Munroe v . Compaq Computer CV-00-379-JM 10/18/02 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Terri Munroe
v. Civil N o . 00-379-JM Opinion N o . 2002 DNH 186 Compaq Computer Corporation, f/k/a Digital Equipment Corporation
ORDER
In this action, the plaintiff, Terri Munroe alleges that she
was subjected to sexual harassment while employed by the
defendant, Compaq Computer Corporation, formerly known as Digital
Equipment Corporation,1 in violation of Title VII of the Civil
Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq., and N.H.
Rev. Stat. Ann. (“RSA”) 354-A:7 (I) and (V)(c). Defendant has
moved for summary judgment under Rule 56 of the Federal Rules of
Civil Procedure (document n o . 2 4 ) . Munroe filed an objection.
The parties appeared for oral argument on the motion on October
1 0 , 2002. For the reasons set forth herein, Defendant’s summary
judgment motion is granted with respect to Munroe’s state law
1 Munroe was employed by Digital during the time period relevant to this matter. Munroe filed this action against Compaq, which acquired Digital subsequent to the events in question. Subsequent to the commencement of this action, Compaq was acquired by Hewlett-Packard. For convenience, Compaq is referred to hereinafter as either “Defendant” or “the Company.” sexual harassment claim, but the motion is denied with respect to
her sexual harassment claims under Title VII.
Standard of Review
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c); see Lehman v . Prudential Ins. C o . of Am., 74 F.3d 323, 327
(1st Cir. 1996). A genuine issue is one “that properly can be
resolved only by a finder of fact because [it] . . . may
reasonably be resolved in favor of either party.” Anderson v .
Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250 (1986). A material fact
is one that affects the outcome of the suit. See id. at 248.
Provided that there has been adequate time for discovery, a
properly supported summary judgment motion must be granted
“against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 322 (1986). The
party moving for summary judgment bears the initial burden of
2 establishing that there is no genuine issue of material fact.
See id, at 323. If that burden is met, the opposing party can
avoid summary judgment only by providing properly supported
evidence of disputed material facts that would require trial.
Id. at 324.
In ruling on a summary judgment motion, the court construes
the evidence in the light most favorable to the non-movant,
resolving all inferences in its favor, and determines whether the
moving party is entitled to judgment as a matter of law. See
Saenger Org. v . Nationwide Ins. Licensing Assocs., 119 F.3d 5 5 ,
57 (1st Cir. 1997). The undisputed facts, viewed in the light
most favorable to Munroe, are recited below.
Background
The Company hired Munroe as a temporary employee in October
1993. As a Logistics Associate, Munroe worked in a warehouse
facility located in Salem, New Hampshire. Her responsibilities
included receiving, storing, selecting and delivering computer
components. At times Munroe was the only woman working on her
shift, which included as many as forty other workers. She was
hired as a full-time employee on September 3 0 , 1996. Munroe
alleges numerous instances of harassment at the Company between
3 early 1996 and her resignation on April 2 0 , 1998.
I. Co-worker Harassment Allegations
Real Guilbeault, one of Munroe’s co-workers, was hired by
the Company in the fall of 1993. Beginning in 1996, Guilbeault
began making sexual advances toward Munroe. Munroe alleges that
Guilbeault’s comments became increasingly offensive over time.
Initially, Munroe tried to ignore Guilbeault or walk away. When
that did not end the comments, Munroe told Guilbeault not to talk
to her.
Despite her negative reactions, Guilbeault persisted by
telling Munroe that she had a “luscious ass” and calling her
“sweet cheeks.” On at least three occasions Guilbeault asked
Munroe to go to the Red Roof Inn with him during break. He
repeatedly told Munroe “I want you.” Many times Guilbeault’s
comments were accompanied by a sexually suggestive gesture, such
as sucking his lips. In addition to making offensive comments,
Guilbeault committed the following acts: (1) he closed the door
where he and Munroe were working and blocked it with his body to
prevent Munroe from leaving; and (2) he left a bottle of wine or
champagne, make-up, and a nightgown in Munroe’s locker with a
note containing sexually suggestive comments.
4 In 1998, Guilbeault sent Munroe three sexually suggestive e-
mail messages,2 and touched Munroe inappropriately on two
occasions in April 1998. On the first occasion, Guilbeault
grabbed Munroe by the arm and pulled her onto his lap. On the
second occasion, Guilbeault touched Munroe on her buttocks.
Some time after Guilbeault’s conduct occurred, Munroe
complained to Vincent Kanhai-Singh (“Singh”), who had become her
direct supervisor in early 1996. Munroe told Singh about the
incidents of Guilbeault blocking the door and leaving gifts in
her locker. Munroe also told Singh about the e-mails that
Guilbeault sent. According to Munroe, Singh did nothing about
her complaints. When Munroe informed Singh about Guilbeault’s e-
mails, Singh laughed when he read them and then deleted them from
her computer. Singh told Munroe to speak with Guilbeault and
resolve the problem on her own.
