Not Here, Not Now: How to Summarily Resolve Hostile Environment Sexual Harassment Cases

By Julie A Moore, Esquire
Reprinted with permission of the New Hampshire Bar Journal, Vol. 39, No. 2, June 1998

As lawyers scan the numerous media articles and reports spotlighting verdicts and record settlements in hostile environment sexual harassment cases, they may presume that virtually all sexual harassment lawsuits against employers alleging a hostile environment result in liability findings against them. This article, however, amply demonstrates that many sexual harassment cases are dismissed by the courts on summary proceedings. Employers can avoid jury trials, thereby eliminating the potential financial exposure resulting from a jury verdict in the form of punitive damages, compensatory damages, as well as attorneys’ fees and costs.

Summary judgment motions are filed by employers in most hostile environment sexual harassment cases. As a consequence, the courts have many opportunities to examine and rule upon various legal arguments made by defendants. A review of recent decisions from the United States District Court for the District of New Hampshire (the "District Court" or the New Hampshire "federal court") reveals that summary judgment is frequently granted in employers’ favor in hostile environment sexual harassment cases,1 so long as the Court is presented with the right set of facts.

This article highlights the various bases upon which the New Hampshire District Court has recently granted summary judgments in employers’ favor both on procedural and substantive grounds. They include:

• Plaintiff’s failure to file the charge of discrimination within the requisite time prescribed by statute
• Plaintiff’s failure to commence a lawsuit within the requisite time prescribed by statute
• Plaintiff’s failure to allege with specificity sexual harassment in the body of the charge of discrimination
• A determination that no individual liability exists for supervisors
• A finding that the alleged harassment was not targeted at the plaintiff’s sex
• A ruling that the alleged misconduct was insufficiently severe or pervasive
• The lack of a sufficient basis for employer liability for a supervisor’s alleged misconduct, including where a supervisor was not at a sufficiently high level in the company, where a supervisor lacked apparent authority, and where a supervisor was not aided by the employment relationship
• The lack of employer notice of harassment allegedly perpetrated by employees or supervisors
• Where employer took prompt remedial action after becoming aware of a sexual harassment complaint.

Following a review of the prevailing statutes and case law pertaining to sexual harassment, this article discusses the standard the court follows in deciding if summary judgment is warranted. The legal arguments advanced successfully by New Hampshire employers will then be analyzed in detail.

A. THE LAW OF HOSTILE ENVIRONMENT SEXUAL HARASSMENT

Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privileges of employment, because of such individual’s . . . sex."2 The phrase "terms, conditions or privileges of employment" includes requiring employees to work in a discriminatorily hostile or abusive environment.3 Title VII is violated when a work environment is permeated with discriminatory intimidation, ridicule, and insult that is severe or pervasive enough to alter the conditions of an employee’s workplace.4

Sexual harassment is unlawful sex discrimination under Title VII.5 Many believe Title VII is only designed to protect women from sexual harassment perpetrated by men or vice versa. This is not so. According to a recent ruling from the United States Supreme Court, in Oncale v. Sundowner Offshore Servs., Inc., No. 96-568, March 4, 1998, it is clear that federal protection under Title VII extends to employees harassed on the job by members of the same sex.

Hostile environment sexual harassment must be gender-based conduct sufficient to create a work environment that a reasonable person would find hostile or abusive.6 The environment also must be subjectively perceived by the alleged victim to be offensive.7 To establish an employer’s liability in a hostile environment sexual harassment claim, a plaintiff must demonstrate each of the following:

1. that he or she is a member of a protected class;
2. that he or she was subject to unwelcome sexual harassment;
3. that the harassment was based upon sex;
4. that the harassment was sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s workplace and create an abusive work environment; and
5. that some basis for employer liability has been established.8

The United States Supreme Court has ruled that the determination of whether a plaintiff has established a hostile or abusive workplace environment requires a court to consider the totality of the circumstances, particularly those concerning the frequency of the alleged misconduct; its severity; whether it is physically threatening or humiliating rather than a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.9 No single factor is required to sustain a cognizable sexual harassment claim.10 For instance, with regard to the frequency of the alleged discriminatory conduct, the First Circuit has concluded that an isolated episode is not per se incapable of sustaining a hostile environment.11 A single incident of sexual assault, for example, may be sufficient to alter an employee’s conditions of employment and show an abusive work environment under the Title VII standard.12

The New Hampshire District Court, quoting Chief Judge Posner of the Seventh Circuit, adopted the following analysis in assessing workplace behavior and determining whether liability attaches:

[Sexual harassment] is not designed to purge the workplace of vulgarity. Drawing the line is not always easy. On one side lie sexual assaults; other physical contacts, whether amorous or hostile , for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.13

The Court cautioned that Title VII is not designed to rid the workplace of "all offensive, rude, boorish, and discourteous behavior; it does not promise a socially sterile or perfectly civil work environment. "14 The Court explained "while occasional crass language or off-color humor in the workplace may be both unprofessional and socially inappropriate, it does not, without more, provide a foundation upon which to build a Title VII claim."15

