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The Webb Report Archives 2000

Webb Report Table of Contents

Archives of Webb Reports

THE WEBB REPORT - December 2000

Critical Proposal for Abused Women:

A new Justice Department proposal would recognize that gender is sometimes a basis for persecution, thus making it easier for the world's battered wives to get asylum in the United States.

Bernadette Cisse, an adviser on women's issues at the office of the United Nations High Commissioner for Refugees, said "This is definitely's a step forward.'

Lawyer Michael Maggio said "It is long overdue and a great thing."

Advocates said the proposed rule change, which involves "social groups" facing persecution, is important because it would recognize that women sometimes face persecution because of their gender.

The change would also bring the United States more in line with the United Kingdom, Australia, Canada and New Zealand, which already have recognized asylum cases filed by victims of domestic violence.

The new proposal by the Justice Department and Immigration and Naturalization Service, would allow victims of domestic violence to be considered members of a "social group," one of five categories in U.S. immigration law.

Under current U.S. law asylum applicants have to show they cannot return home because they face persecution on the basis of religion, race, nationality, politics or membership in a particular social group.

INS spokesman Bill Strassberger said the first four categories have been c considered "pretty clear-cut," but the handling of people who belong to special groups has been evolving in recent years, including growing numbers of special circumstances.

Strassberger said that claims of homosexuals were first recognized under the category in 1994, those by member of clans, such as Somalis, in 1994. Claims by women facing genital mutilation were recognized in 1996.

The government and advocacy groups have been looking for a way to clarify policy on social groups since the 1999 case involving a woman who claimed she was abused and sought asylum. In that case the immigration board denied asylum to Rodi Alvarado Pena, a Guatemalan woman who said she suffered long term abuse by her husband, a former soldier.

That case was stayed and is under review by Attorney General Janet Reno, who believes the government needs to provide better guidance on gender based cases, according to a Justice Department statement.

Cisse said U.N. refugee officials have long said women sometimes experience persecution in different ways from men, for example, more in their homes than in public.

With the proposed change, women applying for asylum would still be required to show that they are victims of domestic violence, that they would likely continue to be victims or that their country is unable or unwilling to protect them, according to Strassberger.


THE WEBB REPORT - November 2000

EEOC Charges General Motors for Retaliation:

The federal government has charged General Motors Corp. with retaliation against an employee who spoke up about alleged mistreatment at the automaker's assembly plant in Linden, New Jersey. These charges come after a lawsuit was filed in September alleging that racial and sexual harassment were rampant at the plant. Both lawsuits were brought by the federal Equal Employment Opportunity Commission and allege that GM ignored a hostile work environment and allowed it to become pervasive. In the most recent complaint, EEOC maintains that Melvin Wood, an inspector in the paint department, was harassed to the point of suffering several serious injuries and received death threats after he came to the aid of another worker who was repeatedly sexually harassed. Wood and EEOC also claim that his supervisors overscrutinized his work in an attempt to find a reason to fire him.

Wood said, "They didn't protect me. They retaliated against me for writing letters in support of Mary Scott. I've been there 34 years and never in my life seen it so bad." He said that when he complained about the treatment he was receiving, management took no action.

GM spokeswoman Kelly Cusinato said the company does not ignore such complaints. "We take these things very seriously. We're committed to creating and maintaining a workplace environment that's free from hostility and harassment and we have long-standing policies and procedures in place that support this commitment."

Wood said he is out on medical leave for job-related stress and anxiety. He also suffers from a snapped tendon in his foot which he says his supervisor caused by deliberately running over his foot in an electric cart. Last year Wood broke his nose when he fell on a slippery substance that he says his co-workers deliberately placed on a set of stairs they knew he was about to ascend with his hands full.

He said the harassment started in 1997, shortly after he wrote a letter supporting Scott, an African-American employee in the paint department. EEOC claims that Scott was the constant target of racial discrimination and sexual harassment. "I've known the woman for 25 years and there was absolutely no reason to treat her that way," Wood said.

