McWILLIAMS, Circuit Judge.
Nancy Baker, a single twenty-five year old mother of two children, brought suit in the United States District Court for the Eastern District of Oklahoma against her employer, The Weyerhaeuser Company, a Washington corporation with a plant in Valiant, Oklahoma. The gist of Baker's complaint was that she had been sexually harassed while on the job in Weyerhaeuser's paper mill in Valiant by a fellow employee and that Weyerhaeuser knew, or should have known, of such harassment and did not take steps to stop the harassment.
As a first cause of action, Baker pled an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In essence, Baker alleged that Weyerhaeuser knowingly allowed sexual harassment in the workplace of female employees by male employees thereby creating a hostile work environment, and she specifically alleged that she suffered "repeated offensive sexual flirtations, advances, propositions, continued and repeated verbal commentaries and sexually suggestive conduct by an employee, A.L. Caldwell, known to Weyerhaeuser and its agents and supervisors to be a sexual harasser."
As a second cause of action, Baker pled a pendent action based on the Oklahoma common law tort of intentional infliction of emotional distress by outrageous conduct.
The pendent state claim was tried to a jury simultaneously with the trial of the Title VII claim to the court. The jury returned a verdict awarding $45,000 to Baker as actual damages, and $45,000 as punitive damages. The district court later made findings in favor of Baker on her Title VII claim against Weyerhaeuser and awarded her nominal damages in the sum of $1.00. Weyerhaeuser appeals.
Title VII Claim
As indicated, the district court made its findings in the Title VII claim several weeks after the jury had returned its verdict in Baker's pendent claim based on Oklahoma law concerning intentional infliction of emotional distress by outrageous conduct. In so doing, the district court, in connection with Baker's Title VII claim, found, inter alia, as follows: (1) The basis
For conclusions of law, the district court held, inter alia, as follows: (1) sexual harassment of an employee which creates a hostile or offensive work environment is actionable under Title VII; (2) for such conduct to be actionable it must be sufficiently severe or pervasive to alter the condition of employment; (3) damages for emotional distress, however, are not actionable under Title VII; and (4) accordingly, the issues are found in favor of Baker and her nominal damages are assessed at $1.00.
On appeal, Weyerhaeuser challenges the district court's findings and conclusions on Baker's Title VII claim, alleging that they are so sketchy and so conclusory that there cannot be a meaningful appellate review, and, further, even if the findings and conclusions be accepted as sufficient, the record does not support them.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer ... to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privilege of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49, 59 (1986), the Supreme Court held "that a plaintiff may establish a violation of Title VII by proving discrimination based on sex has created a hostile or abusive work environment." In line with Meritor, in Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987), we spoke as follows:
Both parties agree that Baker's Title VII claim is not based on so-called "quid pro quo harassment," but is based on so-called "hostile work environment" caused by sexual harassment. As above stated, the district court found that the sexual harassment of Baker by A.L. Caldwell was so severe and continuous as to create a hostile and abusive work environment establishing a Title VII claim, and that Weyerhaeuser either knew, or should have known of such fact, and failed to take corrective measures. We think the district court's findings are sufficient for appellate review, and, in our view, the record supports such findings.
Baker testified at length concerning the sexual harassment inflicted on her by Caldwell from January 1987 until July 1987. We need not recite the details, as Weyerhaeuser concedes that Caldwell did sexually harass Baker. Suffice it to say, Caldwell's sexual overtures were explicit and repeated, but unsuccessful and never welcomed. There was testimony that when Baker spurned Caldwell's advances, he gave her "extra" work.
Baker testified that in January, 1987, she complained to her supervisor, Kellebrew, and that in June, 1987, she complained to Kellebrew and his substitute, Duckett, about Caldwell's actions, and that both Kellebrew and Duckett were aware that Caldwell had been disciplined in 1986 for sexually harassing another female employee. The extent of Baker's complaint to Kellebrew and Duckett is disputed. Her testimony, however, was that she complained in sufficient detail to put Kellebrew and Duckett on notice that hers was a serious complaint, and that Kellebrew and Duckett did nothing in response to her complaints. Further, neither Kellebrew nor Duckett reported Baker's complaint to "upstairs management," as they were required to do by company policy.
In July 1987, Caldwell was investigated on a complaint by another female employee. In the course of that investigation, "upstairs management" first became aware of Baker's prior complaints. This investigation resulted in the suspension of Caldwell, and three days after Caldwell was suspended, he was discharged.
In the course of his findings on Baker's Title VII claim, the district court noted that Caldwell was "senior" to Baker and "sometimes acted as plaintiff's supervisor. The jury was instructed on agency and found an agency relationship between Caldwell and the defendant." Weyerhaeuser argues, on appeal, that such was a critical finding and is not supported by the record. We do not agree that such was a critical finding. The crucial findings of the district court, in our view, were that pervasive sexual harassment of Baker by Caldwell prevailed in the workplace, and that Weyerhaeuser, through Kellebrew and Duckett, and others, knew, or should have known, of such harassment and did nothing to correct it. Whether Caldwell "sometimes" acted as Baker's supervisor was not the basis for the district court's finding in favor of Baker.
