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LOIS ROBINSON, Plaintiff, v. JACKSONVILLE SHIPYARDS, INC.,

et al., Defendants

Case No. 86-927-Civ-J-12

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF

FLORIDA, JACKSONVILLE DIVISION

760 F. Supp. 1486; 1991 U.S. Dist. LEXIS 4678; 136 L.R.R.M.

2920; 57 Fair Empl. Prac. Cas. (BNA) 971; 55 Empl. Prac.

Dec. (CCH) P40,535

March 8, 1991, Decided

March 8, 1991, Filed

SUBSEQUENT HISTORY: Reported at: 760 F. Supp. 1486, at 1539.

PRIOR HISTORY:

Findings of Fact and Conclusions of Law of January 18, 1991, Reported at:

760 F.

Supp. 1486.

COUNSEL: For Plaintiff: Kathy G. Chinoy, Esq., Jacksonville, Florida,

Alison

Wetherfield, Esq., and Sarah E. Burns, Esq., Now Legal Defense & Education

Fund, New York, New York.

For Defendants: Eric J. Holshouser, Esq., and William H. Andrews, Esq., Jacksonville, Florida.

JUDGES: Howell W. Melton, Senior United States District Judge.

OPINIONBY: MELTON

OPINION: [*1539] [**1] ORDER, INJUNCTION AND FINAL JUDGMENT

HOWELL W. MELTON, SENIOR UNITED STATES DISTRICT JUDGE

This cause is before the Court for the entry of final judgment and an injunction in accordance with the Court's Findings of Fact and Conclusions of Law, entered herein on January 18, 1991. In an Order entered that same day, the Court offered an opportunity to defendant, Jacksonville Shipyards, Inc.

("JSI"), to register objections to plaintiff's proposed policy and procedures. JSI filed its objections herein on February 26, 1991. Plaintiff replied in a letter dated February 28, 1991, which the Court accepted for filing herein on March 1, 1991. n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Counsel should be cognizant of the strictures of Local Rule 3.01(f), which disapprove of the use of letters to present arguments to the Court.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

136 L.R.R.M. 2920; 57 Fair Empl. Prac. Cas. (BNA) 971

Plaintiff raises an issue whether some of JSI's objections are within the scope of the Court's grant. As the Findings of Fact and Conclusions of Law, at 94 (para. 34), state, the Court gave JSI time in which to submit any specific objections that relate to its ability to implement and enforce the policy and procedures, as modified. The Court grants this time for the limited purpose of raising issues in the practical execution of its mandate; the objections should not concern the substance of it.

Plaintiff objects that JSI has raised objections going to the substance of the Court's mandate. The Court agrees. A review of JSI's objections reveals that the following of [*1540] them are beyond the leave of the Court and therefore should be stricken: I(B), I(D), I(E), I(F), II(A), II(B), III(C), III(D), IV(A), IV(B), IV(C), IV(D), IV(F), and IV(G). Also, JSI's gratuitous inclusion of a

letter allegedly written by two of its female employees is an unauthorized supplement to the record; it will be stricken. By the same token, the second paragraph of the letter from plaintiff's counsel, in response to the letter attached by JSI, adds without permission to a record that is closed; it will be stricken.

[**3]

JSI makes a request in its objections for a hearing. This case was tried over the course of several days and JSI had the option to introduce evidence on a remedy. It did not. The opportunity to object that this Court provided was an extraordinary exercise of discretion in order to secure input that could enhance the workability of the injunction. The Court finds no need to hold a

hearing to gain further input.

Objection I(A) proposes that the Statement of Prohibited Conduct is too open-ended if sexual comments or jokes are prohibited when a person has "indicated" that they are objectionable rather than an express advance statement of disapproval. Were the work environment at JSI pristine, this argument might merit consideration. But the very purpose of this injunction is to remedy a hostile work environment. As such, "breathing room" for the victims of that environment must be created. The objection is overruled.

Objection I(C) relays JSI's concern that "as a practical matter JSI cannot prohibit displays or possession of materials on ships by employees, such as ship crew members." The Court understands that JSI may lack the legal authority to direct the removal of materials on [**4] ships, but this does not exhaust JSI's avenues for controlling the work environment. Consistent with its

obligations under the policy and procedures, JSI shall take such steps that are within its power to control the work environment aboard ships, including consultation with ship owners about the removal or covering of pictures posted aboard ships and storage of materials belonging to crew members, during repairs.

