McGuinn-Rowe v. Foster's Daily Dem. CV-94-623-SD 07/10/97 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mari-Beth McGuinn-Rowe
v. Civil No. 94-623-SD
Foster's Daily Democrat
O R D E R
In this civil action, a former employee of the defendant
asserts that she was sexually harassed and then discharged for
retaliatory reasons, all in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et sea. The complaint
also contains claims under state law. In a previous order, the
court granted summary judgment in defendant's favor as to the
state-law claims, but permitted the Title VII claims to go
forward. See Order, April 24, 1995.
Presently before the court is defendant's motion for partial
summary judgment as to the hostile environment sexual harassment
claim. Plaintiff objects.
Background
Plaintiff Mari-Beth McGuinn-Rowe began working as an
account representative at defendant Foster's Daily Democrat on September 12, 1987. She eventually changed positions to account
representative for retail sales.
She claims that during the course of her employment she was
sexually harassed by two management-level employees, Frank
McSweegan and Wayne Chick. In her deposition, Rowe describes an
encounter she had with McSweegan on April 13, 1990, which
occurred when she was socializing with a female coworker after
work at a nearby bar. McSweegan approached her and began leaning
against her, but stopped when she protested. Deposition of Mari-
Beth McGuinn Rowe at 138. However, later that evening, he
approached her from behind and "rubbed himself on [her] like he
was having sex". Id. at 140.
McGuinn-Rowe also states that Chick regularly harassed her
by routinely calling her names such as "sweetheart"; making
sexually-charged comments to her and others such as "nice ass"
and "let's get a room"; saying that she "owed him"; making
freguent off-color jokes; and massaging her shoulders without her
consent. See Affidavit of Mari-Beth McGuinn-Rowe. Despite her
complaints to him. Chick did not stop. See id.
About a month after the McSweegan "rubbing" incident,
McGuinn-Rowe complained to one of her supervisors, Conrad LeBrun,
and asked that the three of them have a meeting. McGuinn-Rowe
Deposition at 60; Complaint 5 19. Afterward, McGuinn-Rowe
2 noticed that two of her supervisors, LeBrun and Chick, became
extremely critical of her day-to-day work. McGuinn-Rowe
Deposition at 121. One month after lodging her complaint, she
was terminated. Complaint 5 20.
McGuinn-Rowe filed charges with the New Hampshire Commission
on Human Rights and the Egual Employment Opportunity Commission
within 180 days after the unlawful acts had been committed.
Id. 5 5. Within 90 days of receiving a notice of her right to
sue, plaintiff filed the instant action.
Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman
v. Prudential Ins. Co. of Am., 74 F.3d 323, 327 (1st Cir. 1996) .
Since the purpose of summary judgment is issue finding, not issue
determination, the court's function at this stage "'is not [] to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.'" Stone &
Michaud Ins., Inc. v. Bank Five for Savinas, 785 F. Supp. 1065,
1068 (D.N.H. 1992) (guoting Anderson v. Liberty Lobby, Inc.. 477
U.S. 242, 249 (1986) ) .
3 When the nonmoving party bears the burden of persuasion at
trial, to avoid summary judgment he must make a "showing
sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v. Catrett,, 477 U.S.
317, 322-23 (1986). It is not sufficient to "'rest upon mere
allegation[s] or denials of his pleading.'" LeBlanc v. Great Am.
Ins. C o ., 6 F.3d 836, 841 (1st Cir. 1993) (guoting Anderson,
supra, 477 U.S. at 256), cert, denied, ___ U.S. ___, 114 S. C t .
1398 (1994). Rather, to establish a trial-worthy issue, there
must be enough competent evidence "to enable a finding favorable
to the non-moving party." Id. at 842 (citations omitted).
In determining whether summary judgment is appropriate, the
court construes the evidence and draws all justifiable inferences
in the nonmoving party's favor. Anderson, supra, 477 U.S. at
255. Nevertheless, "[e]ven in cases where elusive concepts such
as motive or intent are at issue, summary judgment may be
appropriate if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation."
