Robinson v Jacksonville Shipyards Order Injunction and Final Judgement

    1486 760 FEDERAL SUPPLEMENT

Dunn, however, notes that during the 
first two years of respondents’ partic­
ipation in the Circuit Court litigation Dunn 
maintained, and the Circuit Court agreed, 
that all of respondents claims against Dunn 
were barred by the earlier-noted pre-arbi­
tration negotiations and settlement agree­
ment between Dunn and Shoreline. Dunn, 
nevertheless during that period, expressly 
reserved its right to compel arbitration. 
Since there were no claims pending by Al- 
tus and the Association against Dunn at 
that time, there was no reason for Dunn to 
invoke its arbitration right.

Altus and the Association amended their 
complaints in intervention in mid-1988. It 
was not until March 1990 that the Circuit 
Court requested briefs on the viability of 
the claims asserted therein. In April 1990, 
Dunn filed a motion to dismiss the amend­
ed complaints, expressly reserving therein 
its right to compel arbitration. In an order 
dated April 27, 1990, the court declined to 
strike Altus’ fraud claim, and in an order 
dated May 15, 1990, the court stated that it 
would allow the Association to maintain a 
negligence claim. The petition to compel 
arbitration was filed shortly thereafter.

The court concludes that Altus and the 
Association have failed to prove that Dunn 
has waived its arbitration rights. Dunn’s 
petition was filed with this court within a 
reasonable time after Dunn became aware 
that it had a basis for compelling arbitra­
tion (i.e., when the order allowing Altus’ 
fraud claim against Dunn was issued). 
Moreover, from the beginning of Altus’ and 
the Association’s participation in the Cir­
cuit Court proceedings, Dunn consistently 
has reserved its right to compel arbitration.

CONCLUSION
In light of the foregoing, the court con­

cludes that Dunn’s petition to compel arbi­
tration is due to be, and hereby is, GRANT­
ED, and Altus’ motion to dismiss is due to 
be, and hereby is, DENIED. It is SO OR­
DERED.

J w\________ _
( O  I  KEY NUMBER SYStEM y

Lois ROBINSON, Plaintiff.

JACKSONVILLE SHIPYARDS, INC., et 
ah. Defendants.

No. 86-927-Civ-J-l 2.

United States District Court,
M.D. Florida,

Jacksonville Division.
Jan. 18, 1991.

Order, Injunction and Final Judgment 
March 8, 1991.

Female employee brought action 
against employer and coemployees and su­
pervisors alleging hostile work environ­
ment. The District Court, Melton, J., held 
that: (1) evidence supported claim that fe­
male employee at shipyard was discrimi­
nated against based on hostile work envi­
ronment: (2) female employee was not enti­
tled to monetary relief; and (8) female em­
ployee was entitled to injunctive relief.

Judgment for plaintiff.
See also 118 F.R.D. 525.

1. Civil Rights ©=143
President, vice-president of operations, 

industrial relations manager, vice-president 
of shipyard, yard superintendent, and ship- 
fitters’ foreman were agents of employer 
and therefore “employers” under Title VII. 
Civil Rights Act of 1964, § 701(b), as 
amended, 42 U.S.C.A. § 2000e(b).

Sec p u b lica tio n  W ords an d  Phrases 
fo r o th e r  ju d ic ia l c o n stru c tio n s  and 
d e fin itio n s .

2. Civil Rights @=143
Leaderman or quarterman for ship­

building company was not an agent of em­
ployer and thus was not an “employer 
under Title VII; although he had role in 
work assignments and sometimes e x e r c i s e d  

apparent authority by acting to resolve dis­
putes between employees, quarterman am 
leaderman was excluded from formal su­
pervisory structure and did not possess au­
thority to place discipline reports in another 
employee’s personnel file and did not maki



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1487
Cite as  760 F.Supp. 1486 (M.D.FIa. 1991)

personnel changes. Civil Rights Act of 
1964, § 701(b), as amended, 42 U.S.C.A. 
§ 2000e(b).

See p u b lica tio n  W ords an d  P h rases 
fo r o th e r  ju d ic ia l c o n s tru c tio n s  and  
defin itio n s .

3. Civil Rights ©=167
Five elements which comprise claim of 

sexual discrimination based on existence of 
hostile work environment are that plaintiff 
belongs to protected category; plaintiff 
was subject to unwelcome sexual harass­
ment; harassment complained of was 
based upon sex; harassment complained of 
affected term, condition or privilege of em­
ployment; and respondeat superior, that is, 
defendants knew or should have known of 
harassment and failed to take prompt, ef­
fective remedial action.
4. Civil Rights ©=387

Evidence supported claim that female 
welder at shipyard was discriminated 
against based on existence of hostile work 
environment; welder belonged to protected 
category, male workers posted pictures of 
nude and partially nude women in work­
place and made sexual demeaning remarks 
and jokes, but for fact of her sex welder 
would not have been object of harassment, 
and presence of pictures sexualized work 
environment to the detriment of all female 
employees. Civil Rights Act of 1964, § 701 
et seq., as amended, 42 U.S.C.A. § 2000e et 
seq.
5. Civil Rights ©=167

Threshold for determining that sexual­
ly harassing conduct is unwelcome, for pur­
poses of Title VII hostile work environment 
claim, is that employee did not solicit or 
incite it, and that employee regarded con­
duct as undesirable or offensive. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
6. Civil Rights ©=167

Harassing behavior lacking sexually 
explicit content but directed at women and 
motivated by animus against women satis­
fies requirement for hostile work environ­
ment claim that plaintiff show that but for 
fact of her sex she would not have been 
object of harassment. Civil Rights Act of 
1964, § 701 et seq., as amended, 42 U.S. 
C.A. § 2000e et seq.

7. Civil Rights ©=167
Category of actionable conduct under 

Title VII is behavior that is not directed at 
particular individual or group of individuals 
but is disproportionately more offensive or 
demeaning to one sex. Civil Rights Act of 
1964, § 701 et seq., as amended, 42 U.S. 
C.A. § 2000e et seq.
8. Civil Rights ©=145

To affect a “term, condition, or privi­
lege” of employment within meaning of 
Title VII, harassment must be sufficiently 
severe or pervasive to alter conditions of 
plaintiffs employment and create abusive 
working environment and this is a question 
to be determined with regard to totality of 
circumstances. Civil Rights Act of 1964, 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.
9. Civil Rights ©=145

Work environment viewed as a whole 
may satisfy legal definition of abusive 
working environment, for purposes of hos­
tile work environment claim, although no 
single episode crosses Title VII threshold. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
10. Civil Rights ©=370

Liberal interpretation of Title VII 
works to hold responsible those who con­
trol aspects of employment accorded pro­
tection by that law. Civil Rights Act of 
1964, § 701 et seq., as amended, 42 U.S. 
C.A. § 2000e et seq.
11. Civil Rights ©=370

Lower level supervisory employees 
who qualify as employers should be exoner­
ated from liability in Title VII action when 
they do no more than follow policies estab­
lished by their superiors; individual liabili­
ty attaches, if at all, to the generals, not 
their soldiers. Civil Rights Act of 1964, 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.
12. Civil Rights ©=371

Employer’s president was not liable for 
hostile work environment to which female 
welder was subjected where he did not 
personally participate in any sexually ha­
rassing behavior that affected female weld­



1488 760 FEDERAL SUPPLEMENT

er, he was not personally presented with 
her complaints of sexual harassment, and 
responsibility for handling sexual harass­
ment complaints was delegated to supervi­
sory personnel below the president. .Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
13. Civil Rights <3=371

Vice-president for operations of em­
ployer was liable for hostile work environ­
ment to which female employee was sub­
jected where his responsibility extended to 
creation and implementation of employer’s 
sexual harassment policies which failed and 
he personally intervened in female employ­
ee’s complaint of sexual harassment and 
directed that no remedial action be taken. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
14. Civil Rights <£=>371

Industrial relations manager was liable 
for hostile work environment to which fe­
male employee was subjected where he 
held responsibility for day-to-day adminis­
tration of sexual harassment complaint ma­
chinery which failed and he personally in­
tervened in female employee’s complaint 
and directed that no remedial action be 
taken. Civil Rights Act of 1964, § 701 et 
seq., as amended, 42 U.S.C.A. § 2000e et 
seq.
15. Civil Rights ©=>370

Vice-president of shipyard was not lia­
ble for hostile work environment to which 
female employee was subjected where he 
stood in middle management position and 
did no more or less than implement order 
of his superiors. Civil Rights Act of 1964, 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.
16. Civil Rights <£=>370

Shipyard superintendent was not liable 
for hostile work environment to which fe­
male employee was subjected; he stood too 
far down on ladder of authority to accrue 
liability for state of workplace. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
17. Civil Rights ®=370

Shipfitters’ foreman was not liable for 
hostile work environment to which female 
employee was subjected; not only did he

stand too far down on ladder of authority, 
he did not exercise control directly over 
female employee. Civil Rights Act of 1964, 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.
18. Civil Rights ©=371

Active participation in sexually harass­
ing behavior is sufficient but not necessary 
condition to imposition of Title VII liability. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
19. Civil Rights ©=371

Individual employer who ratifies sexu­
ally harassing conduct of another is as 
culpable under Title VII as if employer 
actively participated. Civil Rights Act of 
1964, § 701 et seq., as amended, 42 U.S. 
C.A. § 2000e et seq.
20. Civil Rights ©=371

Direct liability is incurred by corporate 
employer for hostile work environment 
when agent of corporate employer is re­
sponsible for behavior that comprises hos­
tile work environment and agent’s actions 
were taken within scope of agency. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
21. Civil Rights <3=371

Indirect liability attaches to corporate 
employer for hostile work environment 
where, though environment is created by 
one who is not plaintiff’s employer, such as 
co-worker, or by agent of employer who is 
acting outside scope of agency, plaintiff 
can establish that employer knew or should 
have known of harassment and failed to 
take prompt, effective remedial action. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
22. Civil Rights ©=371

Direct liability attached to corporate 
employer for hostile work environment 
where policy-making agents of corporate 
employer condoned distribution of vendors 
advertising calendars that formed part o 
basis for complaint and not restricting last­
ing of pictures of nude or partially nu< ‘ 
women despite the fact that work rules i 
not permit posting of many kinds of materi 
als without permission. Civil Rights Act o 
1964, § 701 et seq., as amended, 42 L - ■ 
C.A. § 2000e et seq.



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1489
Cite as  760 F.Supp. 1486 (M.D.FIa. 1991)

23. Civil Rights <3=371
Indirect liability attached to corporate 

employer for hostile work environment 
where employer had knowledge of state of 
work environment but elected to bury its 
head in the sand rather than learn more 
about conditions to which female employ­
ees were subjected. Civil Rights Act of 
1964, § 701 et seq., as amended, 42 U.S. 
C.A. § 2000e et seq.
24. Civil Rights <®=167

Duty on part of employer to conduct 
further investigation of alleged hostile 
work environment arises when report or 
reports of sexual harassment to manage­
ment suggest that workplace may be 
charged in sexually hostile manner. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
25. Civil Rights ©=371

Employer escapes liability for isolated 
and infrequent slurs and misogynist behav­
ior in workplace because even reasonably 
prudent employer cannot exercise suffi­
cient control over workplace to put end to 
such conduct; conversely, employer incurs 
liability when harassing behavior happens 
frequently enough that employer can take 
steps to halt it. Civil Rights Act of 1964, 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.
26. Civil Rights ©=145

United States ©=70(5)
Liability could not be imposed on ship­

builder for hostile work environment for 
violation of antidiscrimination provisions of 
executive order or for breach of contract 
enforced by female employee as third-party 
beneficiary to United States Navy con­
tracts entered into with shipbuilder.
47. Civil Rights ©=400

Female employee who prevailed on 
'■laim of hostile work environment was not 
’•ntitled to monetary relief as a make-whole 
remedy in the absence of evidence of loss 
ln a more than speculative form. Civil 
Lights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
- s- Civil Rights ©=401

Employment discrimination plaintiff’s 
resentation of evidence showing economic

injuries stemming from discrimination will 
create entitlement to back pay unless de­
fendants effectively rebut, by preponder­
ance of evidence, plaintiffs assertion of 
loss; however, linchpin of principles is 
plaintiff’s initial burden to demonstrate ec­
onomic loss and that burden includes pre­
sentation of evidence of loss in a form that 
is not merely speculative. Civil Rights Act 
of 1964, § 701 et seq., as amended, 42 
U.S.C.A. § 2000e et seq.
29. Civil Rights ©=400

Nominal damages are available and ap­
propriate in employment discrimination ac­
tion where actual loss is not proven or 
provable. Civil Rights Act of 1964, § 701 
et seq., as amended, 42 U.S.C.A. § 2000e et 
seq.
30. Civil Rights ©=400

Because nominal damages are awarded 
as surrogate for back pay award in employ­
ment discrimination action, circumstances 
of such an award should be identical. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
31. Civil Rights ©=401

Individual employer defendants in pri­
vate corporations cannot be held personally 
liable for back pay under Title VII. Civil 
Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.
32. Civil Rights ©=401

Back pay liability in employment dis­
crimination action may be limited for eq­
uitable reasons tailored to circumstances of 
individual’s involvement. Civil Rights Act 
of 1964, § 701 et seq., as amended, 42 
U.S.C.A. § 2000e et seq.
33. Civil Rights ©=392

Female employee who prevailed on 
claim of hostile work environment was enti­
tled to injunctive relief enjoining employer 
to adopt, implement, and enforce policy and 
procedures for prevention and control of 
sexual harassment. Civil Rights Act of 
1964, § 701 et seq., as amended, 42 U.S. 
C.A. § 2000e et seq.
34. Civil Rights ©=392

Injunctive relief in hostile work envi­
ronment action was limited to corporate



1490 760 FEDERAL SUPPLEMENT

defendant since there was no reason to 
believe that vice-president for operations 
and industrial relations manager would act 
contrary to court order covering their em­
ployer and their liability was incidental to 
their actions taken within scope of their 
employment. Civil Rights Act of 1964. 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.
35. Civil Rights ©=392 

Constitutional Law ©=90.1(7)
First Amendment did not impede reme­

dy of injunctive relief in hostile work envi­
ronment action; employer disavowed that 
it sought to express itself through sexual­
ly-oriented pictures or verbal harassment 
by its employees, pictures and verbal 
harassment were not protected speech be­
cause they acted as discriminatory conduct 
in form of hostile environment, and regula­
tion of discriminatory speech in workplace 
constituted nothing more than time, place 
and manner regulation of speech. U.S.C.A. 
Const.Amend. 1; Civil Rights Act of 1964, 
§ 701 et seq., as amended, 42 U.S.C.A. 
§ 2000e et seq.; National Labor Relations 
Act, § 1 et seq., as amended, 29 U.S.C.A. 
§ 151 et seq.
36. Civil Rights ©=392

National Labor Relations Act did not 
impede grant of injunctive relief in hostile 
work environment case to require policy 
and procedures to handle sexual harass­
ment complaints; plaintiff alleged no 
wrongdoing by union and at most only 
sought to clarify application of nondiscrimi­
nation and just cause clauses within collec­
tive bargaining agreement. Civil Rights 
Act of 1964, §§ 701 et seq., 706(k), as 
amended, 42 U.S.C.A. §§ 2000e et seq., 
2000e-5(k).
37. Civil Rights ©=414

Absent special circumstances, trial 
court should award reasonable attorney 
fees in Title VII action to prevailing plain­
tiffs. Civil Rights Act of 1964, §§ 701 et 
seq.. 706(k), as amended, 42 U.S.C.A. 
§§ 2000e et seq., 2000e-5(k).
1. Six witnesses were unavailable and testified 

by deposition: Arnold Mcllwain, Lawrence
Brown, Quentin McMillan, Steven Leach, Harry

38. Civil Rights ©=412
Female employee who prevailed in hos­

tile work environment action was entitled 
to recover costs and attorney fees from 
corporate employer but not its officials. 
Civil Rights Act of 1964, § 701 et seq., as 
amended, 42 U.S.C.A. § 2000e et seq.

Kathy G. Chinoy, Jacksonville, Fla., Ali­
son Wetherfield and Sarah E. Burns, NOW 
Legal Defense & Educ. Fund, New York 
City, for plaintiff.

Eric J. Holshouser and William H. An­
drews, Coffman, Coleman, Andrews & Gro­
gan, Jacksonville, Fla., for defendants.

FINDINGS OF FACT AND 
CONCLUSIONS OF LAW

MELTON, District Judge.
This action was commenced by plaintiff 

Lois Robinson pursuant to Title VII of the 
Civil Rights Act of 1964, as amended, 42 
U.S.C. § 2000e, et seq., and Executive Or­
der No. 11246, as amended. Plaintiff as­
serts defendants created and encouraged a 
sexually hostile, intimidating work environ­
ment. Her claim centers around the pres­
ence in the workplace of pictures of women 
in various stages of undress and in sexual­
ly suggestive or submissive poses, as well 
as remarks by male employees and supervi­
sors which demean women. Defendants 
dispute plaintiff’s description of the work 
environment and maintain that, to the ex­
tent the work environment may be found to 
satisfy the legal definition of a hostile work 
environment, they are not liable for the 
acts that give rise to such a description. 
Defendants further contest the Court’s au­
thority to structure a remedy in the form 
sought by plaintiff.

This non-jurv action was tried by the 
Court over the course of eight days in 
January and February 1989, with final ar­
guments subsequently submitted in writ­
ing. Testimony was received from various 
persons who were involved in the events 
allegedly creating the hostile work environ­
ment. The testimony of several witnesses 
was received in deposition form.1 Each

W ingate, and Rose Sanders. Additionally, depo­
sition testim ony was received for several wit-



1491ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as 760 F.Supp. I486 (M .D.FIa. 1991)

side presented two expert witnesses. Pho­
tographs and other documentary evidence 
were received. The Court has fully con­
sidered the believability of the testimony 
presented, including the credibility of wit­
nesses, and has also carefully reviewed the 
photographs and other documentary evi­
dence. Based thereon, the Court finds that 
certain of the defendants violated Title VII 
through the maintenance of a sexually hos­
tile work environment and thereby discrimi­
nated against plaintiff because of her sex. 
In so holding, the Court makes the follow­
ing Findings of Fact and Conclusions of 
Law in accordance with Fed.R.Civ.P. 52(a).2 
To the extent that any Findings of Fact 
constitute Conclusions of Law, they are 
adopted as such; to the extent that any 
Conclusions of Law constitute Findings of 
Fact, they are so adopted.

FINDINGS OF FACT 
Parties

1. Plaintiff Lois Robinson (“Robinson”) 
is a female employee of Jacksonville Ship­
yards, Inc. (“JSI”). She has been a welder 
since September 1977. Robinson is one of 
a very small number of female skilled 
craftworkers employed by JSI. Between 
1977 and the present, Robinson was pro­
moted from third-class welder to second- 
class welder and from second-class welder 
to her present position as a first-class weld­
er.

nesses who testified: John Stewart, Ellis Lovett, 
Everette Owens, Elm er Ahlwardt, John Kied- 
rowski, Fred Turner, Leslie Albert, and Lawan- 
na Gail Banks. The parties designated portions 
of these depositions and the parties' lists of 
designations were filed as exhibits. In several 
instances the deposition accom panied the exhib­
it and in several instances the deposition had 
been filed with the Court previously. For sim ­
plicity, the Court will cite to the deposition 
excerpts, when appropriate, in the form  "[depo­
nent's last name] Depo. at [page num ber(s) ].”

2 . The Court directly incorporates into its find­
ings those m atters adm itted by the defendants 
in their responses to p la in tiffs requests for ad ­
m issions, which appear in P.Exh. No. 9, and 
those m atters stipulated to in the Am ended Pre­
trial Stipulation, filed herein on October 30, 
1988. No supporting citation is given for factu­
al statem ents draw n from  these two sources. 
See M onm outh County Corr. Inst. Inmates v.

2. JSI is a Florida corporation that runs 
several shipyards engaged in the business 
of ship repair, including the Commercial 
Yard and the Mayport Yard. (The Court 
takes judicial notice of the closing and the 
reopening of the Commercial Yard opera­
tion subsequent to the trial of this case.) 
JSI does ship repair work for the federal 
government Department of the Navy. See 
P.Exh. No. 73 (list of Navy vessels JSI 
worked on during 1983-88). As a federal 
contractor, JSI has affirmative action and 
non-discrimination obligations. 6 T.T. at 
80-81 (stipulation by counsel); P.Exh. No. 
34.

3. Defendant Arnold Mcllwain (“Mcll-
wain”) held the office of President of JSI 
from the time Robinson was hired by the 
company through the time of the trial of 
this case. (The Court is aware from news 
reports that Mcllwain no longer holds this 
office.) In that capacity he was the high­
est-ranking officer at JSI; as such he had 
supervisory authority over Robinson
throughout her employment at JSI.

4. Defendant Lawrence Brown 
(“Brown”) has been Vice-President for Op­
erations at JSI since 1980. During the 
time relevant to this case, he oversaw the 
operations of the Commercial Yard and the 
Mayport Yard and formulated policies and 
regulations concerning the conduct and 
treatment of JSI employees at these two 
yards. He had and has supervisory author­
ity over Robinson.

Lanzaro, 595 F.Supp. 1417, 1432 (D.N.J.1984). 
To the extent that any evidence presented at 
trial varied from  these admissions, the Court 
m ust treat the m atters adm itted as conclusively 
established, e.g., Haun v. Humana, Inc., 651 
F.Supp. 120, 122 (W.D.K.y.1986), and m ust re­
fuse to consider the inconsistent evidence, see, 
e.g., Shakm an v. Democratic Org. o f Cook Coun­
ty, 481 F.Supp. 1315, 1316 n. 35 (N.D.I11.1979). 
D efendants did not move to am end o r vacate 
their adm issions, so the Court has not evaluated 
w hether the standards applicable to such a m o­
tion could be met. See, e.g., Brook Village N. 
Assocs. v. General Elec. Co., 686 F.2d 66, 70-73 
(1st Cir.1982) (setting forth  standards fo r p re­
trial and trial m otions for am ending adm is­
sions); see also Sm ith  v. First N ational Bank o f 
Atlanta, 837 F.2d 1575, 1577-78 (11th Cir.) 
(adopting central prem ise of Brook Village), 
cert, denied, 488 U.S. 821, 109 S.Ct. 64, 102 
L.Ed.2d 41 (1988).



1492 760 FEDERAL SUPPLEMENT

5. Defendant John Stewart (“Stewart”) 
has been Industrial Relations Manager of 
JSI since 1981. During the time relevant 
to this case, he was responsible for person­
nel policies at all of JSI’s facilities, includ­
ing the Mayport Yard and the Commercial 
Yard, and was in charge of handling Equal 
Employment Opportunity (EEO) complaints 
filed against JSI.

6. Defendant Elmer L. Ahlwardt (“Ahl- 
wardt”) was Vice-President of the Mayport 
Yard from 1977 to 1988. During that time, 
he was the highest ranking official and 
principal supervisor at the Mayport Yard. 
(He retired from JSI in 1988.) He had 
supervisory authority over Robinson 
throughout her employment by JSI when 
she worked at the Mayport Yard.

7. Defendant Everette P. Owens (“Ow­
ens”) was a yard superintendent at the 
Mayport Yard from 1973 until 1988. (He 
was not working at the time of the trial 
due to an injury.) He was responsible for 
managing the daily operation of the May- 
port Yard; he had supervisory authority 
over Robinson when she worked there.

8. Defendant Ellis Lovett (“Lovett”) 
has been shipfitters' foreman at JSI’s May- 
port Yard since approximately 1970. Lo­
vett handled personnel problems in his 
shop, including reprimanding shipfitters at 
the Mayport Yard.

9. Defendant John Kiedrowski (“Kied- 
rowski”) was promoted from first-class 
welder to leaderman at JSI in 1976, and 
since that time he has held the position of 
either quarterman or leaderman. Kiedrow­
ski has exercised limited supervisory au­
thority over Robinson and has inspected 
her work. Kiedrowski Depo. at 42. In 
January 1985 Kiedrowski was the most 
senior person in the welding department on 
the day shift at the Mayport Yard and 
aboard the U.S.S. Saratoga. 8 T.T. at 97.

The JSI Workplace
10. In addition to a welding department. 

JSI’s other craft departments include ship­
fitting, sheetmetal, electrical, transporta­
tion, shipping and receiving (including tool­
room), carpenter, boilermaker, inside ma­
chine, outside machine, rigging, quality as­
surance and pipe. Employees in these 
craft departments may be assigned to work

at either the Mayport Yard, situated at the 
Mayport Naval Station, or the Commercial 
Yard, situated at a riverfront site in down­
town Jacksonville and sometimes referred 
to as the downtown yard. Robinson’s job 
assignments at JSI have required her to 
work at both the Commercial Yard and the 
Mayport Yard.

11. The term “shop” has two meanings 
at the shipyards. The various craft depart­
ments are called shops. These depart­
ments also have permanent physical loca­
tions that are called shops. A craft depart­
ment may bear a nickname; for example, 
the shipfitters’ shop is sometimes referred 
to as the fab shop.

12. At Mayport, the shops are housed in 
several large buildings in the “backyard 
compound.” When an aircraft carrier is 
docked for repair, the ship gives a com­
pound to JSI in a hangar bay in which to 
put trailers which serve as temporary of­
fices for each shop or department. This 
shipboard compound may range from ap­
proximately 30 feet by 100 feet to 60 feet 
by 150 feet. The space between the trail­
ers on either side of the compound is ap­
proximately wide enough to allow passage 
of a truck. Each trailer houses two tempo­
rary offices, about six feet by twelve feet 
in size, which may be empty, or may con­
tain office furniture (for example, desks 
and bulletin boards). Workers store their 
equipment in the trailers and congregate 
there with coworkers, both to socialize and 
for work-related reasons.

13. Robinson’s job assignments at the 
Mayport Yard have included “combination 
jobs,” in which she sometimes works as a 
welder in combination with shipfitters. At 
times, Robinson has been directed by her 
superiors to stand in front of the shipfit­
ters’ trailer to get her assignment from the 
shipfitters’ leaderman. When welders 
work with shipfitters at the Mayport Yard, 
it is not unusual for them to go into the 
shipfitters’ trailer. Robinson has, for ex­
ample. gone into the shipfitters’ trailer to 
check on paperwork or her assignment.

14. Ship repair work is a dangerous pro­
fession; JSI acknowledges the need to 
"provide a working environment that is



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1 4 9 3
Cite as 760 F.Supp. 1486 (M .D.FIa. 1991)

safe and healthful.” Jt.Exh. No. 11, at 37 
(collective bargaining agreement); see also 
Jt.Exh. No. 12 (JSI Safety Instructions and 
General Company Rules). Accidents pose 
a continuing risk and do happen; as defen­
dant Mcllwain noted, where individuals are 
working together, ‘‘one slip” could lead to 
someone getting hurt. Mcllwain Depo. at
27. Welding, Robinson’s profession, poses 
particular risks. See Turner Depo. at 62- 
65 (falling, slipping, burns, flammable gas).

15. Quartermen and leadermen at JSI 
are union bargaining unit employees who 
assign and check the work performed by 
craftworkers. Quartermen are below fore­
men in authority, but a quarterman does 
the foreman’s job when the foreman is 
absent from the work area. Owens Depo. 
at 33-34. Leadermen are directly below 
quartermen in authority and look to quar­
termen as their immediate supervisors. 5 
T.T. at 172. Leadermen often are the most 
senior persons in a shop in a work area. 
See, e.g., 7 T.T. at 128; 8 T.T. at 97. Lead­
ermen, however, lack the authority to hire, 
fire, or promote other employees. 8 T.T. at 
89. Leadermen cannot discipline other 
workers, id., although they can make rec­
ommendations to the foremen about disci­
pline, McMillan Depo. at 137. Leadermen 
have no authority to resolve or adjust for­
mal employee grievances. 8 T.T. at 89.

