Opinion
No. 2-073 / 01-0657.
Filed August 14, 2002.
Appeal from the Iowa District Court for Black Hawk County, THOMAS N. BOWER, Judge.
Gordon appeals the dismissal of her sexual harassment petition, contending her employer failed to take prompt remedial action to address her harassment. AFFIRMED.
John Hines and Lynn Smith, Waterloo, for appellant.
Stephen Powell and Robert Ford, Waterloo, for appellee.
Heard by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
The only issue in this sexual harassment case is whether an employer took prompt remedial action to stop harassment in the workplace. The district court concluded it did. We agree and, accordingly, affirm the court's dismissal of the harassment petition.
I. Background Facts and Proceedings
Eagle Tanning Company of Waterloo processes raw cowhides into leather. Annette Gordon began working there in January 1996. She was required to place raw hides on a table, hose them down, then squeeze the water off and dry the hides.
The trial transcript reveals and the district court found that, from the beginning, two coworkers made sexually explicit remarks and gestures directed at Gordon and sprayed her with water to reveal her private parts. Gordon generally complained to her first floor supervisor. Although Gordon claimed he witnessed some of the offending conduct, he did nothing. After several weeks on the job, Gordon voiced a general complaint to her new floor supervisor, James Payne. Payne advised the coworkers to stop spraying water on Gordon but did not refer the matter to higher authorities, believing the conduct as generally described to him did not amount to sexual harassment.
These included statements regarding their sexual prowess, sexual songs, sexual gestures, suggestions that Gordon become a stripper, requests for dates with Gordon, comments about Gordon sleeping with other male employees, and references to her as a whore, slut, and bitch.
Sometime in February 1996, Gordon again approached Payne about her coworkers' conduct and provided him with a detailed description of the gestures and statements they were making. Payne assigned Gordon to perform different duties for the rest of the shift, told the coworkers to "knock off whatever they were doing," and scheduled a meeting with Human Resources Director Craig Cutsforth for the morning following Gordon's night shift.
The next morning, Gordon met with Payne and Cutsforth. She asked to be moved away from the offending men. Cutsworth indicated this would not be possible due to seniority issues. He spoke to the coworkers, told them to stop the offending conduct, and advised them their jobs would be in jeopardy if they did not. Cutsworth also told Payne to keep a close eye on the men. On March 11, 1996, just two months after she began working at the Tannery, Gordon quit her job, stating she could no longer take the harassment.
Gordon sued Eagle Tanning for sexual harassment under the Iowa and federal civil rights acts. Following a bench trial, the district court determined Gordon was sexually harassed, but also determined that Eagle Tanning took prompt and appropriate remedial action once the company became aware of the harassment. The court dismissed Gordon's petition and this appeal followed.
She also filed but did not pursue common law claims for assault and battery and intentional infliction of emotional distress.
II. Standard of Review
A case tried at law to the district court is reviewed for errors of law. Lynch v. City of Des Moines, 454 N.W.2d 827, 829 (Iowa 1990). The district court's fact-findings are binding on appeal if they are supported by substantial evidence. Id. When a district court hears evidence and concludes a party has not sustained its burden of proof on an issue, we will not alter the conclusion unless we find that "the evidence is so overwhelming that only one reasonable inference on each critical fact issue can be drawn." Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995) (" Falczynski I").
III. Sexual Harassment Claim
Gordon claims sexual harassment based on a hostile work environment. See Lynch, 454 N.W.2d at 833 (recognizing that a sexually hostile work environment is a form of illegal sex discrimination under the Iowa Civil Rights Act); Jacob-Mua v. Veneman, 289 F.3d 517, 522 (8th Cir. 2002) (setting forth elements of a Title VII hostile work environment claim). Gordon was required to show: (1) she was a member of a protected class, (2) she was subjected to unwelcome harassment, (3) the harassment was based on sex, (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take prompt and appropriate remedial action. Id.
Only the fifth element is at issue. Once an employer is aware of sexual harassment, the employer must take both "prompt" and "appropriate" remedial action. Lynch, 454 N.W.2d at 833; see also Callicutt v. Pepsi Bottling Group, Inc., ___ F. Supp.2d ___, ___ (D.Minn. 2002) (noting remedial measures must be "adequate"). The action must be reasonably calculated to end the harassment. Kopp v. Samaritan Health System, Inc., 13 F.3d 264, 269 (8th Cir. 1993); Cherry v. Menard, Inc., 101 F. Supp.2d 1160, 1179 (N.D.Iowa 2000). Factors used to evaluate the reasonableness of remedial measures may include the amount of time between the notice and the action, the options available to the employer, such as training, reassignment, written warnings and reprimands, or termination, and consideration of whether the actions ended the harassment. Cherry, 101 F. Supp.2d at 1179.
