Drew v. First Sav. of NH CV-95-495-SD.P 04/02/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Eunice Drew; Joan Wentworth
v. Civil No. 95-495-SD
First Savings of New Hampshire; Stephanie Kruv
O R D E R
Plaintiffs object to a Report and Recommendation (R & R) of
the magistrate judge. The court has conducted the reguisite de
novo review of the R & R. 28 U.S.C. § 636(b)(1)(C); Elmendorf
Grafica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 49-50
(1st Cir. 19 95).
1. Background1
Plaintiffs Eunice Drew and Joan Wentworth are former
1As the R & R at issue concerned a motion to dismiss filed by defendant First Savings of New Hampshire (Bank) , the alleged facts herein, taken from plaintiffs' complaint, are considered as true, indulging every inference helpful to plaintiffs' cause. Garita Hotel, Ltd. v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir. 1992) . employees of defendant Bank. Seeking relief under federal and
state law, they claim money damages for perceived sexual harass
ment against them by defendant Stephanie Kruy, a supervisory
employee of Bank.2
Drew was employed by Bank as a servicing clerk,
receptionist, and switchboard operator in the period between
October 1991 and January 20, 1995. Wentworth's employment as a
receptionist and customer service representative commenced in
June 1986 and terminated on February 24, 1995. Each of the
plaintiffs was employed in Bank's main office located in Exeter,
New Hampshire.
In early January 1995 defendant Kruy transferred from Bank's
Stratham office to become branch manager of Bank's main office.
Within a short time of her arrival, Kruy instituted a policy she
had employed in Stratham since 1993 that reguired female
employees of the Bank to hug her when receiving their paychecks.
Plaintiffs had previously heard of this practice, considered it
to be repugnant, and believed that Kruy was a lesbian.3
21he federal law claims directed against Bank are grounded on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. Kruy is charged with the tort of battery under state law .
3Kruy has apparently denied under oath that she is a lesbian, but, for purposes of resolution of the issue now before
2 The first payday after Kruy commenced her employment at
Bank's main office fell on January 5, 1995. On that date, Kruy
exclaimed, "I look forward to Thursdays because I get to hug
everyone before I give them their paychecks." Kruy then hugged
Bank's female employees, including Drew, and gave each of them,
in addition to the paycheck, a bagful of chocolate hearts and a
note signed, "Love, Steph." Drew described the January 5 embrace
as a "full frontal hug."
As Wentworth was out sick from work on January 5, she
expected Bank to follow its former practice of mailing her
paycheck. However, when she returned to work on January 9, she
also received the "full frontal hug," together with the bag of
candy and note.
On that day, January 9, Wentworth complained of this hugging
policy to Carol Cross of Bank's Human Resources Department.
Wentworth also inguired of Cross whether there had been other
such complaints. Cross, who had been receiving complaints of
Kruy's hugging policy, falsely answered this inguiry in the nega
tive. Wentworth did not therefore press the matter, and Cross
did not further investigate or take further action.
Kruy repeated the hugging practice on the next payday.
the court, the court assumes plaintiffs' allegations to be true.
3 January 12, 1995. Neither the complaint nor plaintiffs' legal
memo claims that plaintiffs were recipients of hugs, but the
complaint does allege that plaintiffs felt "humiliated, degraded,
and helpless because it was obvious that [Bank] was going to
allow Stephanie Kruy to continue" such conduct. Plaintiffs
further allege that the close friendship between Kruy and Brenda
Dolan, Senior Vice President of Bank, made them afraid to further
press the matter.
Kruy was absent from the Bank on January 19, and paychecks
were distributed without hugs by a representative of the Human
Resources Department. Drew observed that other female employees
were relieved that they were not subjected to the hugging
practice, and she expressed her own relief to the Human Resources
representative.
On January 20, 1995, Kruy approached Drew with complaints
about her performance as a switchboard operator. Drew's response
was to tell Kruy she could not continue working for someone who
reguired hugs from her female subordinates as a condition of
receipt of paychecks. Drew then tendered her resignation onthe
ground that she had been under continued sexual harassment, which
was causing her stress, and that the Human Resources Department
had failed to put an end to this harassment.
4 Cross distributed the paychecks on January 26, 1995. When
she gave Wentworth her paycheck, she advised Wentworth that their
prior conversation of January 9 "had never taken place as it
could mean my job." Distressed by this conversation, which
Wentworth interpreted to mean that improper pressure was being
put on Cross by Kruy and Dolan, Wentworth was stricken with an
unspecified illness, and her doctor put her on sick leave as of
February 13, 1995. On February 24, 1995, Wentworth tendered her
resignation because "she was physically and emotionally unable to
return to [Bank] to work in an environment that condoned and
fostered degradation and humiliation of its female employees."
Kruy was never disciplined by Bank for her hugging practice,
and in fact she was named employee of the month in March 1995.