II. Supervisor Harassment Allegations
Munroe alleges that Singh began making offensive comments to
her in 1996. Munroe estimates that Singh made offensive comments
approximately twice per week. On one occasion, Munroe asked
Singh where he wanted her in reference to where she should stand
2 Munroe submitted one of the e-mails she received from Guilbeault with her objection.
5 to perform a particular job. Singh responded that Munroe should
not ask that question of “a man who isn’t getting any sex at
home.” On another occasion, when Munroe was ill, she asked Singh
if she could go home. Singh told Munroe that she could only
leave if she left with him. Munroe refused and Singh forced her
to work the rest of her shift.
In 1998, Singh told Munroe that he had “a job for her under
his desk.” Singh also told Munroe to stop wearing shorts at work
because they were not short enough, and therefore unacceptable.
At unspecified points, Singh also did the following: (1) asked
Munroe to wear a skirt to work so that he could stand below her
while she was standing on high equipment or a ladder and direct
her where to g o ; (2) took out his checkbook and asked Munroe how
much money she wanted to go out with him; (3) asked Munroe to go
home with him; (4) asked Munroe on three occasions to go to
Foxwoods Casino with him offering to pay the expenses; (5) told
Munroe in front of a male co-worker that she was not happy unless
she has “a [penis] hanging in front of her face.”
IV. The Company’s Sexual Harassment Policy
When Munroe began her employment in October 1993, the
Company had an anti-harassment policy in place, which prohibited
6 sexual harassment. Under the policy, employees were encouraged
first to report instances of harassment to their supervisors or
managers, but they were not required to do s o . The policy
indicated that others were available to receive complaints
referencing the Company’s “Open Door Policy” and Equal Employment
Opportunity/Affirmative Action representatives. The policy
stated that “[m]anagers, supervisors and other designated
resources either observing or receiving reports of harassment are
required to treat the issue seriously and take appropriate steps
to ensure compliance with this policy.” The policy directed that
investigations were to be conducted in a timely manner and
confidentially.
On September 2 9 , 1997, the Company issued a separate sexual
harassment policy (“Sexual Harassment Policy”). The Sexual
Harassment Policy states in pertinent part:
Employees who believe that they have been sexually harassed are encouraged to pursue their complaint within [the Company] by contacting their manager or supervisor, Human Resources professional, or their Regional EEO/Diversity Manager. Manager, supervisors or Human Resource professionals observing or receiving such complaints must contact the U.S. EEO/Diversity organization for direction in investigating the complaint.
In addition, the Sexual Harassment Policy provided a 24-hour
7 hotline number that was available for receipt of complaints,
which the employee could file anonymously if desired.
There is evidence that the Company had a practice of giving
its anti-harassment and sexual harassment policies to newly-hired
employees during orientation, and that the policies were posted
on the bulletin boards throughout the facility. There is also
evidence that the policies were accessible to employees on the
Company’s computer system. However, there is no direct evidence
that Munroe received a copy of the Company’s anti-harassment
policy when she began working at the Company. It is undisputed
that Munroe received sexual harassment training on or about
December 1 2 , 1997, and that the training included a discussion of
ways that an employee could make a complaint of harassment.
V. Munroe Complains to Human Resources and Resigns
On April 2 0 , 1998, Munroe reported to Diane O’Connor, a
human resources consultant for the Company, that she was being
harassed by Guilbeault and Singh. Munroe reported that the
harassment was getting worse and she could not take it anymore.
She states that she did not report the harassment earlier because
she was very intimidated by Singh. According to Munroe, Singh
held daily meetings wherein he told the employees he supervised
8 that they should never “go over his head” by reporting a problem
to anyone else. Singh directed Munroe and her co-workers to come
to him with complaints.3 Munroe did not believe that reporting
the harassment prior to resigning would do any good because she
had reported the incidents involving Guilbeault to Singh and
nothing had been done about i t .
Upon receiving Munroe’s complaint, O’Connor immediately
relayed the matter to Robert Brintz, an attorney working in the
Company’s EEO Compliance organization. Munroe resigned on April
2 0 , 1998 even though Brintz urged her to stay and told her that
the Company would conduct a thorough investigation.
Brintz then conducted an internal investigation between
April 24 and May 4 , 1998. He interviewed more than a dozen
employees including Munroe. On May 7 , 1998, Compaq terminated
Guilbeault and prompted Singh’s resignation.