The JSI Working Environment
16. JSI is, in the words of its employ­

ees, “a boys club,” 4 T.T. at 36, and “more 
or less a man’s world,” McMillan Depo. at 
97. Women craftworkers are an extreme 
rarity. The company's EEO-1 reports 
from 1980 to 1987 typically show that wom­
en form less than 5 percent of the skilled 
crafts. P.Exh. Nos. 35-42. For example, 
JSI reported employing 2 women and 958 
men as skilled craftworkers in 1980, 7 
women and 1,010 men as skilled craftwork­
ers in 1983, and 6 women and 846 men as 
skilled craftworkers in 1986. Henry Star­
ling, a shift superintendent at the Commer­
cial Yard, testified that on a busy shift he 
may see only 8 or 10 women, while seeing 
150 men; on a quiet shift he may see no 
women at all. 7 T.T. at 21-22; see also 5 
T.T. at 169 (welding leaderman estimated 
shift of 50 to 100 people included only 1 or 
2 women); Lovett Depo. at 8 (only 5 or 6 of

98 shipfitters are female); Turner Depo. at 
6 (only 2 of approximately 100 welders are 
female). Leslie Albert, Lawanna Gail 
Banks, and Robinson each testified that 
she was the only woman in a crowd of men 
on occasions when each was sexually ha­
rassed at JSI. See, e.g., 1 T.T. at 32-33, 
112-14, 175-76; 2 T.T. at 16, 35-37; 3 T.T. 
at 42-47, 52-54, 84-86, 109-11; 4 T.T. at 
11-12, 25-28, 75-77. JSI has never em­
ployed a woman as a leaderman, quarter- 
man, assistant foreman, foreman, superin­
tendent, or coordinator. Nor has any wom­
an ever held a position of Vice-President or 
President of JSI.

17. Pictures of nude and partially nude 
women appear throughout the JSI work­
place in the form of magazines, plaques on 
the wall, photographs torn from magazines 
and affixed to the wall or attached to calen­
dars supplied by advertising tool supply 
companies (“vendors’ advertising calen­
dars”). Two plaques consisting of pictures 
of naked women, affixed to wood and var­
nished, were introduced into evidence, Jt. 
Exh. Nos. 6, 7, and identified by several 
witnesses as having been on display for 
years at JSI in the fab shop area under the 
supervision of defendant Lovett, 1 T.T. at 
101; 7 T.T. at 94; 8 T.T. at 142-43.

18. Advertising calendars, such as Joint 
Exhibits Nos. 1-5, have been delivered for 
years to JSI by vendors with whom it does 
business. JSI officials then distribute the 
advertising calendars among JSI employees 
with the full knowledge and approval of 
JSI management. JSI employees are free 
to post these advertising calendars in the 
workplace. (It is not a condition of JSI’s 
contracts with the vendors that the adver­
tising calendars be posted.) A major sup­
plier of advertising calendars to JSI is 
Whilden Valve and Gauge Repair, Inc.; 
Valve Repair, Inc. also does business with 
JSI and also delivers advertising calendars 
to the company. Joint Exhibit No. 1 is the 
1984 Whilden Valve and Gauge Repair, Inc. 
calendar that was distributed among em­
ployees at JSI; it hung in the pipe shop at 
the Mayport Yard, among other places. 
The exhibit designated as Joint Exhibit No. 
2 is a copy of an advertising calendar from 
Whilden Valve and Gauge Repair, Inc. that



1494 760 FEDERAL SUPPLEMENT

was posted, among other places, in the 
shipfitters’ temporary office on the U.S.S. 
Saratoga in January 1985. Joint Exhibit 
No. 5 is a copy of a Valve Repair, Inc. 
calendar that was distributed at JSI in 1987 
and which was on display in, among other 
places, the offices of the foreman and lead- 
erman of the pipe shop at the Commercial 
Yard. Generally speaking, these calendars 
feature women in various stages of un­
dress and in sexually suggestive or submis­
sive poses. A description in greater detail 
of the calendars’ contents is set forth in 
Findings of Fact (“FOF”) 11 25. Several 
male JSI employees corroborated the dis­
play of similar advertising calendars at JSI. 
See, e.g., 6 T.T. at 130, 145 (Owens); id. at 
198-200 (Ahlwardt); 7 T.T. at 53 (McBride); 
id. at 79, 93 (Cooney).

19. JSI has never distributed nor toler­
ated the distribution of a calendar or calen­
dars with pictures of nude or partially nude 
men. Ahlwardt stated that he has never 
seen a picture of a nude man at JSI and 
would be surprised to see one. Ahlwardt 
Depo. at 100-01. Lovett said that he would 
probably throw such a calendar in the 
trash. Lovett Depo. at 18-20. Welding 
foreman Fred Turner noted it was accepted 
at the shipyards for vendors to supply cal­
endars of nude women, but he had never 
known of a vendor distributing a calendar 
of nude men and, if one did so, he would 
think the “son of a bitch” was “queer.” 
Turner Depo. at 52-53.

20. JSI employees are encouraged to 
request permission to post most kinds of 
materials; however, prior approval by the 
company is not required for the posting of 
advertising calendars with pictures of nude 
or partially nude women. JSI management 
has denied employees’ requests to post po­
litical materials, advertisements and com­
mercial materials.

21. Bringing magazines and newspa­
pers on the job is prohibited, 6 T.T. at 
139-42, but male JSI employees read por­
nographic magazines in the workplace 
without apparent sanctions, see 7 T.T. at 
215-23 (testimony of Roy Wingate regard­
ing Robinson’s complaint about coworker 
reading pornographic magazine on the job). 
Although JSI employees are discouraged 
by management from reading on the job,

they are not prohibited from tearing sexu­
ally suggestive or explicit pictures of wom­
en out of such magazines and displaying 
them on the workplace walls at JSI. Kied- 
rowski Depo. at 76-77; see also Leach 
Depo. at 19-21, 26 (Playboy and Penthouse 
magazines in desk drawers in shipfitting 
shop and trailer office; Leach showed them 
to other men in the fab shop); McMillan 
Depo. at 46-47 (magazines showing nude 
women kept in storeroom and transporta­
tion department for JSI male employees to 
read).

22. Management employees from the 
very top down condoned these displays; 
often they had their own pictures. Mcll- 
wain, for example, has been aware for 
years of Playboy- and Penthouse-style pic­
tures showing nude women posted in the 
workplace; he refused to issue a policy 
prohibiting the display of such pictures. 
Mcllwain Depo. at 56-57, 81-82. Both 
Brown and Stewart have encountered pic­
tures of nude or partially nude women in 
the work environment at JSI. Neverthe­
less, both men have concluded, and agreed 
with each other, that there is nothing 
wrong with pictures of naked or partially 
naked women being posted in the JSI work­
place. Ahlwardt kept a “pin-up” himself, 6 
T.T. at 207; Lovett, like some other fore­
men, had vendors’ advertising calendars in 
his office. Lovett Depo. at 35-36; Jt.Exh. 
No. 5. Coordinators, who are members of 
management, 6 T.T. at 132, and who are 
responsible for ensuring that government 
contracts are performed to the satisfaction 
of the federal government, have had porno­
graphic magazines in the desks of their 
trailers, 5 T.T. at 182.

Sexual Harassment o f Plaintiff
23. Robinson credibly testified to the 

extensive, pervasive posting of pictures de­
picting nude women, partially nude women, 
or sexual conduct and to the occurrence of 
other forms of harassing behavior perpe­
trated by her male coworkers and supervi­
sors. Her testimony covered the full term 
of her employment, from 1977 to 1988. 
The Court considered those incidents that 
fall outside the time frame of a Title VII 
complaint for the purpose of determining



1495ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as  760 F.Supp. 1486 (M .D.Fla. 1991)

the context of the incidents which are ac­
tionable (i.e., whether the more recent con­
duct may be dismissed as an aberration or 
must be considered to be a part of the work 
environment) and for the purpose of as­
sessing the reasonableness of the response 
by defendants to the complaints that Robin­
son made during the Title VII time frame. 
The Court also recognizes some limitations 
in Robinson’s testimony. She tried to ig­
nore some sexual comments. Her testimo­
ny included many episodes of harassment 
not previously disclosed in her answers to 
defendants’ interrogatories because, as 
stated in those answers, the frequency with 
which the incidents occurred over the 
course of her employment made delineating 
every one a difficult task. Robinson’s de­
meanor at trial reflected the emotional na­
ture of her recollections. Moreover, the 
large number of male employees and the 
often surreptitious nature of the postings 
and graffiti writings left Robinson incapa­
ble of identifying many of her harassers. 
(Indeed, a perusal of her testimony and 
that of her coworkers reveals that many 
persons in the shipyards knew each other 
only by nicknames.) These limitations, 
however, do not diminish the weight and 
the usefulness of the testimony. The indi­
vidual episodes illustrate and lend credibili­
ty to the broader assertion of pervasive­
ness.

24. Robinson’s testimony provides a viv­
id description of a visual assault on the 
sensibilities of female workers at JSI that 
did not relent during working hours. She 
credibly testified that the pervasiveness of 
the pictures left her unable to recount ev­
ery example, but those pictures which she 
did describe illustrate the extent of this 
aspect of the work environment at JSI. 
She testified to seeing in the period prior to 
April 4, 1984, the three hundredth day prior 
to the filing of her EEOC charge:

(a) a picture of a woman, breasts and 
pubic area exposed, inside a drydock 
area in 1977 or 1978. 1 T.T. at 104.

(b) a picture of a nude Black woman, 
pubic area exposed to reveal her la­
bia, seen in the public locker room. 1 
T.T. at 105.

(c) drawings and graffiti on the walls, 
including a drawing depicting a fron-

760 F.Supp.—34

tal view of a nude female torso with 
the words “USDA Choice” written on 
it, at the Commercial Yard in the late 
1970’s or early 1980’s, in an area 
where Robinson was assigned to 
work. 1 T.T. at 112-13.

(d) a picture of a woman’s pubic area 
with a meat spatula pressed on it, 
observed on a wall next to the 
sheetmetal shop at Mayport in the 
late 1970’s. 1 T.T. at 113.

(e) centerfold-style pictures in the May-
port Yard toolroom trailer, which 
Robinson saw daily in the necessary 
course of her work for over one 
month in the late 1970s. 1 T.T. at
105-08. Neal McCormick, a toolroom 
worker from 1975 to 1980, verified 
that the toolroom personnel had in­
deed displayed pictures of nude wom­
en “of the Playboy centerfold varie­
ty” during the time he worked there. 
8 T.T. at 66-67.

(f) pictures of nude or partially nude 
women in the fab shop lockers at the 
Commercial Yard in 1978 through 
1980. 1 T.T. at 110-11.

(g) a pornographic magazine handed to 
Robinson by a male coworker in front 
of other coworkers in the early 1980s. 
1 T.T. at 110-11.

(h) a magazine containing pictures of 
nude and partially nude women in the 
possession of a pipefitter, in 1980, 
who was reading it in the engine 
room of a ship. 2 T.T. at 17.

(i) pictures in the shipfitters’ shop at the 
Commercial Yard, in 1983, observed 
by Robinson while she was walking to 
the welding shop, including a frontal 
nude with a shaved pubic area and 
corseted nude with her breasts and 
buttocks area exposed. 1 T.T. at 120- 
21. Robinson complained to John 
Robinson, the quarterman on the third 
shift in the shipfitting department, 
about the second picture; he took it 
down that night and she never saw 
the picture again. Id.

(j) a picture of a woman with her breasts 
exposed, on the outside of a shack on 
a ship in the Commercial Yard. 2 T.T.



1496 760 FEDERAL SUPPLEMENT

at 10. Robinson enlisted the assist­
ance of union vice-president Leroy 
Yeomans to have the picture removed. 
6 T.T. at 221-22, 228-29. It was re­
moved within a day or two.

25. Robinson’s testimony concerning 
visual harassment in the period commenc­
ing April 4, 1984, includes:

(a) a picture of a nude woman with long 
blonde hair wearing high heels and 
holding a whip, waved around by a 
coworker, Freddie Dixon, in 1984, in 
an enclosed area where Robinson and 
approximately six men were working. 
1 T.T. at 114-20. Robinson testified 
she felt particularly targeted by this 
action because she has long blonde 
hair and works with a welding tool 
known as a whip. Id. at 114. Dixon 
admitted that he had indeed waved 
the picture around for other male em­
ployees to see, but denied that he 
intended to target or offend Robin­
son. 7 T.T. at 150. In fact, Dixon 
claimed that he was unaware that 
Robinson was in the area and that he 
was unaware that Robinson was a 
blonde. Id. at 149-51. The Court 
does not find his denials credible; the 
evidence more readily supports the 
conclusion that Dixon intended to of­
fend Robinson, or acted with such 
disregard for her that the harassment 
could be equated with intent.

(b) calendars posted in the pipe shop in 
the Commercial Yard, in 1983 or 
1984, including a picture in which a 
nude woman was bending over with 
her buttocks and genitals exposed to 
view. 1 T.T. at 121-22. (Joint Exh. 
No. 1 was admitted as illustrative of 
this type of calendar. It is a Whilden 
Valve and Gauge calendar for 1984. 
The naked breasts or buttocks of 
each model are exposed in every 
month; the pubic areas also are visi­
ble on the models featured in April 
and September. Several of the pic­
tures are suggestive of sexually sub­
missive behavior.) Robinson testified 
that she observed at least three pic­
tures posted in the pipe shop. Id. 
Although this was not Robinson’s 
usual work area, she was in that shop

with a leaderman to find the pipe 
shop leaderman to clarify a work 
matter. Id. at 122.

(c) a picture of a nude woman with long 
blond hair sitting in front of a mirror 
brushing her ha;r, in a storage area 
on a ship. 1 T.T. at 123. Robinson 
mentioned to either a leaderman or 
the assistant foreman that she con­
sidered it a “very dirty ship,” and she 
was subsequently reassigned to a dif­
ferent location. Id.

(d) Joint Exh. No. 3, a Whilden Valve & 
Gauge calendar for 1985, which fea­
tures Playboy playmate of the month 
pictures on each page. 2 T.T. at 21. 
The female models in this calendar 
are fully or partially nude. In every 
month except February, April, and 
November, the model’s breasts are 
fully exposed. The pubic areas are 
exposed on the women featured in 
August and December. Several of 
the pictures are suggestive of sexual­
ly submissive behavior.

(e) several pictures of nude or partially 
nude women posted in the fab shop 
area in the backyard of the Mayport 
Yard, in January 1985, visible to her 
from her path to and from the time 
clock building. 1 T.T. at 19-20.

(f) pictures in the shipfitters’ trailer on 
board the U.S.S. Saratoga, in Janu­
ary 1985, including one picture of two 
nude women apparently engaged in 
lesbian sex. 1 T.T. at 22-23. Robin­
son later observed a calendar, Jt. 
Exh. No. 2, in this office. Id. at 
44-45. This calendar, distributed by 
Whilden Valve and Gauge, features 
pictures of nude and partially nude 
women each month. The breasts of 
each model are exposed; the pubic 
areas of the models also are exposed 
for May, October and December. 
Several of the pictures are suggestive 
of sexually submissive behavior.

(g) pictures in the toolroom trailer 
aboard the U.S.S. Saratoga, in Janu­
ary 1985, including one of a nude 
woman with long blond hair lying 
down propped up on her elbow and a



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1497
Cite as 760 F.Supp. 14S6 (M .D.Fla. 1991)

smaller black and white photograph 
of a female nude. 1 T.T. at 24-25. 
These pictures formed a part of Rob­
inson’s complaint that forms the 
foundation of this lawsuit. The de­
tails are recounted infra FOF 1111 98- 
116.

(h) pictures in the fab shop area, in Janu­
ary 1985, including one of a woman 
wearing black tights, the top pulled 
down to expose her breasts to view, 
and one of a nude woman in an out­
door setting apparently playing with 
a piece of cloth between her legs. 1 
T.T. at 55-56.

(i) Joint Exh. No. 4, a Whilden Valve & 
Gauge calendar for 1986, which fea­
tures Playboy playmate of the month 
pictures on each page. 1 T.T. at 103- 
04. The female models in this calen­
dar are fully or partially nude. In 
every month except April, the model’s 
breasts are fully exposed. The pubic 
areas are exposed on the women fea­
tured in May, June and December. 
Several of the pictures are suggestive 
of sexually submissive behavior.

(j) a picture of a nude woman left on the 
tool box where Robinson returned her 
tools, in the summer of 1986. 2 T.T. 
at 35. The photograph depicted the 
woman’s legs spread apart, knees 
bent up toward her chest, exposing 
her breasts and genitals. Id. at 36. 
Several men were present and 
laughed at Robinson when she ap­
peared upset by the picture. Id. at 
36-37.

(k) pictures seen in the shipfitters’ trail­
er, in 1986, including one of a woman 
with short blond hair, wearing a dark 
vest pulled back to expose her 
breasts. 1 T.T. at 192. Robinson 
complained to shipfitter leaderman 
Danny Miracle about the photograph 
of the blond woman. Miracle re­
moved the photograph, with some re­
luctance, but it was posted again 
shortly thereafter. 8 T.T. at 70-71. 
It was not visible from outside the 
trailer when it was posted the second 
time. Id.

(/) a sexually-oriented cartoon, D.Exh. 
No. 1, posted in the safety office, in

1986, at the Mayport Yard. 1 T.T. 
at 193-96.

(m) pictures observed in the fab shop 
area office, in 1986, including Jt.Exh. 
No. 6, 1 T.T. at 101, and a picture of 
a topless brown haired woman. 2 
T.T. at 5-7. Joint Exh. No. 6 is a 
wooden plaque consisting of a pic­
ture of a very young-looking woman 
with one breast fully exposed and 
the other breast partially exposed. 
Robinson also remarked that another 
plaque was present in that shop, 
without further identifying it. Oth­
er testimony indicated that Jt.Exh. 
No. 7 hung in the fab shop at that 
time. Jt.Exh. No. 7 shows a nude 
woman straddling a hammock with 
her head tossed back and her back 
arched. Her exposed breasts are 
fully visible as is some pubic hair.

(n) a life-size drawing of a nude woman 
on a divider in the sheetmetal shop, in 
April 1987, which remained on the 
walls for several weeks. 1 T.T. at 
169-70.

(o) a drawing on a heater control box, 
approximately one foot square, of a 
nude woman with fluid coming from 
her genital area, in 1987, at the Com­
mercial Yard. 1 T.T. at 170-72.

(p) Joint Exh. No. 5, a Valve Repair, Inc. 
calendar for 1987, which features 
Playboy playmate of the month pic­
tures on each page. 1 T.T. at 172-73. 
(Defendants have admitted that this 
calendar was displayed during 1987 
in the foreman’s and leaderman’s of­
fices of the pipe shop at the Commer­
cial Yard.) The female models in this 
calendar are fully or partially nude. 
In every month the model’s breasts 
are fully exposed. The pubic areas 
are exposed on the women featured 
in March and September. Several of 
the pictures are suggestive of sexual­
ly submissive behavior.

(q) a dart board with a drawing of a 
woman’s breast with her nipple as 
the bull’s eye, in 1987 or 1988, at the 
Commercial Yard. 1 T.T. at 175-76.



1498 760 FEDERAL SUPPLEMENT

(r) pornographic magazines, including 
Players, on a table by the gangway 
of a ship, in 1987 or 1988, where JSI 
machinists were looking through 
them and commenting on the pic­
tures, 1 T.T. at 180-82, a Club maga­
zine, held out by coworker Thomas 
Adams in the bow of a ship, id. at 
183-84, several magazines being read 
by pipefitters, in 1986, aboard a ship 
at the Mayport Yard, 2 T.T. at 16, and 
various other instances of welders 
with magazines throughout the 
1980’s, id. at 18.

(s) pictures of nude and partially nude 
women posted in the engine room of 
the M /V Splay, in 1988, at the Com­
mercial Yard, including a picture of a 
nude woman in a kneeling position 
and a calendar featuring photographs 
of nude women. 1 T.T. at 177-79. 
Robinson complained to her leader- 
man, who in turn found a person as­
sociated with the ship to remove and 
cover the pictures. Id. at 179. Later, 
however, the pictures were again 
posted and uncovered. Id. at 179-80.

(t) a shirt worn by the shop steward, in 
December 1988, with a drawing of 
bare female breasts and the words 
“DALLAS WHOREHOUSE” written 
on it. 2 T.T. at 204-05.

26. In January 1985, following a com­
plaint by Robinson concerning a calendar in 
the shipfitters' trailer, the words “Men 
Only” were painted on the door to that 
trailer. Full details of this incident are 
recounted infra FOF 1H1 102-106.

27. Robinson also testified about com­
ments of a sexual nature she recalled hear­
ing at JSI from coworkers. In some in­
stances these comments were made while 
she also was in the presence of the pictures 
of nude or partially nude women. Among 
the remarks Robinson recalled are: “Hey 
pussycat, come here and give me a whiff,” 
1 T.T. at 54-55; “The more you lick it, the 
harder it gets,” id. at 96 (incorrectly tran­
scribed as “The more you look at it . . .  ”); 
“I’d like to get in bed with that,” id. at 175; 
“I’d like to have some of that,” id.; “Black 
women taste like sardines,” id. at 129; “It 
doesn’t hurt women to have sex right after 
childbirth,” id.; “That one there is mine”

(referring to a picture in a magazine), id. at 
181; “Watch out for Chet. He’s Chester 
the Molester” (referring to a cartoon char­
acter in a pornographic magazine who mo­
lests little girls), 2 T.T. at 17; “You rate 
about an 8 or a 9 on a scale of 10,” id. at 
18. She recalled one occasion on which a 
welder told her he wished her shirt would 
blow over her head so he could look, 1 T.T. 
at 126, another occasion on which a fitter 
told her he wished her shirt was tighter 
(because he thought it would be sexier), id. 
at 127-28, an occasion on which a foreman 
candidate asked her to “come sit” on his 
lap, id. at 130, and innumerable occasions 
on which a coworker or supervisor called 
her “honey,” “dear,” “baby,” “sugar,” 
“sugar-booger,” and “momma” instead of 
calling her by her name, id. at 57, 128, 
173-74. Robinson additionally related her 
exposure to joking comments by male co­
workers about a woman pipefitter whose 
initials are “V.D.” 2 T.T. at 17-18.

28. Robinson encountered particularly 
severe verbal harassment from a shipfitter, 
George Nelson (“Nelson”), while assigned 
to work with him on a number of different 
nights in 1986 at the Mayport Yard. Nel­
son regularly expressed his displeasure at 
working with Robinson, making such re­
marks as “women are only fit company for 
something that howls,” and “there’s noth­
ing worse than having to work around 
women.” 1 T.T. at 196-201. On one occa­
sion, Nelson responded to Robinson’s in­
quiry regarding a work assignment by stat­
ing, “I don’t know, I don’t care where you 
go. You can go flash the sailors if you 
want.” Id. at 196-97. On other occasions, 
Nelson ridiculed Robinson in front of the 
Navy fire watch personnel. Id. at 197-98. 
When Robinson confronted Nelson over her 
perception of his behavior as sexual harass­
ment, Nelson denied he was engaging in 
harassment because he had not proposi­
tioned her for sexual favors. Id. at 200. 
Nelson subsequently made Robinson’s per­
ception of “harassment” a new subject of 
ridicule and accused her of “crusading on a 
rabbit.” 2 T.T. at 5.

29. On one occasion, George Leach told 
an offensive joke in Robinson’s presence, 
the subject matter of which concerned



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1499
Cite as  760 F.Supp. 1486 (M.D.FIa. 1991)

“boola-boola,” a reference to sodomous 
rape. 1 T.T. at 131-35. He admitted tell­
ing the joke but maintained that he told it 
quietly and Robinson had taken steps to 
avoid hearing the joke. The Court credits 
Robinson’s testimony and further observes 
that the work environment is not rendered 
less hostile by a male coworker’s demand 
of a female worker that she “take cover” 
so that the men can exchange dirty jokes. 
Leach later teased Robinson in a threaten­
ing fashion by yelling “boola-boola” at her 
in the parking lot at JSI. Robinson subse­
quently learned that some shipfitters had 
dubbed her “boola-boola” as a nickname 
arising out of these events. Id. at 133.

30. Robinson testified concerning the 
presence of abusive language written on 
the walls in her working areas in 1987 and 
1988. Among this graffiti were the phras­
es “lick me you whore dog bitch,” “eat 
me,” and “pussy.” This first phrase ap­
peared on the wall over a spot where Rob­
inson had left her jacket. 1 T.T. at 163-65. 
The second phrase was freshly painted in 
Robinson’s work area when she observed 
it. Id. at 165-67. The third phrase ap­
peared during a break after she left her 
work area to get a drink of water. Id. at 
167-68.

31. Donald Furr, Robinson’s leaderman, 
attested to further evidence of the frequen­
cy with which this abusive graffiti oc­
curred. He stated that he had seen words 
like “pussy” and “cunt” written on the 
walls in the JSI workplace. 5 T.T. at 165— 
67. He added that at one point “it was 
getting to be an almost every night occa­
sion [Robinson] wanted something scrib­
bled out or a picture tooken [sic] 
down.. . . ” Id. at 171.

Sexual Harassment o f Other 
Female Craftworkers

32. The Court heard testimony from 
two of Robinson’s female coworkers, La- 
wanna Gail Banks (“Banks”) and Leslie 
Albert (“Albert”), concerning incidents of 
sexual harassment to which they were sub­
jected, including incidents that did not oc­
cur in Robinson’s presence. The Court 
heard this evidence for several reasons. 
First, as with the incidents outside the time 
frame of a Title VII complaint involving

Robinson, incidents involving other female 
employees place the conduct at issue in 
context. The pervasiveness of conduct con­
stituting sexual harassment outside Robin­
son’s presence works to rebut the assertion 
that the conduct of which Robinson com­
plains is isolated or rare. Second, the issue 
in this case is the nature of the work 
environment. This environment is shaped 
by more than the face-to-face encounters 
between Robinson and male coworkers and 
supervisors. The perception that the work 
environment is hostile can be influenced by 
the treatment of other persons of a plain­
tiffs protected class, even if that treatment 
is learned second-hand. Last, other inci­
dents of sexual harassment are directly 
relevant to an employer’s liability for the 
acts of employees and to the issue of an 
appropriate remedy for the sexual harass­
ment perpetrated against Robinson.

33. Banks and Albert both confirmed 
the description of the work environment 
related by Robinson. Each of these other 
women endured many incidents of sexually 
harassing behavior. To the extent that 
defendants attempted to show that either 
Banks or Albert engaged in behavior dem­
onstrating a welcomeness of the sexually 
harassing behavior or a lack of offense at 
such behavior, the Court does not find 
these contentions credible. Rather, for 
reasons expressed in the expert testimony 
infra, the Court finds the description of 
these witnesses’ behavior to be consistent 
with the coping strategies employed by 
women who are victims of a sexually hos­
tile work environment.

34. Banks testified that she experienced 
what she considers to be sexual harass­
ment in the form of comments, pictures, 
public humiliation and touching by male 
coworkers and supervisors. 3 T.T. at 30- 
31. The harassing behavior negatively af­
fected her attitude toward work; she had 
to prepare herself mentally each day for 
what might happen. Id. at 131-32. 
Among the incidents to which she credibly 
testified:

(a) being pinched on the breasts by a 
foreman, id. at 34-35.



1500 760 FEDERAL SUPPLEMENT

(b) having her ankles grabbed by a male 
coworker who pulled her legs apart 
and stood between them, id. at 36-37.

(c) hearing such comments as “it’s a cunt 
hair off,” id. at 38, “are you on the 
rag,” id. at 51, and “what do you 
sleep in?,” id. at 48. Indeed, a weld­
ing department supervisor, John 
Nicholas, testified that he personally 
had used the first two of these phras­
es, as well as “put some hair around 
it.” 7 T.T. at 229, 235. Banks testi­
fied Nicholas remarked to her that 
she would “go to hell for culling pus­
sy,” 3 T.T. at 42, a remark which 
Nicholas denied, 7 T.T. at 226. Banks 
testified that Herbert Kennedy, a 
foreman, told her that “she’s sitting 
on a goldmine,” 3 T.T. at 49-50, a 
phrase that Nicholas testified he had 
heard used in the shipyards, 7 T.T. at 
229, although Nicholas did not name 
any person who used the phrase.

(d) receiving verbal abuse from a rigger 
named Hawkins. On one occasion 
Hawkins belittled Banks’ concern 
over a large rat by making a quip 
that Banks took to be a sexual refer­
ence. 3 T.T. at 43-44. The following 
day Hawkins humiliated Banks by 
stating, in front of a large group of 
male coworkers, “if you fell into a 
barrel of dicks, you’d come up suck­
ing your thumb.” Id. at 42-48.

(e) receiving a variety of harassment 
from a rigger named John Fraser. 
Fraser sniffed at Banks’ behind while 
she was walking up a gangway, pro­
ducing laughter from the group of 
men observing the incident. 3 T.T. at 
53-54. Fraser also placed a large 
flashlight in his pants in Banks’ pres­
ence to create the illusion of a large 
penis. Id. at 54-55. (Fraser admit­
ted that he had done this with a flash­
light, but denied that it was done in 
Banks’ presence. 8 T.T. at 125.) 
Fraser once so bothered Banks dur­
ing a bus ride at work that she swore 
at him and felt compelled to immedi­

3. W hile incidents outside the workplace do not 
provide a basis for concluding that the w ork­
place is sexually hostile, the circum stances of 
these two incidents m ake them  w orthy of this

ately report his actions, first to her 
leaderman, then his leaderman. 3 
T.T. at 55-57. His leaderman, Eu­
gene Sharpe (“Sharpe”), responded in 
a fashion that left Banks feeling hu­
miliated. Id. at 57-59. In fact, 
Banks was summoned before her su­
pervisor the next day and called to 
task for having sworn at Fraser. Id. 
at 60-68.