Objection II(C) recommends flexibility in the discipline of management personnel. Plaintiff concedes this objection is "laudable" if properly communicated to workers. The substance of the objection has been incorporated into the injunction. However, JSI should remain cognizant of its obligation to exercise its "flexibility" consistent with its duty to stop unlawful conduct.

See Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).

Objection III(A) speaks to the access of complainants to the files on sexual harassment complaints. Plaintiff expresses her concern that JSI's language does not achieve her goal that complainants know from the start of the process how long disposition of the complaint will take. In the Court's view, the two issues are distinct. [**5] JSI's objection is valid and plaintiff's concern is valid. Requests by complainants to see files will receive response within a reasonable time. Moreover, although the injunction does not contain plaintiff's language, it is entered under the contemplation that the Investigative Officers will give each complainant an estimate of the expected length of the investigation. While the estimate is not binding, the ability to meet it, together with the reasons for any failure to meet it, will be properly considered in assessing JSI's good faith in implementing the injunction.

Objection III(B) states that "requiring posting of the Policy in 'convenient' locations calls for an opinion judgment." While this is true, the good faith decision by JSI to determine "convenient" locations can hardly be assailed. In case of doubt, JSI may consult with plaintiff or her counsel.

Objections III(E) and III(F) have been considered and incorporated into the Court's injunction.

Objection III(G) is well-founded. Plaintiff urges that the language she proposed is designed to secure access to all interviews of alleged harassers and witnesses and to notes of such interviews. The Court is of the opinion that the [**6] guarantee to complainants of access to the investigation [*1541] file adequately covers this issue, and should be construed as such.

Objection IV(E) raises the salient point that plaintiff's proposal included training on racial harassment when that issue is not present in this case. This is a sex discrimination case and the remedy cannot exceed the scope of the cause of action.

While the Court will strike Objections IV(B) and IV(C), plaintiff indicates a willingness to address reductions in JSI's costs for training if the effectiveness of the training can be maintained. The Court leaves it to the parties to negotiate any such changes and experiment accordingly; the

injunction should not be read to bar any agreed alterations in the training program designed to reduce its cost or enhance its effectiveness.

In accordance with the Findings of Fact and Conclusions of Law and the foregoing, it is ORDERED AND ADJUDGED:

1. That the Court hereby strikes defendant's objections I(B), I(D), I(E), I(F), II(A), II(B), III(C), III(D), IV(A), IV(B), IV(D), IV(F), IV(G), Attachment 2 to the objections, and the second paragraph of plaintiff's letter memorandum;

2. That defendant Jacksonville Shipyards, Inc., [**7] is hereby enjoined to cease and desist from the maintenance of a work environment that is hostile to women because of their sex and to remedy the hostile work environment through the implementation, forthwith, of the Sexual Harassment Policy, which consists of the "Statement of Policy," "Statement of Prohibited Conduct," "Schedule

of Penalties for Misconduct," "Procedures for Making, Investigating and Resolving Sexual Harassment and Retaliation Complaints," and "Procedures and Rules for Education and Training," attached as an appendix hereto and incorporated by reference; and

3. That final judgment is hereby entered as follows:

(a) dismissing defendant John Kiedrowski from this action;

(b) in favor of all remaining defendants and against plaintiff on the claim made pursuant to Executive Order No. 11246;

(c) in favor of defendants Arnold McIlwain, Elmer L. Ahlwardt, Everette P. Owens, and Ellis Lovett and against plaintiff on the claim made pursuant to Title VII of the Civil Rights Act of 1964;

(d) in favor of plaintiff and against defendants Lawrence Brown and John Stewart on the issue of liability for the Title VII claim, without an award of damages or other relief; and

[**8] (e) in favor of plaintiff and against defendant Jacksonville Shipyards, Inc., on the Title VII claim, for nominal damages in the amount of one dollar ($1.00), for costs and attorney fees in an amount to be determined, and for injunctive relief in the form described in the previous section of this Order.

DONE AND ORDERED in Chambers at Jacksonville, Florida, this 8th day of

March 1991.

JACKSONVILLE SHIPYARDS, INC.

SEXUAL HARASSMENT POLICY

STATEMENT OF POLICY

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, sex, age or national origin. Sexual harassment is included among the prohibitions.

