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Ellison v. Plumbers and Steam Fitters Union Local 3758/19/2005
No. 5934
Before: Bryner, Chief Justice, Matthews, Eastaugh, Fabe, and Carpeneti, Justices.
I. INTRODUCTION
Lori Ellison sued her former union, Local 375, and the union's stewards at her former work site, Kirk Jackson and James Ballam, for sexual harassment and aiding and abetting discrimination under AS 18.80.220 and 18.80.260. The superior court ruled against her on these claims, and granted attorney's fees to the union and stewards under both Civil Rules 68 and 82. Ellison appeals. Because the union has no duty to investigate sexual harassment on the part of the employer sua sponte and because Ellison has not shown that she asked the union to file a grievance or take other action, we affirm the judgment. However, we reverse the superior court's award of Rule 82 fees because we conclude that Rule 68 prohibits receiving fees under both rules.
II. FACTS AND PROCEEDINGS
Lori Ellison was a pipefitter dispatched to work in the fabrication shop for H.C. Price on the Healy Clean Coal Project ("HCCP") in April 1996. Ellison, apparently the only female pipefitter in the fabrication shop, was subjected to a number of incidents that she perceived to be based on her gender during the course of her employment. These included her male co-workers' complaints that Ellison was getting preferential treatment because she was initially assigned to do paperwork, as well as threatening and vulgar graffiti on welding screens, her work area and in the men's outhouse. In addition, someone posted an altered picture of her from the company newsletter with sexual profanity, and created a display of a tampon and "cramp pills" that indicated "in case of a cranky mood, break the glass."
Ellison reported five incidents to the stewards, who were on the job site but only occasionally in the fabrication shop where Ellison worked. James Ballam was the union steward until he left in about mid-March 1997, after which Kirk Jackson became the steward.
First, Ellison reported a co-worker's "spreading lies" in the spring or summer of 1996; Ballam addressed this issue, apparently to Ellison's satisfaction. Second, she reported the fabrication shop foreman Doug Gyuriscko's denial of her request to leave early in October 1996; Ellison was still not permitted to leave early, despite complaining to Ballam and Price supervisors. Third, she told Ballam and Price supervisors that her safety glasses were deliberately scratched and gouged in late January 1997. She was provided with new safety glasses. Apparently no one investigated, although Ballam may have discussed the incident with her co-workers. In addition to Ellison's three reports, Ballam was aware of the men's preferential treatment complaints.
The fourth incident was reported to steward Jackson in April 1997. Ellison told Jackson and the assistant general foreman about a co-worker calling her "bitch" during a dispute. The assistant general foreman, who was a union member, indicated to Ellison that he wanted to keep the issue "in house," which Ellison interpreted as meaning within the union. Ellison agreed to accept an apology from the co-worker and continue working with him, although the fabrication shop crew openly supported her co-worker. Lastly, Ellison showed Jackson and Gyuriscko threatening graffiti on her welding screen and desk in early May 1997. Gyuriscko said he would alert Price management, although other Price supervisors, at least one of whom was a union member, apparently wanted to handle the matter within the union.
Jackson also heard about many of the other incidents during two meetings held with Price management in May 1997. Ellison gave notice she was quittin
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