(f) suffering the embarrassment of hav­
ing a shipfitter leaderman, Ernie 
Edenfield (“Edenfield”), hold a chip­
ping hammer handle, which was whit­
tled to resemble a penis, near her face 
while he told her to open her mouth. 
3 T.T. at 83-86. (Edenfield denied 
having done this. 7 T.T. at 164-65.)

(g) enduring the unwelcome advances of 
a coworker, a pipefitter named Ro­
meo Bascuguin, who pursued her for 
dates and talked explicitly about his 
reputed sexual prowess. 3 T.T. at 
72-81, 173-77. Banks complained to 
Kiedrowski about Bascuguin’s ad­
vances and Kiedrowski spoke to him 
about his behavior. 8 T.T. at 94-95. 
Banks also testified to two other inci­
dents involving calls to her home by 
JSI employees, including a supervi­
sor, who expressed sexual interest in 
her. 3 T.T. at 126-30.3

35. Banks observed pictures of nude 
and partially nude women throughout the 
workplace at JSI. 3 T.T. at 114-17, 120-22, 
124. She did not take as great offense at 
the pictures as Robinson did, but Banks 
stated that she steered clear of men who 
worked where such pictures were displayed 
because she came to expect more harass­
ment from those men. 3 T.T. at 125, 179— 
80.

36. Following Robinson’s complaints to 
management about the pictures of nude or 
partially nude women, Banks observed an 
increase in the number of pictures and in 
the objectionableness of their content. 3 
T.T. at 88, 94, 123. On two occasions when

brief notation  in order to develop fully the 
record respecting the degree to which the work 
environm ent shaped attitudes that transcended 
the confines of the shipyards.



ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as 760 F.Supp.

Banks was the only woman on the company 
bus, male coworkers displayed or read 
from pornographic magazines. Id. at 103— 
04, 109-11. Banks also testified concern­
ing two occasions in which male coworkers 
posted pictures with an apparent animus 
toward Robinson. A coworker, Chris Lay, 
showed a number of men, and Banks, a 
picture of a nude woman with a welding 
shield. He remarked, “Lois would really 
like this,” and placed it on the wall in the 
welding trailer aboard the U.S.S. Sarato­
ga. Id. at 97-98. Banks removed the pic­
ture when the men had left. Id. at 98. 
Approximately the same time, some male 
pipefitters placed a picture of a nude wom­
an on Robinson’s toolbox. Banks removed 
it, but another picture was placed there and 
subsequently discovered by Robinson. Id. 
at 100-03.

37. Albert, a machinist at JSI from 1976 
to 1986, testified to a description of the 
work environment consistent with that de­
scribed by Robinson and Banks. She relat­
ed sexual comments identical to or similar 
to those heard by Robinson and Banks, see 
4 T.T. at 32-36, 75-77, and noted that the 
recollection of specific incidents was ham­
pered by the commonplace, daily nature of 
the comments, id. In one noteworthy inci­
dent, a male coworker persistently proposi­
tioned Albert, prompting her to complain to 
her leaderman and assistant foreman. The 
propositions continued after those individu­
als spoke to the coworker. When he finally 
put his hands on Albert, she responded 
both verbally and physically. Thereafter 
the coworker was fired, although the cir­
cumstances in the record of his discharge 
do not indicate whether the discharge was 
for the sexually harassing behavior or for 
drunkenness and sleeping on the job. See 
id. at 54-56.

38. Albert also testified to the pervasive 
presence of pictures of nude and partially 
nude women throughout the shipyards, and 
the increase of male employee attention to 
such pictures following Robinson’s com­
plaints over the presence of the pictures. 
Among the incidents to which she credibly 
testified:

(a) observing a large poster of a nude 
woman with profuse hair growing 
down the centerline of her body post-

1501
I486 (M .D.FIa. 1991)

ed on a wall in the transportation 
department. 4 T.T. at 10-13. A male 
coworker asked Albert if she had sim­
ilar hair. Id.

(b) observing the vendors’ advertising 
calendars previously described, the 
“girlie” magazines kept in the outside 
machine shop trailer desk drawer, 
and a variety of men’s adult maga­
zines, such as Playboy, Penthouse, 
Cheri, Chic, and foreign titles, kept 
in trailers and carried by male em­
ployees in their back pockets. Id. at 
13-20.

(c) finding a foreign magazine, left open 
on a table in the shipfitters’ trailer, 
containing a picture of two women 
engaged in a sexual act while a nude 
man watched. Id. at 21-23.

(d) being shown a picture of a nude 
woman engaged in a pose of mastur­
bation by Sharpe, a leaderman in the 
rigging department. Id. at 25-26.

(e) being shown a picture of a nude man 
by Steven Leach (“Leach”), a leader- 
man in the shipfitting department. 
Id. at 26-28. This incident occurred 
after Robinson’s complaints concern­
ing pictures in the shipyards. Albert 
also testified that Leach would en­
gage in teasing behavior directed to­
ward Robinson and other women by 
closing a book in his hand and declar­
ing, “we can’t let her see that.” Id. 
at 73-74.

(f) observing pictures of scantily-dressed 
women in garters and brassieres with 
tassels in Lovett’s office in 1984 or 
1985. Id. at 24-25.

Admissions by Male Employees 
and Supervisors

39. Defendants have admitted that pic­
tures of nude or partially nude women 
have been posted in the shipfitters’ trailer 
at the Mayport Yard during Robinson’s 
employment at JSI. See Kiedrowski Depo. 
at 18-19; Jt.Exh. No. 2 (calendar actually 
posted in that office); 7 T.T. at 173-74 
(Edenfield’s description of “obscene pic­
tures” posted); 8 T.T. at 106-07. Defen­
dants and their agents also have admitted



1502 760 FEDERAL SUPPLEMENT

that these kinds of photographs have been 
displayed in and around the fab shop at the 
Mayport Yard. Lovett Depo. at 30-31; 7 
T.T. at 56.

40. The few witnesses who claimed nev­
er to have seen pictures such as those 
described by Robinson, Banks, and Albert, 
e.g., 6 T.T. at 227 (Yeomans); 7 T.T. at 205 
(Martin), cannot be credited given the 
weight of the credible and corroborated 
testimony to the contrary.

41. Based on the foregoing, the Court 
finds that sexually harassing behavior oc­
curred throughout the JSI working envi­
ronment with both frequency and intensity 
over the relevant time period. Robinson 
did not welcome such behavior.

Effect of JSI Work 
Environment on Women

42. The foregoing evidence was supple­
mented with the testimony of various ex­
perts. Plaintiff called experts in the fields 
of sexual stereotyping and sexual harass­
ment; defendants presented expert testi­
mony on the relative offensiveness of por­
nographic materials to men and women.

Plaintiffs Expert Witness Testimony
43. Dr. Susan Fiske appeared as an ex­

pert witness on plaintiffs behalf to testify 
on the subject of sexual stereotyping. Dr. 
Fiske holds a full professorship in the psy­
chology department at the University of 
Massachusetts at Amherst. Her creden­
tials in the field of stereotyping are impres­
sive. She is a member of the American 
Psychological Association and the Society 
for Experimental Social Psychology. Dr. 
Fiske has performed research for the Na­
tional Science Foundation and the National 
Institute of Mental Health. She has pub­
lished nearly forty articles in the top jour­
nals in her field. She generally does not 
accept offers to appear as an expert wit­
ness, having turned down fourteen such 
offers and having appeared as an expert 
previously only once, in the case Hopkins 
v. Price Waterhouse, 618 F.Supp. 1109 
(D.D.C.1985), a ffd  in relevant part, 825 
F.2d 458, 467 (D.C.Cir.1987), rev’d on other 
grounds, 490 U.S. 228, 109 S.Ct. 1775, 104 
L.Ed.2d 268 (1989), on remand, 737 
F.Supp. 1202 (D.D.C.1990), affd, 920 F.2d

967 (D.C.Cir.1990). Her testimony and ex­
pertise were well-regarded in that case. 
The Court accepted Dr. Fiske, without ob­
jection, as an expert in stereotyping.

44. The study of stereotyping is the 
study of category-based responses in the 
human thought and perceptual processes. 
Stereotyping, prejudice, and discrimination 
are the three basic kinds of category-based 
responses. Stereotyping exists primarily 
as a thought process, prejudice develops as 
an emotional or an evaluative process, pri­
marily negative in nature, while discrimina­
tion manifests itself as a behavioral re­
sponse. 4 T.T. at 177-78. Discrimination 
in this context is defined by the treatment 
of a person differently and less favorably 
because of the category to which that per­
son belongs. Id. at 178-79. Either stereo­
typing or prejudice may form the basis for 
discrimination.

45. To categorize people along certain 
lines means their suitability will be evaluat­
ed in these terms as well. In the process 
of perceiving people as divided into groups, 
a person tends to maximize the differences 
among groups, exaggerating those differ­
ences, and minimize the differences within 
groups. 4 T.T. at 179-80. In practice, this 
translates into a perception that women are 
more similar to other women and more 
different from men (and vice versa) than 
they actually may be. Id. This perceptual 
process produces the in-group/out-group 
phenomenon: members of the other group 
or groups are viewed less favorably. Id. at 
181. This categorizing process can produce 
discriminatory results in employment set­
tings if it leads a person in that job setting 
to judge another person based on some 
quality unrelated to job performance into 
which the other person falls.

46. For example, when a superior cate­
gorizes a female employee based on her 
sex, that superior evaluates her in terms of 
characteristics that comport with stereo­
types assigned to women rather than in 
terms of her job skills and performance. 4 
T.T. at 182. Thus, to categorize a female 
employee along the lines of sex produces 
an evaluation of her suitability as a “wom­
an” who might be expected to be sexy,



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 15 0 3
Cite as 760 F.Supp.

affectionate and attractive; this female em­
ployee would be evaluated less favorably if 
she is seen as not conforming to that model 
without regard for her job performance. 
Id. at 183; 5 T.T. at 26-27. Interestingly, 
this example is borne out in testimony by 
several witnesses called by defendants, 
who expressed disapproval of Robinson’s 
demeanor because she did not meet the 
expectation of “affectionate” female behav­
ior, see, e.g., 5 T.T. at 197 (Leach); 7 T.T. at 
18 (Starling); id. at 180 (Meyder); id. at 
195 (Bright); 8 T.T. at 151-53 (Lowder), or 
who expressed disapproval of Banks’ use 
of “crude” language as inappropriate be­
havior for a “lady,” see, e.g., 7 T.T. at 
159-61 (George Livingston).

47. Dr. Fiske reviewed documentation 
in this case, including fifteen depositions of 
male and female JSI employees, defen­
dants’ responses to plaintiff’s requests for 
admissions, and the EEO-1 reports pre­
pared by JSI. Based on this review, she 
concluded, “the conditions exist for sex 
stereotyping at Jacksonville Shipyards and 
. . .  many of the effects of sex stereotyping 
e x is t . . . .” 4 T.T. at 177. Dr. Fiske de­
scribed the sex stereotyping at JSI as a 
situation of “sex role spillover,” where the 
evaluation of women employees by their 
coworkers and supervisors takes place in 
terms of the sexuality of the women and 
their worth as sex objects rather than their 
merit as craft workers. Id. at 183.

48. Dr. Fiske identified several precon­
ditions that enhance the presence of stereo­
typing in a workplace. The four categories 
of preconditions are: (1) rarity; (2) priming 
(or category accessibility); (3) work envi­
ronment structure; and (4) ambience of the 
work environment. Stereotyping may oc­
cur in the absence of these conditions; 
studies have demonstrated, however, a sta­
tistically significant correlation between 
these preconditions and the prevalence of 
stereotyping. 5 T.T. at 17, 30-31, 41. All 
of the preconditions are present in the 
work environment at JSI.

49. “Rarity” exists when an individual’s 
group is small in number in relation to its 
contrasting group, so that each individual 
member is seen as one of a kind—a solo or 
near solo. Rarity or “solo” status exists 
when an individual’s group comprises fif-

1486 (M .D.Fla. 1991)

teen to twenty percent or less of the work 
force in the relevant work environment. 5 
T.T. at 13. Women at JSI in general occu­
py solo status and rarity is extreme for 
women in the skilled crafts. See supra 
FOF f 16.

50. Solos capture the attention of the 
members of the majority group, providing 
fodder for their rumors and constantly re­
ceiving their scrutiny. 4 T.T. at 186. The 
solo is far more likely to become the victim 
of stereotyping than a member of the ma­
jority group, and the stereotype develops 
along the dimension that makes the solos 
rare. Id. at 187; 5 T.T. at 15-17. Solos 
typically elicit extreme responses from 
members of the majority group. Thus, 
mildly substandard work performance or 
workplace behavior is perceived as much 
worse when a solo is the worker than when 
a member of the majority group is respon­
sible. 4 T.T. at 187. According to Dr. 
Fiske, the studies concerning the percep­
tion of solo work performance and behavior 
demonstrate that the solo status per se, not 
the behavior, produces the extreme reac­
tion from other people. Id. at 187-88.

51. The second precondition for stereo­
typing, “priming” or “category accessibili­
ty”, is a process in which specific stimuli in 
the work environment prime certain cate­
gories for the application of stereotypical 
thinking. 4 T.T. at 189. The priming im­
pact created by the availability of photo­
graphs of nude and partially nude women, 
sexual joking, and sexual slurs holds partic­
ular application in the JSI workplace. Id. 
at 189-90.

52. Dr. Fiske testified these stimuli 
may encourage a significant proportion of 
the male population in the workforce to 
view and interact with women coworkers 
as if those women are sex objects. 4 T.T. 
at 192-94. She described one study, Mohr 
& Zanna, Treating Women as Sex Objects: 
Look to the (Gender Schematic) Male Who 
Has Viewed Pornography, 16 P e r s . & Soc. 
P sy ch . B u ll . 296 (1990), which in her view 
confirmed this proposition. This study 
used randomly assigned male college stu­
dents as subjects who viewed either a non­
violent, “fairly normal sexual” pornograph­



1504 760 FEDERAL SUPPLEMENT

ic film or a film having no pornographic 
content. Subsequently, a woman inter­
viewed the subjects without knowing which 
film they watched. Two effects emerged. 
First, the males who viewed the porno­
graphic film remembered little about the 
female interviewer other than her physical 
attributes. The males who viewed the neu­
tral film remembered the contents of the 
interview. Second, the female interviewer 
could reliably distinguish between the 
males who had seen the pornographic films 
and those who had not because the conduct 
of the former group during the interviews 
was different. These two results held for 
approximately half of the men who viewed 
the pornographic films, those men who fit 
the description “sex role schematic.” 
These men are oriented to their masculinity 
and their sexuality as an important part of 
their self-concept. 4 T.T. at 190-92. This 
proportion—about half of the men fitting 
the description of sex role schematic— 
holds for the general population. 4 T.T. at 
192.

53. The testimony of witnesses con­
firms a correlation between the presence of 
pictures and sexual comments and the level 
of sexual preoccupation of some of the 
male workers whose conduct had sexual 
overtones observable by female workers.

54. The third precondition for an in­
creased frequency of stereotyping is the 
nature of the power structure or hierarchy 
in the work environment. This factor ex­
amines the group affiliation of the persons 
in the positions of power and the degree to 
which particular groups are given a sense 
of belonging. At JSI, this precondition 
arises because the people affected by the 
sexualized working conditions are women 
and the people deciding what to do about it 
are men. The in-group/out-group effect 
diminishes the impact of the women’s con­
cerns. The men who receive the com­
plaints perceive those complaints less fa­
vorably and take them less seriously be­
cause they come from women. 5 T.T. at 
4-5. Specific instances of the handling of 
complaints of sexual harassment, devel­
oped infra, demonstrate the phenomenon 
of male supervisors trivializing the valid 
complaints of Robinson and other female 
workers.

55. Dr. Fiske addressed a hypothetical 
concerning the effect of a sexualized work­
place on a complaint lodged by a female 
employee. 5 T.T. at 6-8. This hypothetical 
involved a work environment where women 
are solos and men control the power struc­
ture. A woman complains about a man 
who exposed himself to her. Dr. Fiske 
predicted that, where sexualization of the 
workplace has occurred, the woman lodg­
ing the complaint would be the focus of 
attention, rather than the misconduct of 
which she complains. The woman would 
be perceived as the problem; she might be 
subject to ridicule and become the subject 
of rumors. The man likely would not be 
disciplined commensurate with the miscon­
duct. Dr. Fiske’s prediction is borne out in 
part by Albert’s testimony concerning two 
male coworkers’ discussion of an incident 
at JSI in which a male employee had ex­
posed himself to a female employee. See 4 
T.T. at 37-39; see also 6 T.T. at 37 (Stew­
art dismissing gravity of complaint as “one 
person’s word against another’s”).

56. In a like manner, Dr. Fiske predict­
ed that a female employee who complained 
about sexual pictures of women would, in 
the hypothetical environment, find that she 
is perceived as the problem and dismissed 
as a complainer. 5 T.T. at 9-11. The con­
tent of the speculations and reactions to 
the complainer, in a sexualized work envi­
ronment, would focus on her sexuality. 
Aspersions may be cast on the sexuality of 
the complaining employee regarding, for 
example, her sexual preference, back­
ground, experiences or traumas. Dr. Fiske 
found it unsurprising that male employees 
at JSI entertained such derogatory rumors 
concerning Robinson. Id. at 11; see also 
Leach Depo. at 47 (describing rumors about 
Robinson’s sexuality).

57. The fourth precondition is the ambi­
ence of the work environment. According 
to Dr. Fiske, studies show that the toler­
ance of nonprofessional conduct promotes 
the stereotyping of women in terms of 
their sex object status. For instance, when 
profanity is evident, women are three times 
more likely to be treated as sex objects 
than in a workplace where profanity is not 
tolerated. 4 T.T. at 195-96. When sexual



1505ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as 760 F.Supp. 1486 (M.D.Fla. 1991)

joking is common in a work environment, 
stereotyping of women in terms of their 
sex object status is three to seven times 
more likely to occur. 5 T.T. at 5. These 
results obtain for a wide range of employ­
ment settings, including settings in which 
women hold nontraditional jobs.

58. Nonprofessional ambience imposes 
much harsher effects on women than on 
men. The general principle, as stated by 
Dr. Fiske, is “when sex comes into the 
workplace, women are profoundly affected 
. . .  in their job performance and in their 
ability to do their jobs without being both­
ered by it.” 4 T.T. at 197. The effects 
encompass emotional upset, id., reduced 
job satisfaction, 5 T.T. at 18, the deterrence 
of women from seeking jobs or promotions, 
4 T.T. at 198, and an increase of women 
quitting jobs, getting transferred, or being 
fired because of the sexualization of the 
workplace, id. By contrast, the effect of 
the sexualization of the workplace is “van­
ishingly small” for men. Id. at 197-98.

59. Men and women respond to sex is­
sues in the workplace to a degree that 
exceeds normal differences in other percep­
tual reactions between them. 4 T.T. at 198. 
For example, research reveals a near flip- 
flop of attitudes when both men and wom­
en were asked what their response would 
be to being sexually approached in the 
workplace. Approximately two-thirds of 
the men responded that they would be flat­
tered; only fifteen percent would feel in­
sulted. For the women the proportions are 
reversed. Id.

60. The sexualization of the workplace 
imposes burdens on women that are not 
borne by men. 4 T.T. at 199. Women 
must constantly monitor their behavior to 
determine whether they are eliciting sexual 
attention. They must conform their behav­
ior to the existence of the sexual stereotyp­
ing either by becoming sexy and responsive 
to the men who flirt with them or by be­
coming rigid, standoffish, and distant so as 
to make it clear that they are not interested 
in the status of sex object. Id.

61. Two major effects of stereotyping 
were described by Dr. Fiske. One effect is 
selective interpretation. The individual 
who engages in stereotyping of another

person because of that person’s member­
ship in a minority group selectively inter­
prets behavior of the other person along 
the lines of the stereotypes applied to the 
group. 4 T.T. at 200-01. Thus, an employ­
er may respond to a complaint by a female 
employee by stereotyping her as “an overly 
emotional woman,” and thereafter ignore 
her complaints as exaggerated or insignifi­
cant. Id. at 201. (Behavior of this sort is 
apparent in JSI’s responses to female com­
plaints concerning sexual harassment de­
scribed infra.) A second effect of stereo­
typing is denigration of the individual merit 
of the person who is stereotyped. Id. The 
presence of stereotyping in the workplace 
affects the job turnover and job satisfac­
tion of the members of the group subjected 
to stereotyping. Id. at 199-200; 5 T.T. at 
18.

62. Dr. Fiske’s testimony provided a 
sound, credible theoretical framework from 
which to conclude that the presence of pic­
tures of nude and partially nude women, 
sexual comments, sexual joking, and other 
behaviors previously described creates and 
contributes to a sexually hostile work envi­
ronment. Moreover, this framework pro­
vides an evidentiary basis for concluding 
that a sexualized working environment is 
abusive to a woman because of her sex. 
Defendants did not provide any basis to 
question the theory of stereotyping and its 
relationship to the work environment. It 
appears to the Court that the primary con­
cern raised by defendants concerning Dr. 
Fiske’s testimony was the materials upon 
which she relied for a description of the JSI 
workplace. The Court is of the opinion 
that the more credible testimony describing 
the JSI workplace supports the assump­
tions upon which Dr. Fiske relied.

63. Ms. K.C. Wagner appeared as an 
expert witness on plaintiff’s behalf to testi­
fy on common patterns and responses to 
sexual harassment and remedial steps. 
(Ms. Wagner’s testimony concerning pre­
vention of harassment at JSI is discussed 
infra on the matter of appropriate reme­
dies.) Ms. Wagner is a self-employed con­
sultant in the area of issues regarding 
women and the work environment, with 
particular emphasis on the prevention of



1506 760 FEDERAL SUPPLEMENT

sexual harassment on the job. She worked 
for the Working Women’s Institute, an or­
ganization devoted to the study and reme­
dy of sexual harassment in the workplace, 
for seven years, where she held positions 
as counseling director and program di­
rector before being named executive di­
rector. She holds a master’s degree in 
social work from Hunter College. She has 
been an instructor in sexual harassment 
courses for managers and human relations 
specialists. She has been a consultant to 
employers to train supervisors and employ­
ees concerning sexual harassment and she 
also has been a consultant to an organiza­
tion called Women in the Trades. Her ex­
pertise and experience concerning women 
in nontraditional employment settings is 
impressive. The Court accepted Ms. Wag­
ner, over the objection of defendants, as an 
expert on common patterns and responses 
to sexual harassment and accepted her, 
without objection, as an expert in education 
and training relative to sexual harassment.

64. According to Ms. Wagner, women in 
nontraditional employment who form a 
small minority of the workforce are at par­
ticular risk of suffering male worker be­
haviors such as sexual teasing, sexual jok­
ing, and the display of materials of a sexu­
al nature. This proposition finds support 
in the published research and in Ms. Wag­
ner’s own experience in counseling over 
two hundred women in nontraditional work 
who have suffered such harassment and 
her experience in training over two hun­
dred and fifty firefighters in New York 
City regarding the prevention and identifi­
cation of sexual harassment. 4 T.T. at 
94-96.

65. Ms. Wagner expressed her expert 
opinion that sexually harassing conditions 
for female employees exist at JSI. Her 
conclusion rests on the presence of indica­
tors of sexually harassing behaviors and of 
a sexually hostile work environment, in­
cluding evidence of a range of behaviors 
and conditions that are considered sexually 
harassing, evidence of common coping pat­
terns by individual victims of sexual 
harassment, evidence of stress effects suf­
fered by those women, evidence of male 
worker behavior and attitudes, and evi­
dence of confused management response to

complaints of sexual harassment. 4 T.T. at 
92-93. In reaching her conclusion, she re­
viewed a variety of depositions of female 
employees at JSI, defendants’ answers to 
interrogatories and defendants’ responses 
to plaintiff’s requests for admissions. Id. 
at 91. She read these materials for the 
purpose of identifying these indicators, pre­
suming the truth of the contents of the 
materials. Id. at 92, 129-30.

66. According to Ms. Wagner, women 
respond to sexually harassing behavior in a 
variety of reasonable ways. The coping 
strategy a woman selects depends on her 
personal style, the type of incident, and her 
expectation that the situation is susceptible 
to resolution. 4 T.T. at 96. Typical coping 
methods include: (1) denying the impact of 
the event, blocking it out; (2) avoiding the 
workplace or the harasser, for instance, by 
taking sick leave or otherwise being ab­
sent; (3) telling the harasser to stop; (4) 
engaging in joking or other banter in the 
language of the workplace in order to de­
fuse the situation; and (5) threatening to 
make or actually making an informal or 
formal complaint. Id. at 96-102.

67. Of these five categories, formal 
complaint is the most rare because the 
victim of harassment fears an escalation of 
the problem, retaliation from the harasser, 
and embarrassment in the process of re­
porting. 4 T.T. at 103-04. Victims also 
often fear that nothing will be done and 
they will be blamed for the incident. Id. 
Thus, the absence of reporting of sexual 
harassment incidents cannot be viewed as 
an absence of such incidents from the 
workplace. Id. at 169. An effective policy 
for controlling sexual harassment cannot 
rely on ad hoc incident-by-incident report­
ing and investigation. Id. at 169-70.

68. Victims of sexual harassment suffer 
stress effects from the harassment. Stress 
as a result of sexual harassment is recog­
nized as a specific, diagnosable problem by 
the American Psychiatric Association. 4 
T.T. at 109. Among the stress effects suf­
fered is “work performance stress,” which 
includes distraction from tasks, dread of 
work, and an inability to work. Id. at 105. 
Another form is “emotional stress,” which



1507ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as 760 F.Supp. 1486 (M.D.FIa. 1991)

covers a range of responses, including an­
ger, fear of physical safety, anxiety, de­
pression, guilt, humiliation, and embarrass­
ment. Id. Physical stress also results 
from sexual harassment; it may manifest 
itself as sleeping problems, headaches, 
weight changes, and other physical ail­
ments. Id. at 106. A study by the Work­
ing Women’s Institute found that ninety- 
six percent of sexual harassment victims 
experienced emotional stress, forty-five 
percent suffered work performance stress, 
and thirty-five percent were inflicted with 
physical stress problems. Id. at 105.

69. Sexual harassment has a cumula­
tive, eroding effect on the victim's well-be­
ing. 4 T.T. at 106-08. When women feel a 
need to maintain vigilance against the next 
incident of harassment, the stress is in­
creased tremendously. Id. at 107. When 
women feel that their individual complaints 
will not change the work environment ma­
terially, the ensuing sense of despair fur­
ther compounds the stress. Id. at 107-08.

70. Management’s perception concern­
ing the scope and range of sexual harass­
ment provides an important indicator of the 
hostility of the work environment. 4 T.T. 
at 110. The more subtle forms of sexual 
harassment, such as sexual comments, sex­
ual teasing, and leering, often fall outside 
management’s perception. Id. As a gen­
eral proposition, the higher an individual is 
on the management ladder, the more likely 
he is to regard sexual harassment as an 
exaggerated problem and the more likely 
he is to minimize complaints from women 
concerning what they perceive to be ha­
rassing behavior. Id. at 110-11.

71. Men and women perceive the exist­
ence of sexual harassment differently. 4
4. In Lipsett v. University o f Puerto Rico, 740 

F.Supp. 921 (D.P.R.1990), on rem and from  864 
F.2d 881 (1st Cir.1988) (rev ’g 669 F.Supp. 1188 
(D.P.R.1987)), Judge Pieras denied a m otion to 
qualify Ms. W agner as an expert w itness in a 
hostile work environm ent sex discrim ination 
suit. The Lipsett case, however, is a ju ry  action 
and may be distinguished for this reason. For 
instance, Ms. W agner’s testim ony on com m on 
patte rns and responses to sexual harassm ent 
directly  inform s the inquiry into the effect of 
the conditions at JSI on the psychological well­
being of the hypothetical reasonable woman. 
W hatever m erit lies in the argum ent that ju ro rs

T.T. at 110-11. Ms. Wagner testified that 
the differential perception of sexual harass­
ment is borne out by her own experiences 
and by survey research. A study of feder­
al employees by the Merit Systems Protec­
tion Board found that 11 to 12 percent 
more women than men characterized sexu­
al remarks or materials of a sexual nature 
in the workplace as sexual harassment. 
Id. at 163-67. Regarding the second of 
these categories, which consisted of letters, 
calls and materials of a sexual nature, in­
cluding materials depicting sexually pro­
vocative poses, nude, and partially nude 
pictures, 87 percent of the women con­
sidered this behavior to constitute sexual 
harassment, in contrast to 76 percent of the 
men. Id. at 167.

