Gauthier v . NH Dept. of Corrections CV-98-298-M 08/28/00 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kathleen Lohnes Gauthier, Plaintiff
v. Civil N o . 98-298-M Opinion N o . 2000 DNH 190 New Hampshire Department of Corrections, Defendant
O R D E R
Kathleen Lohnes Gauthier brings this action pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., seeking damages for what she claims was a hostile work
environment and quid pro quo sexual harassment. Gauthier’s
former employer and defendant in this proceeding, the New
Hampshire Department of Corrections, denies liability and has
moved for summary judgment. Gauthier objects.
Standard of Review
Summary judgment is appropriate when the record reveals “no
genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). In this context, “a fact is ‘material’ if it potentially
affects the outcome of the suit and a dispute over it is
‘genuine’ if the parties’ positions on the issue are supported by
conflicting evidence.” Intern’l Ass’n of Machinists and
Aerospace Workers v . Winship Green Nursing Center, 103 F.3d 196,
199-200 (1st Cir. 1996) (citations omitted). And, when ruling
upon a party’s motion for summary judgment, the court must “view
the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in
that party’s favor.” Griggs-Ryan v . Smith, 904 F.2d 112, 115
(1st Cir. 1990).
Background
Viewing the record in the light most favorable to plaintiff,
the material facts appear as follows. Gauthier began work at the
New Hampshire Department of Corrections (“DOC”) in August of
1994, as a correctional trainee at the Men’s Prison in Concord,
New Hampshire. In the Spring of 1995, she attended the
2 correctional academy, where she received training i n , among other
things, the DOC policy prohibiting sexual harassment and its
procedures for reporting complaints.
After completing her training at the correctional academy,
Gauthier was assigned to work at the Women’s Prison in Goffstown.
In June of 1996, at her request, she was transferred to the Men’s
Prison. Gauthier resigned from her position at the Men’s Prison
in June of 1997, complaining that she was the subject of ongoing
sexual harassment by her co-workers and supervisors. On
September 5 , 1997, Gauthier filed a complaint with the New
Hampshire Human Rights Commission (the “HRC”). In February of
1998, the Equal Employment Opportunity Commission issued a “right
to sue letter,” and on May 1 1 , 1998, she initiated this suit.
Gauthier alleges that she was subjected to sexual harassment
by her immediate supervisor, Sergeant Gathercole, as well as
several other DOC employees, including Sergeant Thyng, Sergeant
Tarillo, Corporal Brochu, Officer Patrick, Officer Kingsbury,
3 Officer Lacert, and Counselor Hart. She concedes, however, that
she failed to exhaust her administrative remedies with regard to
the alleged conduct of Officers Kingsbury and Lacert, which
apparently occurred while Gauthier was assigned to the Women’s
Prison, during 1995 and 1996. She also acknowledges that part of
Officer Patrick’s alleged conduct occurred in 1994 and 1995 and,
therefore, more than 300 days before she filed her complaint with
the HRC. See 42 U.S.C. § 2000e-5(e)(1).
Gauthier’s complaint includes references to numerous
incidents of alleged sexual harassment by her co-workers and
supervisors. They need not be recounted in detail. It is
sufficient to note that, if the allegations are true (and they
must be accepted as true at this stage), plaintiff was subjected
to fairly pervasive, severe, and ongoing sexual harassment, which
included sexually explicit jokes, comments, and remarks by
Sergeant Gathercole. Complaint at para. 10. These comments
included Gathercole’s alleged statements about sexually explicit
dreams he had had about Gauthier, references to his having
4 masturbated while at work, and questions such as whether she put
sunscreen on her nipples when she went to the beach. Other
incidents involved DOC employees touching plaintiff
inappropriately, commenting on her breasts, discussing how exotic
dancers they had seen frequently shaved their pubic areas, and
telling Gauthier things such as how they would like to “bend
[plaintiff] over his desk for payment.” Plaintiff’s deposition
at 4 1 .
The DOC’s sexual harassment policy provides that any
employee who believes that he or she has been subjected to
unlawful discrimination “may file a complaint in writing with a
Discrimination Review Committee.” DOC Policy and Procedure
Directive 2.15, Exhibit G to defendant’s memorandum (document n o .
14). The State of New Hampshire Policy of Sexual Harassment,
which is attached to the DOC sexual harassment policy, provides
that any employee of the State may file a complaint of sexual
harassment, either orally or in writing, to the Director of the
Division of Personnel. Alternatively, “[c]omplaints may also be
5 accepted by a supervisor, who shall then refer the complaint to
the Director.” Id., at Section III(A).
