JEFF BREWER v. KENNETH GENE HILLARD AND CONSOLIDATED FREIGHTWAYS v. KENNETH GENE HILLARD
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RENDERED:
August 13, 1999; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001842-MR
JEFF BREWER
APPELLANT
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 94-CI-001879
KENNETH GENE HILLARD
AND:
APPELLEE
NO.
1997-CA-001902-MR
CONSOLIDATED FREIGHTWAYS
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 94-CI-001879
KENNETH GENE HILLARD
APPELLEE
OPINION
AFFIRMING IN PART - REVERSING IN PART
* * * * *
BEFORE:
COMBS, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
These appeals arise from a jury verdict in
favor of appellee, Kenneth Gene Hillard (Hillard) on his claim of
intentional infliction of emotional distress against appellant
Jeff Brewer (Brewer) and his claim of same-gender hostile
environment sexual harassment against appellant Consolidated
Freightways Corporation of Delaware (CF).
On appeal, Brewer
argues that he was entitled to judgment as a matter of law, that
the tort remedy of intentional infliction of emotional distress
was not available to Hillard, that Hillard’s filing of a workers’
compensation claim precluded him from filing a tort claim, and
that the trial court erred in altering the jury’s apportionment
of damages.
CF argues that the trial court erred in not granting
its motion for judgment nowithstanding the verdict (JNOV) in its
entirety and that a new trial is warranted due to improper jury
instructions and improper apportionment of damages by the jury.
We affirm in part and reverse in part.
Testimony at trial established that Hillard was
employed by CF as a local deliveryman.
Brewer was employed by CF
as dispatcher/supervisor on the evening shift, which began around
3:00 - 4:00 in the afternoon and ended around 12:00 - 1:00 a.m.
Brewer would often work past midnight to finish his work, thus
overlapping with the midnight shift.
Donna Carter (Carter) was
the dispatcher/supervisor on the midnight shift.
Hillard often
worked evening and midnight shifts because of his low seniority
status.
According to Hillard, he initially had no problem with
Brewer when he began working as a local deliveryman.
After
several months, Brewer began calling him sexually explicit names.
As time passed, Brewer’s conduct became worse.
Hillard testified
that Brewer would grab his buttocks and comment “why don’t you
give me some of that ass.”
while making lewd comments.
Sometimes Brewer would rub his crotch
There were also several occasions
when Brewer made requests for oral and anal sex.
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Hillard testified that if other employees were around
Brewer would make the comments loudly, but if no one was around
he would keep his tone of voice low.
At the time the harassment
was occurring, Hillard thought Brewer was either homosexual or
bisexual.
Hillard did admit that Brewer never intimated that his
job would be in jeopardy if he did not comply with his requests.
Hillard testified that he reported Brewer’s behavior in
graphic detail to Carter in December 1992.
At that time Carter
made a copy of CF’s harassment policy, which hung on a wall in
the dispatch office area, and gave it to him.
According to CF’s
harassment policy:
Any incident of harassment, including workrelated harassment by any CF MotorFreight
personnel or any other person, should be
reported promptly so the matter can be
investigated and resolved as quickly as
possible. Managers or supervisors who
receive complaints of harassment should
inform their regional human resources
manager, or the Human Resources Department in
Menlo Park immediately, and if they observe
harassing conduct, should act immediately to
prevent it from continuing.
A. Harassment by co-workers. If employees
feel they are being harassed by a co-worker
or by an employee of a customer or vendor,
they should immediately notify their
supervisor or manager.
Supervisors and
managers are responsible for acting promptly
to investigate such complaints.
B. Harassment by managers or supervisors.
The company emphasizes that employees are not
required to complain first to their
supervisor if that supervisor is the
individual who is harassing the employee.
The Human Resources Department is responsible
for investigating complaints of harassment by
supervisors or managers.
Every complaint of harassment that is
reported to the Human Resources Department
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will be investigated thoroughly, promptly,
and in as confidential a manner as is
possible, consistent with the Company’s
obligation to conduct a thorough
investigation.
Hillard stated that Carter told him she would report
Brewer’s conduct to John Barrett (Barrett), CF’s terminal
manager.
Several days later, Carter allegedly told Hillard that
she had reported Brewer’s conduct to Barrett, who allegedly said
that he did not care what Brewer said as long as the acts were
not done on company time.
Hillard stated that after hearing what
Barrett allegedly said he made no effort to pursue the matter
because he felt no one cared.
At trial, Carter denied giving
Hillard a copy of the harassment policy, denied that Hillard
complained to her about Brewer, and denied discussing Brewer with
Barrett.