72. Male coworkers often fail to see any 
potential for harassment in their behavior 
because they believe that only the behavior 
of supervisors can contribute to a sexually 
hostile work environment. 4 T.T. at 113—
14.

73. Ms. Wagner’s testimony provided a 
credible, sound explanation for the variety 
of responses to harassing behavior at JSI 
to which other witnesses testified.4 More­
over, her framework explains why some 
women may not feel offended by some 
behaviors in the workplace that offend oth­
er women, see, e.g., 7 T.T. at 205 (testimony 
of Donna Martin that she was not offended 
by sexual joking in workplace), and yet the 
work environment remains hostile to most 
women.

Defendants' Expert Witness Testimony
74. Dr. Donald Mosher appeared as an 

expert witness on defendants’ behalf to 
testify in the area of the psychological ef-

may draw  on their com m on experiences to as­
sess the issue, the Court risks injustice if it 
a ttem pts to fashion a reasonable w om an’s reac­
tion out of whole cloth. The general rule ap­
plied, particularly  in nonjury cases, is that "the 
decision by a trial court on the com petency of, 
and what weight should be given to the testim o­
ny of, an  expert is a highly d iscretionary one.” 
IMPACT v. Firestone, 893 F.2d 1189, 1195 (11th
Cir.), cert, denied, ----  U.S. ------, 111 S.Ct. 133,
112 L.Ed.2d 100 (1990). This Court is satisfied 
that the potential sources of bias, strengths, and 
weaknesses in Ms. W agner's qualifications and 
testim ony have been considered fully.



1508 760 FEDERAL SUPPLEMENT

fects of sexual materials. He is a profes­
sor of psychology at the University of Con­
necticut. He has studied the effects of 
sexual materials for nearly thirty years. 
He has authored or coauthored approxi­
mately ninety publications, about one half 
of which concern sexuality and aggression. 
Dr. Mosher is on the editorial boards of the 
Journal o f Sex Research and Psychology 
and Human Sexuality. He has testified 
as an expert witness in three obscenity 
trials and before the Meese Commission on 
pornography. The Court accepted Dr. 
Mosher as an expert in the area of the 
psychological effects of sexual materials.

75. Dr. Mosher prepared for his testi­
mony by reviewing Robinson’s deposition 
and all of the visual materials contained in 
Joint Exh. Nos. 1 through 7. 5 T.T. at 59. 
He expressed his expert opinion that those 
pictures do not create a serious or probable 
harm to the average woman. Id. at 61. 
He based his opinion on the body of scien­
tific literature germane to pornography 
and on a study which he conducted as part 
of his preparation. Id. at 61-62.

76. Dr. Mosher’s own study examined 
the reaction of 137 college women to the 
1989 Playboy playmate calendar. 5 T.T. at 
63. Eighty-nine of the women also re­
viewed pinups of nude men taken from 
Playgirl. Id. Dr. Mosher employed a sev­
en-point Lippitt rating scale. In rating the 
offensiveness and the degrading quality of 
the Playboy playmate calendar, Dr. Mosh­
er characterized the responses as showing 
“mild to low moderate in terms of being 
offensive or degrading.” Id. at 64-65. 
The women were asked to place their re­
sponse in the context of a private setting, a 
college setting or a work setting. The 
negative responses rose as the setting 
moved from private to college to work. Id. 
at 65. In a work setting some women 
reported that they would find the materials 
“moderately disgusting and moderately of­
fensive,” a result that Dr. Mosher inter­
preted as “never a seriously negative re­
sponse.” Id. Dr. Mosher concluded that 
this study supported the proposition that 
females are not adversely affected in their 
psychological well-being by their exposure 
to such materials. Id.

77. Dr. Mosher additionally testified 
that research suggests that pinups do not 
promote sexual aggression by men or in­
duce calloused attitudes toward women. 5 
T.T. at 67-69.

78. The Court does not accept Dr. 
Mosher’s ultimate conclusions concerning 
the impact of sexual materials as pertinent 
to deciding the issues in this case. Dr. 
Mosher’s study and the studies upon which 
he relies do not address the matter of 
workplace exposure to sexual materials un­
der conditions comparable to those existing 
at JSI. Indeed, Dr. Mosher’s subjects 
viewed the playmate calendars as small 
groups of women, not as a solo or near solo 
in a group of men. Dr. Mosher conceded 
that the element of control is a factor in a 
woman’s reaction to sexual materials. 5 
T.T. at 99-100. The more specific studies 
and observations undertaken by plaintiff’s 
experts deserve greater weight. To the 
extent that Dr. Mosher’s study is valuable, 
it is because the study suggests the role of 
context in evaluating the response of wom­
en and men to sexually-oriented materials. 
The relatively greater offense expressed 
concerning sexual materials in the work­
place tends to support the propositions put 
forward by plaintiff’s experts.

79. Dr. Joseph Scott appeared as an 
expert witness on defendants’ behalf to 
testify in the area of the effects of sexual 
materials on behavior and generally on 
men and women. Dr. Scott is an associate 
professor in the Department of Sociology 
of Ohio State University. He has publish­
ed approximately forty articles in profes­
sional journals and three books, with a 
fourth book in progress. He received some 
of his training at the Kinsey Sex Institute 
as a National Institute of Mental Health 
fellow. He has received honors from the 
Western Society of Criminology and the 
American Society of Criminology. He has 
been an expert witness in many obscenity 
trials. A controversial methodology used 
by Dr. Scott in some obscenity trials, eth­
nography analysis, has been criticized by 
some courts, but Dr. Scott stated that his 
testimony in this case did not rest on any 
studies using this methodology. Dr. Scott 
has done contract work paid for by the



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1509
Cite as  760 F.Supp. 1486 (M.D.FIa. 1991)

publishers of what he called “male sophisti­
cate magazines,” that is, Playboy, Pent­
house, Hustler, and the like; he would not 
disclose further details on such research 
but he did give assurance that his opinions 
did not rest on any of these studies. The 
Court accepted Dr. Scott as an expert as 
offered.

80. Dr. Scott prepared for his testimony 
by reviewing Robinson’s deposition and the 
visual materials contained in Joint Exh. 
Nos. 1 through 7. 5 T.T. at 129-30. He 
expressed his expert opinion that “the aver­
age female would not be substantially ef­
fective [sic] in a negative manner” by the 
materials, that is, she would not take of­
fense at them. Id. at 130-31. He further 
stated that women in the workforce would 
be slightly more offended by such materi­
als than men. Id. at 131. He based his 
opinion upon surveys which he conducted 
himself and surveys conducted by other 
people on the effects of sexual materials. 
Id. One of the studies upon which he 
relied is a study of the offensiveness to the 
raters of the contents of Hustler magazine. 
Id. at 105, 131.

81. Dr. Scott described the Hustler 
study as his only workplace setting study. 
5 T.T. at 118. In this study the females 
rated the cartoons and the pictorials to be 
less offensive than the males did, id. at 
131-32, although the level of offensiveness 
was low for both groups, id. at 135. The 
methodology of the study, however, dimin­
ishes its application to the workplace. The 
subjects were twelve college student vol­
unteers, six men and six women. Id. at 
141. They viewed the materials at their 
own leisure, alone or at their own table in a 
room with three tables. Id. at 140-41. 
The primary focus of the study was the 
content of the pictures and cartoons, not 
the reactions of the individuals. Id. at 143. 
Dr. Scott’s testimony about the offensive­
ness of sexual materials to working women 
relies on survey results in which individuals 
are questioned about their attitudes toward 
such materials and this information is cor­
related with their employment status and 
gender. Id. at 137-38.

82. Dr. Scott testified that no research 
of which he is aware indicates that expo­
sure to sexual materials similar to Joint

Exh. Nos. 1 through 7 will prompt males to 
act more aggressively or threateningly to­
ward females. 5 T.T. at 136. Under cross- 
examination Dr. Scott admitted his lack of 
familiarity with one researcher’s work that 
reached results contrary to his conclusion. 
Id. at 147-50.

83. The Court does not accept Dr. 
Scott’s expert testimony as useful to the 
determination of the issues in this case. 
His opinions provide a basis for evaluating 
the offensiveness of sexual materials in the 
abstract only. The important element of 
context is missing; the sexually harassing 
impact of the materials must be measured 
in the circumstances of the JSI work envi­
ronment. Dr. Scott’s testimony does not 
assist in this effort.

Defendants’ Social Context Evidence
84. Defendants introduced into evidence 

several examples of magazines often pur­
chased by women in which complete or 
partial nudity, sexual cartoons, and sexual­
ly frank articles appear. See D.Exh. Nos. 
13 (Cosmopolitan, Sept. 1987), 14 (Glam­
our, Sept. 1987), 15 (Ms., Sept. 1987), 16 
(Vanity Fair, Oct.1987). Dr. Scott testi­
fied that the sexual explicitness of these 
magazines reflects a recent trend for 
“women’s magazines.” 5 T.T. at 134. In 
addition, a picture of a statue in the Duval 
County Courthouse, in which a female fig­
ure’s breasts are exposed, was introduced 
into evidence. D.Exh. No. 4.

85. Defendants also solicited evidence 
about the conditions at two other ship­
yards, Norfolk Shipbuilding and Drydock 
Corp. (NORSHIPCO) and Colona Shipyard. 
Harvey Williams worked in employee rela­
tions positions at both facilities (NORSHIP­
CO from 1956 to 1982 and Colona from 
1986 to 1988) and testified about his experi­
ences. NORSHIPCO is comparable in size 
to JSI while Colona is considerably smaller. 
Both have workforces in which approxi­
mately 10 to 15 percent of the employees 
are female. Pictures of nude and partially 
nude women are posted in the shops and 
locker rooms, but no complaints about the 
pictures were filed at either site during 
Williams’ tenure. 8 T.T. at 53-62.



1510 760 FEDERAL SUPPLEMENT

Williams did not provide any other details 
concerning the work environment at these 
shipyards.

86. For the reasons stated in Conclu­
sions of Law (“COL”) H 15, the Court finds 
that this “social context” evidence has little 
to no value in determining the issues of 
this case. If this type of evidence were 
material, the Court finds considerable 
weakness in defendants’ presentation. The 
magazines introduced into evidence do not 
form a basis to suggest the extent to which 
sexually frank or sexually explicit materi­
als are accepted by women; no circulation 
figures were introduced and no evidence 
suggests the acceptance of the sexually 
frank material by female subscribers or 
readers. The absence of formal complaints 
at NORSHIPCO and Colona does not tell 
whether their work environments are hos­
tile; plaintiffs expert witnesses testified 
that a lack of complaints does not indicate 
the level of hostility. Moreover, the pro­
fessional relations between men and wom­
en may be otherwise so favorable that the 
presence of sexually-oriented pictures does 
not threaten the relationship; the percent­
age of women in the workforces at both 
shipyards is much higher than at JSI. Be­
cause of these weaknesses, the Court finds 
the social context evidence inadequate to 
draw reliable conclusions concerning the 
reaction of women to sexually-oriented pic­
tures in the workplace.

JSI Responses to Sexual 
Harassment Complaints 

Sexual Harassment Policy from  
1980 to 1987

87. JSI adopted its first policy dealing 
specifically with sexual harassment in 
1980. It was part of a policy statement 
from an executive vice-president of JSI ti­
tled “Equal Employment Opportunity,” 
dated June 17, 1980. D.Exh. No. 9. It 
stated, in pertinent part:

we should all be sensitive to the kind of 
conduct which is personally offensive to 
others. Abusing the dignity of anyone 
through ethnic, sexist or racial slurs, 
suggestive remarks, physical advances 
or intimidation, sexual or otherwise, is 
not the kind of conduct that can be toler­
ated.

If any employee feels that they are [sic] 
the object of such conduct, it should be 
reported immediately to the EEO coordi­
nator at this facility.

Id. This policy statement was apparently 
posted in all shops and offices at both the 
Commercial Yard and the Mayport Yard 
and near the time clock at the Mayport 
Yard. P.Exh. No. 1/A -l/F  (answer to 
question 12(b)); 6 T.T. at 158-60; 8 T.T. at 
156-57.

88. This policy fell short of effective­
ness in several respects. The EEO coordi­
nator was not named and the identity of 
this person was not widely known. See 1 
T.T. at 137; 4 T.T. at 41. JSI did not 
distribute the policy commensurate with 
other important company policies. For ex­
ample, the standard JSI rule book, Jt.Exh. 
No. 12, did not incorporate the policy, 8 
T.T. at 189, although this book is the 
source for the rules upon which employees 
rely to govern their conduct in the work­
place, see Turner Depo. at 61-62, 71-72. 
While safety policies sometimes are distrib­
uted with employee daily time cards, 6 T.T. 
at 141, the sexual harassment policy did 
not receive such distribution. Prior to 
April 1987, many employees and some of 
the defendants (defendants admitted to 
Owens’ lack of knowledge) were unaware 
of the sexual harassment policy. See, e.g., 
1 T.T. at 136 (Robinson); 4 T.T. at 40-41 
(Albert); Kiedrowski Depo. at 10.

89. The handling of several sexual 
harassment complaints between 1980 and 
1987 illustrates the ineffectiveness of the 
policy.

(a) When Banks suffered harassment 
from a rigger, John Fraser, on a com­
pany bus, see supra FOF H 34(e), she 
initially complained to Sharpe, the 
rigging leaderman. Banks testified 
that Sharpe placed his arm around 
her shoulder and said, “Well, don’t 
worry about it. Let me blow in your 
ear and I’ll take care of anything that 
comes up.” 3 T.T. at 52-58. The 
latter phrase refers to a sophomoric 
shipyard joke involving a man’s erec­
tion. Id. at 58; McMillan Depo. at 
138-39. Banks was summoned to a



1511ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as  760 F.Supp. I486 (M.D.FIa. 1991)

meeting the next day at which Fraser 
demanded an apology for Banks’ pro­
fanity directed at him in response to 
his harassment. Herbert Kennedy, a 
foreman present at the meeting, in­
terrupted an emotionally distraught 
Banks and told her to shut up, stop 
crying, return to work, or face being 
fired. 3 T.T. at 60-68; 5 T.T. at 
186-89. Fraser was not reprimanded 
for his behavior. Kennedy conducted 
a cursory investigation of Banks’ 
complaint about Sharpe, but this in­
vestigation was limited to a conversa­
tion with Sharpe and those witnesses 
suggested by Sharpe. Kennedy did 
not request the names of prospective 
witnesses from Banks. Based on this 
limited investigation, Kennedy deter­
mined that Sharpe had not committed 
any misconduct. 7 T.T. at 99-106, 
111-13.

(b) When Banks endured harassment 
from a rigger named Hawkins in the 
form of a humiliating comment from 
him, see supra FOF 1134(d), Banks 
complained to the assistant welding 
foreman, John Nicholas. Nicholas 
testified that he was an appropriate 
person to hear her complaint on this 
matter. 7 T.T. at 238-39. Banks tes­
tified that when she complained to 
Nicholas, he thought the comment 
was funny, 3 T.T. at 47-48; Nicholas 
testified that when Banks repeated 
the offensive comment to him, he 
“probably grinned.” 7 T.T. at 230. 
Banks felt deterred from further pur­
suing the matter as a result of Nich­
olas’ reaction. 3 T.T. at 161.

(c) When Robinson suffered abusive lan­
guage from a shipfitter, George Nel­
son, see supra FOF 11 28, her com­
plaint to her supervisor, assistant 
welding foreman John McLean, re­
sulted in an informal conversation be­
tween McLean and Nelson. McLean, 
however, took no steps to document 
his actions and did not report the fact 
of the complaint to Nelson’s superiors 
in the shipfitting department. 7 T.T. 
at 143-47.

(d) When Karen Gamble (“Gamble”), a 
paint and labor shop employee at the

Mayport Yard, lodged a formal com­
plaint with Stewart, the ensuing in­
vestigation reflected a lack of appre­
ciation for the seriousness of the 
complaint. According to the memo­
randum introduced into evidence by 
defendants, D.Exh. No. 24, Gamble 
initially reported her complaint, con­
cerning unwanted sexual remarks 
and touching by a male coworker, to 
her leaderman, who then spoke to the 
male coworker. The leaderman ex­
plained his actions to Gamble and told 
her if she was not satisfied, she could 
register a complaint with the fore­
man. Gamble took the matter to 
Stewart, who contacted Ahlwardt, 
who in turn delegated investigatory 
responsibility to E.E. Hastey, an as­
sistant night shift superintendent. 
See 8 T.T. at 187-88. Hastey gath­
ered together Gamble, the male co­
worker of whom she complained, her 
foreman and two leadermen. Hastey 
had each person concerned recount 
the circumstances. Thereafter, he 
suggested the matter be settled there 
“as amicably as possible.” He fur­
ther suggested that an apology 
should suffice, and the offender apol­
ogized. Gamble accepted the apolo­
gy, and the foreman asked her to 
repeat her acceptance. Hastey 
warned the offender against future 
misconduct and the foreman gave 
him a verbal warning. Hastey’s 
memorandum, D.Exh. No. 24, was 
not placed in the offender’s personnel 
file, 8 T.T. at 185, and the record does 
not indicate any other documentation 
of the events in his file. The most 
striking aspect of the handling of 
Gamble’s complaint, however, is the 
urging by a high management official 
that she accept an apology as full 
settlement of her complaint, under 
circumstances that exerted great 
pressure on her to follow this 
management suggestion, when she 
had indicated through her formal 
complaint that she was unsatisfied 
with informal steps of the same kind 
taken by her leaderman.



1512 760 FEDERAL SUPPLEMENT

90. The failure to document complaints 
of sexual harassment is commonplace at 
JSI. The company has no system to record 
concerns raised about sexual harassment; 
no instructions to document harassment 
complaints have been given to leadermen, 
quartermen, foremen, or superior manage­
ment employees. 6 T.T. at 14-16. This 
gap in the sexual harassment policy left 
higher management unaware, until the 
prosecution of this lawsuit, of the fact that 
one JSI employee, Morris Green, had twice 
been the subject of complaints from female 
employees to lower level management em­
ployees about Green’s lewd, sexual behav­
ior at work. 6 T.T. at 27-28; 46-47. Both 
foremen to whom the complaints were 
made told Green that a further offense 
would result in discipline, but neither fore­
man disciplined him (even though he admit­
ted the offenses and the second foreman 
was aware of the prior complaint). McMil­
lan Depo. at 122-29; Wingate Depo. at 
46-49.

91. Female employees lacked confi­
dence in the willingness and commitment of 
JSI to take steps to halt sexually harassing 
behavior. Consequently, Robinson, Banks, 
and Albert adopted personal strategies for 
coping with the work environment. Robin­
son, for instance, declined to complain 
about degrading pictures and comments at 
the beginning of her employment because 
she feared that she might be subjected to 
retaliation and that the complaints would 
not be well-received. 1 T.T. at 92-95. 
These findings of fact bear out the validity 
of her fears. Banks also declined to com­
plain about many instances of harassment 
because she feared ridicule and she felt 
that management would not take effective 
steps to remedy the situation. 3 T.T. at 
32-34, 48-49, 51-52, 58-59, 86, 147-48. Al­
bert perceived that no discipline would be 
meted out against offending male employ­
ees, so she handled the situations as they 
arose in her own fashion, often using 
“smart remarks” directed to the harasser. 
4 T.T. at 27-28, 33-40.

Quartermen and Leadermen
92. Quartermen and leadermen are per­

ceived as appropriate persons to whom to 
complain about work environment prob­

lems. Robinson lodged complaints about 
sexually-oriented pictures with Robert 
Fields (“Fields”), a quarterman in the weld­
ing shop at the Mayport Yard, 8 T.T. at 
116-19, with Danny Miracle, a leaderman in 
the shipfitters’ shop at the Mayport Yard, 
id. at 69-71, with Donald Furr (“Furr”), a 
leaderman in the welding shop at the Com­
mercial Yard, 5 T.T. at 155-60, and with 
Kiedrowski, 8 T.T. at 91-92. Banks also 
lodged a harassment complaint on one occa­
sion with a leaderman in the rigging shop 
at the Mayport Yard, 7 T.T. at 117, and on 
another occasion with Kiedrowski, 8 T.T. at 
94-95. Gamble initially complained to her 
leaderman after a coworker made inappro­
priate sexual remarks and touched her 
body. D.Exh. No. 24. In response to a 
question asking to whom Robinson should 
have complained about work environment 
problems, Furr, her leaderman, testified, “I 
reckon I’m the one to start with.” 5 T.T. 
at 173.

93. Quartermen and leadermen have ex­
ercised apparent authority to respond to 
complaints of sexually harassing behavior, 
have acted as conduits for the relay of 
complaints to higher management, and 
have received explicit instructions concern­
ing their authority to exercise discretion to 
control the work environment. Examples 
of each appear in the testimony. Dan Coo­
ney (“Cooney”), a quarterman in the ship- 
fitters’ shop at the Mayport Yard, testified 
that he directed a leaderman to paint over 
the “Men Only” sign on his own authority. 
7 T.T. at 87-89. (Although conflicting tes­
timony suggests that Cooney received an 
instruction from a foreman to paint over 
the sign, Cooney’s testimony is significant 
for his assertion that he possessed the au­
thority to take such action independently.) 
Fields and Furr each testified to instances 
in which they took steps to cover over 
offensive graffiti or pictures after a com­
plaint from Robinson. 8 T.T. at 117-18 
(Fields); 5 T.T. at 155-56 (Furr). Both men 
also testified to instances in which they 
passed along a complaint to someone high­
er in management. 8 T.T. at 118-19 (Fields 
relayed complaint about coworker to fore­
man); 5 T.T. at 156 (Furr relayed complaint 
about calendar to shift superintendent).



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1 5 1 3
Cite as 760 F.Supp. 1486 (M.D.FIa. 1991)

Cooney mentioned an occasion when he re­
ceived a directive from Lovett to remove 
pictures and move a calendar. 7 T.T. at 
70-72. Furr explained that he sought out 
his assistant foreman to ascertain the ex­
tent of his authority to remove pictures and 
the like when Robinson complained, and he 
was told to take whatever actions made her 
comfortable. 5 T.T. at 170-73. Kiedrow- 
ski asserted that, as a leaderman, he pos­
sessed the authority and had the responsi­
bility to direct welding department employ­
ees to stop reading magazines containing 
pictures of nude or partially nude women 
on the job and to get rid of the magazines. 
8 T.T. at 108. In the case of Gamble’s 
complaint concerning sexual remarks and 
touching by a coworker, the assistant night 
shift superintendent listed among his reme­
dial actions that he directed her leaderman 
“to keep a closer eye on his crew and not to 
let the bantering get out of hand.” D.Exh. 
No. 24. This directive suggests a belief by 
management that leadermen are respon­
sible, in part, for control of the work envi­
ronment.

Sexually-Oriented Pictures
94. Complaints about the pictures of 

nude and partially nude women yielded lit­
tle success. On some occasions pictures 
were removed but subsequently were post­
ed again or like pictures were posted in 
their place. See, e.g., 3 T.T. at 100-03; 8 
T.T. at 69-71. Even a complaint by a male 
shipyard worker, David Catir, who ex­
pressed concern about the visibility to visit­
ing family members of Navy personnel of 
some pictures in a JSI shop trailer, went 
unheeded. 5 T.T. at 179-81. In one in­
stance, a calendar about which Robinson 
complained was merely moved from one 
wall to another on the assumption that the 
lower visibility of the objectionable pictures 
would adequately address the complaint of 
sexual harassment. 8 T.T. at 137. On 
another occasion, Robinson’s complaint was 
addressed by transferring her from the 
Mayport Yard. 1 T.T. at 73. On yet anoth­
er occasion, when Robinson attempted to 
lodge a complaint with Lovett by phone, 
the administrative clerk in Lovett’s office 
ignored her complaint and shifted the con­
versation to a criticism of her lack of re­

spect for Lovett (because she did not ask 
for him as “Mr. Lovett”) and of her ab­
sence from her assigned work area. 8 T.T. 
at 151-53.

95. The display of pictures of, and cal­
endars featuring pictures of, nude and par­
tially nude women was left to the discre­
tion of the foremen of the respective shops. 
See 6 T.T. at 146-48. The evidence shows 
only one foreman, Ben West of the outside 
machine shop at the Mayport Yard, ordered 
the pictures of nude and partially nude 
women, whether pinups or calendars, off 
his shop’s walls. This bold action, how­
ever, was attenuated by the replacement of 
the calendars bearing nudes with calendars 
showing women in provocative swimwear. 
4 T.T. at 60-61.

Robinson’s January 1985 Complaints 
(Events Precipitating Lawsuit)

96. The present lawsuit stems from 
Robinson’s complaints in January 1985 that 
pictures of nude and partially nude women 
were posted in the toolroom trailer and in 
the shipfitters’ trailer aboard the U.S.S. 
Saratoga at the Mayport Yard. (Her com­
plaint regarding the shipfitters’ trailer con­
cerned a calendar with pictures of nude and 
partially nude women on it, Jt.Exh. No. 2, 
and other pictures.) Robinson was as­
signed to work with the shipfitters; she 
checked out welding equipment from the 
toolroom trailer on a daily basis. Robinson 
initially complained to Kiedrowski, her 
leaderman and the most senior person in 
the welding department aboard ship, 8 T.T. 
at 97, and later to Fred Turner (“Turner”), 
the welding department foreman.

97. Kiedrowski’s reaction to Robinson’s 
complaint to him left her feeling embar­
rassed. 1 T.T. at 31-32. At trial, Kiedrow­
ski described these events with a specificity 
that included a denial that he responded to 
Robinson’s complaint with a loud “wow,” 
but his testimony lacks credibility when 
contrasted with his denial in his deposition 
testimony that he recalled anything about 
the event. Robinson observed that one of 
the pictures in the toolroom trailer about 
which she complained, a color photograph 
of a nude blond woman, was removed



1514 760 FEDERAL SUPPLEMENT

shortly after her complaint to Kiedrowski; 
another picture in the toolroom trailer, a 
black and white photograph, remained post­
ed for several more days. Id. at 33. Kied­
rowski disclaimed any ability to assist Rob­
inson in securing removal of the calendar 
in the shipfitters’ trailer. 8 T.T. at 91. 
Kiedrowski also told Robinson that she had 
no business in the shipfitters’ office. 8
T. T. at 92. The basis for his scolding her 
on this point is unclear; Kiedrowski had 
previously assigned Robinson to work with 
the shipfitters on occasion, Kiedrowski 
Depo. at 33, and, when he worked as a 
welder, he had occasion to enter the shipfit­
ters’ office himself, 8 T.T. at 103-04.

98. In the case of Turner, Robinson ap­
proached him and expressed her complaint 
over the “pornography” she had seen. 
Turner responded, “the what?”; Robinson 
repeated the term “pornography” three 
times before Turner acknowledged that he 
understood that she was referring to the 
pinup and calendar pictures in the ship­
yards. 1 T.T. at 29-30. Turner testified 
that he directed his leaderman (Kiedrow­
ski), his quarterman (Harris), and Banks to 
make the rounds of the shops aboard the
U. S.S. Saratoga and remove any pinup pic­
tures. 8 T.T. at 75-77. He did not direct 
the removal of any calendars bearing pic­
tures of nude or partially nude women. Id. 
at 80. While Turner received a report from 
his group that the offending pictures had 
been removed, deposition and trial testimo­
ny by Owens indicate that either some pic­
tures were missed or new pictures were 
posted after Turner’s order. 6 T.T. at 129— 
30; Owens Depo. at 132-33.

99. Dissatisfied with the response with­
in her own department, Robinson ap­
proached Edenfield, a shipfitting leader- 
man, to complain. 1 T.T. at 35. Edenfield 
told her to go back to her own office. 7 
T.T. at 165-66. Robinson felt trivialized by 
his response. 1 T.T. at 35.

