Janowicz v. Martin, et al. CV-97-336-M 02/05/99 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Joseph Janowicz, Plaintiff
v. Civil No. 97-336-M
Leo Martin; Joseph Panarello; and State of New Hampshire Department of Corrections, Defendants
O R D E R
Defendant State of New Hampshire Department of Corrections
(the "Department") moves for summary judgment in this suit
alleging sexual harassment in violation of Title VII of the Civil
Rights Act of 1964, as amended.1 See 42 U.S.C. § 2000e-2(a) (1) .
For the reasons that follow, the Department's motion is denied.
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.
Plaintiff's complaint also included state law claims for violation of state civil rights contrary to R.S.A. 354-A-7; constructive discharge; negligent supervision, training and retention; battery; intentional infliction of mental distress; and invasion of privacy. The complaint also named two individuals, Leo Martin and Joseph Panarello, as defendants. On November 25, 1997, the court granted defendants' partial motion to dismiss the Title VII claims against the individual defendants and the state law claims against all defendants, without prejudice to bringing the state law claims against the Department in state court. The only remaining claims, therefore, are the Title VII claims against the Department. 56(c). 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." Griqqs-Rvan v.
Smith, 904 F.2d 112, 115 (1st Cir. 1990).
The moving party "bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the
moving party carries its burden, the burden shifts to the
nonmoving party to demonstrate, with regard to each issue on
which it has the burden of proof, that a trier of fact could
reasonably find in its favor. DeNovellis v. Shalala, 124 F.3d
298, 306 (1st Cir. 1997).
At this stage, the nonmoving party "may not rest upon mere
allegation or denials of [the movant's] pleading, but must set
forth specific facts showing that there is a genuine issue" of
material fact as to each issue upon which he or she would bear
the ultimate burden of proof at trial. I d . (guoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). 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'1 Ass'n of Machinists and Aerospace Workers v. Winship
2 Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir. 1996)
(citations omitted).
Background
Viewed in the light most favorable to plaintiff, the facts
are as follows. At all times relevant to this action, plaintiff
held the rank of corporal in the Department's hierarchy and was
assigned to the day shift on the Secure Psychiatric Unit ("SPU").
Plaintiff primarily worked on the SPU's third floor.
Sergeant Leo Martin also worked the day shift on the SPU.
As a sergeant, Martin was superior to plaintiff in rank.
Martin's duties were primarily administrative, and he usually
worked on the SPU's fourth floor. Occasionally, however, Martin
was the officer in charge on the third floor and therefore, at
times, he acted as plaintiff's direct supervisor. Martin himself
worked for, among others. Administrative Director Joseph
Panarello.
Plaintiff's usual supervisors were Sergeants Kevin
Gathercole and Jeff Kennett. Plaintiff had a good working
relationship with Gathercole, but thought that Kennett had held a
grudge against him ever since an incident in which plaintiff
turned off the light in an elevator in which Kennett was riding.
Since that time, Kennett was constantly trying to write plaintiff
up and get him in trouble. Plaintiff felt that Kennett treated
him differently than other corporals.
3 Plaintiff considered working on the SPU, which involved
dealing with psychotic persons, to be dangerous and stressful.
One experience plaintiff found particularly disturbing was having
to cut down a patient who had tried to hang himself.
Beginning in November, 1995, Martin began asking plaintiff
to go out to dinner or to go to Martin's house for dinner. He
extended each invitation five or six times over the next three
months. Each time, plaintiff declined.
One December morning in 1995, while plaintiff was stationed
at the entrance gate, Martin grabbed plaintiff's buttocks while
plaintiff was opening the gate for Martin. Martin made a comment
to the effect that plaintiff had "nice buns." Although plaintiff
said nothing to Martin at the time, he telephoned Martin later
that day and told Martin he considered such conduct offensive and
reguested that Martin not repeat it.