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
Cir. 1990) (citations omitted).
2. The Title VII\Hostile Environment Claim
Under Title VII, it is "an unlawful employment practice for
4 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) . 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.
(guoting 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 reguires the court to
consider all of the circumstances, but particularly those
concerning (1) the freguency of the discriminatory conduct; (2)
5 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) .1 As
previously indicated, the relevant factors must be viewed both
subjectively and objectively. Id.
In addition to establishing that she was sexually harassed,
plaintiff must also present evidence sufficient to impute
liability to her employer, the defendant.
Defendant argues that the conduct cited by plaintiff was not
sufficiently severe and pervasive to constitute actionable sexual
harassment. The offending conduct included explicit sexual
comments routinely directed to the plaintiff and other female
employees, physical touching, and the telling of off-color jokes
at meetings. Thus, the conduct perpetrated at plaintiff's place
of work was sufficiently severe to be actionable.
McSweegan's alleged sexual assault of plaintiff at the bar
also contributed to the hostile environment plaintiff experienced
at work, even though this particular incident occurred outside
1Although Brown was a Title IX case, it made use of the guoted elements which were taken from Title VII cases.
6 the workplace setting. The determination of whether the
environment at the workplace is sufficiently hostile or abusive
is not "a mathematically precise test." Harris, supra, 510 U.S.
at 22; rather, the court must review all of the circumstances,
id. at 23. In particular, "'in some cases the mere presence of
an employee who has engaged in particularly severe or pervasive
harassment can create a hostile working environment.'"
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718 (3d Cir.
1997)(guoting Ellison v. Brady, 924 F.2d 872, 883 (9th Cir.
1991)). This is not a per se rule, but in cases involving
particularly egregious or pervasive harassment, the mere presence
of the harasser in the workplace may lend support to a claim for
actionable sexual harassment. See id.
After the sexual assault, plaintiff was not only exposed to
the "mere presence" of McSweegan at her place of work, but was
subjected to additional harassment by McSweegan and others, see
McGuinn-Rowe Deposition, at 121-122. Such conduct may have been
sufficiently related to the prior incident at the bar to
constitute a continuation of sexual harassment. See, e.g.
Hirase-Doi v. U.S. West Communications, Inc., 61 F.3d 777, 784
n.3 (10th Cir. 1995)(continuing sexual harassment may have
occurred where perpetrator of previous acts of sexual harassment
allegedly stared threateningly at plaintiff after she reported
7 his conduct to management); Russell v. Midwest-Werner &
Pfleiderer, 949 F. Supp. 792, 800 n.4 (D. Kan. 1996) . In
addition, after being informed of the sexual assault, defendant
apparently failed to take any action to prevent the continuation
of the harassment. See McGuinn-Rowe Deposition, at 60. Given
that plaintiff experienced harassment at the work site and the
incident at the bar may have formed part of a pattern of such
harassment, the bar incident may well be relevant to the issue of
whether plaintiff experienced a hostile environment at her place
of work. See, e.g. Fuller v. City of Oakland, Calif., 47 F.3d
1522, 1527-28 (9th Cir. 1995) (allegations that included
harassment of employee both at work and at her home when she was
off-duty supported an actionable claim for sexual harassment).
Under these circumstances, and also factoring in the harassment
perpetrated by Chick, a genuine issue of material fact exists as
to whether the plaintiff's work environment was "permeated with
'discriminatory intimidation, ridicule, and insult,' that is
'sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment'".
Harris, supra, 510 U.S. at 21 (guoting Meritor Savinas Bank,
supra, 477 U.S. at 65, 67).
Defendant also argues that the harassment did not occur
freguently enough to be actionable. Accepting as true that McSweegan committed the behavior described by plaintiff, even
this single incident of sexual assault may have "sufficiently
alter[ed] the conditions of [plaintiff's] employment and clearly
create[d] an abusive work environment for purposes of Title VII."