100. Robinson then telephoned Lovett, 
the shipfitting foreman, to complain. Lo­
vett advised Robinson he would “look into 
it,” but he did not subsequently speak to 
her about it again. 1 T.T. at 36-37; 8 T.T. 
at 137-38. Robinson had requested that 
the calendar be removed, but Lovett did 
not grant this request. Lovett testified

that he instructed Cooney to move the cal­
endar about which Robinson complained so 
that the calendar was no longer visible 
from outside the trailer. 8 T.T. at 137. 
Cooney relayed this instruction to Leach, 
who carried it out. 7 T.T. at 70-72. Lovett 
stopped by the trailer the next day to con­
firm that his instruction had been followed.

101. Robinson’s complaints became 
common knowledge around the shipyards 
and the catalyst for a new wave of harass­
ing behavior directed against her and other 
women. Banks asked Robinson at one 
point to cease in her shop-to-shop com­
plaints because the male employees made a 
joke of it, laughed at Robinson openly, and 
had begun to bring in “hard pornography” 
that they showed to female workers. 3 
T.T. at 92. Many specific incidents of sexu­
ally harassing behavior arising at this time 
are set forth supra in these findings.

102. A “Men Only” sign appeared on 
the door to the shipfitters’ trailer after the 
calendar was moved. The sign was com­
prised of letters approximately six inches 
high and was written in white paint on a 
brown door. Cooney saw the sign and, on 
Lovett’s order, painted over it with red 
paint. 7 T.T. at 73-84; 8 T.T. at 139-40. 
Ahlwardt observed the sign, as painted 
over, and directed that it be painted over 
again because it was still visible. 6 T.T. at 
177. The legend remained visible as paint­
ed the second time. See D.Exh. No. 3/A, 
3/B, 3/C (photographs of door after paint­
ing, taken two years later). Robinson first 
observed the “Men Only” sign on January 
19, 1985, before it was painted over. 2 T.T. 
at 118. She walked to the shipfitters’ of­
fice to examine it more closely and, while 
she was there, peered inside the trailer, 
discovering that the calendar about which 
she complained was still posted. 1 T.T. at 
38-39. Edenfield spotted Robinson “snoop­
ing” in the trailer and told her to go away 
because she had no business there. 7 T.T. 
at 165-66, 169-73. Robinson complained to 
Kiedrowski about the sign, but he advised 
her that it would be replaced by an “Autho­
rized Personnel Only” sign. 1 T.T. at 52. 
The following day the sign was covered 
with a cardboard covering. 2 T.T. at 124— 
25. Two days later, however, the covering



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1515
Cite as 760 F.Supp.

was removed and the sign had been painted 
over with red paint that failed to complete­
ly obscure its message. 2 T.T. at 125-26; 3 
T.T. at 21.

103. Robinson decided to make a formal 
complaint about the discriminatory sign 
and the continuing presence of the pictures 
of nude and partially nude women. On 
January 23, 1985, Robinson met with Ow­
ens, Turner and Chief Shop Steward Quen­
tin McMillan (“McMillan”) to complain 
about the pictures. In route to Owens’ 
office for the meeting, Robinson observed 
several pictures on the wall and a lewd 
comment was directed at the woman es­
corting Robinson to the office. Robinson 
told the men at this meeting that she felt 
the pictures were degrading and humiliat­
ing to her, that they nauseated her, and 
that she wanted them removed. She com­
plained about the “Men Only” sign and told 
the men that the sign and pornography 
constituted discrimination, promoted 
harassment, and were harassment.

104. Owens told Robinson that the com­
pany had no policy against the pictures, 
which had been posted throughout the ship­
yards for at least nineteen years. 6 T.T. at 
125; 1 T.T. at 59. Owens asserted that the 
nudity on television was as bad as the 
pictures at JSI, and she should look the 
other way just as she would turn off the 
television if she were offended. 6 T.T. at 
142-43. He told her that she chose the JSI 
work environment and that the men had 
“constitutional rights” to post the pictures. 
Id. at 126. He would not order the remov­
al of the pictures. He told Robinson she 
had no business going into the shipfitters’ 
trailer, but he would have the sign removed 
because JSI had “lady shipfitters.” Id. at 
125. Owens made it clear to Robinson that 
the shipyards were a man’s world and that 
the rules against vulgar and abusive lan­
guage did not apply to the “cussing” com­
monly heard there. 1 T.T. at 59-60. She 
asserted, in response to a question, that 
she been verbally harassed more often than 
she could count, id. at 60, but his definition 
of sexual harassment did not admit her 
complaint into its scope, see 6 T.T. at 148— 
50 (Owens’ definition of sexual harass­
ment).

I486 (M.D.Fla. 1991)

105. Owens did not investigate the de­
tails of Robinson’s complaints. He directed 
that the “Men Only” sign be painted over, 
but he did not initiate any investigation to 
determine who perpetrated the deed. 6 
T.T. at 153. He did not take any opportuni­
ty to view the calendar about which Robin­
son complained. Id. at 151. He told the 
Mayport Yard foremen at a meeting short­
ly thereafter that pictures showing sexual 
intercourse should be removed, but pic­
tures of nude or partially nude women 
could remain. Id. at 146-48. He specifical­
ly directed the foremen to leave up ven­
dors’ advertising calendars such as Joint 
Exhibits Nos. 1 through 5, some of which 
he had observed in various locations in the 
backyard compound after Robinson’s com­
plaint to him. Id. at 146-47.

106. Robinson next took her complaint 
to Ahlwardt, Owens’ superior at the May- 
port Yard. On January 23, 1985, Robinson 
called Ahlwardt and told him of her com­
plaints to Owens regarding the pictures 
and the “Men Only” sign. Robinson testi­
fied that after she explained the course of 
events involving her complaint to Owens 
and her desire to have the pictures re­
moved, Ahlwardt stated that he would not 
order the pictures removed. 1 T.T. at 65. 
Defendants initially admitted Robinson’s 
version of Ahlwardt’s reaction but Ahl­
wardt denied at trial that he had told Rob­
inson that he would refuse to remove the 
pictures, 6 T.T. at 194. The admission is 
binding and the Court credits Robinson’s 
description of Ahlwardt’s reaction. Ahl­
wardt, however, agreed to meet with Rob­
inson to discuss her complaints.

107. Prior to meeting with Robinson, 
Ahlwardt made several phone calls. He 
contacted supervisors at the Commercial 
Yard to determine whether the pictures to 
which Robinson objected were present 
there also. Earl Day, a machinery superin­
tendent at the Commercial Yard, confirmed 
that pictures of nude or partially nude 
women were on display in that workplace. 
Ahlwardt Depo. at 114-16. Ahlwardt 
learned from Harry Wingate, a hull super­
intendent at the Commercial Yard, that 
such pictures were “all over the place” 
there.



1516 760 FEDERAL SUPPLEMENT

108. Ahlwardt also spoke to two per­
sons in policymaking positions. He called 
Stewart to discuss whether JSI had a policy 
forbidding the posting of pictures such as 
those about which Robinson complained. 
He told Stewart that a “breast shot” was 
at issue. Stewart told Ahlwardt that no 
policy prohibited such pictures, that Robin­
son’s complaint was baseless, and that the 
calendars and pictures should be left alone. 
6 T.T. at 164-65. Thereafter Ahlwardt 
spoke to Brown. Brown likewise ex­
pressed his opinion that the materials 
should not be removed and that Robinson’s 
complaint lacked merit. Brown specifically 
instructed Ahlwardt that an order prohibit­
ing the display of pictures of nude and 
partially nude women should not be issued. 
6 T.T. at 201-02. Neither Stewart nor 
Brown conducted any investigation of Rob­
inson’s complaint prior to rendering advice 
to Ahlwardt.

109. Following these phone calls, Ahl­
wardt met with Robinson. Also present at 
this meeting were Turner, McMillan, and 
Barbara Dingle, a union secretary who 
worked as a mechanic. Robinson did not 
ask for the presence of union representa­
tives; those individuals appeared at Ahl- 
wardt’s request. Robinson initiated the 
conversation by requesting the removal of 
the offending pictures and calendars. She 
explained her position, including her repre­
sentation that other women at JSI took 
offense at the presence of the pictures. 
Ahlwardt replied that he did not know of 
any “pornographic” pictures in any offices 
or shops at the Mayport Yard; his defini­
tion of pornography is limited to pictures 
depicting intercourse, masturbation, or oth­
er sexual activity. 6 T.T. at 206. Robinson 
pressed her point by referring to the com­
pany rule against obscenity; Ahlwardt bel­
ittled her concern by looking up the term in 
a dictionary and dismissing it as vague. 1 
T.T. at 69. Ahlwardt further told Robinson 
that nautical people always had displayed 
pinups and other images of nude or partial­
ly nude women, like figureheads on boats, 
and that the posting of such pictures was a 
“natural thing” in a nautical workplace. 
Ahlwardt opined that there was nothing 
wrong with pinups in the shipyards, that he 
himself previously had posted such pic­

tures, 1 T.T. at 69, and that they certainly 
were not intended to intimidate, embarrass 
or cause concern for anyone, 6 T.T. at 173. 
Robinson attempted to raise a comparison 
between the effect of pornography on 
women and the effect of Ku Klux Klan 
propaganda on black people, 1 T.T. at 69- 
70, but Ahlwardt dismissed this comparison 
with the retort that there were Klan mem­
bers working in the shipyards, id. at 70; 6 
T.T. at 175. The focus of the meeting then 
shifted to an inquiry whether Robinson had 
been physically assaulted or sexually prop­
ositioned in the course of her work. 2 T.T. 
at 134-36. Robinson stated she had not 
been harassed in those manners, but she 
considered the pictures to be harassment 
and to promote harassment. Id. at 135; 6 
T.T. at 169.

110. Ahlwardt complimented Robinson 
on her high morals. 1 T.T. at 71. He then 
asked Dingle if she took offense at the 
pictures, to which Dingle answered that 
she did not. 6 T.T. at 172. Dingle sug­
gested that Robinson was spending too 
much time attending to the pictures and 
not enough time attending to her job. Id.; 
McMillan Depo. at 101. McMillan asserted 
that the shipyards were “a man’s world” 
and therefore men are going to post pin­
ups. McMillan Depo. at 98-99.

111. Turner was first to leave the meet­
ing. He stated the problem was taken care 
of because he was transferring Robinson to 
the Commercial Yard. 1 T.T. at 73. Robin­
son left thereafter, visibly upset from the 
encounter. 3 T.T. at 91-92; McMillan 
Depo. at 110-11; see 1 T.T. at 79 (Robin­
son’s testimony of how upset she was). 
Robinson received the transfer downtown.

112. Following the meeting with Robin­
son, Ahlwardt instructed Owens not to is­
sue any prohibition of pictures of nude and 
partially nude women in the workplace. 
Ahlwardt took no action of his own to 
remove any pictures, although he visited 
the shipfitters’ trailer the next day, when 
he was scheduled to be aboard the U.S.S. 
Saratoga, to observe the Whilden Valve 
calendar. 6 T.T. at 176-77.

113. Robinson testified that she filed a 
union grievance about the pictures and the



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1 5 1 7
Cite as 760 F.Supp. 1486 (M.D.Fla. 1991)

“Men Only’’ sign. 1 T.T. at 78. She fur­
ther testified that the third-shift shop stew­
ard told her that the grievance was 
pulled—withdrawn by the union leadership. 
Id. at 80. The vice-president of the union 
at that time, Leroy Yeomans, testified that, 
to his knowledge, no such grievance was 
filed or pulled. 6 T.T. at 224. The Court 
credits the testimony of Robinson. An ac­
count of the events at issue drafted by her 
contemporaneously with the incident, see 
Jt.Exh. No. 10, at 18-19, is consistent with 
her testimony and it was written at a time 
and for a purpose that do not suggest a 
motive for fabrication.

114. The Court further finds that use of 
the grievance procedure would have been 
futile for Robinson. The chief steward at 
the Mayport Yard, McMillan, considered 
the pictures to be acceptable; indeed, he 
recounted his statement to Owens that he 
would grieve any rule banning the pictures 
as an infringement on the freedom of ex­
pression of male shipyard workers. McMil­
lan Depo. at 99. Further, since the offen­
sive pictures originated in the conduct of 
the majority of the bargaining unit mem­
bers, it is unrealistic to expect the union to 
press for sanctions. Moreover, the super­
visory personnel who would rule on the 
various steps of the grievance, Lovett, Ow­
ens, and Stewart, clearly expressed their 
unwillingness to take action against the 
posting of sexually-oriented pictures in the 
shipyards.

115. Robinson filed her complaint with 
the Jacksonville Equal Opportunity Com­
mission (“JEOC”), an authorized state re­
ferral agency. Jt.Exh. No. 9. A wide 
range of behavior was alleged in her com­
plaint, including exposure to the above-de­
scribed pictures, exposure to sexually sug­
gestive and humiliating comments, and the 
“Men Only” sign. Robert Kimbrough 
from JEOC visited JSI, spoke with Ahl- 
wardt, Owens, and Stewart, and conducted 
a walk-through in some areas of the ship­
yard to observe the pictures in those 
places. 8 T.T. at 170-72, 197-98. Robin­
son subsequently received a right to sue 
letter from the Equal Employment Oppor­
tunity Commission, together with a deter­
mination that no reasonable cause existed 
to believe that “she was discriminated

against . . .  by being subjected to sexually 
explicit pornography and harassment be­
cause of her sex, female.” D.Exh. No. 6. 
The Court places little weight on this “no 
cause” determination because the investi­
gation apparently was cursory and the only 
decided case relevant to this issue at that 
time, Rabidue v. Osceola Refining Corp., 
805 F.2d 611 (6th Cir. 1986), cert denied, 
481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 
823 (1987), may have provided the mislead­
ing impression that Robinson had not 
raised an actionable claim.

116. On September 2, 1986, within nine­
ty days of her receipt of the right to sue 
letter, Robinson filed the present lawsuit. 
The parties and claims were adjusted in the 
second amended complaint filed herein on 
May 6, 1987.

1987 Sexual Harassment Policy
117. In April 1987, during the pendency 

of this lawsuit, JSI adopted a new sexual 
harassment policy. It was instituted uni­
laterally, without consulting or bargaining 
with the union. See McMillan Depo. at 
118-19. The official policy statement, 
signed by Vice-President for Operations 
Larry Brown, endorses the following poli­
cy:

1. It is illegal and a violation of Jack­
sonville Shipyards, Inc., Policy for 
any employee, male or female, to sex­
ually harass another employee by

a. making unwelcomed sexual ad­
vances or request for sexual fa­
vors or other verbal or physical 
conduct of a sexual nature, a condi­
tion of an employee’s continued 
employment, or

b. making submission to or rejection 
of such conduct the basis for em­
ployment decisions affecting the 
employee, or

c. creating an intimidating, hostile, or 
offensive working environment by 
such conduct.

2. Any employee who believes he or she 
has been the subject of sexual 
harassment, should report the al­
leged act immediately to John Stew­
art Ext. 3716 in our Industrial Rela-



1518 760 FEDERAL SUPPLEMENT

tions Department. An investigation 
of all complaints will be undertaken 
immediately. Any supervisor, agent 
or other employee who has been 
found by the Company to have sexu­
ally harassed another employee will 
be subject to appropriate sanctions, 
depending on the circumstances, 
from a warning in his or her file up 
to and including termination.

D.Exh. No. 10. This policy is virtually 
verbatim a model policy distributed by 
JSI’s parent corporation. P.Exh. No. 55. 
The model policy was part of an industrial 
relations newsletter which contained an ar­
ticle on sexual harassment. Stewart read 
this newsletter in the normal course of his 
job. 8 T.T. at 195. The article on sexual 
harassment, authored by the manager of 
employee services at the corporate head­
quarters, stated that among the “condi­
tions or items in the work environment” 
that an employee may find offensive on the 
basis of the employee’s sex are “ ‘subtle’ 
forms of harassment like: dirty jokes, sex­
ually offensive pictures, leers or glares, 
sexual innuendoes, wolf whistles or cat 
calls, etc.” P.Exh. No. 55, at 5. The arti­
cle further cautioned that coworkers and 
peers might create the hostile work envi­
ronment. The article observed that the 
problem of whether offensive conduct is 
“unwelcome” cannot be determined from 
an offended employee’s failure to complain 
because the employee might not know how 
to react, or where to seek help, so the 
offending employees may continue the be­
havior under the mistaken impression that 
it is welcome. The article referenced the 
model policy and its inclusion of the au­
thor’s name and telephone number as an 
alternative avenue for complaints where an 
employee feels unable to complain to the 
industrial relations department representa­
tive. JSI’s policy did not include any alter­
nate person to receive complaints. A final 
point made by the article was that the 
standard for conduct had to come from the 
top. “Our defense is stronger if the pic­
tures are not there at all than to argue that 
they are in an area where the employee 
shouldn’t have been. Rather than asking if 
the employee would be offended by the

joke, don’t tell it at all.” Id. JSI’s policy 
did not incorporate this advice.

118. The new policy was distributed 
solely through posting on the bulletin 
boards in the shops and the general bulle­
tin boards. 8 T.T. at 174-75. It was not 
incorporated into the General Safety In­
struction and Company Rule Book, the con­
tract book, the affirmative action plan, or 
on the EEO posters. Id. at 189.

119. The 1987 policy had little or no 
impact on the sexually hostile work envi­
ronment at JSI. Employees and supervi­
sors lacked knowledge and training in the 
scope of those acts that might constitute 
sexual harassment. For example, Henry 
Starling, night shift superintendent at 
Commercial Yard, testified that he received 
no training and that he had no idea what is 
meant by the phrase sexual harassment, 7 
T.T. at 34-35, and John Nicholas, assistant 
foreman in welding shop at Commercial 
Yard, also testified that he lacked instruc­
tion concerning sexual harassment, id. at 
233-34. The pictures of nude and partially 
nude women remained posted throughout 
the workplace. In fact, in January 1988, 
after the issuance of the new policy, Stew­
art objected strongly when O.C. McBride, a 
superintendent at the Mayport Yard, re­
moved three Playboy- and Penthouse-style 
calendar pictures from the shipfitters’ shop 
and the electrical shop in anticipation of a 
tour of the shipyards conducted by Stew­
art. 7 T.T. at 53-60. The naming of only 
one company representative, Stewart, to 
hear sexual harassment complaints dimin­
ished the policy’s value to an employee, 
such as Robinson, whose prior experiences 
with Stewart left her without confidence in 
his willingness to handle such complaints. 
1 T.T. at 137.

120. The Court finds that the policies 
and procedures at JSI for responding to 
complaints of sexual harassment are inade­
quate. The company has done an inade­
quate job of communicating with employ­
ees and supervisors regarding the nature 
and scope of sexually harassing behavior. 
This failure is compounded by a pattern of 
unsympathetic response to complaints by 
employees who perceive that they are vie-



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1519
Cite as 760 F.Supp. 1486 (M.D.FIa. 1991)

tims of harassment. This pattern includes 
an unwillingness to believe the accusations, 
an unwillingness to take prompt and stern 
remedial action against admitted harassers, 
and an express condonation of behavior 
that is and encourages sexually harassing 
conduct (such as the posting of pictures of 
nude and partially nude women). In some 
instances, the process of registering a com­
plaint about sexual harassment became a 
second episode of harassment.

Remedial Aspects
121. Plaintiff seeks injunctive relief to 

force JSI to implement a comprehensive, 
effective and enforced sexual harassment 
policy. She also seeks make-whole relief 
for financial loss she alleges she suffered 
due to the harassing work environment. 
The components of this loss include days of 
absenteeism taken to recover from or to 
avoid the work environment, foregone op­
portunities for overtime and holiday pay, 
and passed opportunities for advancement 
through certain welding certification tests. 
She additionally seeks expungement of 
warnings she has received for excessive 
absenteeism.

122. Ms. Wagner, plaintiffs expert
whose expertise on education and training 
to combat sexual harassment was accepted 
without objection, testified regarding the 
elements of a comprehensive, effective sex­
ual harassment policy. See 4 T.T. at 115— 
24. Tn her experience and according to the 
research conducted in this field, sexual 
harassment can be eliminated through a 
program that trains key supervisors how to 
investigate sexual harassment complaints, 
that teaches male and female employees 
what conduct is prohibited, and that in­
cludes a strong policy statement signed by 
a top-ranking company executive. The 
training of key supervisors in investigatory 
techniques encourages active monitoring of 
the environment and relieves some barriers 
to reporting of sexual harassment by plac­
ing the burden on management. The poli­
cy statement should: (1) describe with
specificity the behaviors that constitute 
sexual harassment; (2) advise employees 
that sexual harassment may result from 
the behavior of coworkers as well as the 
behavior of supervisors; (3) promise and 
provide confidentiality and protection from

retaliation for complainants and witnesses; 
and (4) provide a number of avenues 
through which a complaint may be initi­
ated. The policy statement must receive 
wide, effective distribution.

123. Plaintiff proposed a remedial sexu­
al harassment policy in her pretrial briefs. 
Ms. Wagner examined this policy and con­
cluded that it contains all of the important 
features of an effective policy implementa­
tion procedure and training program. 4 
T.T. at 126.

124. The Court finds that the evidence 
fully supports the appropriateness of in­
junctive relief in the nature of that request­
ed by Robinson. Because defendants have 
not provided detailed comment on the pro­
posed policy, the Court will permit a brief 
period of time for the parties to consult 
regarding any modification that they may 
deem appropriate to secure maximum suc­
cess of the policy and the procedures at JSI 
and for defendants to register with the 
Court any objections to the policy that con­
cern JSI’s ability to implement the policy in 
a fashion consistent with the remedial 
goals expressed herein.

125. Regarding lost days of work, Rob­
inson testified that she missed several days 
each year because she could not face enter­
ing the hostile work environment. 1 T.T. 
at 156-57. She did not identify this as the 
reason for her absenteeism when providing 
her reason to her employer because it did 
not fit into the acceptable categories for 
absence. Id. at 158. In one instance, she 
told her employer that she needed a leave 
of absence for thirty days in order to tend 
to a sick relative; she testified at trial that 
her reported reason was false and her real 
reason for the absence was work environ­
ment anxiety. 3 T.T. at 3. In December 
1988, Robinson received a call to work the 
day shift at the Mayport Yard. She did not 
feel safe or comfortable working that shift 
because most of the defendants work at 
that time. Her anxiety caused her to have 
difficulty sleeping and to miss two days of 
work. 2 T.T. at 38-40.

126. Robinson estimated her total lost 
time attributable to her inability to cope 
with the hostile work environment. She



1520 760 FEDERAL SUPPLEMENT

estimated six days lost in 1983 (at a rate of 
pay ranging from $9.50 to $10.50 per hour), 
twenty-eight days lost in 1984 (at $10.00 to 
$10.50 per hour), fifty days lost in 1985 (at 
$10.50 to $11.00 per hour), twenty-six days 
in 1986 (at $11.00 to $11.10 per hour), twen­
ty-two days in 1987 (at the same rate), and 
thirty days in 1988 (at $10.50 to $11.00 per 
hour). Based on an eight hour day and 
lower rate of pay in each year, her estimat­
ed loss pay totals $13,640. She further 
estimated that she missed six holiday days 
between 1983 through 1988, which trans­
lates to a loss of triple the standard rate of 
pay for an eight hour day. 1 T.T. at 159— 
60. Her estimate for lost overtime earn­
ings, which pays time and a half for Mon­
day through Saturday and double time for 
Sunday, is fifteen days per year for the 
period. Id. at 158-59. She elected not to 
take certain welding certification tests be­
cause they would have made her more use­
ful at the Mayport Yard, the work environ­
ment she sought most to avoid. Id. at 
138-39. While Robinson’s annual salary 
from JSI averaged approximately $11,000 
to $12,000 over the last few years, 2 T.T. at 
29-30, a male first-class welder with less 
seniority, Gene Joazil, earned an average 
of approximately $19,000 to $20,000 from 
1984 through 1987 because he worked over­
time. 6 T.T. at 4-7. Although Robinson 
worked as a massage therapist when she 
did not work at JSI, she testified that the 
job always supplemented her JSI work and 
did not conflict with the opportunities she 
lost.

127. Robinson’s estimate of days 
missed are an admitted approximation. 
She explained that she could not give the 
dates of these days missed and that the 
business records that she reviewed con­
tained errors. 1 T.T. at 139-41; 3 T.T. at 4. 
Defendants objected at trial to Robinson’s 
testimony estimating the number of days 
missed because she did not provide the 
precise dates when requested to do so in a 
supplemental interrogatory; she had pro­
5. Plain tiffs answ er to the relevant question in 

defendants’ first interrogatories, D.Exh. No. 27, 
at 9 (answ er to question 7), specifically identi­
fies 12 days in the tim e period M arch 3, 1986 
through August 29, 1986. Using the low er hour­
ly rate for this period, her stated loss is SI,056. 
This cannot form  the basis of an  aw ard, how-

vided only the number of days estimate 
upon which she relied at trial.5 Robinson 
unsuccessfully sought business records 
that might have provided her with more 
detail from which to draw precise dates. 
Her lack of success in procuring this infor­
mation is wholly attributable to her failure 
to seek to compel compliance with her dis­
covery request within the time permitted 
by the Amended Docket Control Order, en­
tered April 6, 1987. This Court affirmed 
the Magistrate’s ruling that plaintiff failed 
to show excusable neglect for her dilatory 
efforts. See Order entered January 26, 
1988, at 5-6. Plaintiff reasserted her de­
sire to discover this evidence in her pretrial 
brief and the Court again refused to grant 
a unilateral exception to the deadlines in 
this case under the circumstances. The 
Court cannot now reward plaintiff’s failure 
to conduct discovery within the deadlines 
by shifting the burden to the defendants to 
disprove Robinson’s vague estimates of 
time lost. Robinson made and kept notes 
of various events throughout the course of 
her struggle to get JSI to recognize the 
sexually harassing nature of the pictures 
of nude and partially nude women. Her 
asserted inability to identify more precisely 
the dates at issue lacks credibility in this 
light. If her estimate of the number of 
days is based on something more than a 
guess, then she should be able to identify 
the dates with a greater degree of specifici­
ty. It is not unreasonable, under the cir­
cumstances of this case, to require more 
precision in her identification of time lost. 
Moreover, the standard for evaluating her 
claim for compensation for lost time re­
quires that she show that conditions rose to 
or existed at a level equivalent to an inter­
mittent constructive discharge. See 118 
F.R.D. at 531. Defendants require a list of 
the specific dates on which plaintiff was 
absent in order to determine if the degree 
of harassment in the workplace on those 
dates rises to the level of this higher stan­
dard; plaintiff’s failure to provide specific

ever, for two reasons. First, it is incomplete 
and therefore would be no m ore than  the equiv­
alent of nom inal dam ages. Second, plaintiff 
did not come forw ard with the additional quan­
tum  of proof necessary to adduce w hether the 
equivalent of a constructive discharge existed 
for those dates o r the b roader tim e period.



1521ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as 760 F.Supp. I486 (M.D.FIa. 1991)

dates unfairly deprives defendants of the 
opportunity to argue that the work envi­
ronment may be sufficiently hostile to cre­
ate liability under Title VII without being 
sufficiently hostile to warrant plaintiff’s 
absence from the job. The specific dates 
also would provide a basis for defendants 
to rebut Robinson’s assertion that her mas­
sage therapist work did not conflict with 
her work at JSI; the lost overtime asserted 
may well have fallen on days when Robin­
son earned money as a massage therapist 
during the hours for which overtime was 
available.

128. The Court finds that Robinson’s 
testimony on the financial loss alleged to 
flow from her missed opportunities and 
days off is insufficient to form a basis to 
calculate an entitlement to make-whole 
monetary relief. Likewise, the vagueness 
of the testimony relating to absences is an 
insufficient basis upon which to expunge 
warnings concerning absenteeism.

CONCLUSIONS OF LAW 
Title VII

1. Jurisdiction and venue are proper in 
this Court.

[1] 2. Robinson is an employee within 
the definition of 42 U.S.C. § 2000e(f). JSI 
is an employer within the definition of 42 
U.S.C. § 2000e(b). Mcllwain, Brown, Stew­
art, Ahlwardt, Owens and Lovett are 
agents of JSI and are therefore employers 
within the meaning of 42 U.S.C. § 2000e(b).