Establishing a basis for employer liability can be accomplished in a number of ways. An employer is liable for a hostile environment caused by a plaintiff’s co-workers or lower-level supervisory employees when the company knew or in the exercise of reasonable care should have known of the harassment and failed to take steps reasonably calculated to halt it. 16 Additionally, an employer may be liable for hostile environment harassment perpetrated by one of its supervisory employees in three instances: (1) the supervisor acted within the scope of his or her employment;17 (2) the supervisor occupied a sufficiently high level in the company such that his or her actions could be imputed to the company (known as direct liability); or (3) the supervisor acted under apparent authority from the employer or was aided in accomplishing the harassment by his or her relationship to the employer.18

Most employers have promulgated sexual harassment policies for their workplaces. The existence of such policies are "plainly relevant" and advisable for all New Hampshire employers to have, although not yet required by federal or New Hampshire statute.19 Although anti-harassment policies do not automatically absolve New Hampshire employers from liability, the lack of an anti-harassment policy and an established internal grievance procedure can contribute to a finding of liability for harassment.20

The United States Supreme Court, in Meritor, rejected the employer’s argument that its sexual harassment policy and internal grievance procedure as well as the plaintiff’s failure to invoke them should shield it from liability.21 There, however, the procedures required the plaintiff to complain to her supervisor -- who was also the alleged harasser. The Court suggested that the employer’s argument "might be substantially stronger if its procedures were better calculated to encourage victims of harassment to come forward."22 Obviously, the company’s complaint procedure was flawed in that circumstance.

Courts since the Meritor decision have given great weight to an effective anti-harassment policy.23 Recently, the New Hampshire federal court has noted that the Second Circuit recognizes that an employer can be liable for hostile environment sexual harassment if it did not provide a "reasonable avenue" of complaint.24 Given the case law in this area, it is certainly worth making an argument that a company’s sexual harassment policy, workforce training on sexual harassment, and internal grievance procedure are an adequate defense to a finding of sexual harassment liability.

B. SUMMARY JUDGMENT STANDARD

Summary judgment under Fed. R. Civ. P. 56 is proper where 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."25 The role of summary judgment is to pierce the "boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required."26 The moving party has the burden of demonstrating the absence of a genuine issue of material fact for trial27 and, if it carries its burden, the party opposing the motion must set forth specific facts showing that there remains a genuine issue for trial, demonstrating "some factual disagreement sufficient to deflect brevis disposition."28 That burden is discharged only if the cited disagreement relates to a genuine issue of material fact.29 "Generally speaking, 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."30 A genuine factual dispute does not arise, for instance, where an affidavit that is submitted in opposition to a summary judgment contradicts, without explanation, a party’s earlier deposition testimony.31

In considering summary judgment disposition in Title VII cases, the First Circuit Court of Appeals recently held that "the need to order the presentation of proof is largely obviated, and a court may often dispense with strict attention to the burden-shifting framework,32 focusing instead on whether the evidence as a whole is sufficient to make out a jury question as to pretext and discriminatory animus."33

Disputes where concepts such as motive or intent are at issue do not foreclose the operation of summary judgment. Thus, the First Circuit has held that summary judgment can be, and often is, appropriate in employment cases, "where the party resisting judgment relies ‘upon conclusory allegations, improbable inferences, and unsupported speculation’ as to any essential element in [his or her] claim."34

C. SPECIFIC NEW HAMPSHIRE CASES WHERE SUMMARY JUDGMENT GRANTED

1. Failure to File Charge within Time Prescribed by Statute and Failure to Commence Suit within Statutory Period

Statute of limitations arguments are properly decided by the court on summary judgment. The First Circuit Court of Appeals has stated: "Questions anent to the applicability and effect of the passage of time on particular sets of facts often are grist for the summary judgment mill."35 Accordingly, "when a defendant moves for summary judgment based on a plausible claim that the suit is time-barred, the onus of identifying a trial-worthy issue customarily falls on the plaintiff."36

Title VII requires employees to exhaust administrative remedies before filing suit in federal court.37 The general rule requires administrative complaints to be filed with the EEOC within one hundred eighty (180) days of the alleged discriminatory act, unless the complaint is first filed with an authorized state agency, in which case it must be filed within three hundred (300) days.38 New Hampshire courts have construed the time limitations to permit Title VII claimants the full three hundred (300) days within which to file complaints.39 Claimants bringing claims under the state anti-discrimination statute, RSA 354-A, however, must file their discrimination charges within one hundred eighty (180) days of the alleged act of discrimination.40

If a claimant chooses to bring a civil action following the filing of an administrative charge, he or she must request a Notice of Right to Sue ("Notice") from the EEOC and file suit within ninety (90) days of the EEOC’s issuance of that Notice.41 The issuance of the Notice terminates the EEOC proceedings.42 This 90-day requirement, like the 300-day and 180-day requirements outlined above, is strictly construed, absent a recognized equitable consideration.43