Brintz informed Munroe of the terminations and urged her to
return to work. Despite her initial resistance, the Company
continued to contact Munroe and she returned to work in July
3 Munroe states in her affidavit that she believed that she could be fired if she violated Singh’s order. Munroe Aff. at ¶ 2 0 . However, Munroe admitted at her deposition that her fear arose out of her status as a contract worker. Munroe did not fear losing her job after she became a full-time employee in September 1996. Munroe Deposition Transcript at 80:18-23.
9 1998. Munroe does not allege that she suffered any sexual
harassment following her reinstatement. However, on July 8 ,
1998, Munroe filed a complaint with the New Hampshire Commission
for Human Rights (“NHCHR”) and the U.S. Equal Employment
Opportunity Commission (“EEOC”) alleging that the Company
violated Title VII and N.H. RSA 354-A.
Munroe remained employed at the Company’s Salem, New
Hampshire, facility until it was closed in late 1999. She filed
this action on August 4 , 2000, which followed the dismissal of
her administrative complaint pending before NHCHR.
Discussion
Defendant argues that it is entitled to summary judgment on
Munroe’s Title VII claims of supervisor and co-worker harassment
on the grounds that (a) Munroe failed unreasonably to notify
Defendant of the alleged misconduct of her co-worker and
immediate supervisor; (b) Defendant responded immediately and
effectively when it learned of the problem; and (c) Title VII’s
300-day statute of limitations renders untimely most of Munroe’s
allegations. With respect to Munroe’s state law claim, Defendant
argues that it is entitled to summary judgment because there is
no private right of action under N.H. Rev. Stat. Ann. 354-A.
10 I. Title VII Claims
Title VII makes it unlawful for an employer “to discharge
any individual, or otherwise 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 is unlawful discrimination on the
basis of sex under Title VII. Meritor Sav. Bank, FSB v . Vinson,
477 U.S. 5 7 , 66 (1986); Provencher v . CVS Pharmacy, 145 F.3d 5 ,
13 (1st Cir. 1998).
A. Statute of Limitations
Under 42 U.S.C. § 2000e-5(e)(1), a Title VII plaintiff must
file a charge with the EEOC within a certain period “after the
alleged unlawful employment practice occurred.” This period is
either 180 days, or 300 days if the plaintiff instituted
proceedings with a state or local agency with authority to seek
relief based on the plaintiff’s claims. 42 U.S.C. § 2000e-
5(e)(1). Here, the 300-day period applies to Munroe because she
filed a charge with the NHCHR and the EEOC on July 8 , 1998.
Defendant argues that the 300-day limitations period renders
untimely most of Munroe’s allegations. Applying the 300-day
11 rule, Defendant argues that Munroe’s Title VII claims are limited
to allegations that occurred after September 1 1 , 1997. Munroe
argues in response that she meets the requirements of the
continuing violation doctrine, an exception to the 300-day
limitations period. Under the continuing violation doctrine, a
plaintiff may recover for events outside of the 300-day
limitations period if the acts “are deemed part of an ongoing
series of discriminatory acts and there is some violation within
the statute of limitations period that anchors the earlier
claims.” O’Rourke v . City of Providence, 235 F.3d 713, 730 (1st
Cir. 2001) (internal quotations omitted).
This Court need not consider whether Munroe meets the
requirements of the continuing violation doctrine because the
Supreme Court recently clarified that a “charge alleging a
hostile work environment claim . . . will not be time barred so
long as all acts which constitute the claim are part of the same
unlawful employment practice and at least one act falls within
the time period.” National R.R. Passenger Corp. v . Morgan, --
U.S. –-, 122 S . C t . 2061, 2077 (2002). As the Supreme Court
explained, a hostile work environment is created by “a series of
separate acts that collectively constitute one ‘unlawful
12 employment practice.’” Id. at 2074 (quoting 42 U.S.C. § 2000e-
5(e)(1)). The Court further explained that Title VII “does not
separate individual acts that are part of the hostile work
environment claim from the whole for purposes of timely filing
and liability.” Id. at 2075. To meet the statute of
limitations, “the employee need only file a charge within [300]
days of any act that is part of the hostile work environment.”
Id.; see also, Marrero v . Goya of Puerto Rico, Inc., 304 F.3d 7 ,
18 (1st Cir. 2002) (“the statute of limitations is satisfied as
long as the plaintiff files a charge within 300 days of one of
the many acts that, taken together, created the hostile work
environment”). Munroe meets the applicable standard. She
alleges that the discriminatory acts of her co-worker and
supervisor over time created a hostile work environment. She
filed her charge with the NHCHR and EEOC on July 8 , 1998, which
was within 300 days of the touching incidents by Guilbeault that
Munroe alleges occurred in April 1998. Therefore, all of
Munroe’s allegations of harassing conduct may be considered in
determining whether Munroe was subjected to an actionable hostile
work environment. See National R.R., 122 S . C t . at 2074 (a court
may consider the entire period of the alleged hostile work
13 environment provided that an act contributing to the claim occurs
with the filing period).