[2] 3. Kiedrowski’s status poses a dif­
ficult and contested issue. He is an em­
ployer only if he is an agent of JSI, but 
“[njowhere in Title VII is the term ‘agent' 
defined.” Barger v. Kansas, 630 F.Supp. 
88, 89 (D.Kan.1985). The most widely used 
definition construes the term “to be a su­
pervisory or managerial employee to whom 
employment decisions have been delegated 
by the employer.” York v. Tennessee 
Crushed Stone A ss’n, 684 F.2d 360, 362 
(6th Cir. 1982). Kiedrowski has held the 
positions of leaderman and quarterman. 
neither of which falls within the formal 
management structure at JSI. Moreover, 
he does not possess authority to place disci-
6. These lim itations do not dim inish the signifi-

pline reports in another employee s person­
nel file (although he may in some instances 
recommend that disciplinary action be tak­
en), he does not play any role for the com­
pany in the grievance procedure, and he 
does not make personnel changes in his 
department. Cf Vance v. Southern Bell 
Tel. & Tel. Co., 863 F.2d 1503, 1515 (11th 
Cir. 1989) (finding these factors persuasive 
in imposing direct liability under Title VII). 
The lesson of Vance, however, is “an agen­
cy standard which looks solely to the de­
gree of authority the harasser wields over 
the plaintiff is not particularly useful in a 
hostile environment case such as this.” Id. 
Instead, the direct authority question 
forms but one factor; it is necessary to 
“examine any evidence bearing on the over­
all structure of the workplace, including 
the relative positions of the parties in­
volved.” Id. Analyzed at this level, Kied­
rowski’s status becomes more problematic. 
Kiedrowski has a role in the work assign­
ments, traditionally a significant factor 
leading to a finding of employer status. 
See, e.g., Paroline v. Unisys Cory., 879 
F.2d 100, 104 (4th Cir. 1989), modified on 
other grounds, 900 F.2d 27, 28 (4th Cir. 
1990) (en banc); Hamilton v. Rodgers, 791 
F.2d 439, 442-43 (5th Cir.1986). Further, 
quartermen and leadermen sometimes ex­
ercise apparent authority by acting to re­
solve disputes between employees, includ­
ing disputes that have arisen because of 
sexually harassing behavior. Employees 
recognize this difference in apparent au­
thority by approaching them for assistance. 
These facts somewhat weigh in favor of 
assigning employer status to Kiedrowski. 
Cf. Mason v. Twenty-Sixth Judicial Dist. 
of Kan., 670 F.Supp. 1528, 1532 (D.Kan.
1987) (employees could be held as Title VII 
employers where they were “given authori­
ty to rate the plaintiff in her performance, 
and also to control work assignments and 
other conditions of employment”). The ab­
sence of a formal delegation in all instanc­
es and the exclusion of quartermen and 
leadermen from the formal supervisory 
structure, however, place the relative posi­
tions of the parties more closely to that of 
coworkers than that of employer and sub­
ordinate.6 The limitations on the authority

cancc of quarterm en and leaderm en in the con-



1522 760 FEDERAL SUPPLEMENT

of quartermen and leadermen persuade the 
Court in the final balance to conclude that 
the role filled by quartermen and leader- 
men is not that of an employer and there­
fore the imposition of employer liability on 
Kiedrowski is inappropriate.

[3] 4. Five elements comprise a claim 
of sexual discrimination based on the exist­
ence of a hostile work environment: (1) 
plaintiff belongs to a protected category; 
(2) plaintiff was subject to unwelcome sex­
ual harassment; (3) the harassment com­
plained of was based upon sex; (4) the 
harassment complained of affected a term, 
condition or privilege of employment; and 
(5) respondeat superior, that is, defen­
dants knew or should have known of the 
harassment and failed to take prompt, ef­
fective remedial action.7 See Meritor Sav. 
Bank v. Vinson, 477 U.S. 57, 66-69, 106 
S.Ct. 2399, 2405-07, 91 L.Ed.2d 49 (1986); 
Henson v. City o f Dundee, 682 F.2d 897, 
903-05 (11th Cir.1982); Robinson v. Jack­
sonville Shipyards, Inc., 118 F.R.D. 525, 
527-28 (M.D.Fla.1988).

[4] 5. Robinson indisputably belongs 
to a protected category.

[5] 6. The threshold for determining 
that sexually harassing conduct is unwel­
come is “that the employee did not solicit 
or incite it, and . . .  that the employee re­
garded the conduct as undesirable or offen­
sive.” Henson, 682 F.2d at 903 (citations 
omitted).

7. The relevant conduct in this case is 
the posting of pictures of nude and partial­
ly nude women in the workplace, the sexu­
ally demeaning remarks and jokes made by 
male workers, and harassment lacking a 
sexually explicit content such as the “Men 
Only” sign. The credible testimony of 
Robinson, corroborated by the observations 
of her supervisors and coworkers, attests 
to the offense she took at this behavior. 
Cf. Vinson, 477 U.S. at 68, 106 S.Ct. at

trol of sexually harassing behavior, nor do they 
d im inish the reasonableness of the belief of 
fem ale employees that reporting sexually ha­
rassing behavior to quarterm en and leaderm en 
constituted an appropria te  course o f action to 
secure rem edy thereof.

7. Although this fifth elem ent bears the label 
"respondeat superior,” it actually em braces a

2406 (“the question whether particular con­
duct was indeed unwelcome presents diffi­
cult credibility determinations committed to 
the trier of fact”). Moreover, not a scintil­
la of evidence suggests that she solicited or 
incited the conduct. Robinson did not wel­
come the conduct of which she complains.

[6,7] 8. The third element imposes a 
requirement that Robinson “must show 
that but for the fact of her sex, she would 
not have been the object of harassment.” 
Henson, 682 F.2d at 904. This causation 
requirement encompasses several claims. 
For example, harassing behavior lacking a 
sexually explicit content but directed at 
women and motivated by animus against 
women satisfies this requirement. See A n­
drews v. City o f Philadelphia, 895 F.2d 
1469, 1485 (3d Cir.1990) (“The offensive 
conduct is not necessarily required to in­
clude sexual overtones in every instance.”); 
Lipsett v. University o f Puerto Rico, 864 
F.2d 881, 905 (1st Cir.1988); Hall v. Gus 
Constr. Co., 842 F.2d 1010, 1014 (8th Cir.
1988) (“Intimidation and hostility toward 
women because they are women can obvi­
ously result from conduct other than sexu­
al advances.”); Hicks v. Gates Rubber Co., 
833 F.2d 1406, 1415 (10th Cir.1987);
McKinney v. Dole, 765 F.2d 1129, 1138 
(D.C.Cir. 1985). Second, sexual behavior di­
rected at women will raise the inference 
that the harassment is based on their sex.
E. g., Huddleston v. Roger Dean Chevrolet, 
Inc., 845 F.2d 900, 904-05 (11th Cir.1988); 
Sparks v. Pilot Freight Carriers, Inc., 830
F. 2d 1554, 1561 (11th Cir.1987); see A n­
drews, 895 F.2d at 1485; Lipsett, 864 F.2d 
at 905; Bennett v. Corroon & Black 
Corp., 845 F.2d 104, 106 (5th Cir.1988), 
cert, denied, 489 U.S. 1020, 109 S.Ct. 1140, 
103 L.Ed.2d 201 (1989). A third category 
of actionable conduct is behavior that is not 
directed at a particular individual or group 
of individuals, but is disproportionately

negligence standard  for em ployer liability that 
essentially restates the "fellow servant” rule. 
See, e.g., Hirschfield v. New  Mexico Corrections 
Dep't, 916 F.2d 572, 577 n. 5 (10th Cir.1990): 
Guess v. Bethlehem Steel Corp., 913 F.2d 463. 
465 (7th Cir.1990); Hall v. Gus Constr. Co., 842 
F.2d 1010, 1015 (8th Cir.1988).



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1523
Cite as  760 F.Supp. 1486 (M.D.FIa. 1991)

more offensive or demeaning to one sex. 
See Henson, 682 F.2d at 904; see also 
Andrews, 895 F.2d at 1485-86; Waltman 
v. International Paper Co., 875 F.2d 468, 
477 (5th Cir.1989), rev’g 47 Fair Empl.Prac. 
Cas. (BNA) 671 (W.D.La.1987); Lipsett, 
864 F.2d at 905; Rabidue v. Osceola Ref. 
Corp., 805 F.2d 611, 627 (6th Cir.1986) 
(Keith, J., dissenting), cert, denied, 481 
U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823 
(1987). This third category describes be­
havior that creates a barrier to the 
progress of women in the workplace be­
cause it conveys the message that they do 
not belong, that they are welcome in the 
workplace only if they will subvert their 
identities to the sexual stereotypes preva­
lent in that environment. That Title VII 
outlaws such conduct is beyond peradven- 
ture. Cf. Price Waterhouse v. Hopkins, 
490 U.S. 228, 249-51, 109 S.Ct. 1775, 1790- 
91, 104 L.Ed.2d 268 (1989) (plurality opin­
ion); id. at 262-67, 109 S.Ct. at 1797-99, 
104 L.Ed.2d 268 (O’Connor, J., concurring 
in judgment) (use of gender stereotypes to 
evaluate female employees violates Title 
VII); Griggs v. Duke Power Co., 401 U.S. 
424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 
(1971) (Title VII was passed to remove “ar­
tificial, arbitrary, and unnecessary barriers 
to employment when the barriers operate 
invidiously to discriminate on the basis of 
. . .  [an] impermissible classification”).

9. The harassment of which Robinson 
complains was based upon her sex. The 
Findings of Fact reflect examples of the 
three aforementioned types of behavior. 
She suffered nonsexual harassing behavior 
from coworkers such as George Leach, 
who verbally abused or shunned her be­
cause she is a female. The “Men Only” 
sign also illustrates this type of harass­
ment. She suffered incidents of directed 
sexual behavior both before and after she 
lodged her complaints about the pictures of 
nude and partially nude women. The pic­
tures themselves fall into the third catego­
ry, behavior that did not originate with the 
intent of offending women in the work­
place (because no women worked in the 
jobs when the behavior began) but clearly 
has a disproportionately demeaning impact 
on the women now working at JSI. The 
expert testimony of Dr. Fiske provides sol­

id evidence that the presence of the pic­
tures, even if not directed at offending a 
particular female employee, sexualizes the 
work environment to the detriment of all 
female employees.

[8] 10. The fourth element tests the
impact of the harassing behavior on the 
employee and the work environment, sepa­
rating the “mere utterance of . . .  [a dis­
criminatory] epithet which engenders of­
fensive feelings in an employee,” Rogers v. 
EEOC, 454 F.2d 234, 238 (5th Cir.1971), 
cert, denied, 406 U.S. 957, 92 S.Ct. 2058, 32 
L.Ed.2d 343 (1972), and “the petty slights 
suffered by the hypersensitive,” Zabkowicz 
v. West Bend Co., 589 F.Supp. 780, 784 
(E.D.Wis.1984), from actionable conduct 
under Title VII. To affect a “term, condi­
tion, or privilege” of employment within 
the meaning of Title VII, the harassment 
“must be sufficiently severe or pervasive 
‘to alter the conditions of [the victim’s] 
employment and create an abusive working 
environment.’ ” Vinson, All U.S. at 67, 
106 S.Ct. at 2405 (quoting Henson, 682 
F.2d at 904). “This test may be satisfied 
by a showing that the sexual harassment 
was sufficiently severe or persistent ‘to 
affect seriously [the victim’s] psychological 
well being.’ ” Sparks, 830 F.2d at 1561 
(quoting Henson, 682 F.2d at 904). This 
“is a question to be determined with regard 
to the totality of the circumstances.” Hen­
son, 682 F.2d at 904. In the context of a 
racial harassment case, which is governed 
by the same standards under Title VII as a 
sexual harassment case, see Patterson v. 
McLean Credit Union, 491 U.S. 164, 109 
S.Ct. 2363, 2374, 105 L.Ed.2d 132 (1989); 
Risinger v. Ohio Bureau o f Workers' 
Compensation, 883 F.2d 475, 485 (6th Cir.
1989), the Eleventh Circuit elaborated on 
the evaluation of the totality of the circum­
stances:

The prima facie showing in a hostile 
work environment case is likely to con­
sist of evidence of many or very few acts 
or statements by the defendant which, 
taken together, constitute harassment. 
It is important to recognize that in as­
sessing the credibility and weight of the 
evidence presented, the [trier of fact] 
does not necessarily examine each al­



1524 760 FEDERAL SUPPLEMENT

leged incident of harassment in the vac­
uum. What may appear to be a legit­
imate justification for a single incident of 
alleged harassment may look pretextual 
when viewed in the context of several 
other related incidents.

. . .  A hostile environment claim is a sin­
gle cause of action rather than a sum 
total of a number of mutually distinct 
causes of action to be judged each on its 
own m erits.. . .  [T]he totality of the cir­
cumstances necessarily includes the se­
verity, as well as the number, of inci­
dents of harassment.

Vance, 863 F.2d at 1510-11 (footnote omit­
ted).

11. Element four must be tested both 
subjectively and objectively. Regarding 
the former, the question is whether Robin­
son has shown she is an “affected individu­
al,” that is, she is at least as affected as 
the reasonable person under like circum­
stances. See Robinson, 118 F.R.D. at 530. 
The evidence reflects the great upset that 
Robinson felt when confronted with individ­
ual episodes of harassment and the work­
place as a whole. Further, the impact on 
her work performance is plain. For essen­
tially the same reasons chat she successful­
ly proved her case on the second element of 
this cause of action, Robinson likewise 
carries her burden as to the subjective part 
of the fourth element. (Defendants, hav­
ing urged throughout these proceedings 
that Robinson is hypersensitive, appear to 
concede the point.) The contested issue in 
this case is the objective evaluation of the 
work environment at JSI.

[9] 12. The objective standard asks 
whether a reasonable person of Robinson’s 
sex, that is, a reasonable woman, would 
perceive that an abusive working environ­
ment has been created. See Vinson, 477 
U.S. at 67, 106 S.Ct. at 2405; Andrews, 895 
F.2d at 1482; Brooms v. Regal Tube Co., 
881 F.2d 412, 419-20 (7th Cir.1989). The 
severity and pervasiveness aspects form a 
structure to test this hypothesis. As the 
prior quotations illustrate, the contours of 
what comprises “severe” and “pervasive” 
are not defined with precision. An interac­
tion between the two is plain; greater se­

verity in the impact of harassing behavior 
requires a lesser degree of pervasiveness 
in order to reach a level at which Title VII 
liability attaches. E.g., Carrero v. New 
York Hous. Auth., 890 F.2d 569, 577 (2d 
Cir.1989). Moreover, the analysis cannot 
carve the work environment into a series of 
discrete incidents and measure the harm 
adhering in each episode. Rather, a holis­
tic perspective is necessary, keeping in 
mind that each successive episode has its 
predecessors, that the impact of the sepa­
rate incidents may accumulate, and that 
the work environment created thereby may 
exceed the sum of the individual episodes. 
“A play cannot be understood on the basis 
of some of its scenes but only on its entire 
performance, and similarly, a discrimina­
tion analysis must concentrate not on indi­
vidual incidents but on the overall scenar­
io.” Andrews, 895 F.2d at 1484. It fol­
lows naturally from this proposition that 
the environment viewed as a whole may 
satisfy the legal definition of an abusive 
working environment although no single 
episode crosses the Title VII threshold.

13. The objective evaluation must ac­
count for the salient conditions of the work 
environment, such as the rarity of women 
in the relevant work areas. This important 
qualification explains why the Court places 
little value on the expert testimony of Drs. 
Mosher and Scott regarding the level of 
offensiveness to women of pornographic 
materials as measured in the abstract. 
Correspondingly, the need to identify the 
context in which harassing conduct arises 
weighs heavily in the Court’s acceptance of 
the expert opinions of Dr. Fiske and Ms. 
Wagner.

14. A reasonable woman would find 
that the working environment at JSI was 
abusive. This conclusion reaches the totali­
ty of the circumstances, including the sexu­
al remarks, the sexual jokes, the sexually- 
oriented pictures of women, and the non- 
sexual rejection of women by coworkers. 
The testimony by Dr. Fiske and Ms. Wag­
ner provides a reliable basis upon which to 
conclude that the cumulative, corrosive ef­
fect of this work environment over time 
affects the psychological well-being of a 
reasonable woman placed in these condi-



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1525
Cite as  760 F.Supp.

tions. This corollary conclusion holds true 
whether the concept of psychological well­
being is measured by the impact of the 
work environment on a reasonable wom­
an’s work performance or more broadly by 
the impact of the stress inflicted on her by 
the continuing presence of the harassing 
behavior. The fact that some female em­
ployees did not complain of the work envi­
ronment or find some behaviors objectiona­
ble does not affect this conclusion concern­
ing the objective offensiveness of the work 
environment as a whole. See Priest v. 
Rotary, 634 F.Supp. 571, 582 (N.D.Cal. 
1986); Morgan v. Hertz Cory., 542 F.Supp. 
123, 128 (W.D.Tenn.1981), affd, 725 F.2d 
1070 (6th Cir. 1984).

15. The Court recognizes the existence 
of authority supporting defendants’ conten­
tion that sexually-oriented pictures and sex­
ual remarks standing alone cannot form 
the basis for Title VII liability. The Court 
concludes that the reasoning of these cases 
is not consistent with Eleventh Circuit 
precedent and is otherwise unsound.

(a) Defendants’ authority, which hails 
from other jurisdictions, proceeds from 
premises that are inconsistent with authori­
ty that is binding on this Court. For exam­
ple, the Sixth Circuit in Rabidue quoted 
with approval the conclusion of the district 
court that

it cannot seriously be disputed that in 
some work environments, humor and lan­
guage are rough hewn and vulgar. Sex­
ual jokes, sexual conversations and girlie 
magazines may abound. Title VII was 
not meant to—or can—change this. It 
must never be forgotten that Title VII is 
the federal court mainstay in the strug­
gle for equal employment opportunity 
for the female workers of America. But 
it is quite different to claim that Title VII 
was designed to bring about a magical 
transformation in the social mores of 
American workers.

805 F.2d at 620-21 (quoting in full 584 
F.Supp. 419, 430).8 This conclusion but-
8. The Sixth Circuit subsequently explained that 

this passage should be read  w ith "em phasis on 
the word 'm agical,' not the w ord 'transfo rm a­
tion.' Title VII was not intended to elim inate 
all private prejudice and biases. The law, how­
ever, did a lter the dynam ics of the workplace

1486 (M.D.FIa. 1991)

tressed the appellate court’s belief that “a 
proper assessment or evaluation of an em­
ployment environment” in a sexual harass­
ment suit includes ‘‘the lexicon of obscenity 
that pervaded the environment of the work­
place both before and after the plaintiff’s 
introduction into its environs, coupled with 
the reasonable expectation of the plaintiff 
upon voluntarily entering that environ­
ment.” Id. at 620. The Rabidue court 
further expounded on the social context 
argument:

The sexually oriented poster displays had 
a de minimis effect on the plaintiff’s 
work environment when considered in 
the context of a society that condones 
and publicly features and commercially 
exploits open displays of written and pic­
torial erotica at the newsstands, on 
prime-time television, at the cinema, and 
in other public places.

Id. at 622. These propositions, however, 
cannot be squared with the Eleventh Cir­
cuit’s holding in Walker v. Ford Motor Co., 
684 F.2d 1355, 1359 & n. 2 (11th Cir.1982), 
that the social milieu of the area and the 
workplace does not diminish the harassing 
impact of racial slurs. (As previously not­
ed, the analysis is not different for racial 
and sexual harassment claims.) The point 
is made more directly for sexual harass­
ment claims in Sparks, wherein the appel­
late court explained that often “the whole 
point of the sexual harassment claim” is 
that behavior that “may be permissible in 
some settings . . .  can be abusive in the 
workplace....” 830 F.2d at 1561 n. 13; 
see also Wyerick v. Bayou Steel Corp., 887 
F.2d 1271, 1275 n. 11 (5th Cir.1989) (“heavy 
pollution defense” inconsistent with Vin­
son and Henson ). A district court within 
the Eleventh Circuit recently concluded 
that a sexually hostile work environment 
was created in a police department when 
male officers subjected a female patrol of­
ficer to verbal abuse, “a plethora of sexual­
ly offensive posters, pictures, graffiti, and

because it operates to prevent bigots from  h a­
rassing their co-workers." Davis v. M onsanto 
Chem. Co., 858 F.2d 345, 350 (6th Cir.1988), cert, 
denied, 490 U.S. 1110, 109 S.Ct. 3166, 104 
L.Ed.2d 1028 (1989).



1526 760 FEDERAL SUPPLEMENT

pinups placed on the walls throughout the 
Police Department,” and “innumerable 
childish, yet offensive sexual and obscene 
innuendoes and incidents aimed at her on 
the basis of sex.” Sanchez v. City o f 
Miami Beach, 720 F.Supp. 974, 977 (S.D. 
Fla. 1989).

(b) The “social context” argument also 
lacks a sound analytical basis. Professor 
Kathryn Abrams has written an insightful 
critique of this argument:

The Rabidue court’s proposed stan­
dard is wholly inappropriate for several 
reasons. Not only did the court overesti­
mate the public consensus on the ques­
tion of pornography, but the fact that 
many forms of objectionable speech and 
conduct may be protected against inter­
ference by public authorities in the world 
at large does not mean that pornography- 
should be accepted as appropriate in the 
workplace. Pornography in the work­
place may be far more threatening to 
women workers than it is to the world at 
large. Outside the workplace, pornogra­
phy can be protested or substantially 
avoided—options that may not be avail­
able to women disinclined to challenge 
their employers or obliged to enter cer­
tain offices. Moreover, while publicly 
disseminated pornography may influence 
all viewers, it remains the expression of 
the editors of Penthouse or Hustler or 
the directors of Deep Throat. On the 
wall of an office, it becomes the expres­
sion of a coworker or supervisor as well.

In this context the effect of pornogra­
phy on workplace equality is obvious. 
Pornography on an employer’s wall or 
desk communicates a message about the 
way he views women, a view strikingly 
at odds with the way women wish to be 
viewed in the workplace. Depending 
upon the material in question, it may 
communicate that women should be the 
objects of sexual aggression, that they 
are submissive slaves to male desires, or 
that their most salient and desirable at­
tributes are sexual. Any of these im­
ages may communicate to male cowork­
ers that it is acceptable to view women in 
a predominately sexual way. All of the 
views to some extent detract from the 
image most women in the workplace

would like to project: that of the profes­
sional, credible coworker.

Abrams, Gender Discrimination and the 
Transformation o f Workplace Norms, 42 
Van.L.Rev. 1183, 1212 n. 118 (1989) (cita­
tion omitted); accord Andrews, 895 F.2d at 
1485-86; Lipsett, 864 F.2d at 905 (adopting 
analysis of dissent in Rabidue); Bennett, 
845 F.2d at 106; Barbetta v. Chemlawn 
Servs. Corp., 669 F.Supp. 569, 573 & n. 2 
(W.D.N.Y.1987); Ehrenreich, Pluralist 
Myths and Powerless Men: The Ideology 
of Reasonableness in Sexual Harassment 
Law, 99 Yale L.J. 1177, 1201-10 (1990); 
Strauss, Sexist Speech in the Workplace, 
25 H arv. C.R.-C.L.L. R ev. 1 ,  11-16 (1990). 
Professor Catherine MacKinnon makes the 
point in a pithy statement: “If the perva­
siveness of an abuse makes it nonactiona- 
ble, no inequality sufficiently institutional­
ized to merit a law against it would be 
actionable.” C. MacK innon, F eminism Un­
modified 115 (1987).

(c) The “social context” argument cannot 
be squared with Title VII’s promise to open 
the workplace to women. When the pre-ex­
isting state of the work environment re­
ceives weight in evaluating its hostility to 
women, only those women who are willing 
to and can accept the level of abuse inher­
ent in a given workplace—a place that may 
have historically been all male or historical­
ly excluded women intentionally—will ap­
ply to and continue to work there. It is 
absurd to believe that Title VII opened the 
doors of such places in form and closed 
them in substance. A pre-existing atmo­
sphere that deters women from entering or 
continuing in a profession or job is no less 
destructive to and offensive to workplace 
equality than a sign declaring “Men Only.” 
As the Fifth Circuit recently observed, 
“Work environments ‘heavily charged’ or 
‘heavily polluted’ with racial or sexual 
abuse are at the core of the hostile environ­
ment theory.” Wyerick, 887 F.2d at 1275. 
To implement fully the promise of Title 
VII, “the standards for assessing women’s 
psychological harm due to harassment 
must begin to reflect women’s sensitivity 
to behavior once condoned as acceptable.” 
Note, The Aftermath o f Meritor: A
Search fo r  Standards in the Law o f Sexu-



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1527
Cite as 760 F.Supp.

al Harassment, 98 Yale L.J. 1717, 1737-38 
(1989).

(d) The Rabidue analysis violates the 
most basic tenet of the hostile work envi­
ronment cause of action, the necessity of 
examining the totality of the circum­
stances. Excluding some forms of offen­
sive conduct as a matter of law is not 
consistent with the factually oriented ap­
proach dictated by Vinson, Henson, and 
their progeny. The expert testimony in 
this case places the many instances of of­
fensive behavior into a context that permits 
evaluation of the environment as a whole. 
The Court cannot ignore the expert testi­
mony, or the Court’s own perception of the 
work environment evaluated as a whole; it 
would have to do so in order to adopt the 
Rabidue conclusion that a sexually 
charged environment has only a “de minim­
is effect” on the psychological well-being of 
a reasonable woman who works in the 
skilled crafts at JSI.

16. Having determined that the first 
four elements of a sexual harassment claim 
have been satisfied, the Court faces the 
task of assessing the liability of the em­
ployers in this case. The corporate employ­
er, JSI, is subject only to vicarious liability, 
an issue more fully developed infra. The 
individual employers, however, pose a dis­
tinct liability issue.

[10,11] 17. The principles of employer 
liability for individual corporate officers 
are broad. It has been described as “incon­
ceivable that Congress intended to exclude 
from liability the very persons who have 
engaged in the employment practices which 
are the subject of the action.” Hague v. 
Riverdale Athletic Ass’n, 99 F.R.D. 325, 
327 (N.D.Ga.1983). Instead, a liberal inter­
pretation of Title VII works to hold respon­
sible “those who control the aspects of 
employment accorded protection” by that 
law. Spirt v. Teachers Ins. & Annuity  
Ass’n, 475 F.Supp. 1298, 1308 (S.D.N.Y. 
1979), a ffd  in relevant part, 691 F.2d 1054 
(2d Cir. 1982), vacated, 463 U.S. 1223, 103 
S.Ct. 3565, 77 L.Ed.2d 1406 (1983), rein­
stated as modified, 735 F.2d 23 (2d Cir.), 
cert, denied, 469 U.S. 881, 105 S.Ct. 247, 83 
L.Ed.2d 185 (1984).

I486 (M.D.Fla. 1991)

It may seem odd that an individual 
occupying a supervisory position could be 
held liable for the acts of his underlings 
when the employer of both can also be 
held liable, particularly where the super­
visor had no personal involvement in the 
discriminatory acts of those working for 
him. However, placing an affirmative 
duty to prevent discriminatory acts on 
those who are charged with employment 
decisions appears to be consistent with 
the aims of Title VII.

McAdoo v. Toll, 591 F.Supp. 1399, 1406 
(D.Md.1984). Because these principles are 
so broad, however, they should be applied 
with an eye toward finding liability only 
against individuals who exercise effective 
control in the workplace—those persons 
who make or contribute meaningfully to 
employment decisions. See, e.g., Kolb v. 
Ohio, 721 F.Supp. 885, 891 (N.D.Ohio 
1989); McAdoo, 591 F.Supp. at 1406. 
Thus, lower level supervisory employees 
who qualify as employers should be exoner­
ated from liability when they do no more 
than follow the policies established by their 
superiors. Individual liability attaches, if 
at all, to the generals, not their soldiers.

[12] 18. Mcllwain is not liable for the 
hostile work environment to which Robin­
son was subjected. He did not personally 
participate in any sexually harassing be­
havior that affected Robinson and he was 
not personally presented with her com­
plaints of sexual harassment. Indeed, his 
status as an employer derives from his 
status as an agent of JSI. The responsibili­
ty for handling sexual harassment com­
plaints was delegated to supervisory per­
sonnel below Mcllwain. While Robinson 
suggests that this delegation creates an 
agency relationship between Mcllwain and 
the supervisory personnel responsible for 
remedying sexual harassment, her argu­
ment does not account for the source of 
Mcllwain’s authority to delegate. The del­
egation is done on behalf of the corpora­
tion, within Mcllwain’s agency relationship 
with JSI, and it therefore creates an agent- 
principal relationship between the delega­
tees and JSI, not the delegatees and Mcll­
wain. See Brown, 684 F.Supp. at 1085-86; 
see also Restatement (Second) of Agency



1528 760 FEDERAL SUPPLEMENT

§ 5 comment a (1958); id. § 222. Accord­
ingly, JSI, not Mcllwain, incurs liability 
when the actions (or inactions) of the dele­
gatees create the circumstances for the 
application of respondeat superior.

