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STEWART v. WEIS MKTS.

June 30, 1995

HELEN STEWART, Plaintiff
v.
WEIS MARKETS, INC., Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 June 30, 1995

 BACKGROUND

 Plaintiff Helen Stewart filed this employment discrimination action against her former employer, Weis Markets, *fn1" Inc. (Weis Markets) for alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq. (Title VII) and the Pennsylvania Human Relations Act, 43 P.S. § 955 et seq. (PHRA). *fn2"

 Plaintiff alleges that she was subjected to a sexually hostile working environment in the produce department at Weis Markets' Lycoming Creek store in Williamsport, Pennsylvania, which resulted in her constructive discharge on September 21, 1990.

 This case was tried to a jury, which awarded plaintiff $ 139,125.00 as compensatory damages against Weis Markets for the harassment which she endured while in its employ. The parties stipulated that if a liability verdict was returned on plaintiff's claim of constructive discharge, plaintiff was entitled to receive damages of $ 5,790.40 as back pay.

 Plaintiff was granted the right to a jury trial under this court's ruling that the Civil Rights Act of 1991 would be applied retroactively to claims which accrued prior to its November 21, 1991 effective date. That ruling turned out to be erroneous. Subsequent to the rendering of the jury verdict in this case and while post-trial motions were pending, the United States Supreme Court ruled in Landgraf v. USI Film Production, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), that the 1991 Amendments to the Civil Rights Act of 1964 are not retroactive. Plaintiff was, therefore, not entitled to a jury trial on her Title VII claims. There was never any serious question about the fact that she had no right to demand a jury trial for the claims asserted under the PHRA.

 Although the non-retroactivity of the 1991 Act precludes plaintiff from recovering compensatory damages under Title VII for the harassment she endured while employed at Weis Markets, she has the right to recover compensatory damages for such conduct under the PHRA.

 In a telephone conference call with counsel, both sides declined this court's offer to re-assign this matter to another judge in view of this court's participation in pre-trial discussions and both agreed that the case should be decided by the undersigned judge on the existing record. Pursuant to that agreement, we now enter the following findings of fact and conclusions of law based upon the evidence presented at the jury trial. The court will consider the verdict rendered by the jury to be an advisory verdict pursuant to Fed. R. Civ. P. 39(c).

 FINDINGS OF FACT

 1. Weis Markets is a retail supermarket chain, with stores in several mid-Atlantic states including three stores in Williamsport, Pennsylvania.

 2. Helen Stewart was hired by defendant Weis Markets on September 2, 1988 as a part-time salad bar clerk at Weis Markets' Lycoming Creek Road facility in Williamsport, Pennsylvania.

 3. Stewart successfully completed her probationary period, and was placed in charge of the salad bar. Her duties included interviewing prospective salad bar clerks, coordinating the schedule for the salad bar workers, training new salad bar clerks, and insuring that the salad bar was sufficiently stocked.

 4. Her work was satisfactory to Weis Markets and she received periodic pay increases. She had aspirations of becoming a full-time employee of Weis Markets.

 5. Stewart was not advised at the time of her hiring of the existence of any company policy prohibiting sexual harassment of employees.

 6. When she was hired, Stewart signed a personnel orientation form. That form contained no reference to any sexual harassment policy of Weis Markets.

 7. During her employment with Weis Markets, Stewart received no written reprimands, and her personnel file contained no written documentation of performance problems or any recommendation by defendant Weis Markets regarding disciplinary action.

 8. Thomas Botsford was manager of the produce department at Weis Markets' Lycoming Creek store and was plaintiff's immediate supervisor.

 9. During much of her employment with Weis Markets, Stewart was subjected to pervasive verbal harassment of a sexual nature on a regular basis by Botsford.

 10. Botsford routinely addressed comments to her with the epithets: "sleazebag," "douchebag," and "bitch." He would also frequently ask her if she "got any last night," would tell her to "bend over, Helen Baby," and would state "while you're down there," to Stewart while flipping up his work apron as a suggestion of oral sex. He also suggested that Stewart must like young men, and told a co-worker to take her into the cooler and "take care of her." After an elderly lady customer complimented Stewart on her work by stating, "You are very good," Botsford stated to the customer, "How do you know, have you ever had her?"

 11. He addressed similar comments to other female employees under his supervision.

 12. Stewart let Botsford know that his harassing comments were unwelcome.

 13. Her efforts to change his behavior had no effect and the harassment continued.

 14. Other employees who worked in the produce department at Weis Markets' Lycoming Creek Road store overheard Botsford's sexual harassment of Helen Stewart and other female employees under his supervision.