Hillard testified that he was hospitalized for two or
three days in March 1993 for heart palpitations.
His treating
physician, Dr. Gus Bynum (Dr. Bynum) testified that Hillard’s
problems could be caused by high caffeine intake and stress.
Dr.
Bynum indicated that Hillard was given medication to control his
heart rate.
Dr. Bynum’s office notes for May 14, 1993, showed
that Hillard reported “[l]ots of problems with anxiety and
stress; very tense; lots of conflict with dispatcher at work;
likes his job but afraid he is going to explode at his boss.”
Dr. Bynum testified that Hillard never told him he was being
sexually harassed at work.
On the May 14 visit, Hillard appeared
to be very stressed and anxious, but not depressed.
Dr. Bynum prescribed Xanax.
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At that time
Hillard testified that when he returned to work after
his hospitalization, Brewer’s conduct continued.
When he became
increasingly upset to the point that his ability to drive was
affected, he sought help from Dr. Ben Santa-Teresa (Dr. SantaTeresa).
Dr. Santa-Teresa saw Hillard on May 12, 1993.
Dr.
Santa-Teresa testified that Hillard complained of job-related
stress and appeared to be very nervous and upset.
Hillard
indicated he was having a fight with management but did not give
any details.
Dr. Santa-Teresa diagnosed severe depression
secondary to job stress, prescribed Xanax and Zoloft, and advised
Hillard to stay off work for several weeks.
In a letter to CF
dated July 8, 1993, Dr. Santa-Teresa indicated that Hillard
“strongly believes he is being harrassed [sic] in his job by his
supervisor.”
Hillard was off work for approximately three weeks
after seeing Dr. Santa-Teresa.
When he returned to work he filed
a workers’ compensation claim and ultimately received benefits
for the time he missed.
Hillard did not directly report Brewer’s behavior to
Barrett until August 6, 1993.
According to Hillard, the
harassment stopped after this meeting and Brewer began behaving
like a gentleman.
We will address each of CF’s and Brewer’s claims
separately with the exception of the claims regarding the jury
instructions and apportionment of damages.
Further facts will be
developed where necessary to adequately address the issues
raised.
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I.
APPEAL OF JEFF BREWER
A. WAS BREWER ENTITLED TO JUDGMENT AS A
MATTER OF LAW ON HILLARD’S CLAIM OF
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS?
The tort of intentional infliction of emotional
distress, or outrage, was first recognized in Craft v. Rice, Ky.,
671 S.W.2d 247 (1984).
In that case, the Kentucky Supreme Court
adopted the following portion of Section 46 of the Restatement
(Second) of Torts:
One who by extreme and outrageous conduct
intentionally or recklessly causes severe
emotional distress to another is subject to
liability for such emotional distress, and if
bodily harm to the other results from it, for
such bodily harm.
Restatement (Second) of Torts, §46(1)(1965).
In order to
recover, the plaintiff must show that defendant’s conduct was
intentional or reckless, that the conduct was so outrageous and
intolerable so as to offend generally accepted standards of
morality and decency, that a causal connection exists between the
conduct complained of and the distress suffered, and that the
resulting emotional stress was severe.
v. Seitz, Ky., 796 S.W.2d 1, 2-3 (1990).
Humana of Kentucky, Inc.
An action for outrage
will not lie for “petty insults, unkind words and minor
indignities”; the action only lies for conduct which is truly
“outrageous and intolerable.”
Kroger Co. v. Willgruber, Ky., 920
S.W.2d 61, 65 (1996).
Brewer contends that he was entitled to summary
judgment as a matter of law because Hillard failed to satisfy the
foregoing elements for the tort of outrage.
In reviewing a
motion for summary judgment, the record is to be viewed in a
light which is most favorable to the non-moving party with all
doubts being resolved in his favor.
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Steelvest, Inc. v. Scansteel
Service Center, Ky., 807 S.W.2d 476 (1991).
Only if “it appears
impossible for the nonmoving party to produce evidence at trial
warranting a judgment in his favor should the motion for summary
judgment be granted.”
Steelvest, 807 S.W.2d at 482.
In
reviewing the record in a light most favorable to Hillard, we are
not persuaded that summary judgment was proper in this case.
First, it cannot be seriously argued that Brewer’s
conduct was anything but intentional.
Even if we accept Brewer’s
argument that the purpose behind his conduct was to inject humor
in the workplace and not to inflict emotional distress, the tort
still lies where his conduct is reckless; i.e., where he intended
his specific conduct and either knew or should have known that
emotional distress would result.
Testimony from other CF
employees established that Brewer harbored a strong dislike for
Hillard; therefore, the recklessness of his comments is easily
seen.
