson, Sudenga, Latham, Peglow & O'Hare, P.L.C. Marshalltown, Iowa, for Cessford Construction Co.

Mary E. Funk of Nyemaster, Goode, Voigts, West, Hansell & O'Brien, P.C., Des Moines, Iowa, for John Marks.

MEMORANDUM OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT

BENNETT, Chief Judge.

TABLE OF CONTENTS
I. INTRODUCTION ......................................................... 993
 II. LEGAL ANALYSIS ....................................................... 995
     A. Standards For Summary Judgment .................................... 995
        1. Requirements of Rule 56 ........................................ 995
        2. The parties' burdens ........................................... 996
     B. Federal Claims .................................................... 996
        1. Sexual harassment .............................................. 997
           a. The elements ................................................ 997
              i. "Unwelcomeness." ......................................... 997
             ii. Actionable harassment .................................... 998
           b. The Ellerth/Faragher affirmative defense ................... 1001
              i. Availability of the defense ............................. 1002
             ii. Elements of the defense ................................. 1006
        2. Retaliation ................................................... 1011
     C. State Statutory Claims ........................................... 1013
        1. Sexual harassment ............................................. 1013
           a. Individual liability ....................................... 1013
           b. Evidence of harassment ..................................... 1016
        2. Retaliation ................................................... 1017
     D. State Common-Law Claims .......................................... 1017
        1. Negligent supervision ......................................... 1017
        2. Assault ....................................................... 1019
III. CONCLUSION .......................................................... 1021

Just who is entitled to summary judgment on the defendant's Ellerth/Faragher affirmative defense in this case involving alleged sexual harassment by a supervisor? That is one of several issues presented by the parties' cross-motions for summary judgment or partial summary judgment. The plaintiffs contend that the defendant employer cannot establish the affirmative defense as a matter of law, because of the patent inadequacy of the employer's anti-harassment policy. The employer, on the other hand, contends that it is entitled to summary judgment on the defense, and hence on the plaintiffs' harassment claims, because its policy was adequate, even if it wasn't perfect, the company made other efforts to prevent and correct harassment, and the plaintiffs never reported the harassment directly to any company official, despite opportunities to do so. The individual defendant, the plaintiffs' supervisor, contends that the Ellerth/Faragher affirmative defense is inapplicable to the plaintiffs' claims of sexual harassment in violation of Iowa law, and that one consequence of the inapplicability of the defense is that the plaintiffs cannot establish the elements of their claim against him, where the plaintiffs cannot show under pre-Ellerth/Faragher decisions of Iowa courts that the employer knew or should have known of alleged harassment. The court must decide which questions are appropriate for determination by the court and which must be submitted to a jury.

I. INTRODUCTION

In this action, filed April 10, 2000, plaintiffs Nancy Stricker, Tania Stricker, and Sharon Austin, who worked as "flaggers" for a road construction company, assert sexual harassment and other claims against their employer and supervisor. More specifically, in Count I of their complaint, asserted against defendant Cessford Construction, their employer, all three plaintiffs allege hostile environment sexual harassment in violation of Title VII, 42 U.S.C. § 2000e. In Count II, also against Cessford Construction, the plaintiffs allege retaliation in violation of Title VII after they reported sexual harassment. In Count III, against Cessford Construction and individual defendant John B. Marks, the plaintiffs' supervisor, the plaintiffs allege sexual harassment in violation of the Iowa Civil Rights Act (ICRA), IOWA CODE CH. 216. In Count IV, against Cessford and Marks, the plaintiffs allege retaliation in violation of the ICRA. In Count V, the plaintiffs allege negligent retention and supervision of Marks by defendant Cessford. In Count VI, the plaintiffs allege that the defendants' conduct constituted tortious infliction of emotional distress. All three plaintiffs also allege assault and battery by defendant Marks, in Counts VII and VIII, respectively. Finally, plaintiff Tania Stricker alleges pregnancy discrimination sexual harassment by Cessford in violation of Title VII and the ICRA, in Counts IX and X, respectively.