B. The Existence of a Hostile Work Environment
To establish a hostile work environment under Title V I I ,
Munroe must show that the harassment based on her sex was
“sufficiently severe or pervasive to alter the conditions of her
employment,” and that “the work environment was both objectively
and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that [the plaintiff] in fact did
perceive to be so.” Conto v . Concord Hosp., Inc., 265 F.3d 7 9 ,
82 (1st Cir. 2001) (internal quotations and citations omitted).
This is not a precise test, and the decision as to “whether an
environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances.” Harris v . Forklift Sys.,
Inc., 510 U.S. 1 7 , 22-23 (1993); see also, Conto, 265 F.3d at 81
(a determination as to whether the defendant subjected the
plaintiff to a hostile work environment “necessarily entail[s] a
fact-specific assessment of all the attendant circumstances.”).
“Several factors typically should be considered in making this
determination: ‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
14 a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance’.” O’Rourke, 235
F.3d at 729 (quoting Harris, 510 U.S. at 2 3 ) . However, no single
factor is required. See Harris, 510 U.S. at 2 3 .
The requirement that the harassment be sufficiently severe
or pervasive to alter the plaintiff’s employment conditions
“takes a middle path between making actionable any conduct that
is merely offensive and requiring the conduct to cause a tangible
psychological injury.” Id. at 2 1 . Accordingly, while offhand
comments and isolated incidents are insufficient to constitute
harassment under Title V I I , see id.; O’Rourke, 235 F.3d at 729,
“Title VII comes into play before the harassing conduct leads to
a nervous breakdown.” Harris, 510 U.S. at 2 2 .
Defendant argues that Munroe’s harassment allegations were
not sufficiently severe or pervasive to alter her conditions of
employment. Munroe alleges that she was subjected to repeated
sexual propositions and offensive comments based on her sex. She
also alleges that over time those comments became more offensive.
Munroe later received offensive sexually-charged e-mails, and was
subjected to offensive touching in the workplace. And she
alleges that she was denied sick leave on one occasion because of
15 Singh’s harassment. Accepting the evidence in the light most
favorable to the plaintiff, she has shown that the allegedly
harassing behavior was consistent and even habitual over the
course of her employment. See DeNovellis v . Shalala. 124 F.3d
298, 311 (1st Cir. 1997) (harassment that is severe enough to
alter the victim’s workplace experience or pervasive enough to
become the defining condition of the workplace violates Title
VII). Because harassment serious enough to create a hostile work
environment often involves a cumulative process in which a series
of acts or events mount over time to create an unlawfully hostile
atmosphere, the question as to when offensive conduct violates
Title VII is often better resolved by the factfinder at trial and
not on summary judgment. See O’Rourke, 235 F.3d at 732. Again,
Munroe has introduced sufficient evidence of harassment to
satisfy her burden on summary judgment. Whether the conduct that
Munroe was subjected to was or at some point over the course of
her employment became sufficiently severe or pervasive to support
a Title VII harassment claim is best reserved for trial.
C. Ellerth/Faragher Affirmative Defense for Supervisor Harassment Claims
A defendant employer may avoid vicarious liability for the
misconduct of a supervisor in a Title VII hostile work
16 environment case by establishing that it is entitled to the
affirmative defense set forth in the Supreme Court’s holdings in
Burlington Indus., Inc. v . Ellerth, 524 U.S. 742 (1998) and
Faragher v . Boca Raton, 524 U.S. 775 (1998). The defense, which
is only available when no tangible employment action has been
taken against the plaintiff, “comprises two necessary elements:
(a) that the employer exercised reasonable care to prevent and
correct promptly any . . . 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.” Faragher, 524 U.S. at 807. See
also White v . New Hampshire Dep’t of Corr., 221 F.3d 2 5 4 , 261
(1st Cir. 2000) (setting forth the elements of the affirmative
defense). The Ellerth/Faragher affirmative defense is “subject
to proof by preponderance of the evidence.” Ellerth, 524 U.S. at
765 (citing Fed. R. Civ. P. 8(c)).
1. Tangible Employment Action
An employer will be subject to vicarious liability when a
supervisor takes a tangible employment action against a
subordinate. Ellerth, 524 U.S. at 760. According to the Supreme
Court, “[a] tangible employment action constitutes a significant
17 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.” Ellerth, 524 U.S. at 761. A tangible employment
decision “requires an official act of the enterprise, a company
act.” Id. at 762. That decision is usually “documented in
official company records, and may be subject to review by higher
level supervisors.” Id.