On a day in January, 1996, plaintiff was standing with other
employees at the nurses' station in the SPU when Martin
approached him from behind and grabbed his genitals. Plaintiff,
upset by the experience, called Martin a "dirty bastard" or
something similar and walked away. Martin laughed and stated
that plaintiff had a "nice piece of Polish sausage." About a
week after this incident, plaintiff began having flashbacks and
nightmares about sexual abuse he had suffered as a child.
On another occasion in January, 1996, while plaintiff was
seated at a desk, Martin again approached him from behind and
4 began massaging his neck. While doing so, Martin told plaintiff
he could go a long way in the Department with Martin's help.
Toward the end of February, 1996, plaintiff asked to take
two days off. Kennett agreed to let plaintiff take the first
day, but said he was unsure of staffing needs for the second day
and would call plaintiff in the morning if plaintiff was needed.
On the afternoon of the second day, plaintiff found out that he
was missed at work and that Kennett denied signing plaintiff's
leave slip. This incident, in plaintiff's words, "put [him] over
the edge." He called his psychiatrist, who told him to stay out
of work.
Plaintiff took a disability leave for mental stress. On
February 29, 1996, he submitted an accident/injury reporting form
with an attached statement detailing the causes of his stress.
These causes included being unfairly treated by Kennett and
another superior. Lieutenant McGill, finding the patient who had
tried to hang himself, and being touched by Martin on several
occasions in sexually harassing ways.
On March 5, 1996, Department employee John J. Kovacs called
plaintiff to inguire further about the alleged sexual harassment.
Kovacs asked plaintiff to provide a written statement detailing
the incidents of sexual harassment, and plaintiff did so. The
Department conducted a sexual harassment investigation, taking
witness statements from numerous Department employees. A report
of the investigation, submitted on March 21, 1996, contained
findings that the touchings reported as the first and third
5 incidents (grabbing plaintiff's buttocks and massaging his neck)
likely did occur but, under the circumstances, did not constitute
sexual harassment. It was also found, however, that Martin did
touch plaintiff's genitals and that conduct did constitute sexual
harassment. On April 1, 1996, Martin was suspended without pay
for 15 days due to his unprivileged touching of plaintiff.
Plaintiff has been diagnosed as suffering from Major
Depressive Disorder and Post Traumatic Stress Disorder and has at
times been suicidal. His symptoms have prevented him from
returning to work at the Department. In June, 1996, plaintiff's
employment with the Department was formally terminated for
nondisciplinary reasons, namely, that because of a medical
condition, his presence in the workplace is deleterious to his
health.
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 . . . sex." 42 U.S.C.A.
§ 2000e-2(a)(1)(1994). Sexual harassment is a form of
discrimination based on sex. See Provencher v. CVS Pharmacy,
Div. Of Melville Corp., 145 F.3d 5, 13 (1st Cir. 1998) .
Furthermore, the Supreme Court held in Oncale v. Sundowner
Offshore Serv., Inc., __ U.S. __ , 118 S.Ct. 998, 1001-02
6 (1998), that same-sex sexual harassment, such as that alleged
here, is prohibited by Title VII.
Plaintiff claims that he has suffered both quid pro quo and
hostile work environment harassment. The Supreme Court, however,
has recently diminished the significance of the labels "quid pro
quo" and "hostile work environment." The Court explained that
"[t]he principal significance of 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
Indus., Inc. v. Ellerth, __ U.S. __ ,___ 188 S.Ct. 2257, 2264
(1988). Discrimination is explicit when an employer conditions
employment benefits on submission to sexual advances, see id.,
conduct commonly described as quid pro quo harassment. What
Burlington clarified is that when such discrimination does not
result in a tangible employment action it must meet the severe or
pervasive reguirement:
When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.
I d . at 2265. The Court also explained that once actionable
discrimination is proved, an employer's vicarious liability for
harassment by its employee is not determined by the concepts of
quid pro quo and hostile work environment but by the factors set
forth in Burlington. Id.
