Ollis v . Digital CV-95-043-M 03/28/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Mary E . Ollis

v. Civil N o . 95-43-M

Digital Equipment Corporation

O R D E R

Mary Ollis brings suit against her former employer, Digital

Equipment Corporation, charging sexual harassment and

constructive discharge in violation of Title V I I , 42 U.S.C.A.

§ 2000e, et seq. The suit is based on the behavior of a fellow

employee, Evely Gonzalez. Ollis asserts that Gonzalez’s

harassing behavior created a hostile work environment that

eventually forced her to quit. Digital has moved for summary

judgment, arguing that the workplace conflict between Ollis and

Gonzalez was nonsexual in nature and amounted to a personality

conflict not actionable under Title VII. Digital also asserts

that, in any event, it took prompt and appropriate remedial

action. For the reasons that follow, summary judgment in favor

of Digital is necessarily denied.

STANDARD OF REVIEW Summary judgment is appropriate 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 judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v . Liberty Lobby,

Inc.,

4 2 , 256 (1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would require trial. Celotex Corp.

v . Catrett,

1 7 , 322 (1986); Lawton v . State Mutual Life

Assurance C o . of America,

1 8 , 223 (1st Cir. 1996)

(nonmoving party obligated to provide “more than steamy rhetoric

and bare conclusions”).

The court interprets the record in the light most favorable

to the nonmoving party, the plaintiff in this case, and resolves

all inferences in her favor. McIntosh v . Antonino,

9 ,

33 (1st Cir. 1995). Accordingly, summary judgment will be

granted only if the record shows no trial worthy factual issue

and the moving party, the defendant here, is entitled to judgment

as a matter of law. EEOC v . Green,

9 , 23 (1st Cir.

1996). Even in discrimination cases, however, summary judgment

2 may be granted if the nonmoving party relies “‘upon conclusory

allegations, improbable inferences, and unsupported speculation’

as to any essential element in her claim.” Byrd v . Ronayne,

(1st Cir. 1995) (quoting Medina-Munoz v . R.J.

Reynolds Tobacco Co.,

, 8 (1st Cir. 1990)).

Affidavits filed in opposition to summary judgment must be

based on admissible and competent evidence. Fed. R. Civ. P.

56(e); LaRou v . Ridlon,

(1st Cir. 1996). A

party opposing summary judgment cannot create a genuine factual

dispute by providing an affidavit that contradicts her own

previous deposition testimony without a satisfactory explanation

of why her testimony has changed. Colantuoni v . Alfred Calcagni

& Sons, Inc.,

, 45 (1st Cir. 1994).

Digital moved to strike Mary Ollis’s affidavit as well as an

evaluation prepared by James T . McMahon, Ed.D., which were

submitted in support of her objection to summary judgment.

Ollis, through counsel, filed a counter motion to strike

Digital’s motions on the grounds that Digital had not sent him

copies of its motions, as certified. At the hearing on the

summary judgment motion Ollis’s counsel was given an opportunity

to submit a new affidavit in proper form, which has been done.

Neither party addressed the motion to strike McMahon’s

evaluation at the hearing, and Ollis has not objected to the

3 motion on the merits. Digital objects to McMahon’s evaluation on

the grounds that it contains hearsay, lacks foundation, and

offers opinions beyond the expertise of the witness. See Hayes

v . Douglas Dynamics, Inc.,

8 , 92 (1st Cir. 1993), cert.

denied,

(1994). Ollis offers nothing in response

and, in fact, does not rely on the evaluation in objecting to

summary judgment. Accordingly, the evaluation by D r . McMahon is

stricken. See Horta v . Sullivan,

, 8 (1st Cir. 1993).

Digital has also moved to strike Ollis’s second affidavit,

but objects specifically to only one statement: “I was subjected

to sexual harassment by a co-worker, Evely Gonzalez, from

December 1993 until I resigned my job in June 1994.” The court

agrees that the challenged statement is not competent evidence as

it is merely a conclusory assertion of Ollis’s legal theory. See

Horta,

. Consequently, the statement is stricken from

the affidavit and will not be considered for purposes of deciding

summary judgment. In addition, to the extent that Ollis’s

deposition testimony clearly conflicts with statements in her

affidavit, without any explanation of the obvious conflict, where

conflict exists, her deposition testimony will be considered

reliable.