The purpose of the Title VII limitations period is to guarantee the protection of the civil rights law to those who promptly assert their rights while, simultaneously, to protect employers from the burden of defending claims arising from employment decisions that are long past.44 "[T]he period allowed for instituting suit inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones."45 The United States Supreme Court has stated: "Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by the courts out of vague sympathy for particular litigants . . . [I]n the long run, experience teaches that strict adherence to the procedural requirements specified . . . is the best guarantee of even handed administration of the law.’"46

For initially bringing a charge, the date of accrual -- the date on which the 300-day and 180-day limitations clocks begin to tick -- commences "when a plaintiff knows, or has reason to know, of the discriminatory act that underpins [his or] her cause of action."47 The First Circuit has stated that it will respect the statute of limitations imposed by federal law so as not "to resurrect an otherwise dead claim."48 Courts routinely dismiss a plaintiff’s claims when the charge of discrimination was untimely filed.49

In Clark v. Allen-Bradley, Inc., No. 94-592-L, slip op. at 3-6 (May 1, 1995), for example, the plaintiff pled a number of state and federal causes of action, including sexual harassment under both Title VII and RSA 354-A. The alleged harassment occurred at least 290 days before the plaintiff filed a discrimination charge with the New Hampshire Commission for Human Rights. Accordingly, the limitations period applicable to sexual harassment claims -300 days under Title VII and 180 days under RSA 354-A - was applied. The Court found the Title VII claim to be timely filed. The Court, however, granted the defendants’ summary judgment motion as to the state-law action because it was time-barred.

Similarly, in Finney v. Frank W. Whitcomb Constr. Corp., No. 95-360-B, slip op. at 10 (D.N.H. July 24, 1997), the court granted the defendant’s summary judgment motion because the plaintiff filed a charge of discrimination 307 days after the alleged sexual harassment occurred. In defense, the plaintiff alleged she missed the deadline for two reasons: (1) the EEOC and the New Hampshire Commission for Human Rights erroneously informed her that New Hampshire did not have jurisdiction over her charge, and (2) a representative of the Commission gave her attorney an incorrect filing deadline. The Court rejected the plaintiff’s equitable tolling arguments, finding that she failed to produce sufficient evidence under the circumstances to justify extending the limitations period.

A plaintiff, however, can circumvent the strict statutory limitations period under certain circumstances. If, for example, a plaintiff can show that she suffered harassment that was part of a continuing violation of Title VII, he or she can "reach back" to conduct that occurred outside of the filing period.50 The theories allowing such recovery include the serial violation theory and the systemic violation theory.51 A plaintiff cannot recover, however, for untimely acts simply because he or she delayed in seeking relief.

The First Circuit has defined a serial violation as one composed of a number of discriminatory acts emanating from the same discriminatory animus, with each act constituting a separate actionable wrong under the law.52 To succeed under this theory, a plaintiff must show a "substantial relationship" between the time-barred acts and at least one act of harassment that occurred within the limitations period.53 If established, the court "rewinds the clock for each discriminatory episode along the way."54

The most important factor to consider in determining if a substantial relationship exists is whether the prior acts had a degree of permanence.55 That is, the court looks at whether the conduct "should trigger an employee’s awareness and duty to assert his or her rights."56 The Sabree Court explained that "permanence is basically an inquiry into what the plaintiff knew or should have known at the time of the discriminatory act. What matters is whether, when and to what extent the plaintiff was on inquiry notice."57 Once a plaintiff has "lived through a series of acts and is thereby able to perceive the overall discriminatory pattern," he or she is on inquiry notice and is duty bound to assert his or her Title VII rights.58 Thus, "[a] claim arising out of an injury which is "continuing" only because a putative plaintiff knowingly fails to seek relief is exactly the sort of claim that Congress intended to bar by the [300] day limitation period [of Title VII]."59

The New Hampshire District Court has rejected plaintiffs’ attempts to show a serial violation where no evidence exists to show that the timely and untimely actions were either related or motivated by the same alleged discriminatory animus. For example, in Sweet v. Hadco Corp., No. 95-576-M, slip op. at 13-17 (D.N.H. Feb. 3, 1997), the plaintiff brought, among others, a claim for sexual harassment that allegedly began in 1992 and continued until she left the company in 1995. While the plaintiff broadly described a continuing hostile work environment for a number of years, the only specific misconduct that allegedly occurred during the limitations window was some "eerie" whistling and her being followed by her former supervisor. The plaintiff’s claim was time-barred because she admitted that she was cognizant that her former supervisor’s alleged behavior constituted misconduct under law.