Additionally, after completing sexual harassment training,
each DOC employee is required to sign a form, acknowledging that
he or she has received such training. That form further requires
the employee to acknowledge that “I have the right and the
responsibility to either communicate [complaints of sexual
harassment] directly to the harasser or to a non-involved
supervisor.” Acknowledgment of Sexual Harassment Training,
Exhibit C to defendant’s memorandum. Thus, it is evident that
employees of the DOC may, pursuant to the sexual harassment
policies implemented by both the State and the DOC, report
incidents of alleged sexual harassment either orally or in
writing. And, such reports may be directed to one or more of
several individuals, including the alleged harasser or a non-
involved supervisor.
6 Gauthier admits that during the course of her employment she
never filed a written complaint of sexual harassment with her
supervisor(s), the Discrimination Review Committee, or the
Director of Personnel. She does, however, say that she
repeatedly complained of unwelcome sexual harassment to Corporal
Brochu, Lieutenant Dragon, and Lieutenant Hogan. Defendant
vigorously disputes that claim. See Defendant’s memorandum at
24-25. Nevertheless, for purposes of ruling on defendant’s
motion for summary judgment, the court must accept it as true.
According to Gauthier, none of her complaints resulted in
any sort of investigation nor did they serve to stop the
harassment (again, defendant denies that claim). Following her
resignation, however, Gauthier, through her attorney, filed a
written complaint of sexual harassment. At that point, defendant
promptly began an investigation into Gauthier’s claims. That
investigation revealed that Counselor Hart, Sergeant Tarillo, and
Sergeant Gathercole had all engaged in inappropriate sexual
conduct. Tarillo and Hart were disciplined and, because of the
7 severity of Gathercole’s conduct, his employment was terminated.
Discussion
I. Exhaustion of Administrative Remedies.
Title VII obligates plaintiffs to exhaust administrative
remedies before filing suit in federal court. See Lawton v .
State Mutual Life Assurance C o . of America, 101 F.3d 218, 221
(1st Cir. 1996). The general rule provides that charges of
discrimination must be filed with the EEOC within 180 days of the
discriminatory act, unless the charge is first filed with an
authorized state agency, in which case it must be filed with the
EEOC within 300 days of the discriminatory act. See 42 U.S.C.A.
§ 2000e-5(e); E.E.O.C. v . Commercial Office Products Co., 486
U.S. 107, 110 (1988).
The purpose of requiring an employee to file a charge of
discrimination is “to provide the employer with prompt notice of
the claim and to create an opportunity for early conciliation.”
8 Lattimore v . Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996).
Plainly, it would frustrate that purpose “if the employee were
permitted to allege one thing in the administrative charge and
later allege something entirely different in a subsequent civil
action.” Id. Consequently, the Court of Appeals has held that
“the scope of the civil complaint is . . . limited by the charge
filed with the EEOC and the investigation which can reasonably be
expected to grow out of that charge.” Powers v . Grinnell Corp.,
915 F.2d 3 4 , 38 (1st Cir. 1990) (citation and quotation marks
omitted).
Here, the complaint Gauthier filed with the HRC addresses
only alleged acts of sexual harassment while she was employed at
the Men’s prison. It makes no reference to alleged sexual
harassment, whether committed by Kingsbury, Lacert, or others,
while she was employed at the Women’s Prison. And, as noted
above, Gauthier concedes that any claims relating to alleged
sexual harassment while she was at the Women’s Prison occurred
more than 300 days prior to the filing of her complaint with the
9 HRC. Consequently, only Gauthier’s claim that she was subjected
to unlawful sexual harassment while she was employed at the Men’s
Prison requires analysis.
As to Gauthier’s claims regarding the alleged harassment of
Brochu and Tarillo, defendant says that she cannot show that such
conduct occurred within 300 days of her having filed the
complaint with the HRC. Instead, defendant says that, at best,
all Gauthier can show is that Brochu and Tarillo sexually
harassed her at some point during her tenure at the Men’s Prison,
at least four months of which occurred outside of the 300-day
window established by Title VII. See Defendant’s Memorandum at
14 (“Plaintiff is unable to meet this burden, since she admits
that she does not know when these events [relating to Brochu and
Tarillo] happened, and thus cannot established that they occurred
[within 300 days of filing her complaint].”) Gauthier disagrees,
saying that while she cannot identify the precise dates on which
Brochu and Tarillo harassed her, she can say with confidence that
their unlawful conduct “occurred regularly during the year [she]
10 was assigned to the men’s prison,” see plaintiff’s responses to
interrogatories, and such conduct occurred “repeatedly” and “on
many occasions.” See Plaintiff’s deposition at 28-31;
Plaintiff’s complaint filed with the HRC.