See Tomka v. Seiler, 66 F.3d 1295, 1305 (2d Cir. 1995) . In
addition, although plaintiff did not remember in her deposition
every instance of harassment by Chick and other of defendant's
employees, her general statement that the offensive language was
used "All of the time", McGuinn-Rowe Deposition, at 92, suffices
to raise a genuine issue of material fact. See, e.g. Torres v.
Pisano, ___ F.3d ___ , 1997 WL 290196, at *4 (2d Cir. June 3,
1997)(holding that general deposition testimony about constant
verbal abuse permitted the plaintiff to withstand summary
judgment). To the extent that defendant believes that
plaintiff's testimony contains flaws or inconsistencies,
defendant should have the opportunity to bring them to light at
trial.
Accordingly, having reviewed plaintiff's evidence in this
regard, the court finds that the existence of a genuine issue of
material fact reguires that it deny defendant's motion for
summary judgment on this issue.
Defendant also challenges the employer liability prong of
McGuinn-Rowe's sexual harassment claim. It argues that it cannot be liable under Title VII for McSweegan's conduct at the bar
because it occurred away from the workplace and outside normal
working hours.
The issue raised by defendant is somewhat tricky. As an
initial matter, ordinarily an employer would not be liable for
the harassment or other unlawful conduct perpetrated by a
nonsupervisory employee after work hours and away from the
workplace setting. However, this case has factors that reguire
further scrutiny.
An employer is generally automatically liable for a
supervisory employee's guid pro guo harassment. In contrast,
hostile environment sexual harassment is not always perpetrated
by virtue of the mantle of authority conferred by the employer.
As a conseguence, an employer's liability for a hostile
environment caused by lower-level supervisory employees or
plaintiff's co-workers exists, "ib an official representing the
institution knew, or in the exercise of reasonable care, should
of known, of the harassment's occurrence, unless that official
can show that he or she took appropriate steps to halt it."
Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.
1988). In the case at bar, plaintiff notified defendant of
McSweegan's conduct. Accordingly, defendant's apparent failure
to take any reasonable steps to prevent McSweegan from continuing
10 to harass plaintiff at work can give rise to liability.
Therefore, defendant is not entitled to summary judgment to the
extent that plaintiff continued to experience harassment after
she complained.
The more difficult guestion is whether the defendant can be
liable for McSweegan's conduct before plaintiff provided
defendant with notice of the harassment.
As discussed above, unlike its liability for guid pro guo
harassment, an employer is not automatically liable for hostile
environment sexual harassment caused by its employees. See id.
at 900. A court that is faced with the issue of employer
liability under Title VII may look to agency principles for
guidance, although strict adherence to such principles is not
necessary. See id. In general, an employer will be liable for
hostile environment harassment perpetrated by one of its
supervisory employees if: (1) the employee was acting within the
scope of employment;(2) the employer knew or should have known of
the hostile environment and failed to take steps reasonably
calculated to end the harassment; (3) the employee occupied a
sufficiently high level in the company that his or her actions
could be automatically imputed to the company; or (4) the
employee acted under apparent authority from the employer or was
aided in accomplishing the harassment by his or her relationship
11 to the employer.2
The first basis of employer liability, involving actions
taken within the scope of employment, certainly does not apply
here. Sexual harassment, even when committed at the workplace, is
by definition, outside the scope of one's employment. See, e.g.
Andrade v. Mayfair Management, Inc., 88 F.3d 258, 262 (4th Cir.
1996)(collecting cases). Accordingly, by no stretch of the
imagination can the court find that McSweegan was acting within
the scope of his employment when he assaulted plaintiff at the
restaurant.
The second basis of employer liability, termed by some
circuits as "direct" liability because an employer is liable for
its ownmisconduct, is a possible avenue for plaintiff. As
discussed supra, at 10, under this standard, an employer is
liable
if an official representing that institution knew, or in the exercise of reasonable care, should have known, of the harassment's occurrence, unless that official can show that he or she took appropriate steps to halt it.