7 Burlington itself involved an employee who resisted
unwelcome sexual advances by a supervisor but suffered no
negative tangible employment conseguences. I_d., 118 S.Ct. at
2262. The Court held that where the actions complained of
involve only unfulfilled threats, the case "should be categorized
as a hostile work environment claim which reguires a showing of
severe or pervasive conduct." JCd. at 2265.
The instant case is analogous. The third alleged incident
of harassment - in which Martin massaged plaintiff's neck and
told him he could go a long way in the Department with Martin's
help - appears to set up a potential quid pro quo situation: the
conditioning of a job benefit on submission to the unwelcome
sexual advances of a superior. However, plaintiff has presented
no credible evidence that his resistance to those advances
resulted in any tangible employment action.
"A tangible employment action constitutes a significant
change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits." Burlington, 118 S.Ct. at 2268. Plaintiff argues that
a tangible employment action occurred, because the stress caused
by Martin's harassment caused plaintiff to leave the Department
and eventually led to termination of his employment. However,
plaintiff's voluntary exit from the Department, even if motivated
by stress resulting from the harassment, is not a tangible
employment action. See Sconce v. Tandy Corp., 9 F. Supp. 2d 773, 776 (W.D. Ky. 1998) (no tangible employment action where
plaintiff voluntarily requested transfer to a lower paid position
because of anxiety caused by the harassment). "To create . . .
liability in what is referred to as a quid pro quo ’ 'refusal'
claim, the supervisor must do something in addition to making
sexual advances. He must do something else which causes or
creates a j ob detriment." JCd. ; see also Burlington, 118 S.Ct. at
2269 ("A tangible employment decision requires an official act of
the enterprise, a company act.").
Plaintiff does point to one action by Martin which he claims
to be tangible employment action. Plaintiff cites Martin's
deposition testimony in which Martin opines that plaintiff left
the Department because Martin caught plaintiff stealing state
time and reported it to the Lieutenant in charge who then engaged
in an angry confrontation with plaintiff, which caused plaintiff
to leave the Department. Plaintiff argues that "[a] jury could
reasonably conclude that Sg t . Martin's investigating, determining
and reporting to the Lieutenant in charge for action that the
plaintiff was 'stealing state time' was conduct taken by Sgt.
Martin in response to plaintiff's rejection of Sgt. Martin's
sexual advances." Plaintiff further argues that this could be
construed as tangible employment action.
The court disagrees. Even if Martin's conduct was
retaliatory, there is no evidence that Martin caused plaintiff to
be fired or disciplined, or resulted in any other tangible
employment action by the Department. All that is alleged is speculation that the consequences of Martin's allegedly
retaliatory actions caused plaintiff to voluntarily leave the
Department. As noted above, that is insufficient to constitute
an adverse employment action. See Sconce, 9 F. Supp. 2d at 77 6.
Moreover, it is contradicted by plaintiff's own testimony that it
was the confrontation with Kennett over the two day leave that
put plaintiff "over the edge" and caused him to leave the
Department. A confrontation over allegedly stolen state time is
not even mentioned as one of the causes of plaintiff's stress in
the three page statement appended to his accident/injury
reporting form.
Plaintiff has failed to establish the existence of any
genuine issue of material fact regarding tangible employment
action. Thus, plaintiff's alleged incidents of harassment must
qualify as severe or pervasive under the rubric commonly called
hostile work environment. See Burlington, 118 S.Ct. at 2265; see
also Sconce, 9 F. Supp. 2d at 775-76 (where supervisor
conditioned job benefits on sexual favors but plaintiff's refusal
resulted in no adverse consequences, claim was for hostile work
environment not quid pro quo harassment).
A claim of hostile work environment requires a showing that
the harassment is "sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57, 67 (1986) (internal quotation marks and brackets omitted).
Whether a work environment is hostile or abusive is to be
10 determined from the totality of the circumstances, which may
include "the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Harris v.
Forklift Svs., Inc., 510 U.S. 17, 23 (1993). Moreover, "a
sexually objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so." Faragher v. City of Boca Raton, __ U.S. __, __ 118
S.Ct. 2275, 2283 (1998).