As to whether Brewer’s conduct was outrageous and
intolerable to the point of being actionable, from the evidence
produced by Hillard we have no trouble finding that it is.
The
testimony at trial showed that Hillard was subjected to frequent
incidents of lewd name calling coupled with multiple unsolicited
and unwanted requests for homosexual sex.
We believe that this
case “is one in which the recitation of the facts to an average
member of the community would arouse his resentment against the
actor, and lead him to exclaim, ‘Outrageous!’” Restatement
(Second) of Torts, §46, cmt. d (1965).
We are aware that the
Sixth Circuit recently upheld the dismissal of a tort law claim
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for outrage coupled with a claim of hostile environment sexual
harassment in Wathen v. General Electric Co., 115 F.3d 400 (6th
Cir. 1997), after finding that the plaintiff failed to produce
evidence to show that the conduct was truly outrageous.
115 F.3d at 407.
Wathen,
However, this case differs from Wathen in that
the conduct complained of here went far past the incidents of
“sexual jokes, comments, and innuendos” which were the subject of
the complaint in Wathen.
We also believe that Hillard produced a sufficient
amount of evidence to survive a motion for summary judgment on
the issue of the causal connection between Brewer’s conduct and
his emotional distress and the severity thereof.
Both Dr. Bynum
and Dr. Santa-Teresa indicated in their office notes that Hillard
complained of problems with a supervisor at work.
Both doctors
testified that Hillard was having problems with anxiety and
stress.
Both doctors felt that Hillard’s condition was such that
medication was needed to control it.
We believe the evidence
presented was sufficient to present an issue to the jury as to
whether Hillard’s stress was caused by Brewer’s conduct.
In regard to the severity of Hillard’s stress, while we
agree that the plaintiff in Willgruber suffered a more serious
reaction to the conduct of his employer than Hillard, the
question in that case was whether the trial court erred in not
granting Kroger’s motion for a directed verdict which requires
that the sufficiency of the evidence be considered.
920 S.W.2d at 64.
Willgruber,
The sufficiency of the evidence is not
reviewed in summary judgment matters.
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Steelvest, 807 S.W.2d at
480.
Based on the foregoing, the trial court did not err in
refusing to grant summary judgment on these issues.
B. WAS THE REMEDY OF INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS AVAILABLE TO HILLARD?
Brewer contends that the tort of intentional infliction
of emotional distress is only a gap-filler tort which is not
available when the traditional tort of assault and battery would
afford a remedy.
In support of his argument, Brewer relies on
Rigazio v. Archdiocese of Louisville, Ky. App., 853 S.W.2d 295
(1993), where this Court held:
where an actor’s conduct amounts to the
commission of one of the traditional torts
such as assault, battery, or negligence for
which recovery for emotional distress is
allowed, and the conduct was not intended
only to cause extreme emotional distress in
the victim, the tort of outrage will not lie.
Recovery for emotional distress in those
instances must be had under the appropriate
traditional common law action.
Rigazio, 853 S.W.2d at 299.
We agree with the trial court’s decision on this issue
and its distinction of Rigazio contained in its opinion and order
entered June 24, 1997, on Brewer’s motion for JNOV, and adopt the
following portion of that order as our own:
Brewer claims this action for outrageous
conduct is not available to Hillard because
it was designed to be used only when other
torts would not address the Plaintiff’s
claims. Brewer claims Hillard should have
sued for assault, or battery, or both, citing
Rigazio v. Archdiocese of Louisville, Ky.
App., 853 S.W.2d 295 (1993). However, Brewer
misses a key element of the Rigazio holding.
While it is true the tort of outrage, now
intentional infliction of emotional distress,
is a “gap-filler” tort intended to provide a
remedy when no other tort is adequate, there
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is a clearly developed paradigm for outrage:
when actions or contact is intended only to
cause extreme emotional distress in the
victim. Rigazio at 299.
Battery is a tort which requires an
unwanted touching of the victim. Assault
requires the threat of touching. Outrage
requires conduct intended to cause emotional
distress in the victim. Outrage can be done
without a touching or even threat of one. It
can be done with both elements as well, if
the intent is to cause extreme emotional
distress. The intent in the tort of outrage
is different from that required in either
assault or battery. [Emphasis in original].
Hillard pled outrage. Evidence was
presented to the jury. The jury found
Brewer’s actions were “intended...to cause or
recklessly cause(d) severe emotional
distress.” Instruction No. 1, Interrogatory
No. 1.