The plaintiff claimed in her defense that the company should have been equitably estopped from asserting that she was aware of her claim before the limitations period. The Court recognized that equitable estoppel may extend the Title VII filing deadline if a plaintiff failed to file in a timely manner due to his or her reasonable reliance on an employer’s misleading or confusing representations or actions. Here, however, the plaintiff could not meet this standard. Consequently, the Court found that the plaintiff had not established a continuing series of violations and granted the defendant’s motion for summary judgment.60

In addition to the requirement that a claimant file a discrimination charge within a specific statutory period, a claimant must also commence suit in state or federal court within a relatively short window of time. Specifically, plaintiffs must commence suit in court within 90 days of the EEOC’s issuance of the Notice. The Notice is issued regardless of whether the Commission made a finding of probable cause or no probable cause to believe harassment occurred.

The District Court of New Hampshire recently granted a defendant’s summary judgment motion where a plaintiff failed to commence her federal court action within the requisite 90 days following the Notice. In Piche v. Screen U.S.A., No. 96-456-M, slip op. at 6 (D.N.H. Feb. 4, 1998), the Court found the plaintiff’s complaint to be time-barred. The plaintiff admitted that she did not file her suit within the 90-day window and she did not claim that her late filing was subject to estoppel, waiver or equitable tolling. With little discussion, the Court found the plaintiff’s claim to be untimely.

2. Lack of Specificity in Charge of Discrimination

In addition to filing a charge in a timely manner, a plaintiff must specifically allege discrimination on the basis of sex in the EEOC charge as a prerequisite to filing a Title VII sexual harassment claim.61 That is, the plaintiff must provide the EEOC with sufficient information to enable it to determine what the grievance is about.62 The courts may construe the EEOC charge liberally, considering claims which reasonably can be expected to emanate from the EEOC’s investigation.63 The Court may not consider alleged discriminatory acts that were not set forth in an EEOC charge unless the new claims are "like or reasonably related to" the allegations in the charge.64 Where pro se litigants are involved, the courts construe their claims liberally, giving them the benefit of any doubt.65

The New Hampshire federal court granted a defendant’s motion to dismiss in the recent decision of Preyer v. Dartmouth College, No. 96-491-JD, slip op. at 9-10 (D.N.H. June 25, 1997). There, plaintiff’s counsel drafted the EEOC charge, specifying race discrimination in both the text of the charge and the box on the form to indicate the nature of the alleged discrimination. Plaintiff never sought to amend her charge to add sexual harassment. Nevertheless, in her federal court lawsuit, the plaintiff attempted to add a claim against the college for sexual harassment. The Court declined to recognize this claim, holding that the plaintiff failed to satisfy the administrative prerequisites at the EEOC to establish a sexual harassment claim.66

3. No Individual Liability under Title VII

A plaintiff must have subject matter jurisdiction over the defendant in order to state a valid claim under the law. In sexual harassment cases, plaintiffs often sue both their employers and individual supervisors, upper management, and/or human resources personnel. The language of Title VII, however, proscribes unlawful employment practices by employers:

The term "employer" means a person engaged in industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person.67 (Emphasis supplied).

The First Circuit has not determined its position on whether or not a corporate representative may be viewed as the "agent of such a person."68 While the statute references agents, the New Hampshire federal court, following the lead of other courts, has ruled that the "‘any agent’ language of 42 U.S.C. Sect. 2000e(b) was merely Congress’ way of reminding courts of the doctrine of respondeat superior, and does not make supervisors liable as individuals."69 As a result, the New Hampshire federal court has consistently dismissed sexual harassment suits against individual defendants.70

4. Conduct Not Aimed at Person’s Sex

The New Hampshire District Court has recognized that courts have found conduct which is not explicitly sexual in nature may nevertheless constitute sexual harassment if the misconduct is based on or aimed at one’s sex.71 Sexual harassment must be based on gender in order to be actionable under Title VII.72 Moreover, the Court has cited case law holding that explicit sexual harassment "motivated by personal enmity or hooliganism, rather than the gender of the victim, also may be actionable under Title VII."73 In Bartholomew v. Delahaye Grp., Inc., No. 95-20-B, slip op. at 9 n.1 (D.N.H. Nov. 8, 1995), the New Hampshire federal court declined to comment on whether so-called "equal opportunity sexual harassment constitutes discrimination under Title VII."

In Long v. Tillotson Health Care Corp., No. 95-596-SD, slip op. at 12-13 (D.N.H. Mar. 19, 1997), the Court granted the defendant’s summary judgment motion, deciding that the alleged misconduct at issue was not aimed at the plaintiff’s sex. There, the plaintiff complained that her supervisor slashed her automobile tires. However, she admitted that the incident was not sexual in nature nor did it have anything to do with her sex. Accordingly, the court dismissed the plaintiff’s claim of retaliation stemming from alleged sexual harassment. (74)