If Singh’s conduct resulted in a tangible employment action
within the meaning of the Supreme Court’s definition, then the
Defendant is not entitled to assert the Ellerth/Faragher
affirmative defense. I turn to that issue in the next section.
2. Constructive Discharge
In her objection, Munroe argues that she was constructively
discharged in April 1998, and that her constructive discharge
constitutes a tangible employment action that renders the
Ellerth/Faragher affirmative defense unavailable to the
Defendant. Although there is no claim labeled “constructive
discharge” in Munroe’s Complaint, the Defendant conceded at oral
argument that paragraph 19 of the Complaint provided fair notice,
under the principles of notice pleading, that Munroe contended
18 that she was constructively discharged.4
Nevertheless, Defendant argues that constructive discharge
is not a “tangible employment action” since it is not an action
by the Company. There is considerable dispute whether a
constructive discharge constitutes a tangible employment action
under Ellerth/Faragher. See Caridad v . Metro-North Commuter
R.R., 191 F.3d 283, 294-295 (2d Cir. 1999) (constructive
discharge is not a tangible employment action because, among
other things, it is not ratified or approved by the employer),
cert. denied, 529 U.S. 1107 (2000); Scott v . Ameritex Yarn, 72 F.
Supp. 2d 5 8 7 , 594 (D.S.C. 1999) (constructive discharge is not a
tangible employment action because it is not made with the
authority or approval of the employer); Desmarteau v . Wichita, 64
F. Supp. 2d 1067, 1079 (D. Kan. 1999) (the Supreme Court’s focus
on the tangible actions of the supervisor logically excludes
actions which are “constructively” attributed to h i m ) ; but see
Jackson v . Ark. Dept. of Ed., Voc. and Tech. Ed. Div., 272 F.3d
4 The Complaint states in relevant part that:
On April 2 0 , 1998, Munroe could no longer tolerate the extremely hostile work environment and management’s failure to take any correct[ive] actions. Munroe, was left with no choice but to terminate her employment.
Compl., ¶ 19.
19 1020, 1026-27 (8th Cir. 2001) (finding that constructive
discharge constitutes a tangible employment action and citing
Ellerth), cert. denied,-- U.S. --, 122 S . C t . 2366 (2002); Durham
Life Ins. C o . v . Evans, 166 F.3d 139, 149 n.5 (3d Cir. 1999)
(finding it clear under the holdings of Ellerth and Faragher that
a constructive discharge renders the affirmative defense
unavailable); Cherry v . Menard, Inc., 101 F. Supp. 2d 1160, 1171-
74 (N.D. Iowa 2000) (constructive discharge resulting from a
supervisor’s harassment is a tangible employment action). The
First Circuit has not squarely addressed this issue.
The Court does not attempt to settle this debate here. Even
considering the most well-reasoned argument in support of finding
vicarious liability based on a theory of constructive discharge,
the undisputed facts of the instant case show that Singh’s
conduct cannot be construed as a tangible employment action by
the Company.
It is undisputed that the Company, through Brintz, informed
Munroe on the same day that she resigned that the Company would
conduct a thorough investigation of her complaint and urged her
to remain at work. The Company then conducted its investigation
promptly, including by interviewing Munroe, and caused the
20 terminations of Munroe’s alleged harassers. At no point did the
Company affirm or ratify Singh’s harassing conduct. To the
contrary, the Company expressly repudiated i t . If the Company
failed to take any action to address Munroe’s complaint after she
resigned, Munroe would at least have a viable argument that her
constructive discharge was an official act of the company. But
that is not case. Therefore, the Court finds that Munroe cannot
establish the existence of a tangible employment action by the
Company. The Defendant is entitled to assert the
Ellerth/Faragher affirmative defense in this action.
3. Reasonable Care to Prevent and Correct Harassment
Depending on the employment context, proof that an employer
has promulgated an anti-harassment policy with a complaint
procedure may be sufficient for the employer to show that it has
taken reasonable care to prevent harassment. See Marrero v . Goya
of Puerto Rico, supra, 304 F.3d at 20 (“the availability of the
affirmative defense often will turn on whether the employer had
established and disseminated an anti-discrimination policy,
complete with a known complaint procedure.”); Shaw v . AutoZone,
Inc., 180 F.3d 806, 811 (7th Cir. 1999) (the existence of an
appropriate anti-harassment policy will often satisfy the first
21 prong of the Ellerth/Faragher affirmative defense). While there
is no direct evidence the Munroe was given a copy of the
Company’s anti-harassment policy prior to December 1997, it is
undisputed that the policy was posted on bulletin boards
throughout the Company and available on the Company’s computer
system, which was accessible to Munroe. It is also undisputed
that Munroe attended a sexual harassment training by December 1 2 ,
1997 wherein the Company’s policy was discussed. The policy
identifies various avenues for making a complaint including a
hotline number that employees may call anonymously. The policy
also informs employees that retaliation against individuals who
make complaints is unlawful and will not be tolerated.