Some of these claims are no longer at issue, however. On July 18, 2001, plaintiff Tania Stricker accepted an offer of judgment by defendants Cessford and Marks, although plaintiffs Nancy Stricker and Sharon Austin did not. In light of Tania Stricker's acceptance of the offer of judgment, those portions of Counts I through VIII pertaining to Tania Stricker and Counts IX and X in their entirety are no longer at issue. Also, in their resistance to defendants' motions for summary judgment, the plaintiffs represented that, after reviewing the facts in support of their claim for intentional infliction of emotional distress, they were withdrawing that claim. Therefore, Count VI will be dismissed in its entirety. Thus, the claims still at issue are Nancy Stricker's and Sharon Austin's claims of sexual harassment and retaliation in violation of federal and state law in Counts I through IV, their claim of negligent retention and supervision in Count V, and their claims of assault and battery in Counts VII and VIII, respectively.

Although the cross-motions for summary judgment now before the court may require more detailed analysis of whether or not there are genuine issues of material fact on the remaining claims, for now, the court finds that it will suffice to present only sufficient of the undisputed and disputed facts to put the plaintiffs' claims and the motions for summary judgment in context. Those facts and allegations include the identity and relationship of the parties, the plaintiffs' allegations of sexual harassment and other wrongful conduct by the defendants, and some of the defendants' contentions raised in defense to the plaintiffs' claims.

Cessford Construction Company is an asphalt and aggregate business with its headquarters in LeGrand, Iowa. John B. Marks was the superintendent of one of Cessford's portable asphalt plants, Plant 3. Consequently, Marks was responsible for managing Plant 3 and its road construction projects. Plaintiff Sharon Austin was hired in April 1999 as a "flagger" for a road construction project involving Plant 3 on Highway 69 in Hancock County. Plaintiffs Nancy and Tania Stricker, mother and daughter, began working for Cessford on May 9, 1999, as "flaggers" on the same project. One of the other foreman on the Highway 69 project was Marks's son, Kevin Marks, although Cessford contends that there were two other foremen present on the job site. Cessford contends that, at the time the plaintiffs were hired, each of them received an information packet that included information about the company's sexual harassment policy and how to contact Cessford's EEO officer, Joe McGuire, about claims of employment discrimination or harassment.

Almost as soon as they began working on the Highway 69 project, the plaintiffs contend that defendant John Marks subjected them to sexual harassment. Austin alleges that Marks hugged her on several occasions, kissed her on one occasion, grabbed her knee and attempted to run his hand up her leg, ran his hand along the side of her breast on two occasions, told inappropriate jokes, and told her he thought he could please her more than her boyfriend could. Nancy Stricker alleges that Marks also hugged her on three or four occasions, that she witnessed inappropriate conduct by Marks towards her pregnant daughter, Tania, and that one rainy day, Marks asked if he could suck her nipples dry. Marks later apologized for the last comment. However, Nancy Stricker quit her job after that incident. Tania Stricker was laid off at about the same time.

Neither Austin nor Stricker complained to management personnel about Marks's behavior. Austin did not complain to anyone at Cessford until she filed her civil rights charge with the Iowa Civil Rights Commission on or about July 2, 1999. Instead of complaining to Cessford's EEO officer or any other management employee at Cessford, Stricker complained to a co-worker, Marv Baker, whom she was dating. Baker brought Stricker's complaints to the attention of Joe McGuire, Cessford's EEO officer, on June 9 or June 10, 1999.

In response to Baker's report, McGuire contacted Marks's supervisor, Pete Bjorkman, to ask that Bjorkman and Marks come to his office for a meeting on Friday, June 11, 1999. At the meeting, which was attended by Marks, McGuire, Bjorkman, and Steve Krabbe, the President...