Sexual harassment, according to the federal Equal Employment Opportunity Commission (EEOC), consists of unwelcome sexual advances, requests for sexual favors or other verbal or physical acts of a sexual or sex-based nature where (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; (2) an employment decision is based on an individual's acceptance or rejection of such conduct; or (3) such conduct interferes with an individual's work performance or creates an intimidating, [**9] hostile or offensive working environment.

It is also unlawful to retaliate or take reprisal in any way against

anyone who [*1542] has articulated any concern about sexual harassment or discrimination, whether that concern relates to harassment of or discrimination against the individual raising the concern or against another individual.

Examples of conduct that would be considered sexual harassment or related retaliation are set forth in the Statement of Prohibited Conduct which follows. These examples are provided to illustrate the kind of conduct proscribed by this Policy; the list is not exhaustive.

Jacksonville Shipyards, Inc., and its agents are under a duty to investigate and eradicate any form of sexual harassment or sex discrimination or retaliation. To further that end, JSI has issued a procedure for making complaints about conduct in violation of this Policy and a schedule for violation of this Policy.

Sexual harassment is unlawful, and such prohibited conduct exposes not only JSI, but individuals involved in such conduct, to significant liability under the law. Employees at all times should treat other employees respectfully and with dignity in a manner so as not to offend the [**10] sensibilities of a co-worker. Accordingly, JSI's management is committed to vigorously enforcing

its Sexual Harassment Policy at all levels within the Company.

STATEMENT OF PROHIBITED CONDUCT

The management of Jacksonville Shipyards, Inc., considers the following conduct to represent some of the types of acts which violate JSI's Sexual Harassment Policy:

A. Physical assaults of a sexual nature, such as:

(1) rape, sexual battery, molestation or attempts to commit these assaults; and

(2) intentional physical conduct which is sexual in nature, such as touching, pinching, patting, grabbing, brushing against another employee's body, or poking another employee's body.

B. Unwanted sexual advances, propositions or other sexual comments, such as:

(1) sexually-oriented gestures, noises, remarks, jokes, or comments about a person's sexuality or sexual experience directed at or made in the presence of any employee who indicates or has indicated in any way that such conduct in his or her presence is unwelcome;

(2) preferential treatment or promise of preferential treatment to an employee for submitting to sexual conduct, including soliciting or attempting to solicit [**11] any employee to engage in sexual activity for compensation or reward; and

(3) subjecting, or threats of subjecting, an employee to unwelcome sexual attention or conduct or intentionally making performance of the employee's job more difficult because of that employee's sex.

C. Sexual or discriminatory displays or publications anywhere in JSI's workplace by JSI employees, such as:

(1) displaying pictures, posters, calendars, graffiti, objects, promotional materials, reading materials, or other materials that are sexually suggestive, sexually demeaning, or pornographic, or bringing into the JSI work environment or possessing any such material to read, display or view at work. A picture will be presumed to be sexually suggestive if it depicts a person of either sex who is not fully clothed or in clothes that are not suited to or ordinarily accepted for the accomplishment of routine work in and around the shipyard and who is posed for the obvious purpose of displaying or drawing attention to private portions of his or her body.

(2) reading or otherwise publicizing in the work environment materials that are in any way sexually revealing, sexually suggestive, sexually [**12] demeaning or pornographic; and [*1543] (3) displaying signs or other materials purporting to segregate an employee by sex in any area of the workplace (other than restrooms and similar semi-private lockers/changing rooms).

D. Retaliation for sexual harassment complaints, such as:

(1) disciplining, changing work assignments of, providing inaccurate work information to, or refusing to cooperate or discuss work-related matters with any employee because that employee has complained about or resisted harassment, discrimination or retaliation; and

(2) intentionally pressuring, falsely denying, lying about or otherwise covering up or attempting to cover up conduct such as that described in any item above.

E. Other acts:

(1) The above is not to be construed as an all inclusive list of prohibited acts under this policy.

(2) Sexual harassment is unlawful and hurts other employees. Any of the prohibited conduct described here is sexual harassment of anyone at whom it is directed or who is otherwise subjected to it. Each incident of harassment, moreover, contributes to a general atmosphere in which all persons who

share the victim's sex suffer the consequences. Sexually-oriented [**13] acts or sex-based conduct have no legitimate business purpose; accordingly, the employee who engages in such conduct should be and will be made to bear the full responsibility for such unlawful conduct.