5. Conduct Insufficiently Severe or Pervasive

In dispositive motions, many employers frequently argue that the misconduct of the alleged harasser is not severe or pervasive enough to create a hostile work environment as a matter of law. The First Circuit precedent that guides the New Hampshire District Court reveals the standard by which summary judgment in an employer’s favor is warranted under such circumstances. In Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783 (1st Cir. 1990), the plaintiff’s supervisor allegedly made five sexual advances to the plaintiff over a five-week period. The court held that these sexual remarks, by themselves, were not sufficiently "severe and pervasive" to create a hostile environment. Most recently, in Morrison v. Carlton Woolen Mills, Inc., 108 F.3d 429, 439 (1st Cir. 1997), the court held that the plaintiff’s supervisor’s act of calling the plaintiff "girlie" and telling her to go see "nursie" fell short of establishing a hostile work environment. Instead, the First Circuit described the alleged misconduct as "a single, brief encounter of [a] mildly offensive sort."

Similarly, in Stewart v. Mary Hitchcock Mem. Hosp., No. 95-597-M, slip op. at 18 (D.N.H. 1997), the New Hampshire District Court granted the employer’s summary judgment motion, finding that the alleged misconduct occurring over a two-year period in the hospital’s lab was insufficiently hostile to be actionable under Title VII. At best, the plaintiff was subjected to occasional vulgar banter, foul language, humor tinged with sexual innuendo, and at least one sexually explicit and demeaning comment. While noting the behavior was "rude, offensive, and unprofessional," it fell short of actionable sexual harassment under Title VII.

Likewise, in McKeown v. Dartmouth Bookstore, Inc., No. 96-221-SD, slip op. at 6-7 (D.N.H. 1997), the District Court granted the employer’s summary judgment motion. In that case, the plaintiff complained that she was subjected to the following: inappropriate, skimpy attire on the part of some co-workers, "girlie posters," being called "Old Mother McKeown," and the silent treatment by one of the managers. After reviewing all of the plaintiff’s evidence, the Court ruled that the plaintiff failed to establish a hostile environment as a matter of law.

6. Insufficient Basis for Employer Liability

As stated previously, employer liability can be established in a number of ways. Guided by agency principles, an employer is not strictly liable for sexual harassment by co-workers and lower-level supervisors that occurs in the workplace.75 Rather, it is liable for failing to act appropriately once it has actual or constructive knowledge of harassment. Notice to an employer is essential for harassment committed by employees and lower-level supervisors.

The New Hampshire federal court has granted summary judgment in employers’ favor where employers could demonstrate that they did not know about the alleged harassment and were not negligent under the circumstances. In Long, supra, for instance, the federal court granted the employer’s summary judgment motion because it found that the defendant did not know, nor should it have known, of the alleged sexual harassment. There, the plaintiff dated her supervisor and had sexual relations with him. When the relationship ended, the human resources manager advised the plaintiff to tell her if she had any difficulties working with her supervisor. The plaintiff told her there were no problems. Apparently, at some later point while they were alone, the supervisor blew kisses at the plaintiff, grabbed her bottom, and made suggestive comments and noises. The plaintiff, however, never complained of the harassment to her employer. Stating that "[a]n employer is not required to be a mind-reader before avoiding liability under Title VII for hostile environment," the court found that the employer acted responsibly and was not liable for what had occurred.76

An employer can be liable even without "notice" in three circumstances: if the supervisor occupied a sufficiently high level in the company such that it would be proper to impute his or her actions to the company; if the supervisor acted as if he or she had authority from the employer while engaging in the harassing conduct; or if the supervisor was able to engage in the misconduct because of his or her position with the company.

The McGuinn-Rowe Court granted the defendant’s summary judgment motion, finding none of the three recognized exceptions to the notice requirement.77 The Court ruled that a management-level employee, Frank McSweegan, holding the title of "manager," did not occupy "so high a rung in defendant’s corporate ladder that his [alleged mis]conduct can be automatically imputed to the company."78 The Court also granted the defendant’s summary judgment motion on the additional grounds that McSweegan did not act under apparent authority from the company nor was he aided in the accomplishment of the alleged harassment by virtue of his position of authority.79 To prevail under these theories, a plaintiff must demonstrate facts sufficient to "establish a nexus between the supervisory authority and the harassment."80 The Court offered the following example: where a manager, following a business dinner, sexually assaulted an employee. In the case at bar, there was insufficient evidence to establish employer liability on these grounds.

7. Prompt Remedial Action Taken

An employer is likewise absolved of liability where it knows of the sexual harassment and takes effectual action to correct the situation. The New Hampshire federal court, in Ollis v. Digital Equip. Corp., No. 95-43-M, slip op. at 28-29 (D.N.H. Mar. 28, 1997), articulated the standard it follows when determining if an employer is liable for sexual harassment committed by employees:

An employer is obligated to take reasonable steps, under the circumstances, to end harassment. What is appropriate remedial action will necessarily depend on the particular facts of the case, the severity and persistence of the harassment, and the effectiveness of any initial remedial steps. An employer is not obligated to implement the most effective remedial measures as long as it responds with reasonably adequate remedial efforts. An employer who is on notice of allegations of sexual harassment will not be liable under Title VII if it took the allegations seriously, it conducted prompt and thorough investigations, and it immediately implemented remedial and disciplinary measures based on the results of such investigations. (Citations omitted).

