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Konstantopoulos v. Westvaco Corp.

May 6, 1997

SHERLYN KONSTANTOPOULOS AND DIMOS KONSTANTOPOULOS,

APPELLANTS

v.

WESTVACO CORPORATION



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil No. 90-00146)

Before: SCIRICA, ALITO and WEIS, Circuit Judges

ALITO, Circuit Judge

Filed May 6, 1997

Argued: January 10, 1996

Opinion Filed: May 6, 1997

OPINION OF THE COURT

Sherlyn Konstantopoulos, a former employee of Westvaco Corporation, and her husband, Dimos Konstantopoulos, brought this action against Westvaco, asserting claims for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section(s) 2000e et seq., as well as claims under Delaware law. The district court held that the state-law claims were barred by the state Workmen's Compensation Act, and after a bench trial on the Title VII claims, the court awarded some, but not all, of the relief that the plaintiffs sought. The plaintiffs then took this appeal, but we affirm.

I.

A.

The following facts are either undisputed or were properly found by the district court. Sherlyn Konstantopoulos (hereinafter "Konstantopoulos") began work at Westvaco in September 1987. 6/30/94 Dist. Op. at 3. After initially working as a "helper" in the "Finishing Department," she was promoted in April 1989 to the position of "helper" in the "Web" Department. Id. at 3-4. The Web Department contained a single printing press that used large rolls of paper spliced together to create one continuous "web" of paper. Id. at 4. Workers in the Web Department were divided into four "tours," and Konstantopoulos was initially assigned to "D" tour under the supervision of foreman Ron Hurley. Id. at 4-5. Mike Marshall and Ed Peterman were also assigned to this tour. Id. at 5-6. At the time, Konstantopoulos was the only woman working in the Web Department, and she was given little training. Id. at 6. The district court found that Westvaco "did not in any way prepare its employees -- male and female -- to work in an environment where men were working for the first time with women and where women were working for the first time with machinery." Id. at 32.

During her time with this tour, "Ed Peterman, rather than provide substantial assistance to [Konstantopoulos] on [certain] assignments . . ., gave nonresponsive, sarcastic answers to [Konstantopoulos's] questions `quite a few times.' " For instance, Konstantopoulos testified that on one occasion when she asked for Peterman's help with a lid on a drum, he responded: "Aren't you liberated?" Id. at 8. Another time, when Konstantopoulos informed Peterman that there was a malfunction on a particular machine, Peterman told her to fix the machine herself even though she had not been trained to do so. Id. Peterman also threatened on many occasions to send Konstantopoulos back to the Finishing Department if she could not perform in the Web Department. Id. Konstantopoulos's evaluations in late May reflected "below average ratings in several categories of work, including knowledge, quantity and quality of work, and judgment and common sense." Id. at 9.

During Konstantopoulos's assignment to "D" tour, Mike Marshall engaged on several occasions in sexually suggestive behavior directed toward her. 6/30/94 Dist. Ct. Op. at 7, 10-11. For instance, one day in April when she was working about 25 feet away from Marshall, with whom she had had no prior contact, "Marshall yelled: `Sherri, look at this.' [Konstantopoulos] looked up, `saw white' and Marshall's `pants' flaps open'; [Konstantopoulos] turned her head immediately and covered her eyes. [Konstantopoulos] continued working and did not discuss this experience with anyone." Id. at 7. Konstantopoulos testified that in June 1989 Marshall made other similarly suggestive gestures or remarks on three occasions. See id. at 11.

After these incidents, Konstantopoulos met with Frank Alcamo, the plant manager, and told him about some of the things that Marshall and Peterman had done. See 6/30/94 Dist. Ct. Op. at 11. Konstantopoulos then met twice with other Westvaco management representatives on June 21, 1989. See id. The first meeting was attended by the personnel manager and the supervisor of the Web Department, as well as the union president. See id. at 11-12. Konstantopoulos reiterated the information that she had given to Alcamo and also complained that her foreman, Ron Hurley, was not training her. Id. Westvaco management then met with Marshall and Peterman, who denied the charges. See id. at 12. "Westvaco's `EEOC policy' was read to both Marshall and Peterman, along with the admonition that `increasingly severe disciplinary measures' would be taken if any further sexual harassment complaints were made against either of them." Id. Later the same day, Konstantopoulos met again with Westvaco management and agreed to be transferred to a new tour commencing the next day, June 22, 1989. See id. at 12-13.

