Madison v. IBP, Inc. (149 F. Supp. 2d 730, 1999)

ORDER AND JUDGMENT ON POST-TRIAL MOTIONS, EQUITABLE RELIEF, ATTORNEY FEES AND COSTS

BREMER, United States Magistrate Judge.

Plaintiff, Sheri Sawyer Madison, asserted employment discrimination and retaliation claims against Defendant, IBP, Inc., under 42 U.S.C. §§ 1981, 1981a; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; and the Iowa Civil Rights Act (ICRA), Iowa Code ch. 216. Judgment was entered on March 19, 1999, following a verdict in Madison’s favor on all counts. Presently before the Court are the following: Plaintiffs Motion to Amend Judgment under Fed.R.Civ.P. 50, 58 and 59(e) (Clerk’s No. 209); Defendant’s Motion for New Trial under Fed.R.Civ.P. 59 (Clerk’s No. 212); Defendant’s Renewed Rule 50 Motion for Judgment as a Matter of Law (Clerk’s No 213); Defendant’s Rule 59(e) Motion to Alter or Amend the Judgment (Clerk’s No. 214); Plaintiffs claim for equitable relief, including front pay damages (Proposed Findings of Fact on Equitable Relief) (Clerk’s No. 174); and Plaintiffs Application for Attorney Fees and Costs (Clerk’s No. 215).

Hearings were held March 10, 1999, on the claim for equitable relief; on May 27, 1999, on the Application for Attorney Fees; and on July 30, 1999, for the remaining post-trial motions. On September 27, 1999, the Court granted the United States’ motion to intervene to defend against Plaintiffs challenge to the constitutionality of the damages cap provision under 42 U.S.C. § 1981a(b)(3) (Clerk’s No. 346). On October 18, 1999, the United States consented to proceed before a United States Magistrate Judge; the other parties had consented on April 1, 1998. See 28 U.S.C. § 636(c). The United States’ brief was filed October 18, 1999, and Plaintiff filed a supplemental brief in resistance to the United States’ position on November 12, 1999. This matter is fully submitted.

TABLE OF CONTENTS

I.Background and Facts.745

A. Procedural History.745

B. Discovery Disputes.745

C. Verdict and Judgment.749

D. Evidence Presented.750

1. Madison’s Background.750

2. IBP’s Facility .751

3. Madison’s Work History at IBP.751

4. Complaint Process.764

a. Training.764

b. Presenting A Complaint.765

c. Identifying the Problem .766

d. Investigating the Complaint.767

e. Remedies, Including Discipline .770

f. Follow-up Monitoring; Retaliation.771

5. Promotion Process.772

E. Events After Trial.775

II.

Post-trial Motions. 777

A. Standards of Review. 777

1. Motion for Judgment as a Matter of Law. 777

2. Motion to Alter or Amend Judgment. 777

3. Motion for New Trial.

B. Madison’s Motion to Amend Judgment Under Fed.R.Civ.P. 50, 58 and 59(e) (Clerk’s No. 209). 778

1. Reduction of Damages Under 42 U.S.C. § 1981a(b)(3) . 778

a. Waiver of Affirmative Defense. 779

b. Constitutionality of Section 1981a(b)(3). 780

c. Application of Cap to Individual Claims. 780

2. Reallocation of Damages. 781

3. Interest. 782

a. Prejudgment Interest. 782

b. Post-judgment Interest. 783

C. Madison’s Claim for Equitable Relief, Including Front Pay (Clerk’s No. 174). 783

1. Standard. 784

2. Discussion . 785

D. IBP’s Post-trial Motions. 786

1. Motion for New Trial (Clerk’s No. 212) . 786

a. Constructive Demotion . 786

1) Errors in Submission.786

2) Sufficiency of Evidence; Treating as Section 1981 Claim.788

b. Punitive Damages.789

e. Other Claims of Insufficient Evidence .793

1) Failure to Promote.793

2) Hostile Work Environment.794

3) Retaliation .795

d. Other Errors in Jury Instructions and Verdict Forms.796

1) Preliminary Instructions.796

2) Submission of Claims.796

a) Insufficient Evidence Supported Claims.796

b) Duplicate Damages.797

3) Instruction on Undisclosed Evidence.798

4) Other Instructions, Verdict Form.799

e. Mistrial Motions and Trial Conduct.800

f. Errors in Evidentiary Rulings.801

g. Statute of Limitations.802

h. Discovery Rulings.804

i. Rulings on Motions in Limine.805

j. Errors in Rulings on Closing Arguments.805

k. Verdict.805

l. Jury Selection Process.806

2. Motion for Judgment as a Matter of Law (Clerk’s No. 213).806

3. IBP’s Motion to Alter or Amend Judgment (Clerk’s No. 214) .806

III. Attorney Fees Award.806

A. Lodestar.807

1. Hourly Rate.808

a. Conlin.808

b. Duff.809

c. Associates.■.809

d. Law Clerks and Legal Assistants .809

2. Reasonable Hours Spent.810

a. Conlin.810

b. Duff.810

e. Associates. 810

d. Law Clerks and Legal Assistants .811

B. Claim For Fee Enhancement .811

C. Claim for Expenses and Costs.811

1. Legal Standard.811

2. Costs Claimed.812

a. Investigative Work.812

b. Copying/Printing.812

c. Filing and Service Fees.813

d. Deposition.813

e. Trial Transcript.813

f. Expert Witness.813

g. Fax and Telephone.814

h. Meals and Travel .814

i. Witness/Mileage.814

j. Postage Delivery.814

k. Online Research.814

l. Supplies.814

D. Summary of Fees and Expenses Award .814

IV. Conclusion and Order .815

I. Background and Facts

This case was tried to a jury from February 8 to 26, 1999. The jury found in favor of Madison on all counts, and awarded a total of $2,412,417 in damages. The parties have timely filed post-trial motions.

A. Procedural History

Madison filed a complaint with the Iowa Civil Rights Commission (ICRC), and simultaneously with the Equal Employment Opportunity Commission (EEOC), on January 13, 1996. She amended this civil rights complaint on April 3, 1996. She exhausted her administrative remedies, including participation in an ICRC mediation on August 25, 1995. She received a right-to-sue notice, and timely filed this action on September 18,1996.

The case was initially to be tried on July 6, 1998. The parties consented to proceed before a United States Magistrate Judge on April 1, 1998; by agreement of the parties, the trial was rescheduled to January 25,1999.

B. Discovery Disputes

The discovery process began October 18, 1996, with Madison’s serving of Interrogatories and Requests for Production of Documents. After several extensions, the deadline for the close of discovery was finally set for December 15, 1998. Discovery disputes escalated as the final push of trial preparation began, and new lead counsel began representing both parties.

On November 25, 1998, Madison filed a Motion to Compel. On January 7, 1999, Judge Walters issued a ruling partially granting the motion. Reviewing the documents IBP produced, Madison found that certain items were missing or incomplete. IBP amended its responses to discovery requests with newly discovered documents in January 1999, shortly before trial was to start.