Interestingly, this court recognized that the Ninth Circuit has held an employer liable for failing to take any corrective action, even where the harassment did not persist after a plaintiff complained to his or her employer, in an effort to prevent future harassment and encourage employers to take prompt disciplinary action.81

A model as to how employers properly may respond to sexual harassment complaints is set forth in Stewart v. Mary Hitchcock Mem. Hosp., No. 95-597-M, slip op. at 19 (D.N.H. July 1, 1997). In that case, the District Court granted the employer’s motion for summary judgment on the grounds that it took prompt and effective remedial action in response to the sexual harassment allegation.82 There the plaintiff was frustrated by a co-worker’s absences from the work site and told him that his absences interfered with a medical procedure. In response, the co-worker explained that his absences were due to his being "off in the bathroom masturbating," and then he allegedly asked her, "Want to come in and help?"

When the plaintiff advised her manager of the alleged offensive comment, the manager met with the alleged harasser within a day. The alleged harasser admitted to making one offensive comment but denied it was concerning masturbation, as the plaintiff alleged. He expressed his regret, apologized to the plaintiff, was issued a final written warning and was advised that any additional misconduct would result in termination. The manager documented the misconduct and then contacted the hospital’s director of employee relations. The director then contacted the harasser and, again, advised him that his behavior was inappropriate and warned him that another instance of such misbehavior would result in termination. The director then met with the plaintiff who informed him that she had not experienced any additional harassing behavior.

The director took the investigation further. He surveyed other employees in the department where the plaintiff and the harasser worked to determine if anyone else felt victim to inappropriate or harassing conduct. He concluded that there was not a problem in that area.

Significantly, the hospital had been proactive in the sexual harassment arena. It had a sexual harassment policy in place, which was detailed in both its personnel manual and a tri-fold pamphlet. The policy was communicated to all employees. It also had sexual harassment posters displayed, indicating the names of the persons to contact if an employee had a complaint to lodge. Moreover, the hospital offered in-house training seminars to employees on this topic.

D. CONCLUSION

The District Court of New Hampshire has not been hesitant to grant dispositive motions when presented with the facts that justify such action. The law of sexual harassment is evolving continuously. Congress and the state legislatures have expanded employee rights in the employment arena, and the increase in litigation is merely a reflection of that political fact. Nevertheless, while there are more entitlements, there are more defenses. As the courts and legislatures continue to grapple with and refine the contours of unlawful workplace behavior, attorneys representing employers must stay abreast of all procedural arguments and substantive theories to present to the court in dispositive motions in efforts to streamline the litigation. With increasing media attention to employment issues and a plethora of attorneys willing to pursue such cases, workplace litigation shows no sign of abating. More proactive behavior on the part of employers can only increase employers’ likelihood that a court or jury finds them not legally culpable for alleged sexual harassment.

Endnotes

1. This article focuses on hostile environment sexual harassment cases only. Many arguments that are used successfully in Title VII discrimination cases can also successfully be made in the sexual harassment context.

2. 42 U.S.C. Sect. 2000e-2(a)(1). New Hampshire’s law against discrimination, RSA 354-A:7(I), is virtually identical to Title VII, thus New Hampshire courts may look to federal case law interpreting Title VII to interpret the state anti-discrimination statute. Bartholomew v. Delahaye Grp., Inc., No. 92-20-B, slip op. at 15-16 (D.N.H. Nov. 8, 1995).

3. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986).

4. Id. at 65; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

5. Meritor, 477 U.S. at 66.

6. Harris, 510 U.S. at 21.

7. Id.

8. Brown v. Hot, Sexy and Safer Productions, Inc., 68 F.3d 525, 540 (1st Cir. 1995), cert. denied, 116 S. Ct. 1044 (1996).

9. Id. (citing Harris, 510 U.S. at 23).

10. Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 945 (1st Cir. 1995).

11. Brown, 68 F.3d at 541 n.13.

12. McGuinn-Rowe v. Foster’s Daily Democrat, No. 94-623-SD, slip op. at 8 (D.N.H. July 10, 1997).

13. Stewart v. Mary Hitchcock Mem. Hosp., No. 95-597-M, slip op. at 16 (D.N.H. July 1, 1997)(quoting Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir. 1995)).

14. Stewart, slip op. at 16.

15. Id., slip op. at 16-17.

16. Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir. 1988).

17. Although this is one basis for creating employer liability, the New Hampshire federal court has recognized that "[s]exual harassment . . . is by definition, outside the scope of one’s employment." McGuinn-Rowe, slip op. at 12 (citing Andrade v. Mayfair Mgmt., Inc., 88 F.3d 258, 262 (4th Cir. 1996)).