[13] 19. Brown is liable for the hostile 
work environment to which Robinson was 
subjected. His responsibility extended to 
the creation and implementation of JSI’s 
sexual harassment policies. Their failure 
is his failure. Additionally, he personally 
intervened in Robinson’s complaint and di­
rected that no remedial action be taken.

[14] 20. Stewart is liable for the hos­
tile work environment to which Robinson 
was subjected. He held responsibility for 
the day-to-day administration of the sexual 
harassment complaint machinery. Its fail­
ure is his failure. Additionally, he person­
ally intervened in Robinson’s complaint and 
directed that no remedial action be taken.

[15] 21. Ahlwardt is not liable for the 
hostile work environment to which Robin­
son was subjected. He stood in a middle 
management position and did no more or 
less than implement the order of his superi­
ors, albeit with little finesse or compassion.

[16] 22. Owens is not liable for the 
hostile work environment to which Robin­
son was subjected. He also stood too far 
down on the ladder of authority to accrue 
individual liability for the state of the 
workplace.

[17] 23. Lovett is not liable for the 
hostile work environment to which Robin­
son was subjected. Not only did he stand 
too far down on the ladder of authority, he 
did not exercise control directly over Robin­
son.

[18.19] 24. Defendants argue that 
they cannot be held liable unless they per­
sonally participated in sexually offensive 
conduct, citing Brown v. City o f Miami

9 . Plaintiff seeks to hold Ahlwardt and Lovett 
directly liable for their adm issions that they 
have posted sexually-oriented pictures in their 
own work areas. No evidence adduced at trial 
dem onstrated that these pictures form ed part of 
the work environm ent to which Robinson was 
subjected. Indeed, it appears that their person­
al pin-ups appeared on and were removed from  
the walls before Robinson began work at JSI. 
Absent such proof, A hlwardt's and Lovett's pic-

Beach, 684 F.Supp. 1081, 1085-86 (S.D.Fla. 
1988), judgment rendered sub nom. San­
chez v. City o f Miami Beach, 720 F.Supp. 
974 (S.D.Fla.1989), and Hendrix v. Flem­
ing Cos., 650 F.Supp. 301, 302-03 (W.D. 
Okla.1986). The Court disagrees with the 
limiting force of defendants’ proposition. 
Active participation in sexually harassing 
behavior is a sufficient but not a necessary 
condition to the imposition of Title VII lia­
bility.9 An individual employer who rati­
fies the sexually harassing conduct of an­
other is surely as culpable as if the employ­
er actively participated. See McAdoo, 591 
F.Supp. at 1406. One method of rat­
ification is an individual employer’s failure 
or refusal to act to remedy a valid com­
plaint of sexual harassment presented to 
that individual for which the individual has 
a duty to respond. See Morris v. Ameri­
can Nat'l Can Corp., 730 F.Supp. 1489, 
1496-97 (E.D.Mo.1989); Maturo v. Nation­
al Graphics, Inc., 722 F.Supp. 916, 923-24 
(D.Conn.1989).*

[20,21] 25. JSI is liable for the hostile 
work environment to which Robinson was 
subjected. Corporate defendant liability 
may be proved under either of two theo­
ries. Direct liability is incurred when an 
agent of the corporate employer is respon­
sible for the behavior that comprises the 
hostile work environment and the agent’s 
actions were taken within the scope of the 
agency. See Steele v. Offshore Shipbuild­
ing, Inc., 867 F.2d 1311, 1316 n. 1 (11th 
Cir.1989); Vance, 863 F.2d at 1512. Indi­
rect liability attaches where the hostile en­
vironment is created by one who is not the 
plaintiffs employer, such as a coworker, or 
by an agent of the employer who is acting 
outside the scope of the agency, and the 
plaintiff can establish that the employer 
knew or should have known of the harass­
ment and failed to take prompt, effective

tures cannot form  the basis for direct liability to 
Robinson. This is not to say that those pictures 
are not im portant as evidence of the scope of 
the hostile work environm ent and of m anage­
m ent’s a ttitude tow ard the conditions that c re­
ated the environm ent, for they are. Rather, the 
principle upheld is that an  individual as an 
em ployer is held liable only for those actions 
taken by the individual that actually have an 
impact on the com plaining employee.



ROBINSON v. JACKSONVILLE SHIPYARDS. INC. 15 2 9
Cite as 760 F.Supp.

remedial action. See Steele, 867 F.2d at 
1316; Vance, 863 F.2d at 1512; Henson, 
682 F.2d at 910. The Court concludes that 
Robinson has demonstrated JSI’s liability 
under both theories.

[22] 26. Direct liability for a corporate 
defendant in a hostile work environment 
case is unusual. In Steele, the Eleventh 
Circuit described the concept as “illogical” 
because “[t]he supervisor does not act as 
the company; the supervisor acts outside 
‘the scope of actual or apparent authority 
to hire, fire, discipline, or promote.’ ” 867 
F.2d at 1316. This proposition is true for 
the facts of that case, where a male super­
visor made sexually offensive comments to 
a female employee and company policy 
clearly disapproved of such conduct. The 
agency principles involved in Steele apply 
more clearly because of the nature of the 
harassment. Here it must be recognized 
that “the legal concept [of the scope of 
employment] was developed for factual set­
tings bounded by a specific authorized 
task, a single unauthorized act, and one­
time injury. Consequently, it is difficult to 
draw useful analogies to the continuing 
injuries and complex management practices 
involved in sexual harassment.” Note, 
Employer Liability Under Title VII for  
Sexual Harassment After Meritor Sav­
ings Bank v. Vinson, 87 Colum.L.Rev. 
1258, 1273 (1987). It is therefore necessary 
to examine closely the fashion in which the 
agents exercised authority in this case.

(a) The policymaking agents of the cor­
porate defendant condoned the distribution 
of the vendors’ advertising calendars that 
formed part of the basis for Robinson’s 
1985 complaint. The work rules at JSI did 
not permit the posting of many kinds of 
materials, required permission for the post­
ing of other kinds of materials, but did not 
restrict the posting of pictures of nude or 
partially nude women. Direct liability is 
apparent when an employer’s policy sub­
jects female employees to sexual harass­
ment on the job. See Priest, 634 F.Supp. 
at 581; EEOC v. Sage Realty Cory., 507 
F.Supp. 599, 608-10 (S.D.N.Y.1981); Mar- 
entette v. Michigan Host, Inc., 506 F.Supp. 
909, 911 (E.D.Mich.1980).

(b) Brown and Stewart occupied the key 
positions at JSI for controlling the quality

I486 (M.D.FIa. 1991)

of the work environment. When faced 
with Robinson’s complaint over sexually-or­
iented pictures, they did not merely fail to 
act to remedy the hostile environment, they 
affirmatively endorsed and ratified a por­
tion of it. Moreover, the 1987 policy 
change presented an opportunity to begin 
reform of the work environment, and the 
materials accompanying the model policy 
suggested a course consistent with remedy­
ing plaintiff’s complaint, but JSI declined 
to take these suggested steps.

(c) The aforementioned actions came 
within the scope of the agency relationship 
between JSI and its supervisors who acted 
as policymaking agents. Cf Sparks, 830 
F.2d at 1558-59 & n. 5 (setting forth rele­
vant common law agency principles). The 
supervisors acted as the company. See 
Hunter v. Allis-Chalmers Corp., 797 F.2d 
1417, 1422 (7th Cir.1986) (“to say that the 
‘corporation’ has committed some wrong 
. . .  simply means that someone at the deci­
sion-making level in the corporate hier­
archy has committed the wrong”). Liabili­
ty therefore flows directly to the corporate 
employer, JSI. See R estatement (Second) 
of Agency § 218 (common law agency prin­
ciples of ratification); see also Rosenthal & 
Co. v. Commodity Futures Trading 
Comm ’n, 802 F.2d 963, 966 (7th Cir.1986) 
(“Principals are strictly liable for their 
agents’ acts . . .  if the principals authorize 
or ratify the acts or even just create an 
appearance that the acts are authorized.”).

[23] 27. Liability also flows to JSI indi­
rectly. JSI may be charged with actual or 
constructive knowledge of the harassing 
conduct. “The employee can show that the 
employer had knowledge of the harassment 
by proving that she complained to higher 
management of the problem or by demon­
strating that the harassment was so perva­
sive that an inference of constructive 
knowledge arises.” Huddleston, 845 F.2d 
at 904. Both types of knowledge exist in 
this case.

28. Actual complaints of sexual harass­
ment are documented for several instances. 
In this regard, two points merit discussion.

(a) One, JSI must assume knowledge for 
complaints to quartermen and leadermen. 
As noted supra, quartermen and leader-



1530 760 FEDERAL SUPPLEMENT

men are not agents of JSI to the extent 
that they may be held as employers under 
Title VII. The facts show, however, that 
JSI relied upon these quasi-supervisory 
bargaining unit employees to monitor work 
performance, particularly on remote job 
sites within the compounds. Employees 
perceived that quartermen and leadermen 
were appropriate persons to whom to com­
plain about work conditions. Cf. Llewellyn 
v. Celanese Corp., 693 F.Supp. 369, 380 
(W.D.N.C.1988) (reporting of incidents of 
sexual harassment to dispatchers appropri­
ate and adequate notice where dispatchers 
were in most frequent contact with employ­
ee truck drivers and were responsible for 
passing information up corporate hierarchy 
to supervisory personnel). Quartermen 
and leadermen apparently exercised discre­
tion whether to act on these complaints or 
to refer the complaints to management su­
pervisors. Cf. id. JSI structured its work 
environment in this fashion and condoned 
the apparent authority sometimes exercised 
by quartermen and leadermen. Point in 
fact, the sexual harassment policies were 
little known and understood, so JSI’s for­
mal assignment of complaints to other 
management personnel was wholly ineffec­
tual. See Vinson, All U.S. at 72, 106 S.Ct. 
at 2408 (mere existence of complaint proce­
dure and policy against discrimination in­
sufficient to insulate employer from liabili­
ty); cf. EECO v. Hacienda Hotel, 881 F.2d 
1504, 1516 (9th Cir.1989); Lipsett, 864 F.2d 
at 907 n. 27; Sanchez, 720 F.Supp. at 979. 
Accordingly, the company must accept re­
sponsibility for the reporting of sexual 
harassment complaints to the individuals 
occupying the positions of quartermen and 
leadermen. Moreover, JSI must bear the 
responsibility of deterred reports of sexual 
harassment caused by the treatment of fe­
male employees by the quartermen and 
leadermen.

[24] (b) Two, JSI cannot stand on an 
“ostrich defense” that it lacked knowledge 
of many of the complaints, because its han­

10. The phrase used here is intended to call a t­
tention to the analogy between these circum ­
stances and the concept of deliberate ignorance, 
covered by the so-called ostrich instruction, in 
the crim inal law. See, e.g., United States v. 
Restrepo-Granda, 575 F.2d 524, 529 (5th Cir.)

dling of sexual harassment complaints de­
terred reporting and it did not conduct ade­
quate investigation of the complaints it did 
receive. JSI received reports at the super­
visory level and at the line level (quarter- 
men and leadermen) concerning incidents 
of sexual harassment. Additionally, many 
supervisory personnel admitted that they 
knew of the sexually-oriented pictures 
throughout the workplace. Defendants 
concede several such reports in a series of 
tables attached to their post-trial brief; the 
testimony as recorded in the Findings of 
Fact documents many more reports. These 
reports should have alerted JSI manage­
ment to the need to conduct a more thor­
ough investigation of conditions in the ship­
yards. A duty to conduct further investi­
gation arises when a report or reports of 
sexual harassment to management sug­
gests that the workplace may be charged in 
a sexually hostile manner. See Risinger, 
883 F.2d at 481-83; Yates v. Avco Corp., 
819 F.2d 630, 636 (6th Cir.1987); Caroline, 
879 F.2d at 107; Rauh v. Coyne, 744 
F.Supp. 1186, 1189 (D.D.C.1990) (investiga­
tion of complaints by other female employ­
ees may have uncovered problem in work­
place prior to harassment of plaintiffs); 
Watts v. New York City Police Dep't, 724 
F.Supp. 99, 107-08 & n. 7 (S.D.N.Y.1989) 
(reports from other female employees may 
trigger duty to investigate workplace as a 
whole). JSI instead ignored the warning 
signs of a hostile work environment. The 
evidence reveals a supervisory attitude that 
sexual harassment is an incident-by-inci- 
dent matter; records were not maintained 
that would have permitted an analysis of 
sexual harassment complaints to determine 
the level of sexual hostility in the work­
place. Under these circumstances, the 
Court concludes that JSI received adequate 
actual knowledge of the state of the work 
environment but, like an ostrich, the com­
pany elected to bury its head in the sand 
rather than learn more about the conditions 
to which female employees, Robinson in 
particular, were subjected.10

("deliberate ignorance is the equivalent of
knowledge"), cert, denied, 439 U.S. 935, 99 S.Ct.
331, 58 L.Ed.2d 332 (1978). As one court stated. 

[w]hen som eone know s enough to put him  on 
inquiry, he knows m uch. If a person with a 
lurking suspicion goes on as before and



1531ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
CUe as 760 F.Supp. 14«6 (M .D.FIa. 199!)

[25] 29. The Court additionally impos­
es constructive knowledge on JSI for the 
sexually hostile state of its work environ­
ment. Constructive knowledge is mea­
sured by a practical threshold. An employ­
er escapes liability for isolated and infre­
quent slurs and misogynist behaviors be­
cause even a reasonably prudent employer 
cannot exercise sufficient control over the 
workplace to put an end to such conduct; 
conversely, an employer incurs liability 
when harassing behavior happens frequent­
ly enough that the employer can take steps 
to halt it. See Hunter, 797 F.2d at 1421— 
22. The sexually harassing behaviors de­
scribed in the Findings of Fact are too 
pervasive to have escaped the notice of a 
reasonably alert management. E.g., An­
drews, 895 F.2d at 1479, 1486 (“middle 
management” must have known of com­
ments and pictures); Waltman, 875 F.2d at 
478-79; Lipsett, 864 F.2d at 906 & n. 25 
(knowledge unavoidable when management 
entered areas where pictures were posted); 
Bennett, 845 F.2d at 106 (management offi­
cial saw offending cartoons but did not 
remove them until plaintiff complained on 
next day); Hall, 842 F.2d at 1016; Katz v. 
Dole, 709 F.2d 251, 256 (4th Cir.1983). 
Moreover, the extent to which coworkers 
and supervisory personnel actually knew of 
the existence of sexually harassing behav­
ior is a good barometer of the company’s 
constructive knowledge. Cf Vaughn v. 
AG Processing, Inc., 459 N.W.2d 627, 635 
(Iowa 1990). The testimony before this 
Court establishes that Robinson’s plight 
was widely known. To the extent that JSI 
contends that the physical size of its work 
environment diminished its ability to moni­
tor incidents of sexual harassment, the 
company must realize that its expansive 
size may increase its burden in providing a 
workplace free of discrimination, but that 
expanse does not decrease its responsibility 
in this task. See Llewellyn, 693 F.Supp. at 
380.

30. Given that JSI should have respond­
ed and did respond to some aspects of the

avoids fu rther knowledge, this may support 
an inference that he has deduced the truth 
and is sim ply trying to avoid giving the ap­
pearance (and incurring  the consequences) of 
knowledge.

sexually hostile work environment, the ef­
fectiveness of its response must be evaluat­
ed. Two methods of measuring effective­
ness have received endorsement. One, the 
employer’s total response is evaluated on 
the basis of the circumstances as then ex­
isted. See, e.g., Brooms, 881 F.2d at 421. 
The employer’s response is ineffective if “it 
delay[ed] unduly . . .  [and] the action it 
[did] take, however promptly, [was] not 
reasonably likely to prevent the misconduct 
from recurring.” Guess v. Bethlehem 
Steel Corp., 913 F.2d 463, 465 (7th Cir. 
1990). Two, an employer can defend suc­
cessfully by showing that the conduct 
brought to the company’s attention was not 
repeated after the employer took action. 
See, e.g., Steele, 867 F.2d at 1316 (special 
importance attached to fact that harass­
ment ended after employer took remedial 
steps). In this regard, the employer must 
show the effectiveness of the actions, not 
merely that actions were taken. See, e.g., 
Sanchez, 720 F.Supp. at 981-82 (remedial 
action of new sexual harassment policy and 
procedures constituted change in form, not 
in substance).

31. JSI did not respond to complaints of 
sexual harassment with prompt, effective 
remedial measures. In some instances in 
which a complaint was made, offending 
graffiti and pictures were removed prompt­
ly; in many other instances, no action was 
taken or the action was taken after consid­
erable delay. It is noteworthy that the 
company did not either seek to identify the 
perpetrators of most harassing incidents 
(such as the “Men Only” sign and the pic­
tures and graffiti that were removed), cf. 
Tunis v. Coming Glass Works, 698 
F.Supp. 452, 460 (S.D.N.Y.1988) (employer 
could be held liable for failing “to attempt 
to identify the offending . . .  employees, 
much less to discipline them”), judgment 
entered for defendant, 747 F.Supp. 951 
(S.D.N.Y.1990), or take steps to communi­
cate with other male employees concerning 
the nature of the offending behavior and

United States i>. Ramsey, 785 F.2d 184, 189 (7th
Cir.), cert, denied, 476 U.S. 1186, 106 S.Ct. 2924,
91 L.Ed.2d 552 (1986).



1532 760 FEDERAL SUPPLEMENT

the need to show respect to female employ­
ees, c f Daniels v. Essex Group, Inc., 740 
F.Supp. 553, 556-60 (N.D.Ind.1990) (compa­
ny did not take steps to warn against repe­
tition of racially harassing behavior). 
Those remedial actions that were taken, 
such as the removal of pictures or painting 
over the “Men Only” sign, lacked effective­
ness, as the pictures often were replaced 
and the sign remained visible through the 
paint. The evidence shows that complain­
ants were treated as not credible if their 
complaint lacked independent corrobora­
tion, that little investigation was conducted 
of complaints, and that discipline, on the 
rare occasions that it was meted out, did 
not reflect the seriousness of the offense. 
These weaknesses create liability on the 
corporation’s part. See, e.g., Paroline, 879 
F.2d at 106-07 (failure to investigate and 
failure to impose commensurate discipline); 
Ways v. City o f Lincoln, 871 F.2d 750, 755 
(8th Cir.1989) (failure to investigate and 
failure to discipline); Morris, 730 F.Supp. 
at 1496-97 (failure to interview complain­
ant and reliance on coworkers to police 
themselves); Maturo, 722 F.Supp. at 923 
(failure to intervene after initial com­
plaints); Anderson v. Hewlett-Packard 
Corp., 694 F.Supp. 1294, 1304 (N.D.Ohio 
1988) (demanded additional corroboration 
from complainants, exhibiting stereotypical 
thinking about frivolity of complaints by 
women); Llewellyn, 693 F.Supp. at 377-81.

32. Not only were the behaviors re­
peated throughout the workplace and over 
time, but examples show that the same 
individuals would repeat sexually harassing 
misconduct following intervention from 
management. Moreover, JSI cannot es­
cape the burden of responsibility for many 
unreported instances of sexual harassment. 
Although JSI did not receive the opportuni­
ty to respond to these instances due to the 
lack of a formal complaint, the fact that a 
complaint was not made resulted from the 
failure to maintain an effective sexual 
harassment complaint procedure and other 
circumstances in the work environment 
that deterred the reporting of episodes of 
sexual harassment.

33. The response to Robinson’s com­
plaint demonstrated a lack of appreciation 
for the gravity of the conduct of which she

complained. In doing so, management con­
doned and encouraged further harassment. 
The small steps taken in response, such as 
the moving of an offensive calendar and 
the removal of some pictures, are out­
weighed by the continuing abuse that went 
unremedied.

Executive Order No. 11246
[26] 34. Plaintiff asserts that liability 

may be imposed for violation of the anti- 
discrimination provisions of Executive Or­
der No. 11246 and as a breach of contract 
enforced by plaintiff as a third-party bene­
ficiary to the United States Navy contracts 
entered into by JSI. The Court rejects 
these theories of liability. In Banks v. 
Jacksonville Shipyards, Inc., Case No. 88- 
128-Civ-J-16 (M.D.Fla. July 7, 1988),
Judge Moore of this Court dismissed claims 
asserting these theories of liability. His 
decision is highly persuasive, for it rests on 
a sound legal foundation. In Farkas v. 
Texas Instruments, Inc., 375 F.2d 629, 633 
(5th Cir.), cert, denied, 389 U.S. 977, 88 
S.Ct. 480, 19 L.Ed.2d 471 (1967), the appel­
late court found no private cause of action 
under the predecessor order to Executive 
Order No. 11246. Farkas is binding prece­
dent, and its continuing validity received a 
boost from dictum in Eatmon v. Bristol 
Steel & Iron Works, Inc., 769 F.2d 1503, 
1515 (11th Cir.1985), that states that no 
private cause of action is available under 
Executive Order No. 11246. These cases 
seem to settle the issue, but if this prece­
dent is not in fact dispositive, the Court 
adopts the analysis finding no private 
cause of action which appears in Utley v. 
Varian Assocs., 811 F.2d 1279, 1284-86 
(9th Cir.), cert, denied, 484 U.S. 824, 108 
S.Ct. 89, 98 L.Ed.2d 50 (1987). Accord 
Women's Equity Action League v. Cava­
zos, 906 F.2d 742, 750 (D.C.Cir.1990). The 
third-party beneficiary theory is merely de­
rivative of the private cause of action theo­
ry and the former cannot be entertained 
given the disposition of the latter.

Remedy
[27,28] 35. Plaintiff is not entitled to 

monetary relief as a make-whole remedy. 
As a general rule, a plaintiff is entitled to



1533ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
Cite as  760 F.Supp. 1486 (M.D.FIa. 1991)

backpay when economic injury is suffered 
as a result of discrimination. See Nord v. 
United States Steel Corp., 758 F.2d 1462, 
1472 (11th Cir. 1985) (“Under the ‘make 
whole’ rationale victorious Title VII 
plaintiffs are presumptively entitled to 
back pay.”). Also, a plaintiff’s presenta­
tion of evidence showing economic injury 
stemming from discrimination will create 
an entitlement to backpay unless defen­
dants effectively rebut, by a preponderance 
of evidence, the plaintiff’s assertion of loss. 
Id. at 1470-71. However, the linchpin of 
these principles is the plaintiff’s initial bur­
den to demonstrate economic loss. See 
EEOC v. Mike Smith Pontiac GMC, Inc., 
896 F.2d 524, 529 (11th Cir.1990) (court 
should not award backpay unless wages 
are properly owed to employee); Jinks v. 
Mays, 464 F.2d 1223, 1226 (5th Cir. 1972) 
(proving wages are properly owed “re­
quires positive proof that plaintiff was ordi­
narily entitled to the wages in question 
and, being without fault, would have re­
ceived them in the ordinary course of 
things but for the inequitable conduct of 
the party from whom the wages are 
claimed”); Ross v. Twenty-Four Collec­
tion, Inc., 681 F.Supp. 1547, 1555 (S.D.Fla. 
1988) (employer’s burden to rebut claim for 
backpay begins when plaintiff satisfies 
“the burden of proving the amount of dam­
age resulting from the employer’s discrimi­
natory acts”), affd, 875 F.2d 873 (11th 
Cir. 1989) (Table). This burden includes the 
presentation of the evidence of the loss in a 
form that is not merely speculative. See, 
e.g., Huddleston, 845 F.2d at 905 (evidence 
of lost commissions too vague to provide 
basis for award of backpay); Walker, 684 
F.2d at 1362-63 (backpay properly denied 
where continued employment was specula­
tive and plaintiff provided no evidence con­
cerning likelihood that he would be re­
tained); Spencer v. General Elec. Co., 697 
F.Supp. 204, 219 & n. 19 (E.D.Va.1988) 
(monetary relief unavailable for speculative 11
11. Seib and Free reach this conclusion deduc­

tively from  Clanton and o ther cases. The same 
result m ay be produced from  a different ap­
proach. Backpay is part of the equitable rem e­
dy of reinstatem ent. See, e.g., Harkless v. Sw ee­
ny Indep. School Dist., 427 F.2d 319, 324 (5th 
Cir. 1970), cert, denied, 400 U.S. 991, 91 S.Ct. 
451, 27 L.Ed.2d 439 (1971). It m akes little sense

losses of overtime and promotions, particu­
larly given absence of reasonable basis to 
quantify promotional opportunities), affd, 
894 F.2d 651 (4th Cir. 1990); see also Den­
ton v. Boilermakers Local 29, 673 F.Supp. 
37, 41 (D.Mass.1987) (burden of proving 
backpay entitlement satisfied by reason­
able basis of computation). Robinson has 
not satisfied this part of her burden, as 
explained in FOF U 127, and therefore the 
monetary relief will not be granted.

[29-321 36. Nominal damages are 
available and appropriate where actual loss 
is not proven or provable. Huddleston, 
845 F.2d at 905; Henson, 682 F.2d at 905; 
C. M cC o rm ick . H andbook  on th e  L aw  of 
D amages § 23 (1935). The Court thus will 
award nominal damages in the amount of 
$1.00 against JSI. See Carey v. Piphus, 
435 U.S. 247, 266-67, 98 S.Ct. 1042, 1053- 
54, 55 L.Ed.2d 252 (1978) (one dollar is 
appropriate amount for nominal damages). 
Because nominal damages are awarded as 
a surrogate for a backpay award, the cir­
cumstances of an award should be identi­
cal. Binding precedent holds that public 
officials cannot be held personally liable for 
backpay under Title VII, see Clanton v. 
Orleans Parish School Bd., 649 F.2d 1084, 
1099 & n. 19 (5th Cir. Unit A July 1981); 
persuasive authority extends this principle 
to individual employer defendants in pri­
vate corporations,11 see Seib v. Elko Motor 
Inn, Inc., 648 F.Supp. 272, 274 (D.Nev. 
1986); Pree v. Stone & Webster Eng’g 
Corp., 607 F.Supp. 945, 950 (D.Nev.1985). 
On this basis the nominal damages should 
be awarded against JSI only. Alternative­
ly, backpay liability also may be limited for 
equitable reasons tailored to the circum­
stances of the individual’s involvement, see, 
e.g., Altman v. Stevens Fashion Fabrics, 
441 F.Supp. 1318, 1321 (N.D.Cal.1977). 
The circumstances in this case do not show 
Brown or Stewart to be motivated by any 
ill will or bad faith; they appear to have

to speak of reinstatem ent by the individual de­
fendants; the corporate defendant bears the 
burden of that remedy. Accordingly, since 
backpay follows from  reinstatem ent, the liabili­
ty for backpay falls on the shoulder of the 
em ployer who reinstates the victim of discrim i­
nation, the corporate em ployer defendant.



1534 760 FEDERAL SUPPLEMENT

acted on their belief concerning the best 
interests of JSI. The Court thus also finds 
equitable grounds to limit the assessment 
of nominal damages to JSI alone.

[33] 37. Plaintiff is entitled to injunc­
tive relief. See Cox v. American Cast 
Iron Pipe Co., 784 F.2d 1546, 1561 (11th 
Cir.), cert, denied, 479 U.S. 883, 107 S.Ct. 
274, 93 L.Ed.2d 250 (1986). It must take 
the form of negative and affirmative relief. 
Simply enjoining JSI from engaging in or 
permitting further sexually harassing be­
havior is insufficient to repair and rehabili­
tate the sexually hostile working environ­
ment. The history of management’s condo­
nation and approval of sexually harassing 
conditions, together with the past failures 
to redress effectively those instances of 
sexual harassment of which management 
disapproved, argues forcefully for affirma­
tive relief that provides guidance for all 
employees regarding acceptable and offen­
sive conduct, provides confidence to fe­
male employees that their valid complaints 
of sexual harassment will be remedied, and 
provides male employees who transgress 
the boundaries of sexual harassment with 
notice that their conduct will be penalized 
commensurate with the seriousness of the 
offense.