EEOC's earlier complaint was filed on behalf of Scott, a 29-year employee from Linden who also is out on leave for job-related stress. In that case the agency alleges, among other things, that a male co-worker exposed himself to Scott, that another directed racially derogatory comments toward her and others made offensive sexual gestures. See the October issue of The Webb Report for a full report on the first suit.

Edward McCaffrey, program analyst for EEOC, said the commission received the complaints from Scott and from Wood, who is white, at about the same time, but the lawsuits were filed separately because Scott's case was prepared first. He said the suits would probably be consolidated by the courts.

McCaffrey said EEOC built its case slowly, mostly because employees have been afraid to talk because of the kind of retaliation encountered by Wood.

"It does bring out that anybody, including a white employee, can stick up for anyone he believes is being harassed, and be protected by the law," he said. "What happened to Mr. Wood can be part of the intimidation. We're trying to clear away some of that so people can come forward."


THE WEBB REPORT - October 2000

EEOC Information on Adverse Actions:

Retaliation, defined as any adverse employment action taken by an employers as a result of an employee's opposition to illegal employment practices, is forbidden under Title VII and many other federal and state nondiscrimination laws. Such adverse employment actions can include termination, suspension, demotion, or loss of normal work assignments.

However, federal appeals courts do not agree on whether or not an employer's negative performance evaluation of an employee can constitute ad adverse employment action.

The Tenth Circuit Court of Appeals recently ruled that a negative personnel evaluation can be an adverse employment action under Title VII. The case was Toth v. Gates Rubber Co.

In this case the plaintiff had worked as a chemical engineer for a manufacturing company. In 1996-1997 she filed several charges with EEOC, claiming retaliation, discrimination on account of age, sex, and national origin, and violations of the Equal Pay Act. She claimed that her complaints to EEOC and to the company led to continued harassment and retaliation and that this included additional negative job evaluations, being placed on probation, and ultimately being terminated.

The company said that it fired the woman because of her "below standard" job evaluation.

The woman sued under Title VII claiming that she was denied four promotions, paid less than her co-workers, and terminated because of her sex and national origin. She also claimed retaliation, a hostile work environment, and violations of the Equal Pay Act. The court granted summary judgment to the employer on all the claims, and the plaintiff appealed. On appeal, the company argued that the woman's negative performance evaluation could not constitute ad adverse employment action.

The appeals court said, "This court liberally construes the phrase 'adverse employment action'" under Title VII. Further, "This court has held that actions having ad adverse impact on future employment opportunities can constitute adverse employment actions," the court said, and cited Gunnell v. Utah Valley State College, 10th Cir., 1998.

The court found sufficient evidence of retaliation and reinstated the woman's retaliation claim, noting that the plaintiff received her first negative performance evaluation two days after filing her first EEOC charge. In addition, she continued to receive poor evaluations during the time she filed the supplemental charges.

The court also found that the woman had evidence that the company's explanation for her poor evaluations was pretextual, citing her testimony that her supervisor told her that "as a result of my creating so much negative stuff around the company...there was no other way to go" and that her EEO complaints "had made the year miserable."

While the court revived her discriminatory discharge claim, finding that she was qualified for the position, it dismissed her claims of failure to promote, wage discrimination, and breach of contract.

The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

In another case, the Seventh Circuit Court of Appeals reached a different conclusion, but it was four years ago. The case was Smart v. Ball State University, 7th Circuit, 1996.

In this case, the woman worked as a tree surgeon after she had completed a three-year training program. She claimed that after she filed a sex discrimination charge with EEOC she was the target of retaliation in the training program by receiving unfavorable reviews. Her negative performance reviews were not joined with any other adverse action. The claim was dismissed on summary judgment and she appealed.

The Seventh Circuit ruled that negative performance evaluations by themselves cannot constitute an adverse employment action. The court said, however, that negative performance reviews could be used as evidence of adverse employment actions when such reviews contribute to demotions, transfers, or the failure to promote.