18. McGuinn-Rowe, slip op. at 11.

19. Meritor, 477 U.S. at 73.

20. Stewart, slip op. at 19.

21. Meritor, 477 U.S. at 73.

22. Id. at 72-73.

23. See, e.g., Bouton v. BMW of North America, 29 F.3d 103, 110 (3rd Cir. 1994); Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993); Kauffman v. Allied Signal, Inc., 970 F.2d 178, 184 (6th Cir.), cert. denied, 113 S. Ct. 831 (1992); Gary v. Long, 59 F.3d 1391, 1398 (D.C. Cir.), cert. denied, 116 S. Ct. 569 (1995).

24. McGuinn-Rowe, slip op. at 12-13 (citing Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997)).

25. Fed. R. Civ. P. 56(c); Byrd v. Ronayne, 61 F.3d 1026, 1030 (1st Cir. 1995); Snow v. Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993), cert. denied, 115 S. Ct. 1845 (1994).

26. Snow, 12 F.3d at 1157.

27. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

28. Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).

29. Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir. 1992), cert. denied, 507 U.S. 1030 (1993).

30. International Ass’n of Machinists and Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996)(citations omitted).

31. Stewart, slip op. at 3 n.1.

32. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The three-step framework is used to analyze whether intentional discrimination may have occurred. First, a plaintiff must establish a prima facie case of discrimination and, if successful, the court will presume that the employer’s challenged action was intentionally discriminatory. Woods v. Friction Materials, Inc., 30 F.3d 255, 260 (1st Cir. 1994). Next, the burden of production, although not the burden of proof, shifts to the employer to show a nondiscriminatory reason for the challenged action. Id. If the employer meets the burden, the presumption of discrimination vanishes completely. Id. At the final stage, the plaintiff must "introduce sufficient evidence to support two additional findings: (1) that the employer’s articulated reason for the job action is a pretext, and (2) that the true reason is discriminatory." Id.

33. Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535-36 (1st Cir. 1996); see McDonnell-Douglas, 411 U.S. at 792.

34. Byrd, 61 F.3d at 1030 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 6 (1st Cir. 1990)).

35. McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir. 1995).

36. Id. (citing Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994)).

37. Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 220-21 (1st Cir. 1996); McKinnon v. Kwong Wah Rest., 83 F.3d 498, 504 (1st Cir. 1996) (citing 42 U.S.C.A. Sect. 2000e-5).

38. 42 U.S.C. Sect. 2000e-5(e); see EEOC v. Commercial Office Prods. Co., 486 U.S. 107, 11O (1988). The state agency in New Hampshire vested with the authority to adjudicate Title VII claims is the New Hampshire Commission for Human Rights.

39. See Madison v. St. Joseph Hosp., 949 F. Supp. 953, 957-58 (D.N.H. 1996) (1994 worksharing agreement); Bergstrom v. University of New Hampshire, 959 F. Supp. 56, 59-60 (D.N.H. 1996)(1993 worksharing agreement); see also Rivera v. Toner, Etcetera, Inc., No. 96-217-M, slip op. at 4-6 (D.N.H. Dec. 31, 1996).

40. RSA 354-A:21 (III).

41. See 42 U.S.C. Sect. 2000e-5(f)(1); 29 C.F.R. Sect. 1601.28(e)(1).

42. 29 C.F.R. Sect. 1601.28(a)(3).

43. See Rice v. New England College, 676 F.2d 9, 11 (1st Cir. 1982).

44. Delaware State College v. Ricks, 449 U.S. 250, 256-57 (1980).

45. Id.

46. Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)(quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)).

47. Morris v. Government Dev. Bank, 27 F.3d 746, 750 (1st Cir. 1994)("when an employee knows that he [or she] has been hurt and also knows that his [or her] employer has inflicted the injury, it is fair to begin the countdown toward repose. And the plaintiff need not know all the facts that support his [or her] claim in order for countdown to commence"); see Chardon v. Fernandez, 454 U.S. 6, 8 (1991); Ricks, 449 U.S. at 258; Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 267 (7th Cir. 1995)("a plaintiff’s action accrues when he [or she] discovers that he [or she] has been injured, not when he [or she] determines that the injury was unlawful"); Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 n.7 (3rd Cir. 1994), dismissed on other grds., 910 F. Supp. 225 (E.D. Pa. 1996)("a claim accrues in a federal cause of action upon awareness of actual injury, not upon awareness that this injury constitutes a legal wrong"); Iglesias v. Mutual Life Ins. Co., 918 F. Supp. 31, 35 (D.P.R. 1996)("the point in time at which the consequences of the act become hardest to bear — which may or may not coincide with the occurrence of the act itself — has no relevance for purposes of framing the limitations period").