Munroe argues that the Company did not take reasonable care
to prevent harassment because the Company allowed Singh to remain
in a supervisory role despite past allegations of misconduct
against him. Munroe submitted evidence that three accusations of
inappropriate sexual remarks were made about Singh prior to
Munroe’s allegations.5 Two of these remarks were allegedly made
5 See P l . Opp., Ex. 8 , p p . 6 and P l . Opp., Ex. 1 0 , p . 4 . The Defendant disputes Munroe’s contention that Singh’s inappropriate remarks were sexual in nature. Defendant also argues that Plaintiff’s evidence pertaining to Singh’s remarks is inadmissible. For the purposes of summary judgment, however, the Court construes the evidence in the light most favorable to
22 prior to 1985. There is no record of any action the Company took
with respect to the earliest allegation, but Singh was
disciplined for a remark he made in 1984. He received a written
warning for the third remark, which occurred in July 1997.
Munroe argues that the Company did not take reasonable care to
prevent further harassment because there is no evidence that the
Company limited or monitored Singh’s supervisory role after the
July 1997 warning.
The Court finds that Munroe has raised a genuine issue of
material fact regarding whether the Company exercised reasonable
care to prevent harassment. Munroe points to some evidence that
the Company was aware of Singh’s misconduct, but did not take
reasonable care to prevent further harassment. In this regard,
the Court notes that the Defendant bears the burden of proof on
this issue. When the moving party bears the burden of proof on
the issue in question, the court may only grant summary judgment
if the moving party’s evidence is uncontradicted and unimpeached.
Munroe. In addition, the nonmoving party need not produce evidence in a form that would be admissible at trial to avoid summary judgment. See Celotex, 477 U.S. at 324. Under Rule 56(e), a party opposing summary judgment may do so by referring the court to any of the kinds of evidentiary material in Rule 56(c), except the mere pleadings alone. Id. Munroe provided the Company’s Answers to Interrogatories in support of the 1997 remark.
23 See Marrero, 304 F.3d at 22 (explaining the standard for judgment
as a matter of l a w ) ; see also, Anderson v . Liberty Lobby, Inc.,
477 U.S. 2 4 2 , 250 (1986) (the standard for granting summary
judgment mirrors the standard for a directed verdict). As
discussed above, Munroe points to some material evidence to
support her argument that the Defendant did not act reasonably to
prevent harassment. Whether the Defendant has the preponderance
of the evidence on the issue of reasonable care to prevent
harassment is a question for the factfinder at trial.
The decisions cited by Defendant where the Court determined
that the employers took reasonable care to prevent harassment as
a matter of law are inapposite. In Shaw v . AutoZone, supra, the
court noted that the employer presented undisputed evidence that
it acted reasonably to prevent and respond to harassment. 180
F.3d at 812. Thus, the court found, as a matter of law, in favor
of the employer on the first prong of the Ellerth/Faragher
affirmative defense. Similarly, in Scrivner v . Socorro Indep.
Sch. Dist., 169 F.3d 969, 971 (5th Cir. 1999), the court found
that the employer was entitled to the affirmative defense because
the plaintiff failed to cite any material evidence in opposition
to the evidence submitted by the defendant employer. The facts
24 of Shaw and Scrivener are distinguishable from the facts in the
instant case.
Because the court finds that Munroe raises a genuine issue
of material fact on the first element of the Ellerth/Faragher
defense, the Court need not consider the second element of the
defense. The Company’s motion for summary judgment on Munroe’s
supervisor harassment claim is denied.
D. Co-Worker Harassment Claim
Courts apply a negligence standard for determining employer
liability for co-worker harassment. See Crowley v . L.L. Bean,
Inc., N o . 01-2732, --F.3d--, 2002 WL 31056020 at *11 (1st Cir.
Sept. 1 9 , 2002); White, supra, 221 F.3d at 261. This standard
requires a Title VII plaintiff to show that the employer “knew or
should have known of the charged sexual harassment and failed to
implement prompt and appropriate corrective action.” Crowley,
2002 WL 31056020 at * 1 1 ; White, 221 F.3d at 261.
The Company argues that it is entitled to summary judgment
on Munroe’s co-worker harassment claim because Munroe did not
give the Company notice of Guilbeault’s harassment. As part of
this argument, the Company contends that Munroe’s complaints to
Singh cannot be imputed to the Company. The Court disagrees.
25 Munroe acted in accordance with the Company’s sexual harassment
policy in reporting Guilbeault’s harassment to her direct
supervisor, and Munroe was entitled to rely on Singh to take
appropriate action in response to her complaint.
In Distasio v . Perkin Elmer Corp., 157 F.3d 5 5 , 64 (2d Cir.