Weyerhaeuser also notes that in its findings on Baker's Title VII claim, the district judge stated that his findings in the Title VII case were in accord with the jury's verdict in the trial of Baker's pendent claim. Weyerhaeuser argues that the district court's findings in the Title VII action did not have to be in accord with the district court's understanding of the general verdict returned by the jury since the essential elements of the Title VII claim were not the same as the essential elements in the present claim. Be that as it may, we do not regard the district judge's comment to indicate that he was "bound" to follow his understanding of the jury's verdict. It was simply a comment that his findings on the Title VII claim were in accord with his understanding of the jury's verdict in the pendent claim, i.e., that there was pervasive sexual harassment of Baker by Caldwell
In sum, the district court's findings and conclusions are sufficient for appellate review, and the crucial findings are supported by the record. In support of the foregoing, see, by way of example, Hall v. Gus Construction Company, Inc., 842 F.2d 1010 (8th Cir.1988) and Hunter v. Allis-Chalmers Corp., Engine Div., 797 F.2d 1417 (7th Cir.1986).
In Allis-Chalmers, Hunter, a black, brought an action under 42 U.S.C. § 1981 against his corporate employer, Allis-Chalmers, and one of its supervisors, for their failure to protect him from racial harassment in the workplace by white co-workers. Hunter prevailed in a jury trial. On appeal, the employer, Allis-Chalmers, claimed that it could not be liable for every racial slur by a non-supervisory member of its work force and could not "be charged by law with discharging all the Archie Bunkers in its employ." The Seventh Circuit agreed but went on to describe, as follows, how a corporate employer might still be liable for racial harassment in the workplace:
In Hall, three female road construction traffic controllers, claiming that they had been constructively discharged as result of sexual harassment by male co-workers, brought a Title VII action against their corporate employer and one of its foremen. A magistrate, hearing the case pursuant to agreement of the parties, entered judgment for the plaintiffs. On appeal, the defendants challenged the sufficiency of the evidence to show employer and supervisory liability. In holding that there was sufficient evidence, the Eighth Circuit adopted the rationale of Hunter v. Allis-Chalmers, supra, and in so doing spoke as follows:
As indicated, Baker's pendent state claim was based on the same underlying facts which formed the basis for her Title VII claim. In this regard, it was Baker's theory of the case that such facts showed an intentional infliction by Weyerhaeuser of emotional distress on Baker through its own outrageous conduct. The "outrageous conduct," in turn, was established, according to Baker, by Weyerhaeuser's failure to take corrective action against Caldwell even though Weyerhaeuser had knowledge, either actual or constructive, that Caldwell was severely and repeatedly sexually harassing Baker, as well as many other female employees, over a prolonged period of time. In line therewith, Baker emphasizes that Caldwell's sexual harassment of her was preceded in 1986 when Caldwell was disciplined by Weyerhaeuser for sexually harassing another employee. As a result of Weyerhaeuser's conduct, Baker claimed that she suffered severe emotional distress, for which she sought both actual and punitive damages. As indicated, the jury awarded Baker $45,000 as actual damages and $45,000 as punitive damages. Weyerhaeuser seeks reversal of the judgment entered.
At the close of Baker's case, Weyerhaeuser moved for a directed verdict on Baker's pendent claim. The motion was denied, and, on appeal, Weyerhaeuser argued that such is reversible error. On appeal, counsel states "that one necessary element to plaintiff's success on her state tort law claim of intentional infliction of emotional distress was that of respondeat superior liability imputed to Weyerhaeuser for the acts of Caldwell." Counsel argues that Weyerhaeuser could only be liable on the basis of respondeat superior for Caldwell's harassment of Baker if such were committed by Caldwell in the course of, and in furtherance of, his employment with Weyerhaeuser, which obviously it was not, or if Weyerhaeuser, after learning of the harassment, ratified his actions, which it did not — rather, it fired Caldwell.
In our view, this argument misses the point. The gravamen of Baker's action against Weyerhaeuser was not that Caldwell's actions towards Baker were, on the basis of an agency relationship, somehow themselves imputed to Weyerhaeuser. Rather, Baker's action against Weyerhaeuser was based on Weyerhaeuser's own conduct, namely, its utter failure through its officers and supervisors to take action against Caldwell, a known sexual harasser of females.
Counsel next complains about the instructions given the jury, stating that many of them were "unnecessary and were not requested by either party."
Weyerhaeuser's final argument is that by no stretch of anyone's imagination could its "conduct" equate with "outrageous conduct," and therefore Baker's pendent claim must fail in its entirety, which would include her claim for both actual and punitive damages. In a nutshell, Weyerhaeuser's position is that when it learned of Caldwell's actions toward Baker, it promptly took the ultimate disciplinary action by firing him. Baker counters by claiming, in effect, that Caldwell should have been fired long before he actually was, that in the interim between the time he should have been fired and was fired, Weyerhaeuser, knowing that Caldwell was harassing Baker and others, did nothing when it should have acted, and, by its inaction, permitted a known sex maniac to run amok in the workplace, inflicting extreme emotional distress on a twenty-five year old mother of two who desperately needed to keep her job. Such posed an issue of fact which the jury has now resolved.