The foreman of Konstantopoulos's new tour was Larry Cahall, who "was not informed of the circumstances underlying [Konstantopoulos's] transfer." 6/30/94 Dist. Ct. Op. at 3. Konstantopoulos experienced harassment during this tour as well. See id. at 14-16. One day in July 1989, she found a note that said: "Sherry doesn't need help, she needs a babysitter." Id. at 14. On approximately July 19, her locker (and three others) were damaged, and shortly thereafter she found trash in her locker. Id. at 14. On July 21, she filed a complaint with the Equal Employment Opportunity Commission, charging that her locker had been damaged in retaliation for her complaints against Marshall and Peterman. See id. at 20. On July 24, she reported to Cahall that her locker had been damaged. Id. at 14. Cahall then advised his supervisor, who issued a warning that anyone found guilty of vandalism would be disciplined. Id.

In August, someone wrote a sexually insulting remark concerning Konstantopoulos on a clipboard that was kept near a machine in the Web Department. See 6/30/94 Dist. Ct. Op. at 14-15. Konstantopoulos reported this incident to Cahall, who said that it would be difficult to identify the perpetrator and suggested that Konstantopoulos erase the writing or throw the clipboard away. Id. at 15.

According to Konstantopoulos, during the period from July 23 to August 28, 1989, a co-worker, Greg Games, made several sexually insulting or threatening remarks to her. See 6/30/94 Dist. Ct. Op. at 15. On one occasion, she said, he grabbed her by the neck and said that he would like to kill her. Id.

"[Konstantopoulos] did not report any of these incidents to anyone at Westvaco at the time they occurred." Id. at 15.

"[She] testified, however, that she was`upset,' `afraid,' `hurt,' `humiliated,' and `diminished' by the various incidents." Id. at 15-16. At the end of every tour, Konstantopoulos was evaluated by foreman Cahall, and these evaluations were frequently below average or unsatisfactory. See id. at 16.

On September 2, 1989, Konstantopoulos gave Cahall a note from her doctor, Costas A. Terris, advising that she should be assigned to a "light duty job" for three to four weeks due to "job and home-related stress." 6/30/94 Dist. Ct. Op. at 16. Westvaco asked Konstantopoulos for additional information concerning the type of light-duty work that she could perform, but she instead supplied a second note from Dr. Terris, dated September 14, 1989, which stated that she had been under his care since August 21, 1989, for the treatment of "severe work induced stress"; that "[t]here appear[ed] to be some improvement"; but that she should "remain off work for another 3-4 weeks." Id. at 16-17. On September 11, 1989, Konstantopoulos supplemented her prior EEOC complaint by reporting, among other things, that a "derogatory sexual remark" had been written about her on a clipboard and that foreman Cahall had not taken any action in response. Id. at 20. She stated that she had suffere d"anxiety and stress resulting in los[t] time from work and extensive medical bills." Id.

Konstantopoulos remained out of work until October 30, 1989, when she "returned to work, able and willing." Id. at 17. However, she elected to take a layoff, and she did not return to work thereafter until she was recalled on April 16, 1990. Id. On December 21, 1989, while Konstantopolous was laid off, the EEOC issued two right-to-sue letters, and on March 27, 1990, she commenced this action byfiling a complaint against Westvaco. See id. at 21. Her complaint asserted Title VII claims for sexual harassment and retaliation, as well as a state-law claim for tortious infliction of emotional distress.

When Konstantopoulos returned to work on April 16, 1990, she was again assigned to the Web Department, with Ron Hurley as her foreman. 6/30/94 Dist. Ct. Op. at 17. During her first tour, she broke a piece of machinery and was publicly chastised by Hurley. Id. at 17. During her next tour (April 23 and 24), she was temporarily transferred to the Finishing Department because there was not sufficient work in the Web Department. Id. at 18. None of her co-workers harassed her during this two-day period. Id.

On April 25, Konstantopoulos was assigned as a helper in the Web Department on Larry Cahall's tour. 6/30/94 Dist. Ct. Op. at 18. Konstantopoulos informed Cahall of her apprehension about the assignment, but Cahall was required by the collective bargaining agreement to transfer her to the Web Department "because she was the person in the Finishing Department with the most seniority who had worked in the Web Department previously." Id. Cahall, however, assured Konstantopoulos that he would be available in his office if she needed him, and he also warned the crew that he would not tolerate any harassment of her. Id. In addition, Cahall made frequent visits to the Web Department that day, "entering through a different door each time, and he spent more time than he normally would in the area." Id.

Konstantopoulos made no complaints to Cahall that day, but she testified at trial concerning two incidents involving co-workers. See id. at 18-19. She stated that Mike Marshall and Ed Peterman "squinted their eyes . . . and shook their fist[s]" at her and that another co-worker threw away her lunch. Id. The district court stated that it was not clear from the record whether Konstantopoulos's name was on her lunch bag and that the co-worker who threw away the bag stated that he had done so accidentally. See id. at 19.

After completing her shift on April 25, Konstantopoulos left without speaking to anyone from Westvaco. Id. at 19. The next day, ...


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