Equal Employment Opportunity Commission v. Rock-Tenn Company

Filing 76

ORDER granting in part and denying in part 40 Motion for Reconsideration and granting in part and denying in part 42 Motion to Amend/Correct the 39 Order on Motion for Summary Judgment ; denying 46 Motion for Leave to File Amended Complaint. Signed by Judge Brian S. Miller on 6/16/11. (kpr)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
v.

PLAINTIFF

Case No. 4:08-CV-3127 BSM

ROCK-TENN COMPANY

DEFENDANT
ORDER

Rock-Tenn moves [Doc. Nos. 40, 42] to reconsider the order denying summary
judgment [Doc. No. 39]. The Equal Employment Opportunity Commission (EEOC) objects.
The EEOC also moves [Doc. No. 46] to amend its complaint to drop a “pattern and practice”
claim. For the reasons set forth below the motion to reconsider is GRANTED IN PART and
DENIED IN PART. The motion to amend is DENIED.
Rock-Tenn argues that the EEOC has failed to present evidence sufficient to take a
“pattern or practice” claim to a jury. In response, the EEOC has moved to amend its
complaint to drop this particular claim. If the motion to amend were granted, it would prevent
Rock-Tenn from needing to litigate the “pattern or practice” claim but it would not provide
Rock-Tenn with a final decision on the issue. In light of the arguments presented in the
motion to reconsider, the EEOC’s failure to respond to those arguments, and its decision to
amend its complaint to drop the issue, the motion to reconsider is GRANTED. Summary
judgment is GRANTED in favor of Rock-Tenn on the “pattern or practice” claim. The
EEOC’s motion to amend its complaint is DENIED.
Rock-Tenn asks for reconsideration on Cynthia Newport’s hostile work environment

claim based on the factual mistake that Newport actually complained to Rock Tenn. The
EEOC does not present any evidence in its response. Because there is no evidence that
Newport ever complained to management, the motion to reconsider is GRANTED and
summary judgment is GRANTED on Cynthia Newport’s claims.
Rock-Tenn also rightly points out to another factual mistake in the order denying
summary judgment. In that order, Yvonne Dorris was listed as one of the two women who
complained after Birch’s disciplinary warning. It was rather Beatrice Wiley and Sherry
Hearst who complained. Despite this mistaken identification, the important fact is that two
women complained of continued sexual harassment after Birch’s September 7, 2007,
disciplinary warning. Rock-Tenn allegedly took no action in response to these additional
complaints, which creates a triable issue of fact over whether Rock-Tenn took reasonable
steps to prevent sexual harassment to each of the identified women. This creates a triable
issue of fact for each of the women involved and not simply the two women who
subsequently reported harassment is because it is evidence that Rock-Tenn did not take
seriously its September 7, 2007, disciplinary warning and that the warning was not
reasonably calculated to prevent sexual harassment in the workplace.
As to the individual hostile work environment claims, each of the remaining women
has presented triable issues of fact sufficient for a jury to hear their claims and determine
whether the harassment altered a term or condition of their employment. Even when
considered individually each of the remaining women has set out a hostile work environment

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claim against Rock-Tenn. The motion for reconsideration on the hostile work environment
claims is DENIED.
Finally, Rock-Tenn asks for reconsideration of the order denying summary judgment
on Cynthia Brown’s constructive discharge claim. In support of its motion, Rock-Tenn cites
Alvarez v. Des Moines Bolt Supply, 626 F.3d 410 (8th Cir. 2010). Rock-Tenn argues that
based on the holding in Alvarez, it is impossible for Brown to make out a constructive
discharge claim because she did not notify Rock-Tenn about continued harassment after
Birch’s September 7, 2007, warning. While it is true that an employee is not constructively
discharged if she quits without giving her employer an opportunity to work out the problem,
there is evidence that Rock-Tenn knew that Birch continued to harass women after his
September 7, 2007, warning. Although this notice did not come directly from Brown, it is
still evidence that Rock-Tenn knew it needed to take additional action to protect Brown from
sexual harassment and failed to do so. If Rock-Tenn knew that Birch was still harassing
women in the work place and failed to act, it simply ignored the reasonable opportunity it had
to correct the problem. This could allow a reasonable juror to conclude that Brown resigned
as the result of intolerable working conditions that Rock-Tenn either knew of or should have
reasonably foreseen.
Brown’s case is clearly distinguishable from Alvarez. In Alvarez, the company took
some, albeit delayed action in every instance of reported harassment. Additionally, in that
case the new and unreported harassment against Alvarez came from a completely different

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person. Here there is evidence that Rock-Tenn refused to take action after renewed reports
of harassment from the individual it had just reprimanded. Moreover, Rock-Tenn knew that
a number of women had been harassed by that same individual. There is evidence that it
failed to take any action to protect either the women who reported continued harassment or
the women, like Brown, who it may have known were in continued danger. These issues are
best left to the jury.
Because there is evidence that Rock-Tenn either knew or should have known of
continued harassment against Brown after her initial reports, Rock-Tenn’s motion for
reconsideration of the constructive discharge claim is DENIED.
For the reasons set forth above, Rock-Tenn’s motion for reconsideration [Doc. Nos.
40, 42] is GRANTED in part and DENIED in part. The EEOC’s motion to amend [Doc. No.
46] is DENIED.
IT IS SO ORDERED this 16th day of June 2011.

________________________________
UNITED STATES DISTRICT JUDGE

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