SCHEDULE OF PENALTIES FOR MISCONDUCT

The following schedule of penalties applies to all violations of the JSI Sexual Harassment Policy, as explained in more detail in the Statement of Prohibited Conduct.

Where progressive discipline is provided for, each instance of conduct violating the Policy moves the offending employee through the steps of disciplinary action. In other words, it is not necessary for an employee to repeat the same precise conduct in order to move up the scale of discipline.

A written record of each action taken pursuant to the Policy will be placed in the offending employee's personnel file. The record will reflect the conduct, or alleged conduct, and the warning given, or other discipline imposed.

(A) Assault

Any employee's first proven offense of assault or threat of assault, including assault of a sexual nature, will result in dismissal.

(B) Other acts of harassment by co-workers

An employee's commission of acts of sexual harassment [**14] other than assault will result in non-disciplinary oral counseling upon alleged first

offense, written warning, suspension or discharge upon the first proven offense, depending upon the nature and severity of the misconduct, and suspension or discharge upon the second proven offense, depending on the nature and severity of the misconduct.

(C) Retaliation

Alleged retaliation against a sexual harassment complainant will result in non-disciplinary oral counseling. Any form of proven retaliation will result in suspension or discharge upon the first proven offense, depending upon the nature and severity of the retaliatory acts, and discharge upon the second proven offense.

(D) Supervisors

A supervisor's commission of acts of sexual harassment (other than assault) with respect to any other employee under that person's supervision will result in nondisciplinary oral counseling upon alleged first offense, final warning or dismissal [*1544] for the first offense, depending upon the nature and severity of the misconduct, and discharge for any subsequent offense.

PROCEDURES FOR MAKING, INVESTIGATING AND RESOLVING SEXUAL HARASSMENT

AND RETALIATION COMPLAINTS

A. Complaints [**15]

JSI will provide its employees with convenient, confidential and reliable mechanisms for reporting incidents of sexual harassment and retaliation. Accordingly, JSI designates at least two employees in supervisory or managerial positions at each of the Commercial and Mayport Yards to serve as

Investigative Officers for sexual harassment issues. The names, responsibilities, work locations, and phone numbers of each Officer will be routinely and continuously posted so that an employee seeking such name can enjoy anonymity and remain inconspicuous to all of the employees in the yard in which he or she works.

The Investigative Officers may appoint "designees" to assist them in handling sexual harassment complaints. Persons appointed as designees shall not conduct investigation until they have received training equivalent to that received by the Investigative Officers. The purpose of having several persons to whom complaints may be made is to avoid a situation where an employee is faced

with complaining to the person, or a close associate of the person, who would be the subject of the complaint.

Complaints of acts of sexual harassment or retaliation that are in violation of the [**16] sexual harassment policy will be accepted in writing or orally, and anonymous complaints will be taken seriously and investigated. Anyone who has observed sexual harassment or retaliation should report it to a designated Investigative Officer. A complaint need not be limited to someone who was the target of harassment or retaliation.

Only those who have an immediate need to know, including the Investigative Officers and/or his/her designee, the alleged target of harassment or retaliation, the alleged harassers or retaliators and any witnesses will or may find out the identity of the complainant. All parties contacted in the

course of an investigation will be advised that all parties involved in a charge are entitled to respect and that any retaliation or reprisal against an individual who is an alleged target of harassment or retaliation, who has made a complaint or who has provided evidence in connection with a complaint is a separate actionable offense as provided in the schedule of penalties. This complaint process will be administered consistent with federal labor law when bargaining unit members are affected.

B. Investigations

Each Investigative Officer will receive [**17] thorough training about sexual harassment and the procedures herein and will have the responsibility for investigating complaints or having an appropriately trained and designated JSI investigator do so. All complaints will be investigated expeditiously by a trained JSI Investigative Officer or his/her designee. The Investigative Officer will produce a written report, which, together with the investigation file, will be shown to the complainant upon request within a reasonable time. The Investigative Officer is empowered to recommend remedial measures based upon the results of the investigation, and JSI management will promptly consider and act upon such recommendation. When a complaint is made the Investigative Officer will have the duty of immediately bringing all sexual harassment and retaliation complaints to the confidential attention of the office of the President of JSI, and JSI's EEO Officer. The Investigative and EEO Officers will each maintain a file on the original charge and follow up investigation. Such files will be available to investigators, to federal, state and local agencies charged with equal employment or affirmative action enforcement, [*1545] to other complainants [**18] who have filed a formal charge of discrimination against JSI, or any agent thereof, whether that formal charge is filed at a federal, state, or local law level. The names of complainants, however, will be kept under separate file.