On January 22, 1999, Madison filed a Motion to Strike the Answer, as a sanction for discovery abuses. Madison produced evidence indicating that many of IBP’s failures to adequately respond to discovery requests were due to the company’s procedures for responding to such requests, inadequate staff training, or the execution of its document retention policy, even when it resulted in the destruction of documents required by federal regulations to be maintained.

IBP’s procedure for answering discovery requests began when the company’s outside counsel forwarded the requests to in-house counsel. IBP’s in-house counsel, Rosanne Lienhard (who took over case management in July 1998) explained IBP’s process. Alberto Olguin, personnel manager at IBP Perry, and Bernielle Ott, EEO Coordinator at IBP’s Dakota City, Nebraska, corporate headquarters, were asked to supply information. “They are the experts,” noted Lienhard, because in-house counsel does not know what documents each department maintains. (Tr., Att’y. Lienhard, 2/28/99 at 237-39). Outside and in-house counsel dealt directly with Ott and Olguin to prepare answers to the discovery requests. Some material that was responsive to requests for production, such as Ott’s notes of telephone conversations with Madison, were produced to in-house counsel, but were never produced to Madison in discovery. (Tr., Ott, 2/10/99 at 99).

Ott testified that she followed her typical process for answering discovery requests. Before she prepared discovery answers, Ott did not see a copy of the requests for production or the interrogatories. (Tr., Ott, 2/11/99 at 32-34.) Rather, IBP’s in-house counsel asked her for specific information, which she forwarded to them. Since Ott did not see the actual discovery requests, she had no idea whether the material she provided was complete, and was unaware of the scope of the requests. (Tr., Ott, 2/11/99 at 36.) Ott described IBP’s discovery response process as reminiscent of “playing telephone,” with information passing from one person to another without checks for accuracy, resulting in miscommunication. (Tr., Ott, 2/11/99 at 129.)

Ott never saw any of Madison’s supplemental requests for documents. Id. at 32-36. No one has ever told her that she has a duty to seasonably update answers to discovery in pending litigation, even though she has worked in IBP’s EEO department since 1989. (Tr., Ott, 2/10/99 at 25; 2/11/99 at 32.) Additionally, Ott inadvertently omitted production of some documents, which no one noticed until the final days before trial. (Tr., Ott, 2/11/99 at 36.)

Ott stores certain data on computer disk, including the workforce analysis, a detailed report providing information on how many women IBP promotes at its Perry plant. Consistent with Federal Rule of Civil Procedure 34, Madison had requested data compilations as part of her Request for Production of Documents. Ott and IBP, however, produced only summary reports, not the detailed workforce analysis. Ott explained she failed to produce the workforce analysis because no one asked her to print out electronic data. (Tr., Ott, 2/11/99 at 49-51.) IBP’s in-house counsel said the EEO department did not produce the electronic data, “because it was kept on the computer, and it was not something that was ever printed.” (Tr., Att’y Lienhard, 1/28/99 at 240.) Ott did not print the detailed reports until January 21, 1999, four days before trial was set to start, because, she testified, that is the first time in-house counsel asked her to print them. (Tr., Ott, 2/11/99 at 37.) Ott did not print the applicant tracking reports (consisting of applicant flow logs and a summary of positions for which Madison applied, and for which IBP still had documents) until January 28, 1999, because no one asked her specifically for those documents until then. (PL’s Ex. 589, at 1-62; Tr., Ott, 2/11/99 at 115-17.)

Another problem with IBP’s discovery response involved the company’s failure to produce all requested applicant flow logs. These logs documented not only who applied for and received jobs, but the contemporaneously recorded reasons for the successful applicant’s appointment. When Madison filed her EEOC complaint on January 13, 1995, all the applicant flow logs for 1994, and very likely some from the end of 1993 existed, because IBP’s document-retention policy calls for maintaining such documents for at least one year before destroying them. (Tr., Ott, 2/11/99 at 109; Tr., Olguin, 2/19/99 at 359; Pl.’s Ex. 22.) No one at IBP, however, prevented the destruction of these, and later, applicant flow logs, even though Madison had filed an EEOC complaint. Thus, applicant flow logs for 1993, 1994, 1995, and part of 1996 were destroyed. (Tr., Olguin, 2/19/99 at 348.)

Labor Relations Manager Lonnie Jep-sen testified he was never advised to maintain notes, promotion information, or documents relating to an EEOC or ICRC discrimination complaint. He was unaware of any EEOC rule or IBP policy stating that such information should be preserved while an EEOC complaint was pending. Jepsen thought that the filing of a lawsuit, not an administrative complaint, triggered the duty to preserve such documents. (Tr., Jepsen, 2/2399 at 23.)

Similarly, Ott testified that no one ever told her to preserve documents relating to Madison’s EEOC complaint, the lawsuit, or discovery requests. (Tr., Ott, 2/11/99 at 107-10, 122.) Ott did not see Madison’s complaint when she filed her lawsuit, so Ott was unaware of the scope of Madison’s claims. (Tr., Ott, 2/11/99 at 115). Ott said she did not produce any applicant flow logs in response to the Request for Production of Documents, “any and all writings relating to promotions,” because she never saw that request (PL’s Ex. 600) until trial, even though Madison served the request on October 18,1996.

Olguin has served as personnel manager of IBP’s human resources department in Perry from 1994 to the present. He, too, has never been instructed to update discovery answers, nor was he shown the actual discovery requests, but only responded to counsel’s requests. (Tr., 01-guin, 2/19/99 at 356.) When Olguin responded to discovery requests, he limited his search to 1994 and later, because that is when he became personnel manager. It “never occurred” to him to check earlier records kept in his office, because he thought they were irrelevant; he “didn’t think that they mattered.” (Tr., Olguin, 2/19/99 at 282, 289-90.)

Olguin produced a small file, which contained his personal notes of sexual harassment investigations. Id. at 283-84. He told counsel no other such documents existed. Olguin explained his failure to produce the several hundred pages of prior sexual-harassment complaints by saying he forgot to look in his office credenza, where the former personnel manager’s records were stored. Id. at 281-82. His office contains only a credenza, a desk and two file cabinets. Id at 282. Olguin testified that one of the file cabinets blocks part of the credenza, and because he does not routinely open the credenza, he forgot it contained reports from a major sexual-harassment investigation IBP conducted in 1992. The former personnel manager, Rex Hofer, testified that when he left IBP in 1994, he showed Olguin where all such reports and notes were kept in the office. (Tr., Hofer, 2/17/99 at 166.)

Although Olguin discussed the topics of applicant flow logs, EEO reports, and personnel-file maintenance at his deposition in March 1998, he did not produce additional documents that he knew existed because no one asked him personally for the documents. (Tr., Olguin, 2/19/99 at 283-85.) Madison did not file a Motion to Compel these materials until November 1998; counsel for both parties conferred informally to obtain complete document production before the Motion to Compel was filed. Olguin testified he did not understand the scope of the Requests for Production until shortly before trial, when lead counsel made it clearer to him (although discovery counsel had asked Olguin repeatedly for additional documents, and had questioned the paucity of documents he produced). Olguin then found the flies in the credenza and produced them. Id. at 289. He testified he did not intentionally withhold documents.