At this stage of the litigation, therefore, Gauthier has
alleged sufficient facts to support a claim that the conduct
ascribed to Brochu and Tarillo constitutes a “continuing
violation” under Title VII, at least a portion of which occurred
within the 300-day limit. See generally, Thomas v . Eastman Kodak
Co., 183 F.3d 3 8 , 53-54 (1st Cir. 1999), cert. denied, 120 S.Ct.
1174 (2000); Lawton, 101 F.3d 218, 221 (1st Cir. 1996).
Consequently, to the extent defendant asserts that, as a matter
of law, Gauthier’s claims relating to the alleged conduct of
Brochu and Tarillo is time barred, the court disagrees.
II. Title VII and Employer Liability.
Title VII of the Civil Rights Act of 1964 (as amended) makes
it unlawful for employers “to fail or refuse to hire or to
11 discharge any individual, or otherwise discriminate against any
individual with respect to his compensation, terms, conditions,
or privileges of employment because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a). As a result, the Supreme Court
has held that “sexual harassment so ‘severe or pervasive’ as to
‘alter the conditions of [the victim’s] employment and create an
abusive working environment’ violates Title VII.” Faragher v .
City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor
Savings Bank, FSB v . Vinson, 477 U.S. 5 7 , 67 (1986)).
The Supreme Court has also distinguished between two types
of sexual harassment claims that are actionable under Title VII:
quid pro quo harassment and hostile work environment harassment.
[In Meritor], we assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer’s sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. The principle significance of
12 the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive.
Burlington Industries, Inc. v . Ellerth, 524 U.S. 7 4 2 , 752
(1998). See generally Meritor, 477 U.S. at 6 5 . In this case,
Gauthier claims she was subject to both quid pro quo and hostile
environment sexual harassment. With regard to the former, her
claim appears to be limited to the allegation that Sergeant Thyng
repeatedly requested that she go out with him, prompting Gauthier
to fear that if she refused those requests, Thyng would hinder
her ability to secure a transfer away from Sergeant Gathercole
(the DOC employee who Gauthier says subjected her to the most
offensive and pervasive harassment).
Defendant moves for summary judgment, asserting that
Gauthier cannot, as a matter of law, point to sufficient facts to
hold it liable for the allegedly wrongful conduct of either its
supervisory or non-supervisory employees. Gauthier objects.
13 A. Employer Liability for Non-Supervisory Employees.
Under Title V I I , employers are not strictly liable for
unlawful sexual harassment committed by their employees. See
generally Burlington Industries, supra. Thus, as the Court of
Appeals for the Seventh Circuit has held:
The liability of an employer for sexual harassment by one nonsupervisory employee of another is not strict. The plaintiff must prove that the employer was negligent in having failed to discover and prevent i t . The sheer pervasiveness of the harassment might support an inference that the employer must have known of i t , as might a complaint from someone other than the victim.
Zimmerman v . Cook County Sheriff’s Department, 96 F.3d 1017,
1018-19 (7th Cir. 1996).
Here, Gauthier has pointed to sufficient facts to withstand
defendant’s motion for summary judgment as to the allegedly
unlawful conduct of its non-supervisory employees. First,
Gauthier alleges that she repeatedly informed supervisory
employees of the sexual harassment to which she claims to have
been subjected. And, it would appear that under the sexual
14 harassment policies implemented by DOC and the State of New
Hampshire, making such oral reports to supervisory employees was
both permissible and sufficient to put defendant on notice of her
claims. See generally The State of New Hampshire Policy on
Sexual Harassment, Section III (A) (“Complaints may also be
accepted by a supervisor, who shall then refer the complaint to
the Director.”). Additionally, defendant was aware, as early as
February of 1996, that Officer Patrick had sexually harassed a
female co-worker at the Men’s Prison. See Report of Sexual
Harassment Investigation (February 2 0 , 1996), Exhibit 8 to
plaintiff’s memorandum. Finally, Gauthier has submitted portions
of Counselor Hart’s testimony in another Title VII suit, in which
Hart testified that he discussed with the Warden of the Men’s
Prison in the summer of 1997 his belief that correctional
officers were engaging in inappropriate sexual discussions and
banter in various sections of the prison. See Exhibit 5 to
plaintiff’s memorandum, Trial transcript from White v . Dept. of
Corrections, Day 2 at 156-57.
