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#2047

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS



In Re:

B & R ROOFING & SHEET METAL COMPANY,

DEBTOR(S)

NO. 92-40396-11

CHAPTER 11

SHERI ROBBEN,

PLAINTIFF(S),

v.

B & R ROOFING & SHEET METAL COMPANY,

ADV. NO. 93-7151

DEFENDANT(S)

MEMORANDUM OF DECISION

This proceeding is before the Court to estimate the claim of the plaintiff for voting purposes and for feasibility. To make the estimate, the Court must determine whether the evidence will support an award of damages for negligent or intentional infliction of emotional distress under Kansas law, or for a discriminatorily hostile or abusive working environment under Title VII of the Civil Rights Act of 1964, and if so, in what amount. Based upon the findings of fact and conclusions of law which follow, the Court concludes that the plaintiff is not likely to recover for negligent or intentional infliction of emotional distress but is more likely than not to recover under Title VII.

The plaintiff appears by counsel Caleb Boone. The debtor appears by counsel Don Staab and Ruth Graham. The Unsecured Creditors Committee appears by counsel Lauren Lowry. The Court has received the evidence, reviewed the relevant pleadings, and considered the arguments of counsel, and is now ready to rule.

SUMMARY OF TESTIMONY

Plaintiff Sheri Robben was employed by the debtor from about February 1990 until June 5 or 6 of 1991. Before she was hired, she was told during a job interview that the company was involved in construction and that, from time to time, she would hear off-color language on the premises. After she began working as a bookkeeper and office manager, she realized that the owner-operator of the business, Bob Huff, was the type of person who hugged and kissed his female acquaintances, including his employees. Mr. Huff acknowledges this facet of his personality, and all who know him recognize it as well. The parties have stipulated that the actions Ms. Robben is complaining about were not done in a willful or malicious manner.

Besides Mr. Huff's propensity for hugging her and kissing her on the cheek, Ms. Robben also complains about his actions on a number of specific occasions. Mr. Huff admits most of the events occurred, but disputes some details of his actions. On most occasions, Ms. Robben did not say anything to indicate his actions bothered her, but sometimes she did. She claims, and he admits, that he sat on her lap several different times. Some of these times, she would tell him to get off her, and he might say, "Oh, you like it," she would respond, "No, I don't," and they would argue in that vein for a while. She claims he once shoved her against a filing cabinet while she was filing papers and pressed his body to hers; she said to him, "Oh, Bob, you're so rude." He denies doing this.

While they were driving on a business trip to Olathe, Kansas, Mr. Huff told her that he was only able to reserve one room, implying they would have to stay together in it. Ms. Robben contends he also touched her leg and squeezed her knee in the car, but he denies this part of her story. When they arrived, she learned two rooms had been reserved. He concedes he sometimes tickled her. She claims that once when he was chasing her down an office hallway tickling her, she fell and he then fell or intentionally lay on top of her. When this happened, she told him, "Get off me. I'm not your wife." On one occasion when he took some unspecified action, Ms. Robben asked him what he was trying to prove.

In April 1991, Mr. Huff asked Ms. Robben to falsify an insurance paper. She refused. In early June 1991, another officer of the company asked her to notarize some documents that were "not ready to be notarized," probably meaning not properly signed yet. She refused because she believed the request to be improper. She quit almost immediately after this incident.

Several months after she began working as the bookkeeper-office manager, Ms. Robben helped her younger sister, Joyce, obtain a part-time job with the debtor. Joyce reports Mr. Huff treated her much as Ms. Robben claims he treated her. Joyce says he would hug her, kiss her on the cheek, sit on her lap, and seemed unable to speak to her without putting his arm around her. In addition, she states that he once pulled her down on a couch with him. Mr. Huff denies he ever did this. On some occasions, she would say to him, "Bob, you're sick," or "Get away," or "Keep your hands off me," and on other occasions, she would say nothing. Mr. Huff admits he may have gotten Joyce to help him falsify the insurance paper after Ms. Robben refused.

Ms. Robben had been treated and hospitalized for a peptic ulcer in 1979 and again in 1980. She had not had a problem with it for about one and a half years before she went to work for the debtor. Although she states she was anxious and increasingly stressed during her time with the debtor, she claims to have suffered a flare-up of her ulcer problem only after the June 1991 incident and her resignation. While she was working for the debtor, she did not report any ulcer trouble to a physician. Instead, she reports she took some prescription medications that were over seven years old and some over-the-counter medications. During the pertinent time period, she also smoked a pack of cigarettes a day, more when she was upset, and drank alcohol socially.