The jury could have believed Brewer
“intended only to cause emotional distress”
because the evidence in its entirety, as
weighed by the jury, supports a belief that
Brewer’s intent was to harass or intimidate
[cite omitted] by sexual embarrassment,
rather than to merely touch improperly or
threaten improper touch. In fact, Brewer
testified he did not take any of the actions
for sexual gratification. Consequently, the
jury was not clearly erroneous to find that
Brewer was liable for outrageous conduct, nor
was it error to instruct on that tort.
[Emphasis in original].
C. HAVING PURSUED A WORKERS’ COMPENSATION
REMEDY, IS HILLARD PRECLUDED FROM PURSUING A
TORT REMEDY?
Brewer contends that having filed a workers’
compensation claim for the three weeks he missed work while under
Dr. Santa-Teresa’s care, Hillard is precluded from maintaining a
tort action against him.
In making his argument, Brewer relies
on the exclusivity provisions of KRS 342.690(1) and Zurich
American Ins. Co. v. Brierly, Ky., 936 S.W.2d 561 (1997)(holding
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that if death of employee results from deliberate intent of
employer to cause death, employee’s dependents can either proceed
under Chapter 342 or sue at law).
Hillard relies on Zurich Ins.
Co. v. Mitchell, Ky., 712 S.W.2d 340 (1986), and General Accident
Ins. Co. v. Blank, Ky. App., 873 S.W.2d 580 (1993), for the
proposition that the tort of outrage has been accepted as an
exception to the exclusivity provisions of KRS 342.690.
We believe that all of the cases cited by the parties
on this argument are distinguishable because they focus on the
liability of the employer and/or the employer’s compensation
carrier for a tort claim arising from a work-related injury.
In
this case, Hillard’s tort claims are raised only in regard to
Brewer’s conduct, not the conduct of his employer.
Besides providing protection from additional liability
to employers, KRS 342.690 extends the same protection to the
fellow employees of an injured worker except “in any case where
the injury...is proximately caused by the willful and unprovoked
physical aggression of such employee[.]” KRS 342.690(1).
Under
KRS 342.700, when a compensable injury has occurred under
circumstances in which a party other than the employer is liable,
the injured employee may either claim
compensation or proceed at law by civil
action against the other person to recover
damages, or proceed both against the employer
for compensation and the other person to
recover damages, but he shall not collect
from both.... If compensation is
awarded...the employer, his insurance
carrier, the special fund, and the uninsured
employer’s fund, or any of them, having paid
the compensation...may recover in his or its
own name or that of the injured employee from
the other person in whom legal liability for
damages exists[.]
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KRS 342.700(1).
In Russell v. Able, Ky. App., 931 S.W.2d 460 (1996),
this Court used both KRS 342.690(1) and KRS 342.700(1) to hold
that an employee who received workers’ compensation for an injury
caused by the intentional act of a co-employee was not precluded
from maintaining an action in tort against the co-employee.
The
Court held that:
receipt of benefits is not a bar to filing a
civil action against a third party who is
legally liable to the injured employee.
Further, we have no problem with including
within the definition of a third party a
fellow employee who fails to fall within the
immunity set forth under KRS 342.690.
Russell, 931 S.W.2d at 462-463.
The situation before us is analogous to that in
Russell.
Hillard claims that he sustained injury as a result of
Brewer’s intentional acts.
Therefore, the exclusivity provisions
of KRS 342.690(1) are not applicable to Brewer and the trial
court did not err in allowing Hillard’s civil action against
Brewer to proceed.
D. WERE THE DAMAGES AWARDED BY THE JURY
EXCESSIVE?
Brewer argues that the jury’s award of $75,000 for
emotional distress was excessive, and contends that there was no
medical confirmation of the distress Hillard suffered.
Brewer
would have us review the jury’s award under the “first blush”
rule as enunciated in Morrow v. Stivers, Ky. App., 836 S.W.2d
424, 430 (1992).
However, Morrow makes it clear that the “first
blush” rule is not the proper appellate standard.
“Once the
issue is squarely presented to the trial judge, who heard and
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considered the evidence, neither we, nor will the Court of
Appeals substitute our judgment on excessiveness for his unless
clearly erroneous.”
Morrow, 836 S.W.2d at 431.
Having reviewed
the record and the testimony presented, we are not prepared to
rule that the trial court abused its discretion in this case.
II.
APPEAL OF CONSOLIDATED FREIGHTWAYS
Following entry of the trial order and judgment, CF
moved for JNOV on the grounds that (1) the Kentucky Civil Rights
Act does not recognize sexual harassment claims involving the
same sex; (2) Brewer’s harassment of Hillard was not due to his
gender; and (3) CF took prompt action to end the harassment once
it was notified.
The trial court denied CF’s motion, and CF
raises the same arguments on appeal.