The Department asserts that Martin's conduct, though crude
and vulgar, was not severe or pervasive enough to create a
hostile work environment. The Department states that horseplay
involving physical contact was not uncommon among the male staff
of SPU, and included such acts as tickling and pats on the
buttocks.
The court finds, however, that plaintiff has presented
evidence from which a reasonable jury could find a hostile work
environment. Plaintiff has alleged incidents of demeaning and
humiliating physical touching in the workplace which included
grabbing his genitals. Equal Employment Opportunity Commission
("EEOC") guidelines presume that "a physical, forced groping of
an intimate part of the Plaintiff's body . . . creates an
actionable hostile work environment." Fall v. Indiana Univ. Bd.
of Trustees, 12 F. Supp. 2d 870, 879 (N.D. Ind. 1998) (citing
11 EEOC Policy Guidance on Sexual Harassment ("EEOC Policy"), 8 Fair
E m p . Prac. Man (BNA) 405:6691 (March 19, 1990)); see also
DeNovellis, 124 F.3d at 311 (looking to EEOC Policy in
determining whether harassment is severe or pervasive).
Plaintiff has at least raised a genuine issue of fact as to
whether Martin's harassment of him was severe or pervasive enough
to be actionable under Title VII.
The Department also argues that it is entitled to summary
judgment, even if the harassment was severe or pervasive, because
it is neither vicariously nor directly liable for determining
Martin's harassment of plaintiff. The standard for determining
vicarious liability is set forth in Burlington and Faragher:
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, see Fed. Rule Civ. Proc. 8(c). 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 preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Burlington, 118 S.Ct. at 2270; Faragher, 118 S.Ct. at 2292-93.
Plaintiff does not dispute that the Department had a sexual
harassment policy in place at the time of Martin's offending
conduct. Plaintiff struggles against the tide, however, by
arguing that it was not an effective policy because "sexual
harassment was not taken seriously" in the Department, and the
staff was afraid of retaliation for reporting sexual harassment.
12 Plaintiff offers the testimony of two witnesses who saw Martin
grabbing plaintiff's genitals and who claim that they suffered
retaliation after giving statements about the event. Plaintiff
also says he did not believe anything would have been done had he
complained earlier, given that unfair treatment of him by other
officers had also gone unaddressed.
These after-the-fact speculations, however, are insufficient
to counter the Department's conclusive evidence establishing that
plaintiff did make a complaint, that an investigation was
conducted promptly, that witnesses were not deterred from making
statements, and did in fact make statements, and that after the
facts were determined by the agency the accused harasser was
disciplined - in other words, that the policy, at least in
plaintiff's case, was effective. Plaintiff has failed to raise
any genuine issue of material fact as to whether the Department
had an effective sexual harassment policy in place; the
Department has therefore satisfied the first prong of the
affirmative defense. See Jones V. USA Petroleum Corp., 20 F.
Supp. 2d at 1355 (noting that "the effective promulgation of a
workable anti-harassment policy satisfies the first element's
reasonable care standard.")
It is also undisputed that plaintiff did not report Martin's
harassing conduct until after plaintiff left the Department due
to stress. Plaintiff concedes that " [e]mbarrassment was a major
factor" in his failing to immediately report the harassment.
Mere embarrassment cannot provide a reasonable excuse for failing
13 to invoke the protection of a workable anti-harassment policy put
in place by the employer. Cf. Sconce, 9 F. Supp. 2d at 778
(finding "a threat of termination, without more, is not enough to
excuse an employee from following procedures adopted for [his]
protection"). Plaintiff has failed to raise any genuine issue of
material fact as to whether he unreasonably failed to utilize the
Department's policy and procedures for reporting and remedying
sexual harassment. The court finds as a matter of law that the
Department has established the elements of the affirmative
defense to vicarious liability described in Burlington and
Faragher.