The court said that the woman's performance evaluations were neutral tools designed to identify strengths and weaknesses in order to further the learning process, and affirmed the district court's dismissal of the case.

The Seventh Circuit covers Illinois, Indiana, and Wisconsin.


THE WEBB REPORT - September 2000

Largest EEOC Settlement for Male-on-Male Harassment:

The U.S. Equal Employment Opportunity Commission announced a $500,000 settlement of a sexual harassment lawsuit against Burt Chevrolet and LGC Management, one of the state's top auto chains, on behalf of 10 former salesmen who claimed they had experienced continual same-sex harassment by male managers. In addition to the monetary benefits for the men, the agreement requires the employer to provide mandatory training on sexual harassment to its executive and sales staff and report sexual harassment complaints to the EEOC for three years.

The consent decree, signed by U.S. District Judge Clarence A. Brimmer of the District of Colorado, is the largest settlement ever by EEOC's Denver District Office for a same-sex harassment case, and one of the biggest settlements ever by the agency on this issue.

EEOC Chairwoman Ida L. Castro said, "The scope of this settlement should put all employers on notice that sexual harassment, including male-on-male harassment, comes at a high cost. As the Supreme Court recognized in the Oncale case in 1998, harassment is unlawful regardless of the gender of the victim or the harasser."

In August 1999, the EEOC settled a similar lawsuit for $1.9 million against Long Prairie Packing Company, a meat packing plant in Long Prairie, Minnesota. That settlement, the agency's largest ever for same-sex harassment and its first class settlement on the issue, came after the decision by the U.S. Supreme Court in March 1998 in Oncale v. Sundowner Offshore Services. In Oncale, Supreme Court upheld the Commission's longstanding policy that same-sex harassment by men against men may violate Title VII of the Civil Rights Act of 1964, which forbids sex discrimination in employment.

In EEOC's recent lawsuit, filed on September 28, 1999, Burt Chevrolet was charged with creating a hostile work environment for male employees. A group of salesmen claimed they were subjected to severe and repeated sexual harassment by male managers. The offensive conduct included touching and grabbing of genitals, pelvic thrusting on the buttocks of male employees, exposing of a manager's penis in the workplace, crude sexual language, crude sexual jokes, and referring to male employees in sexually obscene and derogatory terms.

L.G. Chavez, Executive Vice President of Burt Chevrolet, said "The allegations made are not representative of our organization and we will continue to maintain our long-standing zero tolerance of harassment policy at the company. We found it to be in the best interest of everyone involved to get this matter behind us and not become engaged in a protracted legal battle."

While the behavior was allegedly carried out by primarily two male used car managers, the suit stated that numerous other managers took part and perpetuated the hostile environment by telling sexual jokes, presenting sexual materials at sales meetings, and tolerating offensive sexual conduct in the workplace.

Burt maintains that the workplace was not as described by the EEOC. "

The Commission will continue to prosecute harassment cases to the fullest extent of the law when employers reject our pre-litigation attempts at voluntary resolution," said EEOC General Counsel C. Gregory Stewart. "Even though employers may have anti-discrimination policies in place, they must make sure that such policies are taken seriously and implemented, not merely put on a shelf to gather dust."

Although Burt Chevrolet had a written policy in place prohibiting sexual harassment and stating its commitment to promptly investigate such allegations, the suit alleged that complaints by the salesmen went unheeded by management for nearly a year. Moreover, according to the suit, management generally dismissed the offensive conduct as "horseplay" or "locker room antics."

Neither of the managers were terminated or demoted out of management for the alleged harassment, although one supervisor was given a written warning. Burt disputes the EEOC's claims of inaction in this matter as well. He says the company thoroughly investigated the matter and took appropriate remedial action as soon as the allegations were brought to the attention of management.

