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Gilardi v. Schroeder

decided: November 3, 1987.

CYNTHIA GILARDI, PLAINTIFF-APPELLEE,
v.
GARY SCHROEDER, D/B/A GARY SCHROEDER TRUCKING, DEFENDANT-APPELLANT



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 83 C 5672 -- Prentice H. Marshall, Judge.

Bauer, Chief Judge, Cummings and Manion, Circuit Judges.

Author: Cummings

CUMMINGS, Circuit Judge.

Defendant Gary Schroeder appeals from the district court's holding that he violated plaintiff Cynthia Gilardi's rights under Title VII, 42 U.S.C. § 2000e-2(a), when he discharged her from her position with his trucking firm. Schroeder also appeals from the court's finding that he committed the torts of civil battery and intentional infliction of emotional distress when he had non-consensual sexual intercourse with the plaintiff. Schroeder only challenges the court's ruling on liability and does not argue that the damage award of $112,960.50 plus $49,516.00 in attorney's fees and costs is excessive. We affirm.

I.

After conducting a bench trial, Judge Marshall entered his findings of fact pursuant to Federal Rule of Civil Procedure 52(a). We can set those findings aside only if, after giving due regard to the trial court's opportunity to assess the credibility of the witnesses, we conclude that the court's findings are clearly erroneous. Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 573-574, 84 L. Ed. 2d 518, 105 S. Ct. 1504 ; Hadi v. Horn, 830 F.2d 779, slip op. at 8 (7th Cir. 1987). Much of defendant Schroeder's appeal is devoted to challenging the factual findings of the district court. Specifically, Schroeder objects to Judge Marshall's conclusion that Gilardi's testimony was credible while Schroeder's testimony was not credible because he "was such a manipulative, selective and impeached witness." Credibility determinations, of course, are for the district court to make and will be overturned on appeal only if there are extraordinary circumstances. See Gust K. Newberg Construction Co. v. E.H. Crump & Co., 818 F.2d 1363, 1365 (7th Cir. 1987). Those circumstances are not present. Far from being clearly erroneous, Judge Marshall's factual findings are fully supported by the record. His findings, which are detailed in a thoughtful and thorough opinion, form the factual record for this appeal.

In 1980 Cynthia Gilardi and her husband Leonard began working for Gary Schroeder as a team of cross-county truck drivers. Cynthia and Leonard separated in July 1981, and Cynthia became unemployed and homeless because she had been living in the truck that she and her husband had used to transport goods across the county. Schroeder, whose wife was in Arizona visiting a friend, invited Cynthia Gilardi to stay at his home where Schroeder's brother-in-law, Edward St. Clair, was also staying. Because she was homeless, Gilardi accepted the invitation. When Schroeder's wife returned from Arizona, Gilardi and St. Clair moved into a mobile home that was available to St. Clair. Because Gilardi was unemployed, she accepted an offer from Schroeder to work at his office preparing items such as expense vouchers.

Schroeder was not an employer who avoided sexual topics in the workplace. To the contrary, he once boasted to an employee that he would have sexual intercourse with any woman. The notepads that he used to instruct female employees were "illustrated" with a sketch of a man and a woman engaged in intercourse. He spoke to his female employees about sexual intercourse and group sex. He also patted female employees on the buttocks and asked them if they were wearing brassieres.

When Gilardi began working for Schroeder, he showed an especially keen interest in her. He repeatedly brought up sexual topics, made comments about her breasts, patted her on the buttocks, and on one occasion put his hand between her thighs. She rebutted him, telling him that she did not want to engage in sexual activity with her employer. She testified credibly at trial that although she did not leave her job, it was only because at the time she had no economic choice.

During late summer 1981, Schroeder and his wife, Carol, socialized with Gilardi and Patti and Walter Gwara, who were husband and wife drivers for Schroeder. At the insistence of either Patti Gwara or Gary Schroeder, they discussed sexual topics from Forum magazine. On one occasion, at Schroeder's insistence, the group played strip poker in which everyone except Schroeder disrobed.

On Saturday, September 12, 1981, the Schroeders invited Gilardi to accompany them to an open house and a party. After the party, the three returned by automobile to the mobile home where Cynthia was living. They sat outside and talked. The three of them then went to the Schroeder home and talked for a short time in the living room. Carol Schroeder went to bed leaving Gilardi and Gary Schroeder in the living room. Schroeder gave Gilardi three Quaaludes, which she swallowed. She passed out. While Gilardi was in a stupor, Schroeder had sexual intercourse with her and performed cunnilingus on her. He took Gilardi upstairs and placed her in bed with himself and his wife. As Judge Marshall pointed out, there was absolutely no evidence that Gilardi consented to, encouraged or provoked Schroeder's conduct. In short, Schroeder raped Gilardi. See Ill. Rev. Stat. ch. 38, § 12-13.

When Carol Schroeder woke up, she was understandably upset. She screamed at her husband, pummeled him, and continued berating him. Gilardi remained unconscious until noon, oblivious to the encounter between Carol and Gary. When Gilardi regained consciousness, Schroeder drove her home. Later that day, Schroeder spoke with St. Clair and told him what had occurred, adding that it had happened just as he had planned it.

Schroeder's wife insisted that he fire Gilardi. When Gilardi arrived at work the following day, [Text Deleted by Court Emendation] Gilardi spoke to her by phone and told her that she was fired. Apparently at his wife's insistence, Schroeder soon thereafter fired Gilardi.

Following the rape, Gilardi experienced a period of despondency that included a suicide attempt. In July 1982, she obtained a position as a civilian employee of the the Department of the Army. She has been successful in her position and has progressed through four salary grades. The record also indicates that she is now well-adjusted emotionally.

In January 1982, Gilardi visited the Equal Employment Opportunity Commission ("EEOC"), complained of sexual harassment by Gary Schroeder, and filed an Intake Questionnaire detailing the harassment. She filed a formal charge dated March 1, 1982. The formal charge contains the EEOC stamp "received" with a date of March 31, 1982. It is unclear whether the formal charge was filed before March 31, 1982, and not stamped until that date. On May 10, 1983, the EEOC issued a right to sue letter to Gilardi. On July 27, 1983, she submitted a pro se complaint along with a summons and a petition to proceed in forma pauperis to the Clerk of the District Court for the Northern District of Illinois. A deputy clerk returned the documents to her informing her that the documents would not be accepted until she submitted two more copies of the complaint, included her right to sue letter, put ...


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