In ruling on a JNOV motion, the trial court is required
to consider the evidence in a light most favorable to the party
opposing the motion and to give that party every reasonable
inference that can be drawn from the record.
Ky., 700 S.W.2d 415, 416 (1985).
Taylor v. Kennedy,
The motion is not to be granted
“unless there is a complete absence of proof on a material issue
in the action, or if no disputed issue of fact exists upon which
reasonable men could differ.”
Taylor, 700 S.W.2d at 416.
On
appeal, we are to consider the evidence in the same light.
Lovins v. Napier, Ky., 814 S.W.2d 921, 922 (1991).
A. DID THE FACTS CLEARLY DEMONSTRATE THAT CF
RESPONDED ADEQUATELY AND EFFECTIVELY ONCE IT
HAD KNOWLEDGE OF BREWER’S CONDUCT?
CF maintains that it was entitled to JNOV because (a)
notice to Carter in December 1992 was not sufficient to impute
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notice to CF; and (2) CF responded with prompt remedial action
once Hillard reported Brewer’s conduct to Barrett on August 6,
1993.
We believe the trial court adequately addressed this issue
in its order denying CF’s motion for JNOV entered June 24, 1997,
and adopt the following portion of that order as our own:
The evidence before the jury was divergent
as to when CF was given notice or should have
known of the sexual harassment by Brewer
toward Hillard. The credibility of the
witnesses, and the weight to be given to
their testimony is the sole province of the
jury unless clearly erroneous.
The jury was asked under Instruction No.
2, Interrogatory No. 7, whether CF “knew or
should have known” of Hillard’s claims that
Brewer was sexually harassing him. This
standard was set in Rabidue v. Osceola
Refining Co., 805 F.2d 611 (6th Cir. 1986).
It clearly does not require only actual
notice to an employer, but also requires due
diligence on the employer’s part. If an
employer can establish the harassment at
issue was not foreseeable (See, e.g. Kauffman
v. Allied Signal, Inc., 970 F.2d 178 (6th
Cir.) cert. den. 1135 S.Ct. 831 (1992)), then
it can escape liability. [Emphasis in
original].
Here, CF did not deny the alleged
behavior, but claimed no actual notice until
long after the occurrences, and prompt
remedial action once it heard of Hillard’s
complaints. The jury found it was too
little, too late.
CF has argued it could not reasonably take
action when, although there was a policy in
place providing for an avenue to give notice
of complaints, none was given until after
much of the harassment had already occurred.
CF’s policy provided for complaints to be
made to a “supervisor”, with no further
designation. Hillard claimed to have
reported the harassment to Donna Carter, a
“supervisor.” Carter disputed this, but the
jury chose to believe Hillard.
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In the face of this, CF now argues that
Carter, as a “low-level supervisor”, is not
the “supervisor” intended to receive notice
as directed in its policy manual, and that
her knowledge, if any, cannot be imputed to
CF. It is true, that after Hillard
complained to John Barrett, a higher ranking
“supervisor”, CF took commendable steps to
address the problem. However, the jury
believed that Carter, as a “supervisor”, was
in a position to further report the
harassment, and that the company should have
known about it from other sources such as Mr.
Philbeck, Hillard’s co-worker on the dock,
and that Hillard had done all he was required
to do based on CF’s own policy.
The Court cannot find, as a matter of law,
that notice to Carter was insufficient to
provide notice to CF. The question of
whether CF knew or should have known of the
harassment is a question of fact for the jury
under Kentucky law, which has a more
stringent standard for taking questions from
the jury than does federal law. See
Steelevest [sic], Inc. v. Scansteel Serv.
Ctr., Ky. 807 S.W.2d 476 (1991). Nor can the
Court say the jury’s findings on this issue
are clearly erroneous, and therefore a JNOV
or new trial is not appropriate on this
issue. [Emphasis in original].
B. WAS BREWER’S CONDUCT UNLAWFUL UNDER THE
KENTUCKY CIVIL RIGHTS ACT?
CF contends that Hillard’s claims are not actionable
under the Kentucky Civil Rights Act(the Act) because the Act will
not support a claim for same-gender sexual harassment.
We note
that the Act, as embodied in KRS Chapter 344, proscribes certain
unlawful employment practices in much the same way as its federal
counterpart, Title VII of the Civil Rights Act of 1964 (42 U.S.C.
§2000e et. seq.).
Lococo v. Barger, 958 F.Supp. 290, 293
(D.C.E.D. Ky. 1997).
In fact, KRS 344.020(1)(a) provides that
the general purpose of Chapter 344 is “[t]o provide for execution
within the state of the policies embodied in the Federal Civil
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Rights Act of 1964 as amended[.]”
