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SHROUT v. BLACK CLAWSON CO.

April 13, 1988

BARBARA K. SHROUT, Plaintiff,
v.
THE BLACK CLAWSON COMPANY, Defendant



The opinion of the court was delivered by: SPIEGEL

 SPIEGEL, UNITED STATES DISTRICT JUDGE

 This is an action by a female employee of the defendant Black Clawson Company for sexual harassment and employment discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff has also asserted state law claims for intentional infliction of emotional distress. The case is before the Court after an eight-day trial to the Bench.

 Credibility of Witnesses

 Because this case is essentially a swearing contest, we will first discuss our views concerning the credibility of the testifying witnesses. In weighing the testimony of each witness, we considered the relationship of each witness to the parties, the witness's interest in the outcome of these proceedings, his or her manner of testifying (especially with regard to apparent candor, fairness and intelligence), each witness's opportunity to observe or acquire knowledge about the subject matter of such witness's testimony and the extent to which such testimony was supported or contradicted by other credible evidence.

 Plaintiff's testimony regarding Lewis's unwelcome post-1981 sexual advances was denied by Lewis. *fn1" However, when Lewis was questioned about specific incidents of sexual harassment, he testified that he could not recall many particular events. When the Court inquired as to his meaning, Lewis admitted that these episodes may have occurred, although he had no specific recollection of them. *fn2" In addition, plaintiff's statement that Lewis failed to review her job performance from 1981 through 1984 was uncontested, although Lewis denied that such appraisals were withheld because plaintiff refused his sexual advances. Finally, plaintiff's testimony concerning the psychological effect of Lewis's conduct was largely supported by the testimony of the medical experts and plaintiff's friend at Black Clawson, Susan King. Opposing testimony from one of defendant's experts, Dr. J. Thomas DeVoge, was not credible. Dr. DeVoge testified that even assuming the truth of plaintiff's allegations regarding Lewis's sexual harassment, such abuse had no measurable impact on her psychological condition. He had no opinion as to whether these events, if factual, had any impact on the plaintiff at all. This testimony directly contradicts the opinion evidence of both of plaintiff's psychologists *fn3" and defendant's other testifying psychologist, Dr. Rick Allgeier. Dr. Allgeier found that Lewis's behavior aggravated plaintiff's pre-existing problems and contributed to her present emotional state. We credit the testimony of the three psychological experts who determined that Lewis's conduct was at least one cause of plaintiff's present emotional distress, and find that this evidence is consistent with plaintiff's testimony.

 Plaintiff described the atmosphere at Black Clawson's Middletown facility as pervasively sexual, and her description was corroborated by the testimony of several current or former employees of the defendant company. Witnesses Susan Hall, Charles Beckman, Susan King, Dale Parker, Barbara Tankersley, Betty Blakely and Thomas Moore either related incidents of sexual advances by male managers or reported having heard rumors of male manager-female subordinate affairs within the company. This evidence was rebutted by the testimony of Phyllis Smith, who was not aware of any sexual behavior involving employees at the Middletown plant apart from having heard rumors about the relationship between Lewis and the plaintiff. Smith's testimony, to the extent that is contrary to the evidence of the abovementioned witnesses, is clearly outweighed by their testimony. Further, we note that relations between Smith and the plaintiff were decidedly strained.

 While listening to plaintiff's testimony and observing her demeanor, particularly during counsel's thorough, searching cross-examination, we were impressed with her perception of what occurred in her life after her relationship with Lewis ended. We find that she was a generally credible witness, and that her testimony was frequently supported by other competent evidence.

 Edward Lewis's trial testimony was evasive at critical points and in some instances contrary to his deposition testimony. As mentioned above, he frequently stated that he "could not recall" performing various acts of harassment. However, his later testimony made it clear that those events could have occurred. Consequently, plaintiff's allegations of harassment are largely unrebutted.

 Lewis admits that he did not evaluate plaintiff's job performance but claimed that he withheld these appraisals because he did not wish to confront plaintiff about her attendance. This testimony is inconsistent with his actions in sending plaintiff two letters regarding her "attendance problem." Further, Lewis stated that when he told plaintiff that "it doesn't have to be this way," he meant that she would be reviewed if she improved her attendance. This testimony was rebutted by the plaintiff, who understood the remark to mean that she would receive a review and a raise if she submitted to Lewis's sexual advances. We credit plaintiff's testimony on this issue, both because we find her a more credible witness and because Lewis later admitted that attendance has no impact upon whether an employee receives a review. Every Black Clawson manager who testified also stated that regular work evaluations of subordinates are mandatory.

 Lewis's trial testimony about his sexual relations with other Black Clawson employees was inconsistent with his deposition testimony denying such affairs. Additionally, the testimony of Thomas Moore, Dale Parker and Carl Landegger shows that Lewis lied to Black Clawson management about his affair with plaintiff. Competent evidence contradicts much of Lewis's testimony and provides ample grounds for the Court to question his veracity. Further, his demeanor and the nature of the allegations made against him support our conclusion that Lewis was not a credible witness.

 Carl Landegger, president of the defendant company, testified that Black Clawson had a policy prohibiting sexual harassment. He claimed that the "open-door policy," a letter written by Landegger to all employees instructing them that they could contact him on any personal or divisional matter, addressed sexual harassment. This claim was authoritatively rebutted by Ms. Mary Belfry, a human resources consultant qualified as an expert on corporate policy and procedure concerning sexual harassment. Ms. Belfry concluded that defendant had no policy regarding sexual harassment. She specifically expressed the opinion that the "open-door policy" did not qualify as a sexual harassment policy because it was too broad, it was not adequately communicated to the employees, it did not specifically mention sexual harassment, it did not assure employees that no retaliation would occur, and it was intimidating for lower-echelon women who were harassed by their supervisors to use it because it required them to complain directly to the (male) president. Ms. Belfry stated that a harassed woman could reasonably fail to complain under such circumstances.

 In sum, the Court finds that plaintiff and her witnesses were generally more credible than ...


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