Within about one year of her resignation, Ms. Robben began working for a close relative of Mr. Huff. She also appeared at Mr. Huff's birthday party dressed as the back end of a dairy cow.

Dr. Luecha, Ms. Robben's physician, had treated and hospitalized her in 1979 and 1980 for her peptic ulcer. Although she saw him professionally on at least six occasions between February 1, 1991, and February 10, 1992, she did not complain to him of a flare-up of her ulcer. He believes that work-related stress can cause the ulcer-like symptoms that Ms. Robben described to him in 1994, which she claims to have had in 1991. However, he indicated that since she had seen him during that time period and did not mention such symptoms, he did not think they could have been too severe. Finally, he stated that nicotine and alcohol can aggravate an ulcer, and that he had advised Ms. Robben in the past to stop using them.

Several other witnesses testified but added nothing significant to the evidence. They are aware that Mr. Huff regularly hugs and kisses the women who work for him, and believe his conduct is counter-productive because it breaks down office discipline and disrupts lines of authority. However, they had not witnessed any specific acts other than hugs or kisses on the cheek.

The minimal evidence of actual economic loss presented was insufficient to give the Court much of a gauge for damages other than pain and suffering and other noneconomic matters.



DISCUSSION AND CONCLUSIONS

I. Negligent or Intentional Infliction of Emotional Distress

A. Negligent Infliction

In Kansas, to establish a right to relief for the tort of negligent infliction of emotional distress, the plaintiff's emotional distress must usually be accompanied by or result in immediate physical injury. Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 279 (1983). "Recovery may not be had where the cause of the injury is too remote and speculative and where the alleged resulting damages are too conjectural and speculative to form a sound basis for measurement." Id. at 277 (citing Buck v. Miller Amusement Co., 166 Kan. 205, 209 (1948)). Stress, sleeplessness, headaches, and crying spells, without more, have not been enough to establish physical injury for purposes of recovery for emotional distress. See Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499 (D.Kan. 1993).

The Kansas Supreme Court has established an exception to the general rule requiring physical injury. "The general rule of negligence has no application to willful or wanton wrongs." Bowman v. Doherty, 235 Kan. 870, 876 (1984). To come within the exception, the plaintiff must show the defendant acted willfully, wantonly, and with an intent to injure. See Lantz v. City of Lawrence, 232 Kan. 492, 500 (1983); Hopkins v. State, 237 Kan. 601 (1985).

B. Intentional Infliction

To constitute the intentional infliction of emotional distress in Kansas, (1) the conduct complained of must appear to a reasonable person to be so extreme and outrageous that the actor should be liable for emotional distress, and (2) the victim's resulting emotional distress must be so severe and extreme that it should not have to be endured by a reasonable person. Roberts v. Saylor, 230 Kan. 289, 294 (1981). In order to satisfy the first threshold, the conduct must be so outrageous that it goes "beyond the bounds of decency . . . and [is] regarded as atrocious and utterly intolerable in a civilized society." Dotson v. McLaughlin, 216 Kan. 201, 210 (1975). To satisfy the second threshold, the distress suffered must be extreme and be more than mere mental suffering or anguish. Roberts, 230 Kan. at 294.

C. Application of Law to the Facts of This Case

Ms. Robben claims that Mr. Huff's acts of hugging her, tickling her, kissing her on the cheek, sitting on her lap, telling her that he had only one hotel reservation, patting or squeezing her leg, laying on top of her, and pressing her against a filing cabinet placed undue stress on her, and caused her to suffer extreme emotional distress, including physical injuries in the form of stomach pain and ulcer flare-ups. Mr. Huff admits some of these actions and denies others. Although Ms. Robben claims to have been anxious during her employment with the debtor, her claimed ulcer flare-up occurred after she resigned. She sought no medical diagnosis or treatment for her ailment, but medicated herself with over-the-counter and old prescription drugs. Her alcohol and tobacco use would have aggravated the condition she claims to have suffered. The parties stipulated that Mr. Huff had no willful or malicious intent.

Based upon the facts which exist in this case and the current case law in Kansas, the Court concludes that Ms. Robben will probably not recover any damages on her claims of negligent or intentional infliction of emotional distress. Her alleged physical injury and its cause are too remote and speculative to make recovery likely under the general rule of negligent infliction of emotional distress, and the stipulation precludes applying the exception for willful and wanton action. While Mr. Huff's actions certainly appear to have been offensive, the Court does not believe it likely a jury would find them so outrageous or Ms. Robben's mental distress so acute as to justify damages for intentional infliction of emotional distress.