As such, it is accepted
practice to look to federal case law construing Title VII in
construing KRS 344.
Lococo, 958 F.Supp. at 293.
See also Palmer
v. International Association of Machinists and Aerospace Workers,
AFL-CIO, Ky., 882 S.W.2d 117 (1994) (looking to federal case law
to construe the term “employer” as used in KRS Chapter 344).
As
the issue of whether same-gender sexual harassment is actionable
under the Act is a question of first impression before this
Court, we will look to federal law for guidance in this area.
As both sides have pointed out, the issue of whether
same-gender sexual harassment is actionable under Title VII has
been decided differently among the several federal circuits with
no clear consensus.
However, the United States Supreme Court has
recently addressed this issue in Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. ___, 118 S.Ct. 998, 140 L.Ed.2d 201
(1998).
Oncale, a male worker on an oil platform, was subjected
to numerous sex-related, humiliating actions by fellow male
workers.
He filed suit against his employer alleging that he was
discriminated against by his employer by virtue of his sex.
A
panel of the Fifth Circuit Court of Appeals affirmed the District
Court’s dismissal of his case according to the precedent of
Garcia v. Elf Atochem North America, 28 F.3d. 446 (5th Cir.
1994), which held that same-gender harassment was not actionable
under Title VII.
See Oncale v. Sundowner Offshore Services,
Inc., 83 F.3d 118 (5th Cir. 1996).
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In reversing the Fifth Circuit, the Supreme Court held
that nothing in Title VII would bar a claim of discrimination
simply because the plaintiff and the alleged harasser are the
same sex.
Oncale, 523 U.S. at ___, 118 S.Ct. at 1001-1002, 140
L.Ed.2d at 207.
In so holding, the Court stated:
We see no justification in the statutory
language or our precedents for a categorical
rule excluding same-sex harassment claims
from the coverage of Title VII. As some
courts have observed, male-on-male sexual
harassment in the workplace was assuredly not
the principal evil Congress was concerned
with when it enacted Title VII. But
statutory prohibitions often go beyond the
principal evil to cover reasonably comparable
evils, and it is ultimately the provisions of
our laws rather than the principal concerns
of our legislators by which we are governed.
Title VII prohibits “discriminat[ion] ...
because of ... sex” in the “terms” or
“conditions” of employment. Our holding that
this includes sexual harassment must extend
to sexual harassment of any kind that meets
the statutory requirements.
Id. at ___, 118 S.Ct. at 1002, 140 L.Ed.2d at 207.
Although KRS
244 and Title VII are not identical, we see no reason to depart
from Oncale and hold that a claim for same-gender sexual
harassment is cognizable under the Kentucky Civil Rights Act.
C. DID HILLARD PROVE THAT BREWER HARASSED
HIM BECAUSE OF HIS SEX?
Although the Supreme Court ruled in Oncale that samegender sexual harassment cases are cognizable, the Court made it
very clear that the plaintiff must show that the conduct
constituted discrimination because of sex.
“Whatever evidentiary
route the plaintiff chooses to follow, he or she must always
prove that the conduct at issue was not merely tinged with
offensive sexual connotations, but actually constituted
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“discrimina[tion] ... because of ... sex.”
Id. at ___, 118 S.Ct.
at 1002, 140 L.Ed.2d at 208, citing 42 U.S.C. §2000e-2(a)(1).
[Emphasis deleted].
This does not mean that the plaintiff must
show that his harasser was homosexual or “motivated by sexual
desire” in order to prevail.
Id.
As the Court indicated, “[t]he
critical issue...is whether members of one sex are exposed to
disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.”
omitted].
Id. [Citation
CF contends that Hillard failed to show that Brewer
harassed him because of his sex.
According to Oncale:
[T]he objective severity of harassment should
be judged from the perspective of a
reasonable person in the plaintiff’s
position, considering “all the
circumstances.” [citation omitted]. In
same-sex (as in all) harassment cases, that
inquiry requires careful consideration of the
social context in which particular behavior
occurs and is experienced by its target. A
professional football player’s working
environment is not severely or persuasively
abusive, for example, if the coach smacks him
on the buttocks as he heads onto the
field--even if the same behavior would
reasonably be experienced as abusive by the
coach’s secretary (male or female) back at
the office. The real social impact of
workplace behavior often depends on a
constellation of surrounding circumstances,
expectations, and relationships which are not
fully captured by a simple recitation of the
words used or the physical acts performed.