Joseph H. Mitchell, regional attorney of the agency's Denver District Office, who was responsible for prosecuting the case said "This is an important case to dispel common misconceptions about sexual harassment and hostile work environments. The conduct in this case involved verbal ridicule and physical torment which created a hostile work environment designed to undermine the masculinity of male personnel," he said. "If such blatant discriminatory action was directed toward female workers, there would be no disagreement over whether it was sexual harassment. But because it happened to men, management was initially indifferent to the situation. We are pleased that Burt has agreed to work with the EEOC to better educate managers and employees about their obligations to intervene and report harassing or discriminatory conduct, so that problems may be promptly addressed. We hope that this lawsuit and the consent decree will prompt an on-going, open dialogue with Burt so that together, we can work toward solving discrimination problems before they turn into federal cases."


THE WEBB REPORT - August 2000

Eight Circuit Cites 'Indifference' to Victim:

The U. S. Court of Appeals for the Eighth Circuit ruled that the jury's award of $60,000 in compensatory damages, $15,000 in lost wages, and $100,000 in punitive damages for the sexual harassment of a production line worker was justified in part by the employer's "deliberate indifference" and its threats to the victim who said she reported the harassment over 40 times. The court also awarded $28,845 in attorneys' fees.

The court said the harassment resulted from two co-workers repeatedly harassing the woman with sexually vulgar comments and physical touching in a sexually offensive manner. The woman said that the harassment continued despite her repeated reports of their conduct to supervisors.

While the company did eventually conduct a harassment investigation, the woman was told that she might be fired if her allegations were unfounded. During the investigation, a supervisor interviewed potential witnesses who did not speak English, conducting the interviews without an interpreter. He also warned the two alleged harassers that sexual harassment was grounds for termination. The woman quit and sued under Title VII and Arkansas state law when the company refused to permanently transfer either harasser. She claimed hostile environment harassment and constructive discharge. When she won the lawsuit, the company appealed.

The Eight Circuit said on appeal, that "there is more than sufficient evidence to support the jury's verdict." The court added that the company did little to correct the problem; its investigation was "hardly a textbook model of competent and efficient responsiveness."

The court also said that the "woman's division consisted of eight food craft lines," each with over 20 workers, making the company's justification for not moving the main harasser "untenable." Additionally, "she afforded her employer more than sufficient time to correct the intolerable conditions," the court said.

The Eight Circuit includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.



Limits on Damages Upheld by Federal Judge:

A federal judge in Denver upheld the constitutionality of a federal law that caused him to reduce a $1.7 million jury verdict to $50,000 several months ago. U.S. District Judge Wiley Daniel refused to back down from his December 1999 ruling, saying the damages limit that Congress put into place in 1991 to protect small businesses sued by workers for sexual harassment and discrimination were to be applied in the case.

The civil rights law provision of the 1991 Civil Right Act allows employees to sue for emotional distress and punitive damages, but limits the amount an employee can recover from $50,000 to $300,000, depending on the number of employees in the company.

Denver attorney Marc Flink, who represents Colorado Anesthesia Consultants, said "The caps are clearly what Congress intended. Certainly, we believe Judge Daniel made the right decision here." Anesthesia Consultants was the losing defendant targeted by the jury's large verdict.

The judge's ruling stems from a 10-member jury verdict against the company, one of Denver's largest providers of anesthesia services for hospitals. The ruling was supported by U.S. Justice Department attorneys.

The jury awarded a female doctor $500,000 in compensatory damages and an additional $1.2 million in punitive damages after finding the medical group had retaliated against her for supporting a female colleague's claim of gender discrimination. The doctor's 1997 lawsuit accused the group's president of heading up a "vicious campaign of retaliation" that resulted in the doctor's loss of medical privileges at Rose Medical Center and her loss of disability benefits.

Judge Daniel reduced the jury award on a motion from the defendant company's attorneys, who cited the $50,000 limit to damages awards against employers with more than 14 but fewer than 101 employees.

The doctor's attorney, Darold Killmer, challenged the personal injury limit on constitution grounds. He argued that the limit distorts civil rights laws set up to punish employers who have acted with malice or with reckless indifference. He said reducing the award fails to stop or prevent future offenses.