15 Viewing the record in the light most favorable to Gauthier,
as the court must at this stage of the litigation, there is
sufficient evidence to permit a reasonable trier of fact to
conclude that defendant either knew or should have known of the
sexual harassment to which Gauthier was allegedly being
subjected. Crediting Gauthier’s allegations as true, the record
suggests that such discrimination was both pervasive and severe.
It also suggests that defendant had actual knowledge of
Gauthier’s complaints, which she claims to have made to various
supervisory employees of defendant. At a minimum, Gauthier has
pointed to adequate evidence in the record, if credited as true,
to support a trier of fact’s conclusion that defendant should
have known that Gauthier was being subjected to sexual harassment
and was negligent in failing to stop i t .
B. Employer Liability for Supervisory Employees.
Generally, employers are vicariously liable for sexual
harassment carried out by their supervisory employees. See
generally Burlington Industries, supra. However, if the alleged
16 harassment results in no tangible employment action (e.g.,
discharge, adverse transfer, e t c . ) , an employer may avail itself
of a two-part affirmative defense.
An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.
Burlington Industries, 524 U.S. at 765.
Here, the parties dispute whether Gauthier suffered any
“tangible employment action.” Defendant denies that any
occurred, while Gauthier argues that her “constructive discharge”
should, as a matter of law, constitute a tangible employment
17 action. That legal question appears open to debate and has yet
to be resolved in this circuit though, as defendant points out,
in light of the Court’s discussion in Burlington Industries, an
employee’s decision to resign in the wake of sexual harassment is
unlikely to automatically constitute a “tangible employment
action.” See Defendant’s reply memorandum (document no. 17) at
4. See also Elmasry v . Veith, 2000DNH005, Civil N o . 98-696-JD
(D.N.H. January 7 , 2000) (“Determining whether a constructive
discharge can constitute a tangible employment action requires
examination of the facts peculiar to each case. There are
certainly circumstances under which a constructive discharge may
qualify as a tangible employment action.”). Nevertheless, for
the reasons discussed below, the court need not address that
issue at this time.
Even if the court were to conclude that Gauthier’s
constructive discharge was not a tangible employment action
(thereby affording defendant the opportunity to avail itself of
the affirmative defense discussed above), defendant has failed to
18 establish that Gauthier “unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer.” Burlington Industries, 524 U.S. at 765. According to
Gauthier, she reported at least some incidents of sexual
harassment to supervisory employees of the DOC. And, under the
sexual harassment policies implemented by the State and the DOC,
making oral reports to supervisory personnel is one means by
which an employee may notify his or her employer of unlawful
sexual harassment in the workplace.
Consequently, the court holds that the record as presently
developed precludes defendant from availing itself of the two-
part affirmative defense identified in Burlington Industries.
Conclusion
To be sure, the parties vigorously dispute whether Gauthier
reasonably availed herself of the various options available to
her to report alleged incidents of sexual harassment. Had she
simply chosen to file a written report with DOC, the record
19 suggests that DOC would have undertaken a prompt investigation
and disciplined those employees who had engaged in inappropriate
conduct. Consequently, Gauthier might well have spared herself
any further harassment. Nevertheless, under the applicable
sexual harassment policies, it appears that one means by which
DOC employees may report incidents of alleged sexual harassment
is by orally informing a supervisor. Gauthier claims to have
done just that and, while defendant disputes that assertion, the
existence of that genuine issue of material fact precludes the
court from ruling that defendant is entitled to judgment as a
matter of law.
For the foregoing reasons, defendant’s motion for summary
judgment (document n o . 14) is granted in part and denied in part.
Because the alleged incidents of unlawful sexual harassment
directed at Gauthier while she was employed at the Women’s Prison
(i.e., those allegedly involving Kingsbury and Lacert) occurred
more than 300 days prior to her having filed her complaint of
discrimination, Gauthier is barred from recovering for them. As
20 to her remaining claims (relating to her employment at the Men’s
Prison from June of 1996 through June of 1997), however,
defendant has failed to demonstrate that it is entitled to
judgment as a matter of law.
SO ORDERED.
Steven J. McAuliffe United States District Judge
August 2 8 , 2000
cc: Michael J. Sheehan, Esq. Nancy J. Smith, Esq.