WTien IBP’s trial counsel visited Olguin’s office on January 30, 1999, he found additional documents that were responsive to Madison’s 1996 requests, but which Olguin had not considered relevant. IBP then produced these documents. Id. at 359.

John McNamara, a Perry plant manager who was the decision-maker on several promotions Madison did not get, testified he never received any training on the requirements for record retention after an EEOC complaint was filed or training on record production. (Tr., McNamara, 2/18/99 at 145.) Thus, McNamara did not keep notes from promotion interviews with Madison in May 1996, or in August 1997, when she purportedly did not do well on a math problem he gave her. No one told him to save any promotion or test material related to Madison’s EEOC complaint, even though this material had been requested, and was required to be preserved by IBP’s own policies. Id. at 138-45.

Michael Miller, director of the training department, who investigated Madison’s 1994 complaints regarding Supervisor Eugene Jackson, did not produce his personal copies of investigation notes, because no one directly asked him to produce or retain them. At the time of trial, he believed his handwritten notes no longer existed. (Tr., Miller, 2/12/99 at 60.)

Of the documents IBP produced concerning Madison’s promotion applications, several records were missing or incomplete. IBP contended that missing or incomplete records were due to typographical errors or misfiling. (Tr., Olguin, 2/19/99 at 360-65; 2/22/99 at 400, 405-06.) For example, the July 1996 applicant flow log was not produced; the September 14, 1996, applicant flow log for the B-shift trainer job did not list Madison, who was an applicant; all applications were missing from the file for the supervisor job Gary Hedlund got on December 1, 1996; all internal applications were gone from the file for the training-supervisor job Michael Miller got in 1993; and the file for the 1995 hides-division superintendent job contained no resumes and no applicant flow log.

The filing system used by the IBP Perry human resources department had no central registry or database compiling discrimination and harassment complaints. The system thus provided no way for Ol-guin or others to verify the completeness of what was produced in discovery. As a result:

■ Records of sexual-harassment complaints for 1997 were produced only through July 17, 1997; Olguin believed workers made no more complaints the rest of the year, because none were in his file. (Tr., Olguin, 2/22/99 at 433.)

■ None of the 1995 sexual harassment complaints were produced due to how the complaints were filed. Id. at 427.

■ Only part of the sexual-harassment complaints for 1996 were produced; the rest were misfiled. Id. at 428.

■ No sexual-harassment complaints were produced for 1993, and Olguin was unsure whether any existed. Id. at 438.

■ The applicant flow log, resumes and internal applications for the trainer position awarded to Jose Fuentes in 1995 were missing from IBP’s files; Madison’s grievance over not getting the job was also missing, although the union’s files contained a copy. (Tr., Jepsen, 2/23/99 at 81.)

To ameliorate discovery difficulties, the Court granted several of Madison’s motions for supplemental discovery made in January 1999. Instead of striking the Answer, which Madison requested as a sanction for incomplete production of documents, the Court ordered production of complete personnel files to augment the redacted versions produced. The number of complete personnel files to be produced was expanded beyond the number previously ordered by Judge Walters. Next, additional documents and data were ordered to be produced based on discussions with counsel, and on IBP’s disclosure that it still had documents it previously identified as nonexistent. (Tr., 1/20/99, at 49) (Clerk’s No. 144.)

IBP produced many documents, some voluntarily and some compelled, in the 10 days before trial, and the company continued to produce documents during trial. On January 22, 1999, Madison agreed to a one-week continuance of trial to complete the document review. IBP was ordered to pay the fees and costs associated with the motions to compel, but Madison’s counsel declined a fee award at that time (reserving the claim for the general fee award) and requested that IBP pay Madison one week’s salary ($500) for the work time she would miss due to the delay. This motion was granted. (Clerk’s No. 127, 1/27/99; Clerk’s No. 147,1/29/99).

Trial proceeded from February 8 to 26, 1999. In the first Final Pretrial Conference Order (Clerk’s No. 102, 1/14/99) the parties stipulated to certain promotions or positions for which Madison had applied. However, IBP moved on February 2, 1999, and again during the trial, to withdraw several of its stipulations (Clerk’s No. 148, 2/1/99). By agreement of the parties, some stipulations were withdrawn. As a sanction for discovery abuse, other stipulations were not allowed to be withdrawn. The final version of the stipulation is contained in Exhibit 653.

C. Verdict and Judgment

On February 26, 1999, the jury returned a special verdict form (Clerk’s No. 196) finding IBP liable for causing a total $2,412,417 in damages to Madison on all claims in her Complaint. The damage amounts were distributed as follows:

A. Sex Discrimination

50,688.00 1. Backpay and benefits

10,000.00 2. Emotional distress past

-0-3. Emotional distress future

364,000.00 4. Punitive damages

B. Sexual Harassment

-0-1. Backpay and benefits

100,000.00 2. Emotional distress past

-0-3. Emotional distress future

600,000.00 4. Punitive damages

C. Race Discrimination

-0-1. Back pay and benefits

5,000.00 2. Emotional distress past

-0-3. Emotional distress future

30,000.00 4. Punitive damages

D. Racial Harassment

-0-1. Backpay and benefits

150,000.00 2. Emotional distress past

-0-3. Emotional distress future

900,000.00 4. Punitive damages

E. Retaliation

25,000.00 -0--0-150,000.00 1. Backpay and benefits 2. Emotional distress past 3. Emotional distress future 4. Punitive damages ■€«--e9--6e--€/3-

F. Constructive Demotion

979.00 1. Backpay and benefits

1,750.00 2. Emotional distress past

-0-3. Emotional distress future

25,000.00 4. Punitive damages

$2,412,417.00 Verdict Damages Total:

Special Verdict Form (Clerk’s No. 196.)

After the parties briefed and argued the issue of how to apply the damages cap set by 42 U.S.C. § 1981a(b)(3), the emotional distress damages and punitive damages awarded under Title VII were reduced to $300,000. Accordingly, on March 19, 1999, judgment was entered as follows:

A. Sex discrimination/harassment

1) Backpay $ 50,688.00

2) Emotional distress ($110,000.00) and punitive damages ($964,000.00) $ 300,000.00

Subtotal: $ 350,688.00

B. Racial discnmination/harassment, retaliation, and constructive demotion

1) Backpay $ 25,979.00

2) Emotional distress $ 156,750.00

3) Punitive damages $1,105,000.00

Subtotal: $1,287,729.00

Total judgment entered: $1,638,417.00

Order and Judgment (Clerk’s No. 204.)

At trial, Madison introduced testimony and other evidence from which the jury found that she was subjected to harassment and discrimination based on sex and race. Madison’s evidence showed IBP’s lack of prompt and reasonable response to her complaints, and to sex-and race discrimination complaints generally. Madison also presented evidence from which the jury found she suffered from retaliatory, adverse employment actions. Additionally, the jury found Madison was constructively demoted when she voluntarily downbid to avoid ongoing harassment and discrimination.