Defendant Bank moved to dismiss plaintiffs' Title VII claim
(document 11), and plaintiffs objected (document 12). The motion
was referred to the magistrate judge, who filed his R & R, which
recommended that the motion to dismiss be granted as to
plaintiffs' Title VII claims and that the exercise of supple
mental jurisdiction over the remaining claims be denied. Docu
ment 21, at 16, 17.4 Plaintiffs filed a timely objection to the
4Initially, the magistrate judge considered and correctly rejected Bank's claim that "same sex" sexual harassment was not actionable under Title VII. Document 21, at 7 (citing King v.
5 R & R. Document 22.
2. Discussion
Under Title VII, it is "an unlawful employment practice for
an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2 (a) (1) . And sexual
harassment constitutes unlawful discrimination under Title VII.
Meritor Savings Bank, F.S.B. v.
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Drew v. First Sav. of NH CV-95-495-SD.P 04/02/97
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Eunice Drew; Joan Wentworth
v. Civil No. 95-495-SD
First Savings of New Hampshire; Stephanie Kruv
O R D E R
Plaintiffs object to a Report and Recommendation (R & R) of
the magistrate judge. The court has conducted the reguisite de
novo review of the R & R. 28 U.S.C. § 636(b)(1)(C); Elmendorf
Grafica, Inc. v. D.S. America (East), Inc., 48 F.3d 46, 49-50
(1st Cir. 19 95).
1. Background1
Plaintiffs Eunice Drew and Joan Wentworth are former
1As the R & R at issue concerned a motion to dismiss filed by defendant First Savings of New Hampshire (Bank) , the alleged facts herein, taken from plaintiffs' complaint, are considered as true, indulging every inference helpful to plaintiffs' cause. Garita Hotel, Ltd. v. Ponce Fed. Bank, 958 F.2d 15, 17 (1st Cir. 1992) . employees of defendant Bank. Seeking relief under federal and
state law, they claim money damages for perceived sexual harass
ment against them by defendant Stephanie Kruy, a supervisory
employee of Bank.2
Drew was employed by Bank as a servicing clerk,
receptionist, and switchboard operator in the period between
October 1991 and January 20, 1995. Wentworth's employment as a
receptionist and customer service representative commenced in
June 1986 and terminated on February 24, 1995. Each of the
plaintiffs was employed in Bank's main office located in Exeter,
New Hampshire.
In early January 1995 defendant Kruy transferred from Bank's
Stratham office to become branch manager of Bank's main office.
Within a short time of her arrival, Kruy instituted a policy she
had employed in Stratham since 1993 that reguired female
employees of the Bank to hug her when receiving their paychecks.
Plaintiffs had previously heard of this practice, considered it
to be repugnant, and believed that Kruy was a lesbian.3
21he federal law claims directed against Bank are grounded on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. Kruy is charged with the tort of battery under state law .
3Kruy has apparently denied under oath that she is a lesbian, but, for purposes of resolution of the issue now before
2 The first payday after Kruy commenced her employment at
Bank's main office fell on January 5, 1995. On that date, Kruy
exclaimed, "I look forward to Thursdays because I get to hug
everyone before I give them their paychecks." Kruy then hugged
Bank's female employees, including Drew, and gave each of them,
in addition to the paycheck, a bagful of chocolate hearts and a
note signed, "Love, Steph." Drew described the January 5 embrace
as a "full frontal hug."
As Wentworth was out sick from work on January 5, she
expected Bank to follow its former practice of mailing her
paycheck. However, when she returned to work on January 9, she
also received the "full frontal hug," together with the bag of
candy and note.
On that day, January 9, Wentworth complained of this hugging
policy to Carol Cross of Bank's Human Resources Department.
Wentworth also inguired of Cross whether there had been other
such complaints. Cross, who had been receiving complaints of
Kruy's hugging policy, falsely answered this inguiry in the nega
tive. Wentworth did not therefore press the matter, and Cross
did not further investigate or take further action.
Kruy repeated the hugging practice on the next payday.
the court, the court assumes plaintiffs' allegations to be true.
3 January 12, 1995. Neither the complaint nor plaintiffs' legal
memo claims that plaintiffs were recipients of hugs, but the
complaint does allege that plaintiffs felt "humiliated, degraded,
and helpless because it was obvious that [Bank] was going to
allow Stephanie Kruy to continue" such conduct. Plaintiffs
further allege that the close friendship between Kruy and Brenda
Dolan, Senior Vice President of Bank, made them afraid to further
press the matter.
Kruy was absent from the Bank on January 19, and paychecks
were distributed without hugs by a representative of the Human
Resources Department. Drew observed that other female employees
were relieved that they were not subjected to the hugging
practice, and she expressed her own relief to the Human Resources
representative.
On January 20, 1995, Kruy approached Drew with complaints
about her performance as a switchboard operator. Drew's response
was to tell Kruy she could not continue working for someone who
reguired hugs from her female subordinates as a condition of
receipt of paychecks. Drew then tendered her resignation onthe
ground that she had been under continued sexual harassment, which
was causing her stress, and that the Human Resources Department
had failed to put an end to this harassment.