38. This Court must “render a decree 
which will so far as possible eliminate the 
discriminatory effects of the past as well 
as bar like discrimination in the future.’’ 
Albemarle Paper Co. v. Moody, 422 U.S. 
405, 418, 95 S.Ct. 2362, 2372, 45 L.Ed.2d 
280 (1975). Ms. Wagner endorsed plain­
tiff’s proposed sexual harassment policy 
and procedures as an effective remedy for 
the work environment at JSI. The Court 
agrees with her assessment. The Court 
notes the use of education, training, and 
the development of effective complaint pro­
cedures as an appropriate remedy in prior 
hostile work environment sexual harass­
ment cases. See, e.g., Bundy v. Jackson, 
641 F.2d 934, 947 (D.C.Cir. 1981); Morris, 
730 F.Supp. at 1498; Sanchez, 720 F.Supp. 
at 982; but see Hopkins v. Price Water- 
house, 737 F.Supp. 1202, 1216 (D.D.C.1990) 
(declining to monitor potential for sexual 
stereotyping in future promotions because 
remedy is too intrusive, unnecessary to pro­
vide notice of potential liability if defendant

failed to monitor itself, and case was atypi­
cal), on remand from  490 U.S. 228, 109 
S.Ct. 1775, 104 L.Ed.2d 268 (1989), affd, 
920 F.2d 967 (D.C.Cir.1990). The Court 
adopts the policy and procedures proposed 
by plaintiff, with the exceptions stated 
herein.

[34] 39. Injunctive relief is limited to 
the corporate defendant, JSI, because there 
exists no reason to believe that Brown and 
Stewart will act contrary to a court order 
covering their employer and their liability 
is incidental to their actions taken within 
the scope of their employment. They are 
in privity with JSI and thereby are effec­
tively bound by a decree directed to the 
corporation alone. See Regal Knitwear 
Co. v. NLRB, 324 U.S. 9, 14, 65 S.Ct. 478, 
481, 89 L.Ed. 661 (1945); Professional 
,l,s.<; 'n o f College Educators v. El Paso 
County Community College Disk, 730 
F.2d 258, 274 (5th Cir.), cert, denied, 469 
U.S. 881, 105 S.Ct. 248, 83 L.Ed.2d 186 
(1984); Texas Util. Co. v. Santa Fe Indus., 
Inc., 553 F.Supp. 106, 111-12 (N.D.Tex. 
1982). The narrower coverage relieves the 
Court of the burden of releasing Brown 
and Stewart if they should leave JSI or 
change jobs there.

[35] 40. The first amendment guaran­
tee of freedom of speech does not impede 
the remedy of injunctive relief. Accord 
Davis v. Monsanto Chem. Co., 858 F.2d 
345, 350 (6th Cir. 1988), cert, denied, 490 
U.S. 1110, 109 S.Ct. 3166, 104 L.Ed.2d 1028 
(1989); Jew v. University o f Iowa, 749 
F.Supp. 946, 961 (S.D.Iowa 1990); cf. 
EEOC v. Beverage Canners, Inc., 897 F.2d 
1067, 1070 (11th Cir.1990) (upholding in­
junction directed to racially abusive lan­
guage in workplace, without addressing 
free speech issues).

(a) First, JSI has disavowed that it seeks 
to express itself through the sexually-ori­
ented pictures or the verbal harassment by 
its employees. No first amendment con­
cern arises when the employer has no in­
tention to express itself, see Sage Realty, 
507 F.Supp. at 610 & n. 17, and JSI’s action 
in limiting the speech options of its employ­
ees in the workplace, see FOF 1MI 20-21, 
establishes that the company may direct an



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1535
Cite as  760 F.Supp. 1486 (M.D.Fla. 1991)

end to the posting of materials without 
abridging its employees’ free speech rights, 
cf. May v. Evansville-Vanderburgh 
School Corp., 787 F.2d 1105, 1110 (7th 
Cir. 1986) (because “workplace is for work­
ing,” employer may lawfully withhold its 
consent for employees to engage in expres­
sive activities).

(b) Second, the pictures and verbal 
harassment are not protected speech be­
cause they act as discriminatory conduct in 
the form of a hostile work environment. 
See Roberts v. United States Jaycees, 468 
U.S. 609, 628, 104 S.Ct. 3244, 3255, 82 
L.Ed.2d 462 (1984) (“[PJotentially expres­
sive activities that produce special harms 
distinct from their communicative impact 
. . .  are entitled to no constitutional protec­
tion.”); Hishon v. Ring & Spalding, 467 
U.S. 69, 78, 104 S.Ct. 2229, 2235, 81 L.Ed.2d 
59 (1984); Strauss, Sexist Speech in the 
Workplace, 25 Harv.C.R.-C.L.L.Rev. 1, 38- 
41 (1990). In this respect, the speech at 
issue is indistinguishable from the speech 
that comprises a crime, such as threats of 
violence or blackmail, of which there can be 
no doubt of the authority of a state to 
punish. E.g., Rankin v. McPherson, 483 
U.S. 378, 386-87, 107 S.Ct. 2891, 2897-99, 
97 L.Ed.2d 315 (1987) (threat to kill the 
President is not protected by first amend­
ment); United States v. Shoulberg, 895 
F.2d 882, 886 (2d Cir. 1990) (threats to intim­
idate witnesses); see generally Greena- 
walt, Criminal Coercion and Freedom of 
Speech, 78 Nw.U.L.Rev. 1081 (1983); Gree- 
nawalt, Speech and Crime, 1980 Am.B. 
F ound.Res.J. 645. This treatment is con­
sistent with the holding of Pittsburgh 
Press Co. v. Human Relations Comm’n, 
413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 
(1973), that a ban on discriminatory help- 
wanted advertisements did not offend the 
first amendment. See also Smolla, Reth­
inking First Amendment Assumptions 
About Racist and Sexist Speech, 47 W ash. 
& Lee L .R ev. 171, 197 (1990) (transactional 
setting of sexual harassment opens sexist 
speech to regulation); cf. Swank v. Smart, 
898 F.2d 1247, 1251 (7th Cir.) (casual chit­
chat while working is not protected
speech), cert, denied, —  U.S. ----- , 111
S.Ct. 147, 112 L.Ed.2d 113 (1990).

(c) Third, the regulation of discriminato­
ry speech in the workplace constitutes 
nothing more than a time, place, and man­
ner regulation of speech. See Strauss, su­
pra, at 46 (“[B]anning sexist speech in the 
workplace does not censor such speech 
everywhere and for all time.”). The stan­
dard for this type of regulation requires a 
legitimate governmental interest unrelated 
to the suppression of speech, content neu­
trality, and a tailoring of the means to 
accomplish this interest. See, e.g., United 
States v. O'Brien, 391 U.S. 367, 377, 88 
S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). 
The eradication of workplace discrimination 
is more than simply a legitimate govern­
mental interest, it is a compelling govern­
mental interest. See Rotary In t i  v. Rota­
ry Club o f Duarte, 481 U.S. 537, 549, 107 
S.Ct. 1940, 1947, 95 L.Ed.2d 474 (1987) 
(eliminating discrimination against women 
is compelling governmental interest); Rob­
erts, 468 U.S. at 626, 104 S.Ct. at 3254 
(compelling governmental interest lies in 
removing barriers to economic advance­
ment and political and social integration 
that have historically plagued women). 
Given the circumstances of the JSI work 
environment, the method of regulation set 
forth in this order narrowly tailors the 
regulation to the minimum necessary to 
remedy the discrimination problem. To the 
extent that the regulation here does not 
seem entirely content neutral, the distinc­
tion based on the sexually explicit nature 
of the pictures and other speech does not 
offend constitutional principles. See Ren­
ton v. Playtime Theatres, Inc., 475 U.S. 
41, 48-49, 106 S.Ct. 925, 929-30, 89 L.Ed.2d 
29 (1986); see also Sunstein, Pornography 
and the First Amendment, 1986 D uke L.J. 
589, 616-17.

(d) Fourth, female workers at JSI are a 
captive audience in relation to the speech 
that comprises the hostile work environ­
ment. “Few audiences are more captive 
than the average worker.. . .  Certainly, if 
employer-employee relations involve suffi­
cient coercion that we justify regulation in 
other contexts, then this coercion does not 
suddenly vanish when the issue is submis­
sion to racist or sexist speech.” Balkin, 
Some Realism About Pluralism: Legal



1536 760 FEDERAL SUPPLEMENT

Realist Approaches to the First Amend­
ment, 1990 Duke L.J. 375, 423-24. The 
free speech guarantee admits great lati­
tude in protecting captive audiences from 
offensive speech. See, e.y., Frisby v. 
Schultz, 487 U.S. 474, 487, 108 S.Ct. 2495, 
2503, 101 L.Ed.2d 420 (1988); FCC v. Paci­
fica Found., 438 U.S. 726, 744-51, 98 S.Ct. 
3026, 3037-41, 57 L.Ed.2d 1073 (1978) (plu­
rality opinion); Lehman v. City o f Shaker 
Heights, 418 U.S. 298, 302-04, 94 S.Ct. 
2714, 2716-18, 41 L.Ed.2d 770 (1974) (plu­
rality opinion).

(e) Fifth, if the speech at issue is treated 
as fully protected, and the Court must bal­
ance the governmental interest in cleansing 
the workplace of impediments to the equali­
ty of women, the latter is a compelling 
interest that permits the regulation of the 
former and the regulation is narrowly 
drawn to serve this interest. Cf. United 
States v. Paradise, 480 U.S. 149, 171-85, 
107 S.Ct. 1053, 1066-74, 94 L.Ed.2d 203 
(1987) (performing similar analysis for 
race-conscious remedy to race discrimina­
tion). Other first amendment rights, such 
as the freedom of association and the free 
exercise of religion, have bowed to narrow­
ly tailored remedies designed to advance 
the compelling governmental interest in 
eradicating employment discrimination. 
See, e.g., Rotary In t’l, 481 U.S. at 548-49, 
107 S.Ct. at 1947-48; EEOC v. Pacific 
Press, 676 F.2d 1272, 1280-81 (9th Cir. 
1982); EEOC v. Mississippi College, 626 
F.2d 477, 488-89 (5th Cir. 1980), cert, de­
nied, 453 U.S. 912, 101 S.Ct. 3143, 69 
L.Ed.2d 994 (1981); see also Ellis v. Broth­
erhood o f Ry. Airline & S.S. Clerks, 466 
U.S. 435, 455-56, 104 S.Ct. 1883, 1895-96, 
80 L.Ed.2d 428 (1984) (governmental inter­
est in industrial peace justifies interference 
with dissenting employees first amendment 
rights resulting from allowing union shop).

(f) Sixth, the public employee speech 
cases lend a supportive analogy. If this 
Court’s decree is conceptualized as a gov­
ernmental directive concerning workplace 
rules that an employer must carry out, 
then the present inquiry is informed by the 
limits of a governmental employer’s power 
to enforce workplace rules impinging on 
free speech rights. In the public employee 
speech cases, the interests of the employee

in commenting on protected matters is bal­
anced against the employer’s interests in 
maintaining discipline and order in the 
workplace. See, e.g., Finch v. City o f Ver­
non, 877 F.2d 1497, 1502 (11th Cir. 1989). 
When an employee’s exercise of free ex­
pression undermines the morale of the 
workforce, the employer may discipline or 
discharge the employee without violating 
the first amendment. See, e.g., Bryson v. 
City o f Waycross, 888 F.2d 1562, 1564-67 
(11th Cir.1989). Analogously, the Court 
may, without violating the first amend­
ment, require that a private employer cur­
tail the free expression in the workplace of 
some employees in order to remedy the 
demonstrated harm inflicted on other em­
ployees. Cf. McMullen v. Carson, 568 
F.Supp. 937, 943-45 (M.D.Fla.1983) (finding 
no first amendment violation in discharge 
of KKK member from police force because 
inter alia internal discipline and morale 
were threatened by potential for racial con­
frontations), affd, 754 F.2d 936 (11th Cir. 
1985); accord Rankin, 483 U.S. at 391 n. 
18, 107 S.Ct. at 2901 n. 18.

(g) Finally, defendants’ reliance upon 
American Booksellers Ass’n v. Hudnut, 
771 F.2d 323 (7th Cir.1985), sum. affd, 475 
U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 
(1986), is misplaced. Two concerns domi­
nate that case. One is the broad definition 
of “pornography” in the Indianapolis ordi­
nance. See 771 F.2d at 332. This issue is 
not present in this case because the affect­
ed speech, if it is speech protected by the 
first amendment, is reached only after a 
determination that a harm has been and is 
continuing to be inflicted on identifiable 
individuals. The second concern raised in 
Hudnut is the underlying proposition of 
the Indianapolis ordinance that pornogra­
phy conveys a message that is always inap­
propriate and always subject to punish­
ment, regardless of the context in which it 
appears. See id. at 327-32. In this case, 
the context of the speech is the heart of the 
cause of action and the remedy goes no 
further than to regulate the time, place, 
and manner of the offensive speech. Cf 
Bryson, 888 F.2d at 1567 (public employee 
may be discharged lawfully for uttering



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1 5 3 7
Cite as 760 F.Supp. 1486 (M .D.Fla. 1991)

on-job speech which would be protected 
fully if uttered off-duty and in private).

[36] 41. The National Labor Relations 
Act does not impede the grant of injunctive 
relief to require a policy and procedures to 
handle sexual harassment complaints. The 
Court does not perceive that the obligations 
imposed by the policy and procedures are 
inconsistent with the collective bargaining 
agreement between JSI and Local 805 of 
the International Brotherhood of Boiler­
makers. See Nowlin, Sexual Harassment 
in the Workplace: How Arbitrators Rule, 
43 Arb.J. 31, 35 (Dec. 1988) (arbitrators 
generally sustain discipline arising from 
sexually harassing behavior of the type 
experienced at JSI); see also Newsday, Inc. 
v. Long Island Typographical Union, No. 
915, 915 F.2d 840, 843-45 (2d Cir.1990) (va­
cating arbitrator’s award reinstating sexu­
al harasser because arbitrator disregarded 
public policy against sexual harassment in 
workplace). The unilateral institution of 
sexual harassment policies by JSI in 1980 
and 1987 suggests that the company does 
not view this area as one subject to bar­
gaining. Defendants’ argument regarding 
the failure to join the union as a party is 
not well-taken. Joinder of the union in a 
discrimination suit is not necessary where 
the relief does not compel revision of the 
collective bargaining agreement, but only 
affects the application of its neutral terms 
to individuals. See Karan v. Nabisco, Inc., 
78 F.R.D. 388, 401-02 (W.D.Pa.1978); ac­
cord Forsberg v. Pacific N. W. Bell Tel. 
Co., 622 F.Supp. 1147, 1150, granting re­
consideration to 623 F.Supp. 117 (D.Ore. 
1985), a ffd  on other grounds, 840 F.2d 
1409, 1420 (9th Cir.1988) (appellate court 
expressly declined to rule on joinder issue); 
Hutcheson v. Tennessee Valley Auth., 604 
F.Supp. 543, 548-49 (M.D.Tenn.1985).
Plaintiff alleged no wrongdoing by the un­
ion and she seeks, at most, only to clarify 
the application of the nondiscrimination and 
just cause clauses within the collective bar­
gaining agreement. Under these circum­
stances, JSI's apparent concern about con­
flicting obligations placed the onus on it to 
join the union as a party. An employer 
may be required to grant relief to victims 
of discrimination that conflicts with expec­
tations otherwise created by a collective

bargaining agreement. See Franks v. 
Bowman Transp. Co., 424 U.S. 747, 774- 
79, 96 S.Ct. 1251, 1268-71, 47 L.Ed.2d 444 
(1976); EEOC v. McCall Printing Corp., 
633 F.2d 1232, 1237 (6th Cir.1980). To the 
extent that the employer incurs conflicting 
obligations due to its compliance with a 
decree to remedy past discrimination, the 
burden of reconciling the conflict falls on 
the employer, not the victims of discrimina­
tion. See W.R. Grace & Co. v. Local Un­
ion 759, 461 U.S. 757, 766-70, 103 S.Ct. 
2177, 2183-86, 76 L.Ed.2d 298 (1983); see 
also Martin v. Wilks, 490 U.S. 755, 109 
S.Ct. 2180, 2187, 104 L.Ed.2d 835 (1989).

42. The right of unionized employees to 
representation during some investigatory 
interviews, based in § 7 of the NLRA, see 
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 
256-64, 95 S.Ct. 959, 963-67, 43 L.Ed.2d 
171 (1975), does limit the procedures that 
the Court may order. The proposal sub­
mitted by plaintiff and adopted by the 
Court, however, does not impose any re­
striction on the right to representation dur­
ing investigations. The requirement of 
confidentiality where possible does not ex­
clude the lawful role of the union in repre­
sentation of its members. The policy and 
procedures should be implemented in a 
fashion that does not abridge Weingarten 
rights.

43. Based on the foregoing, the Court 
will affirmatively enjoin defendant JSI to 
adopt, implement, and enforce a policy and 
procedures for the prevention and control 
of sexual harassment, substantially in the 
form proposed by plaintiff. The Court will 
set forth in this order its modifications of 
the proposed policy and procedures. In 
addition, JSI will have thirty (30) days in 
which to submit any specific objections that 
relate to its ability to implement and en­
force the policy and procedures, as mod­
ified. The Court grants this time for the 
limited purpose of raising issues in the 
practical execution of its mandate; the ob­
jections should not concern the substance 
of it. Moreover, the Court expects that the 
parties will confer about any potential ob­
jections that JSI will lodge and that they 
will work in good faith to craft a solution 
to the legitimate concerns that JSI may



1538 760 FEDERAL SUPPLEMENT

identify. It is the opinion of the Court 
that, at this stage of the proceedings, JSI 
does not waive or otherwise prejudice any 
objections previously raised to the proposed 
remedy by working with plaintiff to shape 
a workable remedy. The judgment in this 
case is not final until such time as the 
Court rules on any objections that JSI sub­
mits or JSI informs the Court that it has no 
objections, either by the passage of the 
allotted time or by formal notice filed with 
the Court.

44. The scope of the policy and proce­
dures to be adopted by JSI is as follows.

(a) Plaintiffs proposed Sexual Harass­
ment and Retaliation Policy (Exhibit A to 
Appendix II of plaintiffs Pretrial Brief) 
shall be adopted by JSI in full. The policy 
shall receive the widest form of distribu­
tion, including publication in the company’s 
work rules book, posting throughout the 
shops, and distribution to the workers di­
rectly, as explained in plaintiffs proposed 
Sexual Harassment and Retaliation Proce­
dures and Rules for Education and Train­
ing (Exhibit E to Appendix II of plaintiffs 
Pretrial Brief).12

(b) JSI shall adopt an equivalent to plain­
tiffs proposed Sexual Harassment and Re­
taliation—Statement of Prohibited Conduct 
(Exhibit B to Appendix II of plaintiffs Pre­
trial Brief) and likewise ensure wide distri­
bution. JSI need not adopt word-for-word 
plaintiffs proposal, but the statement must 
cover the same subjects, with the exception 
of the second-to-last paragraph regarding 
conduct away from work,13 and must be 
calculated to communicate clearly the pro­
hibitions to JSI employees.

(c) JSI shall adopt an equivalent to plain­
tiffs proposed Sexual Harassment and Re­
taliation—Schedule of Penalties for Miscon­
duct (Exhibit C to Appendix II of plaintiffs

12. The Court recognizes that the versions of 
Exhibit B and Exhibit E attached to p lain tiffs 
proposed findings of fact and conclusions of 
law differ in som e sm all ways from  the versions 
included with the pretrial brief. Regarding Ex­
hibit B, the differences are truly m inor and not
of consequence because JSI is charged with 
adopting an  equivalent, not a word-for-word 
copy. Regarding Exhibit E, the relevant differ­
ences involve the identification of M cllwain by 
nam e in the later-filed version, whereas the ver­
sion from  w hich the Court operates identifies

Pretrial Brief). The schedule shall reflect 
the seriousness of sexually harassing be­
havior, but JSI may integrate the levels of 
discipline and progression thereof to match 
its treatment of other serious workplace 
misconduct.

(d) Plaintiffs proposed Procedures for 
Making, Investigating and Resolving Sexu­
al Harassment and Retaliation Complaints 
(Exhibit D to Appendix II of plaintiff’s 
Pretrial Brief) provides a model that JSI 
shall adopt except for the provision requir­
ing an Independent Investigator. The 
Court does not preclude JSI from voluntar­
ily undertaking to employ an Independent 
Investigator; this modification is intended 
solely to lift that aspect of the proposal as 
a requirement. The Court is not persuaded 
that the sexual harassment reporting sys­
tem needs a permanent outside monitor to 
guarantee its performance or instill em­
ployee confidence. The Court will require, 
however, that plaintiff’s counsel or a repre­
sentative of the Court shall be given rea­
sonable access to inspect for compliance.

(e) Plaintiffs proposed Sexual Harass­
ment and Retaliation Procedures and Rules 
for Education and Training (Exhibit E to 
Appendix II of plaintiff’s Pretrial Brief) 
has four distinctive parts. The Court will 
require JSI to adopt only the first part, 
concerning education and training.

(f) JSI shall provide the Court with its 
equivalent to the Statement of Prohibited 
Conduct and the Schedule of Penalties no 
later than thirty (30) days from the entry 
of this order. JSI may elect to adopt the 
plaintiff’s proposals in lieu of its own by 
filing a notice with the Court stating as 
much.

[37,38] 45. In Title VII actions, pre­
vailing plaintiffs may recover reasonable

the Chief Executive O fficer/P resident as an of­
fice. The version used by the Court is prefer­
able because M cllwain is not personally liable 
and no longer holds the relevant office.

13. The Court has ruled that this type of conduct 
is outside the issues in this case and therefore it 
is inappropriate  to include it in the relief o r­
dered herein. JSI is not barred  from  volun tar­
ily inserting sim ilar language in its statem ent or 
developing a separate policy statem ent on the 
m atter.



1539ROBINSON v. JACKSONVILLE SHIPYARDS, INC.
CUe as 760 F.Supp. I486 (M.D.FIa. 1991)

attorney fees as a part of costs. 42 U.S.C. 
§ 2000e-5(k). Absent special circum­
stances, the court should award reasonable 
attorney fees. Christiansburg Garment 
Co. v. EEOC, 434 U.S. 412, 417, 98 S.Ct. 
694, 698, 54 L.Ed.2d 648 (1978). No such 
circumstances exist in this case; according­
ly, plaintiff is entitled to recover her costs 
and attorney fees in this action. Because 
this type of award follows the award of 
nominal damages, see Huddleston, 845 
F.2d at 905; Henson, 682 F.2d at 905, it is 
assessed only against JSI. The application 
for attorney fees should address the 
factors for evaluating the reasonableness 
of a request developed in Norman v. Hous­
ing Authority, 836 F.2d 1292 (11th Cir. 
1988), and Perkins v. Mobile Housing 
Board, 847 F.2d 735 (11th Cir.1988). Be­
cause some of plaintiffs counsel is affil­
iated with an out-of-town public interest 
litigation group, attention also should be 
directed to Judge Thomas’ opinion in Dunn 
v. The Florida Bar, 726 F.Supp. 1261, 
1279-80 (M.D.FIa. 1988), a ffd  on other 
grounds, 889 F.2d 1010 (11th Cir. 1989),
cert, denied, —  U.S. ----- , 111 S.Ct. 46,
112 L.Ed.2d 22 (1990).

In accordance with the foregoing, it is 
hereby

ADJUDGED:
That judgment shall be entered in favor 

of plaintiff Lois Robinson and against de­
fendants Jacksonville Shipyards, Inc., Law­
rence Brown, and John Stewart on the 
claim made pursuant to Title VII of the 
Civil Rights Act of 1964;

That this action shall be dismissed as to 
defendant John Kiedrowski;

That judgment shall be entered in favor 
of defendants Arnold Mcllwain, 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;

That judgment shall be entered in favor 
of all defendants and against plaintiff on 
the claim made pursuant to Executive Or­
der No. 11246;

1. Counsel should be cognizant of the strictures
of Local Rule 3.01(f), which disapprove of the

That injunctive relief shall be issued 
against defendant Jacksonville Shipyards, 
Inc. in the form described in the Conclu­
sions of Law;

That nominal damages shall be assessed 
against defendant Jacksonville Shipyards, 
Inc.;

That plaintiff shall be awarded her rea­
sonable costs and attorney fees from defen­
dant Jacksonville Shipyards, Inc.; and

That a separate order will be entered 
regarding the foregoing matters.

DONE AND ORDERED.

ORDER, INJUNCTION AND 
FINAL JUDGMENT 

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 here­
in on January 18, 1991. In an Order en­
tered that same day, the Court offered an 
opportunity to defendant, Jacksonville 
Shipyards, Inc. (“JSI”), to register objec­
tions to plaintiff’s proposed policy and pro­
cedures. 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, 1991.1

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 objec­
tions going to the substance of the Court’s 
mandate.

The Court agrees. A review of JSI’s 
objections reveals that the following of

use of letters to present argum ents to the Court.



1540 760 FEDERAL SUPPLEMENT

them are beyond the leave of the Court and 
therefore should be stricken: 1(B), 1(D), 
1(E), 1(F), 11(A), 11(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 em­
ployees 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.

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 1(A) proposes that the State­
ment of Prohibited Conduct is too open-end­
ed if sexual comments or jokes are prohibit­
ed 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 o f 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 1(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 mem­
bers.” The Court understands that JSI 
may lack the legal authority to direct the 
removal of materials on ships, but this does 
not exhaust JSI’s avenues for controlling 
the work environment. Consistent with its 
obligations under the policy and proce­
dures, JSI shall take such steps that are 
within its power to control the work envi­
ronment aboard ships, including consulta­
tion with ship owners about the removal or 
covering of pictures posted aboard ships 
and storage of materials belonging to crew 
members, during repairs.

Objection 11(C) recommends flexibility in 
the discipline of management personnel. 
Plaintiff concedes this objection is “lauda­
ble” if properly communicated to workers. 
The substance of the objection has been 
incorporated into the injunction. However, 
JSI should remain cognizant of its obli­
gation to exercise its “flexibility” consist­
ent with its duty to stop unlawful conduct. 
See Ellison v. Brady, 924 F.2d 872, 875-76 
(9th Cir. 1991).

Objection III(A) speaks to the access of 
complainants to the files on sexual harass­
ment 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 dis­
tinct. JSI’s objection is valid and plaintiff’s 
concern is valid. Requests by complain­
ants to see files will receive response with­
in a reasonable time. Moreover, although 
the injunction does not contain plaintiff’s 
language, it is entered under the contem­
plation that the Investigative Officers will 
give each complainant an estimate of the 
expected length of the investigation. 
While the estimate is not binding, the abili­
ty 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 “[rjequiring 
posting of the Policy in ‘convenient’ loca­
tions 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 coun­
sel.

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

Objection III(G) is well-founded. Plain­
tiff urges that the language she proposed 
is designed to secure access to all inter­
views of alleged harassers and witnesses 
and to notes of such interviews. The Court 
is of the opinion that the guarantee to 
complainants of access to the investigation



ROBINSON v. JACKSONVILLE SHIPYARDS, INC. 1 5 4 1
Cite as 760 F.Supp.

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 discrimi­
nation 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 will­
ingness 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 defen­

dant’s objections 1(B), 1(D), 1(E), 1(F), IRA), 
IRB), III(C), III(D), IV(A), IV(B), IV(D), 
IV(F), IV(G), Attachment 2 to the objec­
tions, and the second paragraph of plain­
tiff’s letter memorandum;

2. That defendant Jacksonville Ship­
yards, Inc., is hereby enjoined to cease and 
desist from the maintenance of a work 
environment that is hostile to women be­
cause of their sex and to remedy the hostile 
work environment through the implementa­
tion, forthwith, of the Sexual Harassment 
Policy, which consists of the “Statement of 
Policy,” “Statement of Prohibited Con­
duct,” “Schedule of Penalties for Miscon­
duct,” “Procedures for Making, Investigat­
ing and Resolving Sexual Harassment and 
Retaliation Complaints,” and “Procedures 
and Rules for Education and Training,” 
attached as an appendix hereto and incor­
porated by reference; and

3. That final judgment is hereby en­
tered as follows:

(a) dismissing defendant John Kiedrow- 
ski from this action;

(b) in favor of all remaining defendants 
and against plaintiff on the claim

I486 (M.D.FIa. 1991)

made pursuant to Executive Order 
No. 11246;

(c) in favor of defendants Arnold Mcll- 
wain, 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 de­
fendants Lawrence Brown and John 
Stewart on the issue of liability for 
the Title VII claim, without an award 
of damages or other relief; and

(e) in favor of plaintiff and against de­
fendant 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.

APPENDIX

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 fed­
eral Equal Employment Opportunity Com­
mission (EEOC), consists of unwelcome 
sexual advances, requests for sexual fa­
vors or other verbal or physical acts of a 
sexual or sex-based nature where (1) sub­
mission to such conduct is made either ex­
plicitly or implicitly a term or condition of 
an individual’s employment; (2) an employ­
ment decision is based on an individual’s 
acceptance or rejection of such conduct; or 
(3) such conduct interferes with an individ­
ual’s work performance or creates an intim­
idating, hostile or offensive working envi­
ronment.

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