D. Evidence Presented

To aid in assessing the challenges based on sufficiency of evidence, the Court will review the evidence that Madison presented at trial to support her claims. IBP’s witnesses denied much of the evidence supporting Madison’s claims. The Court, however, finds it unnecessary to set forth IBP’s evidence, because the jury assessed the witnesses’ credibility and resolved relevant conflicting evidence in Madison’s favor as demonstrated by the verdict. The Court reviewed the transcript to determine whether the verdict: (1) was against the greater weight of the evidence; (2) contained manifest errors of law or fact; or, (3) was based on a legally insufficient evidentiary basis.

1. Madison’s Background

Sheri Madison is 30 years old, and lives in Perry, Iowa. Perry lies 40 miles from Des Moines, and has a population of about 7,500. Madison dropped out of high school in 1987, on her 18th birthday. She has worked at Hardee’s Restaurants, Meadow Gold Dairy, and Breadeaux Pizza.

IBP has over 40,000 employees, and is the world’s largest producer of pork and beef products. In 1989, IBP acquired and re-opened Perry’s former Oscar Mayer plant. With approximately 1,000 employees in Perry, IBP has more workers than any other employer in town. IBP Perry’s annual payroll totals about $30 million. In 1997, IBP had net earnings of $117,014,000 and total assets of $2,838,941,000. (Pl.’s Ex. 62.)

In 1989, IBP hired Sheri’s boyfriend, James Madison, who had worked at Oscar Mayer. With James’ encouragement, Sheri applied for work at IBP and was hired on August 14, 1989, as a meatcutter. She was 20 years old.

Sheri and James began living together in 1989, and they married in 1996. Sheri is Caucasian, and James is African American. Periodically during this litigation, James and Sheri have separated, but they have reconciled and are presently living together. The couple have two children, James Jr., age 8, and Whitney, age 7. James currently works as a trainer in the maintenance department in IBP’s powerhouse; his responsibilities include the plant’s refrigeration systems.

In 1993, Sheri Madison enrolled in classes at Des Moines Area Community College (DMACC), while working simultaneously at Woodward Academy (a correctional facility) and IBP. This schedule, added to her family responsibilities, was too burdensome, and she dropped the classes and the Woodward Academy job. She later resumed school part-time, taking two classes, and in 1998 Madison received a General Education Development (GED) degree from DMACC. Madison testified that she wanted to complete an Associate of Arts degree at DMACC and pursue a career as a probation officer. IBP pays the tuition at DMACC for its employees. Madison has taken only two classes in the past 10 years. (Tr., Madison, 2/3/99 at 281, 284.)

Madison, a skilled meatcutter, belongs to the United Food and Commercial Worker’s Union, Local 1149. She has served as a union steward. She presently operates a forklift in the box department.

2. IBP’s Facility

IBP’s Perry plant processes up to 885 hogs per hour, or 6,700 hogs a day, and spends $210 million annually for hogs and supplies. The plant has a ■ “hot” side, where hogs are killed, and a “cold” side, where workers cut the hog carcasses. On the cold, or “cut,” side, workers split hog carcasses on the main break line, and hog pieces move along various work lines on overhead hooks or table-level conveyor belts until they are fully trimmed and packaged under contract and United States Department of Agriculture specifications.

Temperature on the cold side ranges from 34° to 45° F; the hot side can reach 110° F in the summer. Noise from fans and equipment sometimes exceeds 85 decibels on the shop floor, requiring workers to wear ear plugs. Employees testified that they could talk to, and hear, the two or three workers nearest to them. Workers also communicate through hand signs and signals. Because of the loud noise, employees customarily tap other workers on the shoulder to get their attention before speaking. At times, when not all the equipment is running, workers can hear what is being said in a wider area.

3. Madison’s. Work History at IBP

Madison liked her first job as a meatcut-ter on the cut-side jowl line. Her supervisors and co-workers who testified agreed that Madison had excellent knife skills, was a rehable worker, and produced a quality meat product. As a meatcutter, Madison wore a uniform and protective clothing, consisting of a white smock, hairnet, hard hat (various colors and stripes denote job assignment and status), ear plugs, mesh gauntlets, arm guards, and a mesh apron or belly guard. While on the cut line, Madison routinely worked significant overtime, earning up to an additional $8,000 a year on that basis. (Tr., Madison, 2/3/99 at 298; Pl’s.Ex. 54A.) Madison was earning $10.38 an hour as a trainer, in 1997 she earned $26,560, which included $6,694 for 324 hours overtime and other pay above her base amount. (Pl.’s Ex. 54A.) At the time of trial, Madison earned $9.60 an hour as a forklift operator. (Tr., Madison, 2/3/99 at 253.)

Madison regularly expressed an interest in getting a promotion. A line worker who qualifies for promotion generally moves up to a utility job. A utility worker fills in for line workers when they are absent, or on breaks. Utility workers must know all the line jobs so they can fill in where needed. The utility position is a step toward promotion to management-support jobs such as quality-control supervisor or trainer. Usually IBP chose as trainers only those who had experience as utility workers.

Madison produced evidence showing that men were regularly promoted or hired to positions over her, even though the men were less qualified than she was. Many of these failures to promote are listed below. IBP explained this situation by saying variously that Madison was not a team player, because she sometimes disagreed with supervisors; she bypassed the chain of command and used IBP’s open-door complaint policy; she used vulgar language; she engaged in horseplay, which invited sexual harassment; she needed better math and communication skills; and she did not speak Spanish.

Evidence showed also that Madison complained to management about several incidents of race and sex discrimination, including harassment by co-workers and supervisors. Dissatisfied with management’s response to her complaints, Madison tried to resolve workplace difficulties by confronting the persons involved, quitting, or downbidding to another job away from the immediate problem. After unsuccessfully trying all the informal and formal procedures available to her at IBP, Madison filed a complaint with the ICRC charging sex discrimination and harassment. She later added a claim of race discrimination and harassment, based on treatment she received at work due to her association with her African-American husband and their children.

Madison identified the following examples of harassment and discrimination affecting her employment.

In 1989, in the presence of co-workers and supervisors, co-workers addressed Madison with derogatory and racist terms concerning her relationship with James Madison. (Tr., Madison, 2/2/99 at 24-26.)

Sometime between 1989 and 1990, Floor Supervisor Larry Sippel told Madison: “[WJomen don’t belong in packing houses”; they are “whores or dykes” and “can’t do physical jobs.” (Tr., Madison, 2/3/99 at 245.)

In 1989, Supervisor Bill Teeples, in referring to Madison’s relationship with James, asked her, “why are you with a fucking nigger?”, and told her that “niggers and whites should stay with their own.” (Tr., Madison, 2/2/99 at 25.) Madison did not complain to management, but requested a co-worker to ask Teeples to stop making such comments to her. (Tr., Madison, 2/2/99 at 28.)