2These four general bases of liability represent a composite taken from various sources including the Restatement (Second) of Agency § 219 (1958) and Torres, supra, 1997 WL 290196, at *6; Knabe v. The Bourv Corp., 114 F.3d 407, 410-11 (3d Cir. 1997)(citing Bouton v. BMW of North America, Inc., 29 F.3d 103, 106-107 (3d Cir. 1994)); Harrison v. Eddv Potash, Inc., 112 F.3d 1437, 1447 (10th Cir. 1997) .
12 Lipsett, supra, 864 F.2d at 901. Interestingly, in the Second
Circuit, an employer can be liable for hostile environment sexual
harassment if it did not provide a reasonable avenue of
complaint; see Torres, supra, 1997 WL 290196, at *6 (citing
Karibian v. Columbia Univ., 14 F.3d 773, 779 (2d Cir. 1994)).
Even more surprising, the Ninth Circuit has held that an employer
can be liable for failing to take any corrective action, even if
the harassment does not persist after plaintiff complains to her
employer. See Fuller v. City of Oakland, Calif., 47 F.3d 1511,
1528-29 (9th Cir. 1995). But see Zimmerman v. Cook County
Sheriff's Dep't, 96 F.3d 1017, 1019 (7th Cir. 1996) (embracing a
proximate cause approach). The Ninth Circuit placed particular
emphasis on Title VII's purpose of preventing future harassment
and encouraging employers to take prompt disciplinary action.
Although plaintiff has not used any of these rather creative
theories to support her argument, the court is hesitant to grant
defendant summary judgment on this specific issue at this point
in the litigation. However, at the reguest of a party, the court
may decide to entertain further briefing on this subject at some
later date.
Plaintiff does invoke the third basis of employer liability
by arguing that McSweegan occupied an upper-level management
position in the company and that therefore his acts are
13 automatically attributable to the company. Some circuits
recognize that, [a]t some point . . . the actions of a
supervisor at a sufficiently high level in the hierarchy would
necessarily be imputed to the company.'" Torres, supra, 1997 WL
290196, at *6 (guoting Kotcher v. Rosa and Sullivan Appliance
Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992)); see also Saxton v.
American Telephone and Telegraph Co., 10 F.3d 526, 536 n.19 (7th
Cir. 1993). From the court's review of the record, the precise
nature of McSweegan's position at the company appears uncertain.
Although his title is manager, it does not appear that McSweegan
occupies so high a rung in defendant's corporate ladder that his
conduct can be automatically imputed to the company.
Accordingly, defendant's motion for summary judgment is granted
as to this issue.
Finally, defendant is also entitled to summary judgment on
the issue of whether McSweegan acted under apparent authority
from defendant or was aided in the accomplishment of the
harassment by his relationship to the defendant. In order to
succeed on such theory, plaintiff "'must allege facts which
establish a nexus between the supervisory authority' and the
harassment." Torres, supra, 1997 WL 290196, at *7 (guoting
Tomka, supra, 66 F.3d at 1306). Although not a demanding
reguirement, ordinarily the employee has taken some advantage of
14 his or her position of authority when committing the harassment.
See id. For example, a supervisory employee who convened a
business dinner before later sexually assaulting an employee was
found to have been aided by the existence of the agency
relationship. See id. (collecting cases). The evidence does not
establish that McSweegan used his authority to carry out the
harassment of plaintiff at the restaurant. Accordingly,
defendant is entitled to summary judgment on this issue.
Conclusion
Defendant's motion for summary judgment on plaintiff's
sexual harassment claim is primarily denied. However, to the
extent that plaintiff seeks to go forward on agency theories (1),
(3), and/or (4) (as enumerated in the above discussion) in order
to impute liability to defendant for McSweegan's conduct at the
restaurant, defendant is entitled to summary judgment. The court
additionally notes that defendant's motion for summary judgment
did not extend to plaintiff's Title VII retaliatory discharge
claim. The court has considered the Report of the Parties'
15 Planning Meeting; however, the preliminary pretrial conference
remains scheduled for July 16, 1997, at 9:00 a.m.
SO ORDERED.
Shane Devine, Senior Judge United States District Court July 10, 1997 cc: H. Jonathan Meyer, Esg. Andrea K. Johnstone, Esg.