Common sense, and an appropriate sensitivity
to social context, will enable courts and
juries to distinguish between simple teasing
or roughhousing among members of the same
sex, and conduct which a reasonable person in
the plaintiff’s position would find severely
hostile or abusive.
-18-
Id. at ___, 118 S.Ct. at 1003, 140 L.Ed.2d at 208-209.
After
reviewing the videotape of the trial, we find that there was
sufficient evidence to uphold the jury’s finding that Hillard was
harassed because of his sex.
There was no evidence which
indicated that Brewer treated women in the work place the same
way he treated Hillard.
Brewer’s conduct went far past “simple
teasing or roughhousing among members of the same sex” and that
it clearly constituted behavior which a reasonable person in
Hillard’s surroundings would find to be severely hostile or
abusive.
Id.
While we recognize that the atmosphere of the
night shift on an all-male loading dock is far removed from the
niceties of a typical office, we believe that Brewer’s behavior
was extremely offensive even in those surroundings.
III.
THE JURY INSTRUCTIONS AND THE
APPORTIONMENT OF DAMAGES
Under Instruction No. 1, Interrogatory 3, of the jury
instructions used at trial, the jury found that Brewer’s conduct
was outrageous and intolerable, thus finding for Hillard on his
claim of intentional infliction of emotional distress.
Under
Instruction No. 2, Interrogatory No. 7, the jury found that CF
knew or should have known about Brewer’s conduct, thus finding
for Hillard on his sexual harassment claim.
Instead of being asked to determine individual damages
for the conduct of each defendant, the jury was instructed as
follows in Instruction No. 3, Interrogatory No. 8:
You should now determine and award the
Plaintiff Hillard for such mental and
emotional distress as you believe from the
evidence he has suffered as a direct result
of the Defendant Jeff Brewer’s and/or
-19-
Defendant Consolidated Freightway’s [sic]
conduct toward him and should now proceed to
Instruction No. 4.
Pursuant to this instruction the jury awarded Hillard $75,000.
Instruction No. 4 provided:
You have determined in Interrogatory No. 3
and Interrogatory No. 7 that both Defendant
Jeff Brewer and Defendant Consoldiated
Freightways are liable to Plaintiff Hillard
for his emotional distress. You must now
determine from the evidence what percentage
of the total damages was attributable to each
of the defendants. (In determining the
percentages, you shall consider both the
nature of the conduct of each party and the
extent of the causal relation between each
party’s conduct and the injury claimed).
Pursuant to this instruction the jury found Brewer 10% liable and
CF 90% liable.
In accordance with the jury’s verdict, the trial
court entered a trial order and judgment finding Brewer liable
for compensatory damages in the amount of $7,500 and CF liable
for the remaining $67,500.
The last issue raised by CF in its motion for JNOV was
that
the damages were improperly apportioned between CF and
Brewer.
CF argued that the evidence did not support an award of
$75,000 for mental distress and that “apportioning 90% of that
award to CF was unlawful since CF has only vicarious liability
due to its respondeat superior status with Defendant Brewer, the
actual perpetrator.”
The trial court held that the apportionment
under Instruction 4 was improper in its order denying CF’s motion
for JNOV entered on June 24, 1997, but on different grounds:
Plaintiff Hillard claimed in his Complaint
that he was the victim of sexual harassment,
or in the alternative, outrageous conduct by
-20-
Defendant Brewer. Under Lowry,1 Defendant CF
stands in the shoes of Brewer because of
respondeat superior. However, Defendant
Brewer stands alone on the outrageous
conduct, now viewed as intentional infliction
of mental distress by Kentucky’s Courts.
Under the sexual harassment claim, Brewer
admitted and the jury found he committed the
acts complained of. CF has vicarious
liability for those acts. If CF could escape
liability by prevailing on the notice
element, then there would be no Defendant
against whom liability could be held, which
is the scenario described and rationalized in
Lowry which “may leave victims of employment
discrimination without a remedy in certain
instances where their employers can escape
liability by showing that a supervisor’s
harassing actions were not foreseeable.”
Lowry at p. 231. The Lowry Court found this
justifiable because Congress did not intend
individuals to be held liable, and loss of a
remedy does not justify creating such
liability by judicial fiat.
However, CF did not meet its burden with
the jury on the notice element. In that
event, being vicariously liable or directly
liable, CF is liable for the entire damage
award, and is not entitled to any
apportionment of the award against it.
The jury also found Brewer liable under
the Plaintiff’s alternative theory of the
case, intentional infliction of mental
distress. Had the jury found no liability
for sexual harassment, either because they
found none to exist or because there was no
Defendant who could be held responsible as
described above, then Brewer would be
responsible for the entire damage amount
under the individual claim.