Prom 1990 to 1992, while Madison was pregnant and after the birth of her children, co-employee Gary Laird harassed her about having biracial children. He made racist comments directly to her, or to her mother and sister, who also worked at IBP. Madison’s mother provided childcare for the children, which Laird knew. He told Madison she “had ruined herself,” by having children with a black man, and “what are you doing with a fucking nigger having fucking nigger babies.” (Tr., Madison, 2/2/99 at 40.) Laird sometimes referred to Madison’s children as monkeys and zebras, causing Madison to leave the line crying. ■

Gary Laird’s comments were occasionally made in front of Floor Supervisors Sip-pel and Gordy Laird (Gary’s brother), but the two supervisors did not intervene, even when they observed or were told that Madison left the line crying after comments by Gary Laird. (Tr., Madison, 2/2/99 at 41-46; Carlson, 2/5/99 at 112-14; Petro, 2/3/99 at 8.) Madison began working a different shift from Gary Laird in 1993, but Laird continued the verbal harassment whenever he saw Madison, her mother or sister, until after his 1998 deposition.

In 1990, Gordy Laird told Madison that she could not learn to skin hams because “that’s a man’s job.” (Tr., Madison, 2/2/99 at 37-39.) Other supervisors, Eugene Jackson and John McNamara, expressed this opinion also. (Tr., Madison, 2/3/99 at 245.) Madison took it upon herself to learn this job anyway.

On April 3, 1991, Madison applied for a utility position. No records exist of Madison’s application for the April 1991 utility job, except for a comment in notes from Madison’s later job-exit interview. (Pl.s Ex. 1.) IBP gave the job to Am Lovan.

In April 1991, Madison complained to Gordy Laird that male workers were “sandbagging,” not doing their work and letting the unfinished work pass down the line to her, so that in effect she had to do three jobs. In response to her complaints, Laird told Madison not to hold up production. The co-workers Madison implicated said to her, in front of Laird, “fuck you bitch.” (Tr., Madison, 2/2/99 at 49.) When Madison asked Laird if he heard the remarks, he said, “well, if you would quit telling them what to do and do your own fucking job, you wouldn’t have to worry about it.” (Tr., Madison, 2/2/99 at 48-50.) Upset, Madison left the line, claiming sore wrists, and went to the nurse’s office. When she returned, Laird assigned her to picking fat, an undesirable light-duty job that was off the line. Madison complained to Laird that the job assignment was unfair, and it was retaliation to take her off the line due to male workers’ harassment. IBP claimed the light-duty assignment was due to orders from the nurse, to avoid injuries to Madison’s wrists. At trial, Madison maintained the nurse gave no such order; IBP had no record of the order in her file. (Pl.’s Ex. 1.)

Because of this treatment, Madison quit her job April 4, 1991. At her exit interview, she told Personnel Manager Larry Cleary that she had applied for promotions to a utility job and another bid job, but she had not been promoted due to sex and race discrimination. She also told Cleary that men on her line were not doing their jobs and were making racist comments about her. (Tr., Madison, 2/2/99 at 51; Pl.’s Ex. 1.) No investigation occurred.

In June 1991, Madison returned to work at IBP after Gordy Laird assured her that conditions would be better. (Tr., Madison, 2/2/99 at 52.)

On December 31, 1991, Madison applied for a Trainer IV job, which was awarded to Roger Baumgardner. No records remain for 1991 to 1995 job applications, but the parties included this position in the pretrial stipulation. (PL’s Ex. 653 at ¶8.)

On March 10, 1992, Madison applied for a utility job. Rogilio Roman got the position. IBP could not produce Madison’s application, but listed this job in the pretrial stipulation. (PL’s Ex. 653 at ¶ 10.)

On May 26, 1992, Madison applied for a utility position, which was awarded to Gary Flinn. (PL’s Ex. 534.)

On June 25, 1992, Madison sought a trainer job that was ultimately given to Am Lovan. IBP could not find Madison’s application, but included this position in the pretrial stipulation. (Pl.’s Ex. 653 at ¶ 9.)

In May 1992, Madison bid on a utility job, which Barbara Waldo got. Waldo was the first female utility worker on that floor. After Waldo was appointed, Madison saw male line workers harass Waldo. Gordy Laird, the supervisor, did not intervene to stop the harassment, and he expressed disapproval of Waldo’s ability as a utility worker. (Tr., Madison, 2/2/99 at 60-61.) Due to the harassment, Waldo downbid off the job and returned to the line. (Tr„ Waldo, 2/3/99 at 40-41.)

In March 1993, Madison wanted to switch assignments to learn shank boning, which would increase her chances for promotion. John McNamara and Eugene Jackson, Madison’s supervisors, told her that shank boning was a “man’s job,” and women could not do it. Jackson required a trainer to certify her for the job, which was not typical. Jackson’s action caused a delay for her pay increase until May 1993. (Pl.’s Ex. 1, at 188-91; Tr., Madison, 2/3/99 at 244.)

On July 30, 1993, Madison applied for a utility position, which was awarded to Robert Boyd. IBP was unable to produce Madison’s application for the position. On August 5, 1993, Madison applied for a trainer job, which IBP awarded to Gary Flinn. The company could not produce her application for the trainer job.

On November 10, 1993, Madison applied for a utility job. Candido Morales, a male, got the job. (Tr., Madison, 2/2/99 at 69.) McNamara affirmed Morales’ appointment without looking at both candidates’ entire personnel files. Laird and McNamara testified that Morales had better knife skills, more seniority, better attendance, and more knowledge about various jobs than did Madison. In approving Morales’ selection over Madison, McNamara relied on advice from Jody Schick, Jackson and Andy Ruetter concerning Madison’s job skills. (Tr., McNamara, 2/18/99 at 90.)

Madison filed a sex-discrimination grievance with the union over IBP’s failure to appoint her to the utility job. (Tr., Madison, 2/2/99 at 70.) Only then did McNamara read Madison’s and Morales’ entire personnel files. (Tr., McNamara, 2/18/99 at 95.) Morales actually had a significant discipline and absentee record. (Pl.’s Ex. 213.) The plant manager resolving Madison’s grievance found she was qualified, and recommended that she receive the next available trainer position.

In December 1993, Madison bid on and received the next vacant trainer job. She became the plant’s first female trainer on the cold side. (Tr., Madison, 2/2/99 at 77.) Madison’s promotion to trainer caused resentment among utility workers, because she did not have experience as a utility worker before her promotion. (Tr., Madison, 2/2/99 at 73-76.)

From December 1993 to March 1994, Jackson and Madison continually clashed over the nature of her duties as a trainer. Madison complained to Mike Miller, her direct supervisor, about Jackson, the floor supervisor. Madison said Jackson assigned her to utility worker’s duties, while Morales, still nominally a utility worker, performed the trainer’s job. Madison told Miller that supervisors Jackson and Schick were discriminating against her because of her gender. (Tr., Madison, 2/2/99 at 77-79.)

On another occasion, Madison told Miller and McNamara she also believed Jackson disapproved of her social relationship with a black man, and that race, as well as gender, was a factor in their disagree-merits over job assignments. (Tr., Madison, 2/2/99 at 103; McNamara, 2/18/99 at 110.) Jackson, who is African American, had told Madison she would not get special treatment because her boyfriend was black, and Jackson questioned whether races should mix, telling Madison his wife was black.