II. Sexual Discrimination

Under Title VII of the Civil Rights Act of 1964, it is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A. §2000e(1). To determine Ms. Robben's claim under this statute, a jury will have to decide whether Mr. Huff's actions toward her were gender-based, and if so, were sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment.

The Supreme Court has decided only two cases concerning sexual harrassment under Title VII. In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the Court ruled that to establish an actionable claim, a plaintiff must show the sexual harassment is "sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'" 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)). In Harris v. Forklift Systems, Inc., 510 U.S. ___, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Court reaffirmed the Meritor standard that Title VII is violated "[w]hen the workplace is permeated with 'discriminatory intimidation, ridicule, and insult,' 477 U.S. at 65, that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, id.'" 126 L.Ed.2d at 301. The Court added that the plaintiff's proof must satisfy an objective test as well as a subjective test. 126 L.Ed.2d at 302. "So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive, [477 U.S.] at 67, there is no need for it also to be psychologically injurious." 126 L.Ed.2d at 295. In determining whether an employer violated the statute, the factfinder must consider all the circumtances, including:

"the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required."

126 L.Ed.2d at 302-03. In his concurring opinion, Justice Scalia pointed out that the ruling "lets virtually unguided juries decide whether sex-related conduct . . . is egregious enough to warrant an award of damages," but indicated he knew of no other way to interpret Title VII. 126 L.Ed.2d at 303-04. Justice Ginsburg also filed a concurring opinion, stating in part that, "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." 126 L.Ed at 304. In a recent Kansas case, Herman v. Western Financial Corp., 254 Kan. 870, 880 (1994), the Kansas Supreme Court quoted Justice Ginsberg's statement because the evidence it was reviewing did not demonstrate that women but not men were exposed to the conditions complained of.

Reviewing the evidence presented, the Court perceives several problems with Ms. Robben's Title VII claim. She alleges Mr. Huff initiated humiliating physical contacts on numerous occasions which appear to rise above mere offensive utterances. Mr. Huff has admitted that he is a hugger and kisser. Since he hugs and kisses only women, these acts can certainly be seen to create a disadvantageous condition of employment for women. These facts might lead to a sizable verdict in her favor if the other requirements for recovery were met. Additional facts, though, convince the Court she is not likely to obtain a large judgment.

First, a jury might well conclude Ms. Robben left her job for reasons other than Mr. Huff's sexual harrassment. Although she asserts that he commenced his harassing acts shortly after she started to work for the debtor, she did not quit her job for a year or more, and when she did leave, it was in apparent response to a different officer's request that she notarize documents in a way she believed to be illegal or unethical. Mr. Huff also asked her to falsify a document. Nothing presented to the Court indicates these requests were anything but gender-neutral. In addition, certain facts indicate she was not terribly distressed by Mr. Huff's actions as they were occurring, weakening her claim under the subjective aspect of the Harris test for recovery. Besides continuing to work for the debtor for some time despite his acts, she helped her younger sister get a job with the debtor where the sister presumably would be, and asserts that she was, subjected to similar conduct. Finally, after leaving the job, she attended a birthday party for Mr. Huff, seemingly voluntarily, dressed as the rear end of a dairy cow. This hardly seems like the act of a woman who felt she had been significantly sexually harassed by the birthday honoree.

Since Ms. Robben's claim will likely be presented to a jury, however, the Court is not willing to say she will not recover any damages at all. Little evidence of actual economic damage has been presented, and the Court can only guess how a jury might assess her noneconomic damage. Based on the evidence presented, the Court believes Ms. Robben is not likely to obtain a substantial recovery, and estimates her claim under Title VII at $7,500.

III. Summary

For these reasons, the Court concludes Ms. Robben will recover nothing on her claims for negligent or intentional infliction of emotional distress, and will recover $7,500 on her Title VII discrimination claim.

The foregoing constitutes Findings of Fact and Conclusions of Law under Rule 7052 of the Federal Rules of Bankruptcy Procedure and Rule 52(a) of the Federal Rules of Civil Procedure. A judgment based on this ruling will be entered on a separate document as required by FRBP 9021 and FRCP 58.

Dated at Topeka, Kansas, this ____ day of June, 1994.













_________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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