4 Cross distributed the paychecks on January 26, 1995. When
she gave Wentworth her paycheck, she advised Wentworth that their
prior conversation of January 9 "had never taken place as it
could mean my job." Distressed by this conversation, which
Wentworth interpreted to mean that improper pressure was being
put on Cross by Kruy and Dolan, Wentworth was stricken with an
unspecified illness, and her doctor put her on sick leave as of
February 13, 1995. On February 24, 1995, Wentworth tendered her
resignation because "she was physically and emotionally unable to
return to [Bank] to work in an environment that condoned and
fostered degradation and humiliation of its female employees."
Kruy was never disciplined by Bank for her hugging practice,
and in fact she was named employee of the month in March 1995.
Defendant Bank moved to dismiss plaintiffs' Title VII claim
(document 11), and plaintiffs objected (document 12). The motion
was referred to the magistrate judge, who filed his R & R, which
recommended that the motion to dismiss be granted as to
plaintiffs' Title VII claims and that the exercise of supple
mental jurisdiction over the remaining claims be denied. Docu
ment 21, at 16, 17.4 Plaintiffs filed a timely objection to the
4Initially, the magistrate judge considered and correctly rejected Bank's claim that "same sex" sexual harassment was not actionable under Title VII. Document 21, at 7 (citing King v.
5 R & R. Document 22.
2. Discussion
Under Title VII, it is "an unlawful employment practice for
an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2 (a) (1) . And sexual
harassment constitutes unlawful discrimination under Title VII.
Meritor Savings Bank, F.S.B. v. Vinton, 477 U.S. 57, 66 (1986).
Workplace sexual harassment may take either of two forms.
"Quid pro guo harassment" consists of promises of favorable
treatment or threats of unfavorable treatment calculated to
coerce an employee into submitting to unwelcome sexual advances.
Lattimore v. Polaroid Corp., 99 F.3d 456, 463 (1st Cir. 1996).
"Hostile environment harassment" consists of "offensive gender-
based conduct that is 'severe or pervasive enough to create an
objectively hostile or abusive work environment--an environment
that a reasonable person would find hostile or abusive' and is
subjectively perceived by the victim to be abusive." Id.
Town of Hanover, No. 94-274-JD (D.N.H. May 17, 1996)). The magistrate judge also recommended the mooting of plaintiffs' motion to strike defendants' reply brief.
6 (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)). The instant case is a "hostile environment harassment"
case.
The determination of whether a plaintiff has established a
hostile or abusive workplace environment requires the court to
consider all of the circumstances, but particularly those con
cerning (1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether it is physically threatening or humiliating
rather than a mere offensive utterance; and (4) whether it
unreasonably interferes with an employee's work performance.
Brown v. Hot, Sexy & Safer Productions, Inc., 68 F.3d 525, 540
(1st Cir. 1995), cert, denied, ___ U.S. , 116 S. C t . 1044
(1996) (citing Harris, supra, 510 U.S. at 23) .5 As previously
indicated, the relevant factors must be viewed both subjectively
and objectively. Id.
Viewed through such legal lens, the circumstances of which
plaintiffs here complain do not serve to bring their claims
within the purview of Title VII. The gist of the complaint
concerns two uninvited hugs over a three-week period, accompanied
by candy and "Love, Steph" notes, and the falsehood told Went
5Although Brown was a Title IX case, it made use of the quoted elements which were taken from Title VII cases.
7 worth, followed by a request for protective silence from a
supervisory employee. Moreover, it appears that the first time
plaintiffs directly complained to Kruy that they found her
hugging practice offensive was on the occasion of Drew's resigna
tion, which occurred on January 20, 1995. Thereafter, the hugs
did not continue.
This is not the type of case which this Circuit,6 applying
the Harris factors, would find "sufficiently severe or pervasive
to . . . create an abusive working environment." Morrison v.
Carleton Woolen Mills, Inc., No. 96-1224, slip op. at 18 (1st
Cir. Mar. 19, 1997) (citing and quoting Lipsett v. University of
Puerto Rico, 864 F.2d, 881, 897-98 (1st Cir. 1988)). See also
Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782-83 (1st Cir.
1990) .
It follows that the magistrate judge correctly recommended
that the Title VII claims of the plaintiffs be dismissed. The
R & R is, accordingly, accepted without modification.
6In the R & R, the magistrate judge cited as comparative examples certain Seventh Circuit cases, and plaintiffs attack on the unsupported ground that these decisions demonstrate hostility to and a desire of that Circuit to clear its docket of unwanted sexual harassment cases. The court finds it unnecessary to enter this dispute, as the law of the First Circuit is sufficiently clear to permit it to resolve the issues currently before it. 3. Conclusion
The Report and Recommendation of the magistrate judge
(document 21) is accepted without modification.
It is accordingly herewith ordered that the defendants'
motion to dismiss (document 11) be granted insofar as it seeks
dismissal of plaintiffs' Title VII claims. As those claims form
the sole basis for federal jurisdiction, the court declines to
exercise supplemental jurisdiction over the remaining state law
claims. 28 U.S.C. § 1367(c)(3). The plaintiffs' motion to
strike (document 15) is mooted by these orders.
The clerk is directed to close this case.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
April 2, 1997
cc: Charles G. Douglas III, Esg. Mark I. Broth, Esg. Martha V. Gordon, Esg.