In February or March 1994, Madison complained to Assistant Personnel Director Sue Menhusen that Jackson treated her unfairly because of James Madison’s race. (Tr., Menhusen, 2/16/99 at 81.)

Schick told Olguin that because Madison had a black boyfriend, Jackson did not like her. Olguin took no action, because Jackson denied discriminating against Madison. (Tr., Olguin, 2/19/99 at 311-13.)

From December 1993 to March 1994, certain line workers harassed Madison verbally and physically, grabbing her almost daily, sometimes in front of Line Supervisors Jackson and Schick. The workers would say, “fuck you bitch, suck my dick.” (Tr., Madison, 2/2/99 at 86.) The harassing workers included Morales, who grabbed Madison’s buttocks; Torres, who shoved her; and Gary Zierke, who bumped or rubbed his belly or genitals against Madison. (Tr., Madison, 2/2/99 at 85-95.) Once when Zierke inappropriately touched Madison in front of Jackson the supervisor refused Madison’s request to help get Zierke to return to his work station. (Tr., Madison, 2/2/99 at 86.)

Madison complained to Miller that she received no help from Jackson and Schick when line workers harassed her. Madison complained that this harassment and disrespect interfered with her ability to do the training job. Jackson expressed displeasure that Madison went over his head to complain to Miller. (Tr., Madison, 2/2/99 at 99.) Jackson and Schick told Madison that if she continued to complain, “they could make her life miserable.” (Tr., Madison, 2/2/99 at 80.) Miller told McNamara that Madison’s complaints about Jackson were unfounded. He reported that the “grab-ass” and horseplay between Madison and co-workers was consensual and mutual. McNamara spoke to Madison and the male workers about “horseplay,” but took no action against anyone, nor were Madison’s complaints recorded in any of the male worker’s files. (Tr., McNamara, 2/18/99 at 17-25; 105-109; Tr., Miller, 2/12/99 at 66.)

In February 1994, Madison complained to McNamara that Torres shoved her, said “fuck you bitch,” and would not return to work on the line. McNamara replied that was “part of being a trainer,” and that she had to get employees to do what she wanted them to do. (Tr., Madison, 2/2/99 at 89-90.) He told her that as a manager, she had to be able to take care of herself. He did not intervene. (Tr., Madison, 2/2/99 at 89.)

In March 1994, Jackson and Schick criticized Madison for leaving the line when authorized to do so, such as when another supervisor, Andy Ruetter, asked her to go to the knife room or return safety equipment, or when she left to talk to her supervisor, Miller. (Tr., Madison, 2/2/99 at 91; 96-97.)

From December 1993 to March 1994, line workers periodically instigated unscheduled work breaks by pulling a safety chain to stop the line, and when Madison restarted the line, the workers shouted at her, “fuck you bitch,” “suck my dick,” and “pinche puta,” which is Spanish for “fucking whore.” (Tr., Madison, 2/2/99 at 86.) When such incidents occurred, Jackson and Schick failed to stop the verbal harassment, and instead they yelled at Madison because production was interrupted. (Tr., Madison, 2/2/99 at 95-96.)

In March 1994, Madison complained to Miller about three male line workers— Ignacio, Morales and Zierke — who were offensively touching her, and she again protested being assigned utility duties when male utility employees loafed. (Tr., Madison, 2/2/99 at 87.) Miller testified that he did not consider the information from Madison about offensive touching by line workers to be a complaint he was required to investigate. (Tr., Miller, 2/12/99 at 69.) Madison reported that Jackson and Schick saw Morales grab her buttocks whenever she went by. On March 18, 1994, Jackson — angry with Madison for “going over his head” with complaints — assigned her to utility jobs instead of training jobs. (Tr., Madison, 2/2/99 at 97.)

Madison again complained to Miller of sex and race discrimination, including harassment. The same day, Madison complained about Jackson’s actions to Olguin. Madison alleged she was subjected to sex and race discrimination. She told Olguin she was prohibited from performing her job as trainer due to her gender, and that supervisors did not treat her as a “team player,” which interfered with her ability to instruct workers. (Tr., Madison, 2/2/99 at 102-05.)

Madison sought Olguin’s and Miller’s approval of a transfer she had arranged by trading assignments with another trainer, which meant she would be working on the day shift rather than the night shift. Ol-guin and Miller asked Jackson if any race- or sex-discrimination problems concerning Madison existed, and whether Madison should be transferred. Jackson said no race- or sex-discrimination problems existed and that Madison should be allowed to transfer. (Tr., Olguin, 2/19/99 at 311-14.) McNamara was aware that Madison was seeking the transfer due to her claim of sexual harassment. (Tr., McNamara, 2/18/99 at 18.)

After Olguin and Miller approved the transfer in March 1994, Madison returned to the day shift on Gordy Laird’s line as, she thought, a trainer. Laird, however, did not want Madison to work for him as a trainer, and he told her to work the cut line in a utility position. Madison believed the supervisors now labeled her as a troublemaker. She noted that other trainers — all males — did not have to work on the cut line as often as she did. When Madison started to lift neck bones, Laird stopped her because, “that’s a man’s job.” (Tr., Madison, 2/2/99 at 111.) After a discussion, Laird let her learn this job. (Tr., Madison, 2/2/99 at 109.)

After a few weeks, Madison complained about being used as a utility worker to Miller, who said he would do nothing, because a floor supervisor or the training department could put her on any line where a trainer was needed. Madison then complained to a union steward, saw the plant nurse, and took a sick day. At this point, because she was frustrated at not receiving the trainer assignment she believed Olguin and Miller had approved when she transferred from nights, she considered downbidding to a utility position. (Tr., Madison, 2/2/99 at 104-15.)

Madison next complained to McNamara that she was working the line instead of training. He told her to record her time as training, so it would be billed to the training department. (Tr., Madison, 2/2/99 at 117-20.)

Whenever Lyle Rychnovski, another trainer, could not keep up with his work, supervisors complained to Madison about his speed, and required her to redo his work in addition to her own. (Tr., Madison, 2/2/99 at 115-118.)

When line employees called Madison “fucking bitch” on a regular basis in front of Supervisors McNamara and Dan Hacker, the supervisors responded to Madison’s complaints, “Welcome to being a manager.” (Tr., Madison, 2/2/99 at 119.) When she asked if the supervisors heard how workers addressed her, McNamara replied, “If you want to be a supervisor, this is what you’ve got to put up with sometimes.” (Tr., Madison, 2/2/99 at 119.) No IBP manager investigated or intervened to remedy the situation for Madison.

McNamara told Madison she was “too intimidating” to Asian male workers, and that she should defer to them in training more than she had done before. (Tr., Madison, 2/2/99 at 122.) He said she should keep in mind that in the Asian workers’ culture, women walk behind men. He advised her to be “extra careful” around them. (Tr., Madison, 2/2/99 at 123.) Menhusen also advised Madison to not be assertive around Hispanic males, who might not be used to taking instruction from a woman. (Tr., Menhusen, 2/16/99 at 71.)

