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EEOC v. A. SAM & SONS PRODUCE CO.

August 1, 1994

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, -vs- A. SAM & SONS PRODUCE COMPANY, INC., Defendant.


The opinion of the court was delivered by: JOHN T. ELFVIN

 The Equal Employment Opportunity Commission ("the EEOC") brought this action, pursuant to its authority under 42 U.S.C. § 2000e-5(f)(1), alleging that the defendant ("A. Sam") sexually harassed its employees Brenda Borello *fn1" and Linda Titus and then discharged them in retaliation for their complaining of such, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Specifically, the EEOC alleges that A. Sam's vice-president Charles Sam ("Charles") directed at Borello and Titus language that was so abusive and demeaning as to create an actionable "hostile work environment." A bench trial was held in February of 1993 after which the parties exchanged and filed proposed findings of fact and conclusions of law and responses thereto and thereafter presented oral arguments.

 A. Sam is a farmer, packer and distributor of produce. During the relevant period Essau Sam ("Essau") was its president, his sister Helen Sam ("Helen") was its office manager and corporate secretary and Charles, Essau's son, was its vice president. *fn2" A. Sam had no written sexual harassment policy or grievance procedure (Joint Stipulation at PP 27, 28).

 A. Sam hired Borello July 4, 1987 as a full-time bookkeeper. Her duties included calculating taxes for A. Sam's trucks, handling accounts payable, converting the accounts payable information from paper documents to computer files and acting occasionally as a receptionist. Titus was hired in November 1986 for a temporary position selling fruit baskets. In January 1987 A. Sam gave her a permanent position converting the accounts receivable information to computer files, performing secretarial work and selling produce. Both Titus and Borello were supervised by Helen.

 In 1983, before Borello or Titus was hired, Charles referred to A. Sam's office female employee Tammy Mowrey as a "fucking slut" (Transcript ["Tr."] at 110), compelling her to quit immediately thereafter and making her feel demeaned (Tr. at 113) and emotionally upset (Tr. at 113, 118). After Mowrey had returned home and told her father of this comment, he confronted Helen about Charles's behavior. She apologized and assured him that she would give Mowrey a good reference. (Tr. at 118). During Borello's and Titus's tenure, A. Sam's dispatch office worker Mike Albach overheard Charles state on the telephone "that all the girls are whores and all they're good for is *** fucking." (Tr. at 126).

 Borello's work required her to have intermittent contact with Charles -- e.g., delivering telephone messages to him, getting authorizations from him for delivery slips and seeing him when he passed through her office. (Tr. at 42). In addition to Charles's sporadic yelling and screaming at Borello during her employment (Tr. at 73), a more serious series of incidents began late in 1987. On or about December 4th, Borello had left on Charles's desk a delivery slip for his authorization. The following morning she found it on her desk, Charles having written on it "whore what is the amount??" See Plaintiff's Exh. 12. *fn3" Borello immediately apprised Helen and Essau of this, *fn4" and then went to the bathroom and cried. Further, she contemporaneously noted, in writing, this incident. Later that day Borello overheard a loud argument between Charles and Helen in which he yelled that all the girls in the office were "whores and all [they] knew how to do [was] fuck." This upset Borello further.

 Later (during the next week) Charles, while walking through Borello's office and in her presence, stated "nothing but a whore, nothing but a little whore, just a whore." *fn5" (Tr. at 50). About a week thereafter, while Borello was at the time clock waiting to punch in, Charles told her "why don't you stare at the time clock a little bit more ya whore." *fn6" These incidents upset Borello, making her feel belittled and demeaned. She again apprised Helen of the incidents, stating after the time clock incident that "enough was enough" and that Charles's conduct had to stop. Helen agreed that Charles's conduct was objectionable and assured Borello that she would talk to Charles about his conduct. Borello also told Essau of Charles's conduct, who also assured her he would talk to Charles. *fn7"

 About a week before Borello was dismissed (on or about December 29th) she telephoned Charles to advise him that he had messages. In response, Charles shouted "go fuck yourself" and hung up. Titus, who at the time was sitting very close to Borello, overheard this exchange. (Tr. at 98). Borello again confronted Helen and told her of this incident stating "enough is enough" and that "if [Helen] didn't do something about it, [she] was going to do something about it because [she] shouldn't have to put up with this." (Tr. at 56). Helen then called Titus into her office, at Borello's request, and Titus verified what had occurred (Titus's recollection, however, was that Charles had called Borello a "whore"). Borello also told Essau of Charles's conduct and warned him that if he did not do "something" about Charles's behavior, she would.

 Despite their assurances to Borello that they would, neither Helen nor Essau ever confronted Charles about his behavior toward Borello.

 Titus also had intermittent contact with Charles during her employment. She claims to have overheard, through the walls of his office, Charles call unspecified persons "whores" on three occasions and claims to have overheard Charles say "what good are Helen's whores in the office." Further, Borello showed Titus the delivery slip with "whore what is the amount??" written on it, and Titus heard the aforementioned telephone exchange between Charles and Borello. However, Titus admitted that Charles had never called her a whore, *fn8" and there is no persuasive evidence in the record that he directed sexually derogatory language at her. Titus worked closely with Charles for a period of time (the length of which is unclear from the record), selling onions over the telephone. Charles told her that her job performance and telephone skills were unsatisfactory and instructed her on how to improve.

 There is no persuasive evidence that Titus ever complained to Essau or Helen that Charles called women whores, that he used sexually derogatory language or that he was discriminatory in his treatment of women. *fn9" The only indication that Titus made any complaint to Helen was Titus's testimony that she asked Helen "to have Chuck treat us a little bit more nicer and not swear at us." (Tr. at 80).

 Helen telephoned Borello the night of January 4, 1988 to inform her that she was being laid off because of a lack of work. *fn10" The proffered reason surprised Borello because her workload during December 1987 had been heavy and she had worked overtime in ten of the fourteen weeks from and including that ending September 26 and to and including that ending December 26. Soon after Borello's layoff A. Sam's employee Edward LeBarron, who had not previously worked in the office area, moved into Borello's office and assumed many of her duties. He worked overtime during seven of the twelve weeks between December 27, 1987 and March 19, 1988. Also during this period, A. Sam's office employee Jennifer Schrantz was given additional duties (ones Borello had performed previously) resulting in her working overtime in ten of such weeks (an average of 5.63 overtime hours per week).

 A. Sam advertised for a bookkeeper February 19, 1988 and hired Oliver Davis as such February 27th. His hiring did not ameliorate Schrantz's workload. Davis's duties included updating accounts payable and truck permits, balancing bankbooks and putting inventory and accounts payable information into the computer. Although Davis had taken college-level accounting classes, his high school accounting and basic office skills were sufficient in fulfilling his duties for A. Sam. Davis resigned in May 1988 despite Helen's request that he stay on. Schrantz quit her payroll job in April 1988 and trained her replacement before she left. A. Sam advertised for a bookkeeper June 1st and July 11th. Further, A. Sam advertised for and hired four additional office workers in the year after Schrantz quit.


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