Killmer wrote in his court brief that "What the cap does, in effect, is permit an employer like Colorado Anesthesia Consultants...that is comprised of dozens of wealthy physicians, to escape with only a small slap on the wrist."

Killmer said the judge's constitutionality ruling won't affect a separate award for back-pay damages and attorney fees. Daniel is expected to determine the amount of those damages at a separate hearing in August.

The doctor intends to seek back-pay damages of $500,000 to $1 million her attorney said. Additionally, attorney fees are likely to exceed $200,000.



11th Circuit Rules Complaint Procedure Must Be Followed:

The U. S. Court of Appeals for the Eleventh Circuit ruled that a supermarket chain is entitled to an affirmative defense to the sexual harassment claims of two female employees because they failed to use the store's complaint procedure.

The women alleged that after a new store manager was hired, he began harassing them. One woman told an assistant manager about the harassment at a party, but she did not ask the manager to take any action. At another informal gathering, the same woman told a different assistant manager about the store manager's behavior, but she did not ask this assistant manager to do anything either.

In addition, the store's bakery manager saw some of the behavior and told the store manager that it was sexual harassment. The bakery manager also told the woman that she should complain if the manager's conduct continued. A few weeks later an assistant manager witnessed the store manager's behavior and one woman asked the assistant manager to call the district manager. The district manager immediately met with the women, started an investigation, and concluded that the store manager should be given a written warning, demoted to assistant manger, and transferred to another store in another city. Neither woman had any further contact with the manager and both women still work for the chain.

The women subsequently sued the grocery chain for hostile environment sexual harassment under Title VII and a number of state law claims. The trial court granted summary judgment to the employer saying that it had exercised reasonable care to prevent sexual harassment and that the women had unreasonably failed to use the chain's anti-harassment policy and complaint procedures. Both are requirements for the affirmative defense to vicarious liability established by the Supreme Court in Faragher v. Boca Raton in 1998.

The women claimed on appeal that the employer did not meet the two parts of the affirmative defense. They argued that the chain did not exercise reasonable care to prevent the harassment because the policy was too narrow, identifying only the store manager as the person to whom complaints could be made, and because mid-level managers failed to respond to their complaints.

The women argued on the second part, that the employer failed to act promptly because their complaints to the mid-level managers put the chain on notice months before an investigation was initiated. They argued that complaining to mid-level managers was not unreasonable because the company had an open door policy that advised employees to talk to "anyone in management" about problems.

The appeals court said that the company did exercise reasonable care to prevent the harassment because it had an anti-harassment policy and acted promptly after receiving proper notice of the women's complaints from the district manager. The court also said the women acted unreasonably by not immediately using the complaint procedure and by reporting the alleged harassment only on an informal basis to mid-level managers who were not authorized by the policy to handle complaints. The court noted that the policy, distributed in an employee handbook, stated in bold type that employees "must report such offensive conduct or situations to the Store Manager, District Manager, or Divisional Personnel Manager."

The Appeals Court said, "Once an employer has promulgated an effective anti-harassment policy and disseminated that policy and associated procedures to its employees, then it is incumbent upon the employees to utilize the procedural mechanisms established by the company specifically to address problems and grievances."

The Eleventh Circuit covers Alabama, Florida, and Georgia.



Former Air Traffic Controller Wins Suit:

A St. Louis federal jury awarded $1,375,000 to a former air traffic controller in a sexual harassment suit against the Federal Aviation Administration and her a co-worker she said harassed her and tried to rape her. The jury deliberated over four hours before finding the FAA liable on two counts of sexual harassment and retaliation and ruling against the man on three counts of assault and battery.

The woman was awarded the full amount she sought from her former employer--$1,145,000--for emotional distress. The jury found against the man in the amount of $230,000 for emotional and punitive damages; the plaintiff had asked $500,000 from him.