1998), the court found that an official’s knowledge of sexual
harassment allegations will be imputed to an employer in three
circumstances:
(A) the official is at a sufficiently high level in the company’s management to qualify as a proxy for the company; or (B) the official is charged with a duty to act on the knowledge and stop the harassment; or (C) the official is charged with a duty to inform the company of the harassment.
Id. (quoting Torres v . Pisano, 116 F.3d 625, 636-37 (2d C i r . ) ,
cert. denied, 522 U.S. 997 (1997)).
Clearly, Singh was a person in the Company who was charged
with a duty to inform the company of harassment complaints. The
Company’s Sexual Harassment Policy states that “Managers,
supervisors or Human Resource professionals observing or
receiving [sexual harassment] complaints must contact the U.S.
EEO/Diversity Organization for direction in investigating the
complaint.” In direct contravention of the Company’s sexual
harassment policy, Singh did not transmit Munroe’s complaints.
26 Moreover, Singh knew that Munroe found Guilbeault’s conduct
unwelcome, but did not make any direct attempt to correct
Guilbeault’s behavior. Under these circumstances, Munroe may
proceed with her co-worker harassment claim against the Company
by attempting to impute her supervisor’s knowledge of the alleged
harassment to the Company. Distasio, 157 F.3d at 6 4 ; see also,
Crowley, 2002 WL 31056020 at *12 (employer subject to liability
where employer maintained a policy that permitted workers to
report sexual harassment to team leaders who had a duty to report
the complaint up the chain of command); Young v . Bayer Corp., 123
F.3d 6 7 2 , 675 (7th Cir. 1997) (plaintiff placed her complaint in
the proper channel under the employer’s internal policies
governing harassment because the plaintiff’s department head was
one of four authorized channels for lodging a complaint).
Defendant argues that, as a matter of law, Munroe cannot
rely on her complaints to Singh about Guilbeault because Munroe
has alleged that Singh also harassed her. Defendant cites
Finnane v . Pentel of Am., Ltd., N o . 98 C 5187, 99 C 0189, 2000 WL
288437 at *11 (N.D.Ill. Mar. 1 4 , 2000), as support for its
assertion. In that case, the court found that “[i]t is
unreasonable for an employee to expect a supervisor that is
27 sexually harassing her to report other allegations of harassment
against the employee, which the supervisor learned during the
course of his own harassment.” The court extended the rule in
Parkins v . Civil Constructors of Ill., 163 F.3d 1027, 1037 (7th
Cir. 1998) and Hetreed v . Allstate Ins. Co., N o . 96 C 2021, 1999
WL 311728 at *6 (N.D. Ill. May 1 2 , 1999), that it is unreasonable
to expect an allegedly harassing supervisor to transmit
complaints to management about himself.
The facts of Finanne are distinguishable from the facts in
the instant case. In Finnane, the plaintiff allegedly told her
direct supervisor that she had been threatened by a Pentel
manager, with whom she had formerly had a sexual relationship.
2000 WL 288437 at * 1 1 . The plaintiff informed her supervisor of
the threat during a dinner conversation in which the plaintiff
alleged that her supervisor made sexual advances towards her and
touched her inappropriately. Id. The court noted that the
plaintiff presented no evidence that her dinner conversation was
an official report of sexual harassment. Id. Under the
circumstances of the case, the court found that the plaintiff
could not reasonably rely on her supervisor to report the other
Pentel manager’s alleged harassment. Id.
28 In the instant case, it is undisputed that Munroe complained
to Singh about Guilbeault’s conduct. Munroe made her complaints
in the workplace and clearly intended to elicit Singh’s
assistance. On one occasion, Munroe showed Singh the offensive
e-mails that she had received from Guilbeault so that Singh could
see them for himself.
In reporting Guilbeault’s harassment to Singh, Munroe acted
in accordance with the Company’s policy, and with Singh’s alleged
directive not to go over his head. See Distasio, 157 F.3d at 64-
65 (employer could be held liable for co-worker harassment if the
employee remained silent because of the supervisor’s remark).
Under the Company’s sexual harassment policy, Singh was obligated
to act on Munroe’s complaints. The policy did not require Munroe
to go an additional rung up the Company hierarchy to report
harassment in the event that her direct supervisor was also
harassing her. The Court finds that Munroe was entitled to rely
on her complaints to Singh about Guilbeault’s conduct. The Court
further finds that there is a genuine issue of material fact
regarding the Company’s negligence in preventing Guilbeault’s
harassment.