If only vicarious liability were at issue, the Department
would be entitled to summary judgment. However, plaintiff also
makes a claim based on the Department's own negligence in failing
to remedy sexual harassment of which it had knowledge. "An
employer is negligent with respect to sexual harassment if it
knew or should have known about the conduct and failed to stop
it." Burlington, 118 S.Ct. at 2267. Plaintiff essentially
claims that the Department should have known of and remedied
Martin's harassment of him before he complained. As neither
Burlington nor Faragher resolved claims of direct employer
negligence, that theory of liability remains intact. See
Burlington, 118 S.Ct. at 2267 ("Negligence sets a minimum
standard for employer liability under Title VII; but Ellerth
seeks to invoke the more stringent standard of vicarious
liability."); Faragher, 118 S.Ct. at 2294 (noting that "the
14 reversal necessary on the theory of supervisory harassment
renders any remand for consideration of imputed knowledge
entirely unjustifiable (as would be any consideration of
negligence as an alternative to a theory of vicarious liability
here)").
The Department argues that it was not negligent because it
did not know Martin was harassing plaintiff until he made a
complaint, and, once it received the complaint, it took prompt
and effective remedial action. The Department asserts that there
is no evidence that it knew or even should have known of Martin's
harassing behavior.
Plaintiff, however, advances two bases for charging the
Department with prior knowledge. Plaintiff first contends that
the Department should have known of Martin's generally harassing
behavior because some evidence suggests the Department may have
been aware of similar offensive physical contact by Martin with
other male employees, well before the incidents involving
plaintiff. Plaintiff also claims that the Department should have
known Martin was harassing him because the genitals-grabbing
incident was witnessed by other officers, including a "superior
officer," Sergeant Gathercole. Plaintiff then imputes the
knowledge of these witnesses to the Department itself.
Neither party has adeguately briefed the negligence issue,
or provided the court with a sufficient record to even determine
whether any genuine issue of material fact exists. For example,
plaintiff submitted deposition testimony by Sergeant Gathercole
15 in which he purported to recall a conversation among two other
sergeants and himself during which one sergeant supposedly stated
that a named corporal had complained to him that she had, in
turn, received a complaint from a corrections officer to the
effect that Martin freguently touched him. Gathercole stated
that he reported that information to the Administrative Director,
Joseph Panarello, and that his concerns were essentially brushed
aside. The evidence is unclear, however, as to when Gathercole
notified Panarello of these attenuated reports of Martin's
harassing others. Gathercole's affidavit implies that he
notified Panarello at the time of the conversation. His
deposition testimony, on the other hand, suggests that he spoke
to Panarello before plaintiff left the Department, which suggests
a more recent date. Similarly, plaintiff cites as incriminating
evidence a note apparently written by Marilee Nihan, the
investigator assigned to plaintiff's complaint, that "Leo
[Martin] likes young guys." However, plaintiff provides no
evidence suggesting when the notation was made.
The Department, in turn, merely declares that the existence
of rumors cannot suffice to impute knowledge of Martin's
propensity for, or engagement in, sexual harassment. The
Department cites no legal authority for, nor does it develop that
position.
Plaintiff also submitted evidence tending to establish that
Sergeant Gathercole actually witnessed the genitals-grabbing
incident. Neither party, however, has adeguately addressed the
16 legal bases for imputing or not imputing Gathercole's knowledge
to the Department. In the absence of an adeguate factual record
and sufficiently developed legal argument by the parties, the
court simply cannot resolve these issues on summary judgment.
Since the Department's motion for summary judgment reaches beyond
vicarious liability, to that extent it must be denied. As to
plaintiff's claims asserting vicarious liability theories,
however, the Department's motion is granted.
Conclusion
For the foregoing reasons, the Department's motion for
summary judgment (document no. 14) is denied in part and granted
in p a r t .
SO ORDERED.
Steven J. McAuliffe United States District Judge
February 5, 1999
cc: James F. Lafrance, Esg. Martha A. Moore, Esg.