In determining the Plaintiff’s damages,
the jury was instructed to determine
Hillard’s damages for mental and emotional
distress “as a direct result of the Defendant
Jeff Brewer’s and/or Defendant Consolidated
Freightway’s [sic] conduct toward him...”
1
Lowry v. Clark, 843 F. Supp. 228 (E.D. Ky. 1994).
[Footnote added].
-21-
(Instruction No. 2, Interrogatory No. 8). It
fixed the damage award at $75,000.00. The
Court then erroneously instructed the jury to
apportion the damages between the Defendants
in Instruction No. 4.
This instruction was erroneous because
each Defendant is liable for the damages in
their entirety, being two parties “acting in
concert” in the fullest sense of the word,
since Brewer’s actions in the intentional
infliction claim are the same actions for
which CF is vicariously liable or failed to
prevent. The two Defendant are therefore
jointly and severally liable to the
Plaintiff. Because the entire liability
could have been avoided on the sexual
harassment claim, the Plaintiff was entitled
to an Instruction on the alternative
liability claim under tort law. [Emphasis in
original].
On appeal, Brewer argues that the apportionment of
damages under Instruction No. 4 was proper in accordance with KRS
411.182, which compels apportionment between tortfeasors in tort
actions.
CF argues that the initial apportionment was improper,
and that when the trial court realized the instruction was
improper its remedy of joint and several liability was also
erroneous and that a new trial should have been ordered.
Our review of the jury instructions in this case shows
that it is not apportionment under Instruction No. 4 which is
improper, but rather Instruction No. 3, Interrogatory 8.
Under
the terms of that instruction, the jury was instructed to
determine the total amount of damages sustained by Hillard as a
result of Brewer’s outrageous conduct and CF’s failure to stop
Brewer’s conduct once it knew or should have known of the
harassment.
As CF points out, Hillard presented two separate and
distinct claims of injury; one for intentional infliction of
-22-
emotional distress against Hillard and one against CF for the
sexual harassment by Brewer.
Because there were two separate and
distinct claims against two tortfeasors, there should have been
two damage instructions: one for the damages resulting from the
sexual harassment and one for the damages resulting from
intentional infliction of emotional distress.
However, no one
made a specific objection to Instruction No. 3, Interrogatory No.
8.
Therefore, we are stuck with what, in essence, is a total
award of $75,000 for two distinct causes of action.
In the original jury instructions, it appears that
Instruction No. 4 was an attempt to divide responsibility for the
total amount of damages between Brewer for his outrageous conduct
and CF for its negligence in failing to stop it.
Thus, we
interpret the jury’s response to mean that Brewer was liable for
$7,500 for his outrageous conduct and CF was liable for $67,500
for its negligence in failing to stop Brewer once it was put on
notice of his behavior.
We fail to see how the trial court could find that
Brewer and CF are two parties which acted in concert.
While we
understand the trial court’s logic that it is Brewer’s conduct
that CF is ultimately liable for under the sexual harassment
claim, that in and of itself does not make them joint tortfeasors
for which joint and several liability must follow.
Hence, the
trial court erred in reversing the original apportionment of the
jury in favor of joint and several liability.
We disagree with CF’s argument that it is entitled to a
new trial due to the instruction on apportionment.
-23-
As we have
stated before, it is Instruction No. 3, Interrogatory No. 8,
which is improper, not Instruction No. 4 dealing with
apportionment.
CF’s CR 59.01 arguments are equally unappealing.
Our
review of the record does not show that the damages awarded
against CF were excessive, given under the influence of
prejudiced, or in disregard of the evidence or jury instructions.
It is obvious that the jury felt that CF had notice of Brewer’s
conduct and that CF’s negligent failure to stop Brewer’s conduct
was more egregious.
Nor do we believe that the jury’s verdict
was unsupported by the record as there were several witnesses who
testified that they told Barrett about Brewer’s conduct.2
Having considered the parties’ arguments on appeal, the
trial court’s order is reversed to the extent that the trial
court found Brewer and CF to be jointly and severally liable for
Hillard’s damages and this matter is remanded to the trial court
with instructions to reinstate the original jury verdict.
The
balance of the trial court’s order is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, BREWER:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Daniel Simons
Richmond, KY
William Kenealy
Louisville, KY
BRIEF AND ORAL ARGUMENT FOR
APPELLANT, CONSOLIDATED
FREIGHTWAYS:
2
While it was established during cross-examination that no
one described Brewer’s conduct in graphic detail to Barrett, we
believe Barrett had received enough information to know that
Brewer was engaging in inappropriate conduct.
-24-
Joseph Shelton
Atlanta, GA
-25-
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