The woman sued after the FAA fired her from a job at Lambert Field in 1997. Her attorney told the jury in closing arguments that the FAA botched an investigation into the allegations. He said the agency violated policy by allowing Joseph to neither admit nor deny the harassment and by failing to tell the woman that the man said he had a consensual sexual relationship with her. Sellers denied the two ever had consensual sex.

When the woman refused to drop the matter, her attorney said, the FAA retaliated. He said the she was "the first employee ever to complain of sexual harassment at Lambert Field -- and the first ever placed on enforced leave." He said that the man had changed certain dates he had cited in earlier testimony.

The man's attorney, pointed out discrepancies in the plaintiffs' testimony and said that long telephone calls she made to her co-worker were of a romantic nature. He said that the woman acknowledged that she lied to an FAA investigator b y telling him that the man had never been to her house and that she made up the allegations of attempted rape when she realized he could describe the inside of her home.

An attorney for the FAA told the jury that if there was any hostility in the control tower, it was only in the woman's mind. He said she was fired because she refused numerous opportunities to recertify as a flight controller after making an operational error. "The FAA wanted to keep her," he said.

The woman wept as the verdict was read; the man showed no emtion. The woman said afterward that her gratitude was tinged with regret for a lost career, according to the St. Louis Post-Dispatch.


THE WEBB REPORT - April 2000

Army's Highest-Ranking Woman Files Harassment Complaint

Pentagon and government officials released a statement saying the Army's most-senior female officer filed a sexual harassment complaint against another Army general. The officer, Lt. Gen. Claudia Kennedy, has often been presented as an example of the expanding opportunities for women. In her complaint, she accused another general of groping her in her office in 1996.

When the incident allegedly occurred, Kennedy complained informally to her supervisors and then filed a formal harassment complaint last year when the man received a prominent new assignment, according to Army officials. The sources said that in 1996 both the officers held the lesser rank of major general.

In 1996, Kennedy served at the Pentagon as the Army's assistant deputy chief of staff for intelligence. After the alleged incident took place, she handled the matter internally and reported it to her supervisors in the Army staff. Officials believed Kennedy was satisfied with the results at that time.

However, when the general that Kennedy said harassed her was named as a candidate for a prominent assignment last year, Kennedy filed a complaint with the Army inspector general's office. That office is intended to operate independently from the Army's chain of command.

Kennedy is one of three women in the military who serve as three-star officers. The others are Vice Adm. Patricia Tracey of the Navy, who serves as deputy assistant secretary of defense for personnel, and Lt. Gen. Leslie Kenne, commander of the Air Force's Electronic System Center at Hanscom Air Force Base in Massachusetts.

Kennedy, 52, has served as the Army's deputy chief of staff for intelligence since her promotion to lieutenant general in May 1997. She was the first woman in the Army to reach that rank. She plans to retire this year.

Kenneth Bacon, the Pentagon's spokesman, said "We have a zero tolerance for harassment." Officials cited privacy rights of the accused general in refusing to identify him and Col. Edwin Veiga, an Army spokesman, said "We don't comment on the existence of investigations."

Kennedy's accusation could become a new embarrassment for the Army, since like the other armed services, the Army has been the source of numerous sexual scandals, charges of harassment and accusations of double standards when the accused is a senior officer.

Those scandals included rape and assault cases at the Army's Aberdeen Proving Ground in Maryland beginning in 1996 and the sexual assault trial in 1997 of its senior enlisted man, Sgt. Maj. Gene McKinney.

While McKinney was acquitted at a court-martial of all charges except obstruction of justice, the Army has twice demoted generals for having adulterous affairs in the past year.


THE WEBB REPORT - March 2000

Outrageous Conduct Violates Violence Act

Federal courts have been divided over the validity of the Violence Against Women Act, a law intended to provide federal civil remedies and to supplement state remedies for women who are sexually assaulted.

In the fall of 1999, a federal district court in Oregon affirmed the validity of the act when the defendants in an employment action challenged it. Earlier in the year the U.S. Court of Appeals for the Tenth Circuit declined to rule on the constitutionality of the act, saying the plaintiffs' sexual assault claims viable under Utah law instead.