C. Cooperation

An effective sexual harassment policy requires the support and example of company personnel in positions of authority. JSI agents or employees who engage in sexual harassment or retaliation or who fail to cooperate with company-sponsored investigations of sexual harassment or retaliation may

be severely sanctioned by suspension or dismissal. By the same token, officials who refuse to implement remedial measures, obstruct the remedial efforts of other JSI employees, and/or retaliate against sexual harassment complainants or witnesses may be immediately sanctioned by suspension or dismissal.

D. Monitoring

Because JSI is under legal obligations imposed by Court order, the NOW Legal Defense and Education Fund, its designated representative, and, if one is appointed upon motion and a showing of need, a representative of the U.S. District Court for the Middle District of Florida are authorized to

monitor the JSI workplace, [**19] even in the absence of specific complaints, to ensure that the company's policy against sexual harassment is being enforced. Such persons are not ordinarily to be used in lieu of the JSI Investigative Officers on investigations of individual matters, but instead are to be available to assess the adequacy of investigations. Any individual dissatisfied with

JSI's investigation of a complaint may contact such persons in writing or by telephone and request an independent investigation. Such persons' addresses and telephone numbers will be posted and circulated with those of the Investigative Officers. Such persons will be given reasonable access by JSI to inspect for compliance.

PROCEDURES AND RULES FOR EDUCATION AND TRAINING

Education and training for employees at each level of the work force are critical to the success of JSI's policy against sexual harassment. The following documents address such issues: the letter to be sent to all employees from JSI's Chief Executive Officer/President, the Sexual Harassment policy, Statement of Prohibited Conduct, the Schedule of Penalties for Misconduct, and Procedures for Making, Investigating and Resolving Sexual Harassment and Retaliation [**20] Complaints. These documents will be conspicuously posted throughout the workplace at each division of JSI, on each company bulletin board, in all central gathering areas, and in every locker room. The statements must be clearly legibcontinuously. The sexual harassment policy under a cover letter from JSI's president will be sent to all employees. The letter will indicate that copies are available at no cost and how they can be obtained.

JSI's sexual harassment policy statee Safety

Instructions and General Company Rules, which are issued in booklet form to each JSI employee. Educational posters using concise messages conveying JSI's opposition to workplace sexual harassment will reinforce the company's policy statemele, eye-catching and graffiti resistant. Education and training include the following components:

1. For all JSI employees: As part of general orientation each recently hired employee will be given a copy of the letter from JSI's Chief Exe/President and requested to read and sign a receipt for the company's policy statement on sexual harassment so that they are oice of the standards of behavior expected. In addition, supervisory employees who have attended a management training seminassment will explain orally at least once every six months at safety meetings attended by all employees [*1546] the kinds otitute sexual harassment, the company's serious commitment to eliminating sexual harassment in the workplace, the penalties harassment, and the procedures for reporting incidents of sexual harassment.

2. For all female employees: All women empl participate on company time in annual seminars that teach strategies for resisting and preventing sexual harassment. At lea length, these seminars will be conducted by one or more experienced sexual harassment educators, including one instructor wnce in the trades.

3. For all upervisory authority over other employees, including leadermen, quartermen, superintendents, and all employees working in a ity: All supervisory personnel will participate in an annual, half-day-long training session on sex discrimination. At least o session (of no less than [**22] one and one-half hours) will be devoted to education about workplace sexual harassment,ing (with demonstrative evidence) as to exactly what types of remarks, behavior and pictures will not be tolerated in the JS president of JSI will attend the training sessions in one central location with all company supervisory employees. The presduce the seminar with remarks stressing the potential liability of JSI and individual supervisors for sexual harassment and inate harassment. Each participant will be informed that they are responsible for knowing the contents of JSI's sexual haras for giving similar presentations at safety meetings to employees.

4. For all Investigative Officers: The Investigative ir designees, if any, will attend annual full day training seminars conducted by experienced sexual harassment educators ands to educate them

about the problems of sexual harassment in the workplace and techniques for investigating and stopping it.ining sessions for components 2-4 will be conducted by an experienced sexual harassment educator chosen jointly by JSI [**23Legal Defense and Education Fund after receiving bids. In the event of a disagreement between the parties, the parties will to an arbitrator chosen by the parties.