29 II. Munroe’s State Law Claim
Munroe alleged in her Complaint that the Defendant violated
N.H. RSA 354-A in addition to violating Title VII. N.H. RSA 354-
A:7 makes it unlawful for an employer to discriminate against an
individual in compensation or in terms, conditions or privileges
of employment because of sex. N.H. RSA 354-A:7(I). The statute
further provides that “harassment on the basis of sex constitutes
unlawful sex discrimination.” N.H. RSA 354-A:7(V). “Unwelcome
sexual advances, requests for sexual favors, and other verbal,
non-verbal or physical conduct of a sexual nature constitutes
sexual harassment” if “[s]uch conduct has the purpose or effect
of unreasonably interfering with an individual’s work performance
or creating an intimidating, hostile, or offensive working
environment.” N.H. RSA 354-A:7(V)(c).
This Court has supplemental jurisdiction to hear and decide
Munroe’s state law sexual harassment claim if it is “so related
to claims in the action within [the court’s] original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.” 28 U.S.C.
§ 1367(a); Wisconsin Dept. of Corr. v . Schacht, 524 U.S. 3 8 1 , 387
(1998) (supplemental jurisdiction allows federal courts to hear
30 and decide state-law claims that are part of the same case or
controversy as claims within the court’s original jurisdiction).
Since there is no credible argument that Munroe’s state law claim
is not related to her federal Title VII claims, this Court has
jurisdiction to decide Munroe’s state law claim.
Munroe’s state law sexual harassment claim because N.H. RSA 354-A
does not create a private right of action for those aggrieved by
unlawful discrimination. In support of this assertion, Defendant
cites Evans v . Work Opportunities Unlimited, Inc., 927 F. Supp.
554, 556 (D.N.H. 1996), Tsetseranos v . Tech Prototype, Inc., 893
F. Supp. 109, 119-120 (D.N.H. 1995), and Doukas v . Metropolitan
Life Ins. Co., 882 F.Supp. 1197, 1200-01 (D.N.H. 1995). Those
cases stand for the proposition that individuals alleging
unlawful employment discrimination are limited to “seeking relief
through the administrative process created by the statute and to
obtaining judicial review of the results thereof in state court.”
Tsetseranos, 893 F. Supp. at 120. While formerly good law,
Evans, Tsetseranos and Doukas were decided before N.H. RSA 354-A
was amended on June 1 6 , 2000. See N.H. RSA 354-A:21-a (Supp.
2002) (adding choice of forum provisions). Under N.H. RSA 354-
31 A:21-a, a plaintiff may now bring a civil action in court to
remedy any practice made unlawful by Chapter 354-A if certain
preconditions are met. Id. Thus, Defendant’s argument does not
comport with the existing law.6
Nevertheless, the Court finds that the Defendant is entitled
to summary judgment on Munroe’s 354-A claim because Munroe does
not meet the statutory preconditions for bringing a civil action.
The statute explicitly provides that a superior court trial shall
not be available “to a complainant whose charge has been
dismissed as lacking in probable cause who has not prevailed on
an appeal to superior court pursuant to RSA 354-A:21, II(a).”7
N.H. RSA 354-A:21a. There is no evidence in the record that
suggests that Munroe appealed the NHCHR’s adverse probable cause
finding in the state courts. A litigant may not use supplemental
jurisdiction to have a federal court instead of a state court
6 Munroe filed her sexual harassment claim with the NHCHR, and the NHCHR made its probable cause determination, prior to the amendment to N.H. RSA 354-A that permits a private cause of action. The Court does not address whether the amendment should apply retroactively to Munroe’s claim since the Court finds that Munroe fails to meet the statutory preconditions for bringing a private cause of action. 7 N.H. RSA 354-A:21, II(a), provides in relevant part that: “[w]hen the investigating commissioner finds no probable cause to credit the allegations in the complaint, the complaint shall be dismissed, subject to a right of appeal to superior court.”
32 perform judicial review of a state administrative agency decision
that a state statute assigns to state court. See e.g., Misischia
v . Pirie, 60 F.3d 626, 631 (9th Cir. 1995) (rejecting plaintiff’s
attempt to invoke supplemental jurisdiction to by-pass the state
court’s authority to review the state administrative agency’s
denial of a dental license). Munroe forfeited her state law
claim because she did not follow the statutory procedure that
created the private right of action. Accordingly, the Court
finds that Defendant’s motion for summary judgment on Munroe’s
sexual harassment claim under N.H. RSA 354-A must be granted.
Conclusion
Defendant’s motion for summary judgment (document n o . 24) is
denied with respect to Munroe’s sexual harassment claims under
Title VII. Defendant’s motion is granted with respect to
Munroe’s sexual harassment claim under N.H. RSA 354-A.
SO ORDERED.
James R. Muirhead United States Magistrate Judge
Date: October 1 8 , 2002
cc: Thomas J. Gleason, Esq. David C . Casey, Esq. Steven M . Gordon, Esq.
33 34