However, in a nonemployment case, the U.S. Supreme Court has agreed to review whether Congress exceeded its constitutional powers in enacting the act.

In the case going to the high court, a state university student claims that she was raped by two football players. The U.S. Court of Appeals for the Fourth Circuit decided that Congress lacked the power to grant federal remedies in an area traditionally regulated by the states. The Supreme Court heard oral arguments in January. U.S. v. Morrison, No. 99-5; Brzonkala v. Morrison, No. 99-29.

Recently, three female former restaurant workers were awarded more than $700,000 by a federal district court on their claims of outrageous conduct under state law and of gender-motivated violence under the VAWA. The court found that the evidence and witness testimony supported the claims of illegal conduct based on sex of the two plaintiffs and of the EEOC on behalf of another claimant.

The court entered a default judgment in favor of two plaintiffs in September 1998 on their Title VII claims, the VAWA, and of outrageous conduct. The women later settled the claims "for compensatory Title VII and negligence damages" and attorneys' fees for $35,000.

The former employees were "continually subjected to a pattern and practice of sexual harassment and intentional discriminatory treatment by reason of their sex, including, without limitation, vulgar sexual remarks and jokes, sexual overtures to, and sexual touching of, female employees which were both unwelcome and offensive," the court said. It added that the acts were primarily those of the company president and a manager. The court found the employer had engaged in unlawful employment practices under Title VII, the VAWA, and the state statute.

The court said the two plaintiffs were hired even though "neither plaintiff had experience or education for the positions for which they were hired and were employed instead because of their sex and appearance." The court added that although the third woman had "significantly more education and experience" than the other two, she, too, "was nevertheless principally hired because of her sex and appearance."

The court noted that the company did not have an appropriate sexual harassment policy and did not remedy the harassment despite complaints from the plaintiffs and other female employees. While the employer knew or should have known of the illegality of the behavior, "the defendants engaged in, condoned, and ratified the discriminatory treatment" of the plaintiffs, the court said.

"Under the circumstances of this case, I find that substantial punitive damages should be imposed," the court said, to punish the employer for the president's and manager's conduct and to act as notice to others "that such improper conduct in the work place will not be allowed."

The court awarded one woman punitive damages of $100,000, back and front pay of $59,440, and noneconomic damages of $50,440. The other woman, who did not ask for economic damages, received $100,000 in punitive damages and $60,000 in noneconomic damages. The court said the EEOC, on behalf of the third woman, should "be awarded $100,000," but under statute was limited to recovering $50,000 in punitive damages. EEOC also received $74,205 in the woman's behalf for economic damages.

The court also granted the plaintiffs and EEOC injunctive relief for the next five years, including posting a notice of the court's ruling, training for all employees regarding a new sexual harassment policy, and record keeping of any and all sexual harassment complaints to the company and their resolution. The court also required a writing of apologies on company letterhead, signed by the president to each of the plaintiffs within 30 days of the court's judgment. Wells v. Lobb & Co.


THE WEBB REPORT - February 2000

Long Lingering Case Against Principal

In mid-January a sexual harassment case involving alleged love messages and kisses between an elementary school principal and the school nurse went to trial. The civil case has lingered in the court system since 1993 and was brought by Karen Shuster. She contends that former School No. 21 principal Angelo Paternoster misinterpreted her friendliness by flirting with her, kissing her and sending her anonymous Valentine's cards with love messages.

Paternoster, who is also an Elizabeth, New Jersey councilman, said the nurse not only sent sexually suggestive cards to him, but also sent them to herself and then blamed him for the cards. According to his attorney, Paternoster says that the relationship between him and the nurse was strictly professional.

The Elizabeth school board, also named as a defendant in the case, would not disclose how much the case has cost the district so far. The board has not only paid for its own defense over the past six years, but also for Paternoster. The board also paid for Paternoster to bring an assault suit against Schuster after the two met by change outside the school. Anat Gordon, the Edison attorney representing Shuster, estimates the board has spent about $500,000 in legal fees so far.