 15. On-site store supervisory personnel, specifically store manager Dean Meyer, knew or reasonably should have known of Botsford's harassing conduct. The store manager and his assistant worked in the store on a daily basis, week in and week out, and could have been unaware of Botsford's harassing conduct toward the female employees under his supervision only if they ignored the obvious and turned a deaf ear and a blind eye to such actions.

 17. His comments to Stewart were neither welcome nor invited nor responded to by her in kind in a joking manner.

 18. Botsford's use of sexually offensive language and directing of offensive conduct toward her was reasonably perceived as abusive by Stewart.

 19. His offensive comments caused her to become upset, on occasion to the point of tears.

 20. Other employees in the produce department aware of and offended by Botsford's sexual innuendos and harassing remarks included: Kelly Eiswerth, Lil Sease, Terry Miller, and Dale LeVan.

 21. Weis employees at the Lycoming Creek store outside of the produce department were also aware of Botsford's sexually harassing conduct.

 22. Weis Markets published a part-time employee manual which included a prohibition against sexual harassment in the workplace. The policy described sexual harassment as conduct which includes "unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature such as uninvited touching or sexually related comments."

 23. Plaintiff never received a copy of this manual nor had this policy explained to her.

 24. Although, at some point, Weis Markets established a hot line for reporting personnel problems in confidentiality and posted a notice concerning the company policy prohibiting harassment, this information was not made known to Stewart prior to her departure from Weis Markets.

 25. In August of 1990, the day she was scheduled to leave on a two-week vacation, Stewart reported Botsford's harassment to Botsford's immediate superior, James Shaffer, District Supervisor of Produce.

 26. Shaffer oversaw the produce departments of fifteen central Pennsylvania Weis Markets stores.

 27. Shaffer was not in the Lycoming Creek store on a day-to-day basis.

 28. He visited that store on average once or twice per week.

 29. Stewart told Shaffer that she intended to resign because she could no longer tolerate Botsford's sexually harassing comments and conduct.

 30. This was the first time that Stewart had spoken to Shaffer about the problem.

 31. Shaffer immediately began investigating plaintiff's report of harassment and sought corroboration of her report from Dale Levan, another employee of the produce department.

 32. Levan confirmed much of what plaintiff had reported to Shaffer about harassment by Botsford.

 33. After receiving confirmation from Levan, Shaffer immediately confronted Botsford, who admitted making the comments which plaintiff had described to Shaffer.

 34. Shaffer immediately reprimanded Botsford and told him that the harassment must cease.

 35. Botsford received a written reprimand on October 18, 1990, one month after Stewart's departure, for "using language unbecoming to a department head to his employees."

 36. No further action was taken against Botsford for his harassment of Stewart and the other females employees of his department.

 37. Plaintiff returned from vacation on September 8, 1990.

 38. Botsford's sexual harassment of her did, indeed, cease.

 39. However, Botsford stepped up criticism of the manner in which plaintiff performed her job.

 40. A conflict between plaintiff and Botsford during that period over district-wide changes in the operation of the salad bar implemented while plaintiff was on vacation and with which she disagreed accounted for some of the criticism.

 41. Plaintiff disagreed with the changes implemented, thought them impractical, and expressed her disapproval to Botsford.

 42. After returning from vacation September 10, 1990, plaintiff worked only nine days.

 43. At the beginning of the work day on Friday, September 21, 1990, Botsford began criticizing plaintiff for her failure to submit a salad bar schedule for the following week as he had previously directed her to do, and to handle certain salad bar scheduling matters in accordance with the new scheduling directives.

 44. Plaintiff became angry and upset at what she perceived to be undue harassment or retaliation for her reporting the sexual harassment.

 45. Plaintiff announced that she was not going to take any more harassment from Botsford, announced that she was quitting and left the store.

 46. She never returned to the store.

 47. Immediately after leaving the store, plaintiff telephoned Shaffer and Norman S. Rich, Weis' Director of Store Operations, to report what had happened, and to inform them that she had quit her job because of Botsford.

 48. After speaking with plaintiff, Rich contacted Shaffer and directed him to resolve the problem and stated that if the problem was a personality conflict, Shaffer should offer to transfer her to another Williamsport Weis Markets store located on River Avenue, a few miles from the Lycoming Creek Road store.

 49. Shaffer telephoned plaintiff the next day and offered her the same position at the same pay and benefits at the River Avenue store.

 50. Plaintiff declined the offer of continuing employment at the River Avenue Weis Markets store.

 51. She refused to take the position because she had heard negative comments about the produce department manager at the River Avenue store and thought that she would be no better off under his supervision than she had been under Botsford's.

 52. Plaintiff did not have any further communications with Weis Markets regarding her possible ...


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