48. Sabree v. United Brotherhood of Carpenters and Joinders, 921 F.2d 396, 401 (1st Cir. 1990).

49. See, e.g., Sabree, 921 F.2d at 401; Ching v. Mitre Corp., 921 F.2d 11, 14 (1st Cir. 1990)(court dismissed as untimely complaint that was filed one month late); Madison, 949 F. Supp. at 960 (claim dismissed where the plaintiff filed claim 301 days after termination).

50. Lawton, 101 F.3d 221; (1st Cir. 1996); Sabree, 921 F.2d at 400.

51. Id.

52. Sabree, 921 F.2d at 400 (quoting Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990)).

53. Id. at 401.

54. Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 183 (1st Cir. 1989).

55. Sabree, 921 F.2d at 402.

56. Id.

57. Id.

58. Id.

59. Id. (quoting Roberts v. Gadsden Mem. Hosp., 850 F.2d 1549, 1550 (11th Cir. 1988)).

60. See also Rivera, slip op. at 6 (denying the defendant’s motion for summary judgment where the plaintiff argued that the equitable tolling principle should apply due to an administrative error of the New Hampshire Commission for Human Rights); Boisvert v. Sears, Roebuck & Co., No. 96-495-M, slip op. at 13-14 (D.N.H. Mar. 24, 1998) (granting Sears’ summary judgment motion because plaintiff’s claim was time-barred and neither continuing serial violation nor equitable estoppel theory could revive it).

61. Clark v. Allen-Bradley, Inc., No. 94-592-L, slip op. at 7 (D.N.H. May 1, 1995)(citing Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)).

62. Id.

63. See Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990); Johnson v. General Elec., 840 F.2d 132, 139 (1st Cir. 1988).

64. Clark, slip op. at 8 (citing Green v. Los Angeles Cty. Superintendent of Schools, 883 F.2d 1472, 1476 (9th Cir. 1989)).

65. Preyer v. Dartmouth College, No. 96-491-JD, slip op. at 8-9 (D.N.H. June 25, 1997).

66. See also Clark, slip op. at 9 ("Although plaintiff’s allegations presented to the EEOC may not be the epitome of a perfect charge for sexual harassment, her allegations nonetheless are sufficient to place at issue, both for a preliminary review by the EEOC and for a potential subsequent judicial pleading, a claim or charge based on sexual harassment.")

67. 42 U.S.C. Sec. 2000e(b). See also Coulstring v. Topic of the Town Rest., No. 96-192-SD (D.N.H. Feb. 11, 1998)(discussing the defendant’s unsuccessful challenge that it was not an "employer" within the statutory definition).

68. Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 444 (1st Cir. 1997).

69. Bartholomew, slip op. at 14-15.

70. See, e.g., Means v. Shym Corp., No. 97-212-M (D.N.H. Nov. 12, 1997); Dalton v. Wal-Mart Stores, Inc., No. 95-484-SD, slip op. at 7 (Mar. 26, 1996); Bartholomew, slip op. at 15; see also Miller v. CBC Cos., Inc., 908 F. Supp. 1054, 1065 (D.N.H. 1995)(recognizing Title VII ban on individual liability in context of claim under the Americans with Disabilities Act).

71. See Morrison, 108 F.3d at 441; Ollis v. Digital Equip. Corp., No. 95-43-M, slip op. at 23-24 n.3 (D.N.H. Mar. 28, 1997).

72. Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 782 (1st Cir. 1990)(quoting Carrero v. New York City Housing Auth., 890 F.2d 569, 579 (2d Cir. 1989)).

73. Ollis, slip op. at 24 n.3.

74. See Sweet v. Hadco Corp., No. 95-576-M, slip op. at 10 n.3 (D.N.H. Feb. 3, 1997) (the plaintiff could not explain how her exclusion from company events was related to her gender).

75. Lipsett, 864 F.2d at 881, 901.

76. See also Russell v. Easter Seal Society of New Hampshire, Inc., No. 96-219-M, slip op. at 9 (D.N.H. Dec. 10, 1997) (granting employer’s summary judgment motion on the grounds that employer did not and could not reasonably have known of a statement the plaintiff claimed constituted harassment).

77. McGuinn-Rowe, supra.

78. Id., slip op. at 14.

79. Id., slip op. at 14-15.

80. Id., slip op. at 14.

81. Id., slip op. at 13 (citing Fuller v. City of Oakland, Calif., 47 F.3d 1511, 1528-29 (9th Cir. 1995)).

82. See also Long, supra, slip op. at 10-11 (granting summary judgment where the defendant took reasonable steps to end the alleged harassment by promptly transferring the plaintiff to a different shift).

82. See also Long, supra, slip op. at 10-11 (granting summary judgment where the defendant took reasonable steps to end the alleged harassment by promptly transferring the plaintiff to a different shift).

Julie A. Moore, Esquire of Employment Practices Group in North Andover, Massachusetts, specializes in risk-management, workplace training and internal investigations on sexual harassment and other employment issues. She is admitted to practice law in Massachusetts and New Hampshire. She can be reached at jmoore@employmentpg.com or 978-975-0080.