Shuster claims that Paternoster began flirting with her a couple of months after she started working at the school in 1998, saying it was something she did not expect to lead to notes of a sexual nature.

"I interpreted it as being friendly." She said she received a Valentine's card at home containing a love note and signed "your secret admirer" in 1991, and two more -- in 1994 and 1995 -- after she filed her lawsuit in 1993.

Using samples of his handwriting from notes he had written, a forensic handwriting analysis expert identified the card as being written by Paternoster. However, when Shuster confronted him about it in 1991 he denied it, according to Shuster's attorney.

Soon after that, Shuster got a negative job performance evaluation, which she claims was a result of the confrontation. She was then forced to resign later that year and filed her lawsuit two years later in Superior Court in Elizabeth.

"I was single when they suspended me. I could have easily been homeless," she said. Shuster now works as a school nurse in the Orange School District as a home health care provided and at a children's' hospital.

Paternoster's attorney said Shuster actually did the pursuing and that Paternoster "told her he did not find her pursuit comfortable." Paternoster had been a councilman since 1973 and is now a purchasing agent for the Elizabeth Board of Education.

In 1994, Superior Court Judge Barbara Byrd Wecker dismissed Shuster's complaint, but the Appellate Division reinstated it.

Prior to the reinstatement, Shuster and Paternoster ran into each other at a grocery store and had a conversation about the case. Paternoster claims that Shuster grabbed his sleeve and his hand, and that this prompted him to file a lawsuit alleged she assaulted him. That suit was later dismissed.

Shuster's attorney says that her client was not the aggressor and that Paternoster could have called the police rather than an attorney. She says the board of education inappropriately paid for Paternoster's legal fees in the assault case when they should have come out of his own picket because the matter occurred out of the city limits and after Shuster had left the district.


THE WEBB REPORT - January 2000

School District Employee Wins Suit

A federal jury in Pennsylvania awarded $300,000 to a Coatesville Area School District employee, saying administrators violated her civil rights by demoting her for testifying in a sexual harassment lawsuit and expressing concerns about district finances. In her suit, filed in July 1998, the woman said she had been retaliated against for testifying in a sexual harassment case against an administrator and because she had contacted stated auditors with financial concerns. After five days in U.S. District Court in Pennsylvania, the jury found in favor of the woman on seven of nine counts against the school district and five current and former administrators.

The jury also found that school administrators violated the woman's First Amendment rights and the Pennsylvania Whistleblower Act. They found the district liable for intentional infliction of emotional distress and breach of contract. The jury dismissed two counts that had been directed against eight of nine school board members.

Eva Andrew, the district employee who filed the suit, said "I knew that justice would come. I knew that it had to end -- that people couldn't just continue being mistreated and threatened."

Board member Tom Lewis continued to reject Andrew's claims following the verdict. "As far as retribution, that just didn't happen. But I understand that is a matter of perception to the jury."

The district said that Andrew, who has worked for the school system for about 35 years, was switched from director of human resources to director of administrative projects as part of a reorganization plan. Andrew said she was being punished.

The jury agreed with Andrew and awarded her $200,000 in compensatory damages against the district for stress, allergies and therapy she said were related to events at her job. The district's insurance company is responsible for those damages.

Samuel Stretton, Andrew's lawyer, said "It's a very significant award. Hopefully, this will begin the process of reform in the Coatesville Area School District."

In punitive damages, the jury also found Superintendent Louis M. Laurento liable for $50,000, Business Administrator Gary Poltonowicz and Assistant Superintendents Paul Bentley and Gail Jackson liable for $10,000 each, and former Business Administrator Nicholas Malobabich liable for $20,000.

George Zumbano, an attorney for the law firm representing the school district, said he thought there were grounds for appeal and said "We'll discuss that with our client over the next few days." He also said it was unclear as to whether the administrators named would be held personally liable for the damages the jury awarded.


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