On April 16, 1994, Madison applied to be a cut-floor supervisor. IBP chose Gary Flinn for the job. (Tr., Madison, 2/2/99 at 126.) Flinn was hired in 1990, fired in May 1991 for excessive absenteeism, and rehired in July 1991. He became a utility worker in 1992 and a trainer in 1993. (Pl.’s Ex. 534.)

In April 1994, Madison applied for a job as converting-floor supervisor, but Darrell Hose got the job. IBP could not locate Madison’s application. (Tr., Jepsen, 2/22/99 at 84-85.)

In October 1994, Madison applied for a quality-control position. IBP awarded the job to James Davis, whom Madison had trained. Madison challenged the decision, stating she had more seniority and job-related knowledge than Davis. The quality-control director said he believed Davis was a better choice for the job. (Tr., Madison, 2/2/99 at 123-125.) Madison did not grieve through the union or complain to the human resources department. IBP could not find Madison’s application, but included the job in the pretrial stipulation. (Tr., Jepsen, 2/22/99 at 85; Pl.’s Ex. 653 at ¶ 17, Pretrial Stipulation.)

In November 1994, Madison applied for the supervisor job vacated by Schick. IBP did not interview or hire Madison. (Tr., Madison, 2/2/99 at 125.)

On December 22, 1994, Madison told Miller, Olguin and Plant Manager Larry Moser that she would downbid to a cut-floor utility position because her supervisors did not support her as trainer, and because she had to undergo sexual discrimination and harassment while she tried to train employees. McNamara said if she gave up the trainer job, she would never get a promotion from him. (Tr., Madison, 2/2/99 at 133.) The supervisors asked her to sign a statement saying she downbid voluntarily. Madison refused, stating her decision was due to discrimination. IBP conducted no investigation of her complaints. (Tr., Madison, 2/2/99 at 130-33; Tr., McNamara, 2/18/99 at 111— 13.)

On December 22, 1994, Madison reported to Gordy Laird as a utility worker. She wore her trainer gear and a blue hat because the knife room, which stored safety equipment worn by utility workers, was closed. Laird told her, “Get your fucking ass in the knife room and get your fucking white hat on and get on the line.” (Tr., Madison, 2/2/99 at 136.)

Laird would not authorize Madison to wear the blue stripes on her hat that would designate her as a utility worker. (Tr., Madison, 2/2/99 at 133-38.) When Laird went on vacation, Supervisors Gary Flinn and Marty Godfrey authorized Madison to put utility-worker stripes on her hat, and they finished the paperwork for Madison’s assignment. (Tr., Madison, 2/2/99 at 139.)

In January 1995, in an effort to improve efficiency, Laird changed the utility-worker assignment system. The former system called for job assignments by the supervisor, based on seniority; Laird’s system required rotation. The change caused problems among some utility workers. One worker, Saul Villa, following Laird’s rotation system, refused to go to a different job assignment, prohibiting Madison, who had more seniority, to have the first choice of jobs. (Tr., Madison, 2/2/99 at 142.)

Madison complained about Villa to Front Line Supervisor Marty Godfrey, taking a union steward with her as a witness. God-frey thought that Villa’s position was correct, and that the rotation system applied. The union steward, Sharon McCoy, believed the union contract called for seniority to be the basis for assignments. Laird disagreed.

During a break, Madison went with the union steward to Plant Manager Larry Moser, and told him that the new assignment system was different than when she last was on this shift. Madison asked, “[W]hy do the rules change when I’m involved?” (Tr., Madison, 2/2/99 at 149.) Madison told Moser that dissension on the line existed due to the rotation system, but that it seemed to be a problem only because she was involved. Moser ordered the former assignment system reinstated, overruling Laird’s decision. (Tr., Gordy Laird, 2/17/99 at 40.)

Laird was angry with Madison because she had gone over his head. The reinstated seniority system gave Madison the work assignment that Villa preferred. Villa told her, “fuck you bitch, suck my dick.” (Tr., Madison, 2/2/99 at 146.) Villa told Madison that she could complain about Villa’s remarks to Laird, but that Laird would always side with him. Villa told Madison that since she was always in Gor-dy Laird’s office complaining, she should “suck his dick” too. (Tr., Madison, 2/2/99 at 146-47.) Madison complained to Laird about Villa’s comments and asked for help. Laird said he would talk to Villa, but he did not document any counseling or discipline. He also did not force Villa to rotate with Madison. (Tr., Madison, 2/2/99 at 145-149.)

On January 13, 1995, Madison filed a civil rights complaint with the ICRC. Union President Jim Olson helped her file the complaint. (Tr., Madison, 2/2/99 at 140.)

In 1995, Gary Laird continued harassing Madison. He remarked to her about her children, “How can you take them fucking niggers to the grocery store? I’d be embarrassed toting them fucking niggers around.” (Tr., Madison, 2/2/99 at 46-47.) Laird also made racist comments to Madison’s mother, sister, and other co-workers about how to care for Madison’s children: “[J]ust lick their lips and stick them to the wall,” and “Let them jump on the bed and put velcro on the ceiling.” (Tr., Madison, 2/2/99 at 46.) Madison’s family and friends told her about these comments. They agreed not to tell James Madison, however, to avoid the chance of any workplace altercation that could result in James’ termination. (Tr., Madison, 2/2/99 at 46,127-29.)

Madison and two co-workers, Rhonda Carlson and Tom Morrell, complained to Supervisors Gordy Laird, Larry Sipple, and Gary Flinn, and to Olguin about Gary Laird’s racist remarks. The supervisors took Gary Laird’s remarks lightly. (Tr., Morrell, 2/4/99 at 7-8; Tr., Carlson, 2/5/99 at 112.) Once, when Carlson heard Madison tell Gary she would report him for making racist remarks, Gary replied, “I don’t give a fuck.” (Tr., Carlson, 2/5/99 at 113.) Carlson found it futile to complain about Gary to supervisors. (Tr., Carlson, 2/5/99 at 112-13,160.)

From May through August 1995, Madison’s co-worker Khristy Lovan overheard Gary Laird make racist comments about Madison’s children in front of Supervisor Roger Baumgardner, who laughed and took no remedial action. (Tr., Lovan, 2/4/99 at 83.)

No supervisor took action regarding Gary’s racist language until August 1995, when Gordy Laird told Gary to avoid Madison and her family. This meeting was undocumented until 1998. Gordy Laird testified that no one ever told him to follow up on complaints of sexual or racial harassment to see if the offending behavior had ceased. (Tr., Gordy Laird, 2/16/99 at 19.) At his deposition in 1998, Gary Laird admitted to continuing to make racist comments at IBP to Madison’s mother and sister on a regular basis up to that time. (Tr., Gary Laird, 2/8/99 at 53-62.)