In analyzing the state law claim, federal law is persuasive but not binding. Lynch, 454 N.W.2d at 833 n. 5.
There is no serious dispute that Eagle Tanning became aware of the specific nature of the harassment within Gordon's second month on the job, if not sooner. After the company gained this specific knowledge, there is substantial evidence to support the district court's determination that it took prompt action on Gordon's complaints. Payne immediately separated Gordon from the offending coworkers, told the workers to stop their offending conduct, and scheduled a meeting with Cutsworth for the following morning. Cutsworth, in turn, spoke to Gordon and the coworkers, told the coworkers to stop harassing Gordon on pain of termination, and asked Payne to monitor their behavior. In the days following this meeting, both Payne and Cutsworth asked Gordon how things were going and Gordon responded they were better. Although Gordon denies that these post-meeting conversations took place, our standard of review precludes us from judging the credibility of the parties on this question and requires us to view the evidence in the light most favorable to upholding the judgment. See Falczynski v. Amoco Oil Co., 567 N.W.2d 447, 449 (Iowa Ct.App. 1997) (" Falczynski II").
The question of whether the employer's remedial actions were "appropriate" is closer. Gordon suggests the measures were not appropriate because they did not comport with the employer's own sexual harassment policies and ultimately were not effective in ending the harassment.
Examining the policy Cutsworth said was in effect during the period of Gordon's employment, we note that it expressly prohibited the type of conduct engaged in by her coworkers, contemplated an investigation of harassment complaints, and stated "[v]iolation of this policy is grounds for disciplinary action up to and including termination." The record reflects Eagle Tanning complied with this policy. After receiving Gordon's second complaint, Payne referred the matter to the Human Resources Department, as directed in the policy. The department, through Cutsworth, conducted an investigation, albeit cursory, that included a discussion of the complaint with all the key players. Following the investigation, the department, again through Cutsworth, verbally warned the coworkers and threatened termination if the conduct did not cease. Therefore, the remedial measures Eagle Tanning took were consistent with its sexual harassment policy and, accordingly, cannot be deemed inappropriate or inadequate on this basis.
The policy cited by Cutsworth differs from the policy included in Gordon's employment manual and a policy that was implemented after Gordon quit her job. The policy in the employment manual is less specific than the cited policy on the nature of the offending conduct and the complaint procedures to be followed and the policy implemented after Gordon quit is more specific.
We are more swayed by Gordon's claim that the company's actions were not reasonably calculated to end the harassment, a key factor in determining if the remedial measures were appropriate or adequate. See Cherry 101 F. Supp.2d at 1178. The record reflects that the company had repeatedly threatened one of the offending coworkers with termination for problems unrelated to Gordon's complaint, but had never followed through with the threat. The coworker reasonably could have surmised, therefore, that the present threat of termination was hollow. The record also reflects that the employer took no further remedial measures after the harassing conduct against Gordon recurred on March 11, 1996 and took no remedial measures when another female employee later complained of virtually identical harassment by one of the coworkers. Were we the fact-finder, we might have inferred from these facts that Eagle Tanning's remedial measures were not appropriate or adequate under the circumstances. Id., 101 F. Supp.2d at 1179 (noting the adequacy of an employer's response "will often be a question of fact for the fact-finder to resolve); a ccord Callicutt, ___ F. Supp.2d at ___ (stating whether employer's remedial actions were adequate remains a question for the jury). Our job, however, is not to determine the facts in the first instance, weigh conflicting facts, or rule based on contrary inferences we may draw from the undisputed facts. See Falczynski II, 567 N.W.2d at 449. We must instead, view the facts in the light most favorable to upholding the judgment, reversing only if we can conclude "the evidence is so overwhelming" that the only inference to be drawn from the evidence is the one we have drawn. Falczynski I, 533 N.W.2d at 230. The district court reasonably determined that Eagle Tanning did the best it could with the information it had. Given our standard of review, we must affirm this determination.
IV. Disposition
We affirm the district court's ruling dismissing Gordon's harassment petition. In light of our affirmance, we need not address Gordon's argument concerning damages.
Gordon seeks to have the costs of compiling the appendix taxed to Eagle Tanning. We deny this request and tax all costs to Gordon.
AFFIRMED.