Throughout 1994 and 1995, Madison applied for supervisory openings, but did not get one. (Tr., Madison, 2/2/99 at 175-80.) On June 27, 1995, for example, Madison applied to be a cut-floor trainer. (Pl.’s Ex. 17.) When she learned Jose Fuentes would be awarded the job, Madison complained to Plant Manager Moser, who told her that although she had more seniority and had held the position previously, Fuentes was awarded the job because he was bilingual. (Tr., Madison, 2/2/99 at 150-53.) At some undocumented point in the mid-1990’s, the trainer job announcements were changed to include “bilingual a plus” as one of the skills sought. Because the entire application file for this position is missing, it is unknown whether being bilingual was a skill listed when this job was posted in 1995. (Tr., Olguin, 2/19/99 at 259.) Moser also told Madison she had a bad attitude and complained too much. Madison testified that Moser said he would consider her for a promotion when she acknowledged him in the hallways, and acted more politely and displayed a better attitude than she had previously. (Tr., Madison, 2/2/99 at 154.) He advised Madison to put up with sexual and racial harassment as part of being a manager. (Tr., Madison, 2/2/99 at 155.)

On August 25, 1995, the ICRC hosted a mediation session to resolve Madison’s complaint. Madison attended with Olson. (Tr., Ott, 2/10/99 at 47.) Ott, Olguin, Miller and Curtis Dixon represented IBP. Madison told IBP representatives about the pattern of sex and race discrimination, including harassment, to which she had been subjected, but she wanted the discussion to focus on IBP’s failure to promote her to the trainer job given to Fuentes, which she identified as the most recent example of sex discrimination. She then asked for a trainer position, which IBP did not award her.

Following the mediation session, Ott told Gordy Laird to warn his brother Gary, not to use the word “nigger” around Madison or her family. (Tr., Ott, 2/11/99 at 75.) Gordy Laird met with Gary and told him to have nothing to do with Madison or her family members who worked at IBP. (Tr., Gordy Laird, 2/16/99 at 58, 62, 140.) This meeting is not documented or noted in Gary Laird’s disciplinary file until after his 1998 deposition. (Tr., Ott, 2/11/99 at 76; Tr., Gary Laird, 2/8/99 at 58; Tr., Gordy-Laird, 2/16/99 at 48.)

In September 1995, Madison filed a union grievance concerning IBP’s failure to promote her to the cut-floor trainer job given to Fuentes. IBP denied the grievance. Moser stated Fuentes received the trainer position because he had more job knowledge and seniority than did Madison. (Tr., Madison, 2/2/99 at 150-158; Pl.’s Ex. 45.) In November 1995, IBP denied Madison’s appeal, again citing seniority as the reason for the decision. (PL’s Ex. 45.) Olguin and Jepsen testified that seniority is not a factor in appointment to trainer positions. (Tr., Olguin, 2/19/99 at 299; Tr., Jepsen, 2/23/99 at 30.)

From December 1994 to March 1996, Madison was subjected to regular verbal and physical abuse. Line workers threw blood clots at her, grabbed her buttocks and breasts, rubbed up against her, and humped her leg, and Marcelino Alarcon carried her around. (Tr., Madison, 2/2/99 at 159.) Certain workers called Madison vulgar names. Villa told her, “all American women are whores.” (Tr., Madison, 2/2/99 at 165.) Madison complained directly to these men, telling them to stop, and to her supervisors. At times, these incidents were witnessed by supervisors Gary Flinn and Marty Godfrey, who did not intervene, in spite of Madison’s direct request for help, such as when she told the supervisors to “get him [Alarcon] away from me before I hurt him.” (Tr., Madison, 2/2/99 at 164.) To stop the men from harassing her, Madison kneed the harassers in their groins.

The supervisors told everyone to stop the “horseplay.” Gordy Laird gave Villa and Gregario Sarcino a verbal warning notation on their records for sexual harassment. There is no counseling noted in Aarcon’s file. (Tr., Madison, 2/2/99 at 161; Tr., Olguin, 2/19/99 at 278; PL’s Ex. 215, 219, 220.) Madison was not given a disciplinary report for the “horseplay.” Laird, however, told Madison that if she continued to complain, he would see that she was written up for discipline, as having “started it”; and that for each complaint she made against a male worker, he would give her a disciplinary report, so that accruing reports would quickly lead to her dismissal. (Tr., Madison, 2/2/99 at 160-63.)

On February 1, 1996, IBP appointed Gary Hedlund as cut-floor supervisor. Madison may have applied. No completed application forms for this job remain in IBP’s files.

In February 1996, Madison complained to Moser that Aarcon had repeatedly grabbed her. Madison tried to avoid Aar-con, but was required to give him breaks from the line. He continued to grab her when she worked near him. Aarcon’s actions affected Madison’s work, and she always brought a witness when she had contact with him. She asked Godfrey to stop Aarcon from grabbing her, but Godfrey just laughed. (Tr., Madison, 2/2/99 at 164.) In response to Madison’s complaints about Aarcon’s behavior, Supervisor Moser told Madison the world was not perfect, and that if she wanted to be a manager, she would have to “deal with it.” (Tr., Madison, 2/2/99 at 162-63.) Aarcon was not disciplined for his actions toward Madison. (PL’s Ex. 220.)

On February 9, 1996, Madison complained again about physical and verbal sexual harassment by Villa, Sarcino, and Aarcon. Madison told Olguin these men were harassing her and other women on the line, by calling them vulgar names; grabbing them; carving hog fat into penises that they sent down the line to female workers; and starting rumors that two of the women, Esmeralda Garrido and Eva Salcedo, were having an affair with Supervisor Godfrey. (Tr., Madison, 2/2/99 at 169-170.) The other two women went with Madison to complain to Olguin. The women brought the union steward as a witness. Olguin said the male workers would be disciplined “this time.” (Tr., Madison, 2/2/99 at 170.) The three men received verbal warnings for starting rumors and “horseplay.” (Tr., Madison, 2/2/99 at 169; Tr., Olguin, 2/19/99 at 329; PL’s Ex. 26.)

In March 1996, Madison took a lateral transfer to work in the laundry room to learn more jobs to increase her chance for promotion. (Tr., Madison, 2/2/99 at 174.) The laundry room adjoined the men’s locker room, which contained graffiti on the lockers, including gang signs, signs depicting KKK, swastikas, and the term puta, which is Spanish for “whore.” Madison complained about the graffiti to Grothe, who took no action in response to her complaints. (Tr., Madison, 2/2/99 at 204.) Grothe noted the company repaints lockers regularly. (Tr., Grothe, 2/9/99 at 61, 74.) Morrell testified that between 1996 and 1998, he saw racial slurs such as, “the only good nigger is a dead nigger,” and racial epithets written in English and Spanish on the lockers. (Tr., Morrell, 2/4/99 at 25.)

On April 3, 1996, Madison amended her ICRC complaint to add a racial discrimination and harassment claim. (Tr., Madison, 2/3/99 at 326.)

On April 18, 1996, at Gordy Laird’s request Madison returned to the cut floor as a utility worker. On one occasion, Godfrey assigned Madison to rework product. Reworking is a quality-control process in which workers spot check cryovac-pac