BACKGROUND

4 Mary Ollis worked in the mail room at Digital with Evely

Gonzalez for about a year and a half before friction arose

between them in late 1993. At that time, Ollis had known

Gonzalez and his wife for about eight years. Ollis contends that

Gonzalez told her in December 1993 that his wife was returning to

Puerto Rico to live. At about the same time, Gonzalez learned

that Ollis was planning a vacation for the first two weeks in

February, without her husband. Thereafter, during December 1993

and January 1994, Gonzalez followed Ollis into the parking lot at

lunch time on a number of occasions, pestering her to go to lunch

with him. She refused his invitation each of the twelve or more

times that he asked, and changed her lunch hour to avoid him.

Gonzalez also suggested to Ollis that she take him on a vacation

if she wanted to vacation with “a real man” and “have a real good

time.” Ollis told Gonzalez that his remarks were offensive and

unwelcome, and she warned him that she would report him to their

supervisor, Joseph Foti. Ollis says in her affidavit that

Gonzalez responded by telling her that he had Foti under his

thumb, that he would deny i t , and he would make her life

miserable. During the two days before her vacation, Gonzalez

reminded Ollis three or four times that she still had time to

change her mind and take him with her. After discussing the

situation with her husband, however, Ollis decided not to talk to

5 her supervisor because she wanted to avoid making the problem worse. Ollis testified in her deposition that Foti, the mail room supervisor, approached her in December or January and reported that a cleaning crew member named Sylvia had accused Gonzalez of taking plastic trash bags from Digital without permission.1 Foti told her that Sylvia did not want to become involved further because stealing was grounds for dismissal from Digital, and Sylvia was afraid of what Gonzalez might do if he were dismissed based on her accusations. Foti asked Ollis if she had seen Gonzalez take any company property. Ollis responded that she had seen Gonzalez in the shipping department with extra bags in his hand and that when he saw her he dropped the bags back into a bucket and seemed nervous. She then saw him put a pile of trash bags into a drawer in his desk and lock i t . Ollis told Foti, however, that she, like Sylvia, would not make a formal complaint against Gonzalez.

After her vacation, Ollis noticed that Gonzalez no longer spoke to her. She, in turn, did not speak to him, although she did not know what prompted the change. In her deposition

1 Ollis understood that Gonzalez ran a contract cleaning business on the side, and apparently was suspected of using Digital supplies in his private business.

6 testimony and her affidavit, Ollis described several incidents and circumstances, which occurred during February and March, that caused her to become anxious about Gonzalez. Within a day or two of her return from vacation, Gonzalez complained to Foti that Ollis was behaving unfairly toward him by piling books for him to sort on the floor, rather than putting them on his workbench. Ollis asserts that she had not changed her practice of leaving heavy mailbags, such as those containing books, on the floor.2 Ollis heard Gonzalez mutter comments to himself when she was alone in the room with him, such as “I won’t be picking up the books off the floor for very long,” and “We’ll see who wins.”

Gonzalez also refused to transfer telephone calls or to take messages for Ollis. Ollis complained to Foti about missing her telephone calls, and Gonzalez complained to Foti about Ollis’s continuing to put the mail and books for sorting on the floor. The situation continued to deteriorate prompting Foti to meet with Ollis several times during February and March to discuss the escalating friction between her and Gonzalez.

Ollis also noticed that Gonzalez began to arrive at work before his shift. He apparently loitered in the mail room,

2 In December, there had been an argument among the mail room staff, instigated by another employee, about the way in which their work was being done.

7 sometimes in the dark, until Ollis arrived. He would then glare at her, which frightened her. He continued to mutter in a threatening way under his breath in her presence. Although at the time she did not interpret his behavior or mutterings to be sexually oriented or gender based, she says she was anxious for her personal safety.

At about the same time, Sylvia, from the cleaning crew, began making comments about missing trash bags when cleaning the mail room, aimed at Gonzalez. Ollis saw Gonzalez take a trash bag full of things from his bottom drawer, leave the mail room, and return with an empty bag. He appeared nervous. In March, while Foti was on vacation, Ollis saw Gonzalez carrying a plastic trash bag out of the mail room. The bag broke, spilling a pile of miscellaneous office supplies onto the floor. Gonzalez glared at her angrily and walked away without comment or explanation. After each of these incidents, Ollis testified in her deposition, Gonzalez seemed more nervous, and relations between them worsened.

Foti told Ollis, during one of their meetings, that Gonzalez suspected Ollis of reporting that he was not performing his work properly. At one of those meetings in mid to late March 1994, Foti specifically asked Ollis about the lack of communication and other apparent problems between her and Gonzalez. Ollis says

8 that she told Foti that she did not understand what Gonzalez was upset about or what he was trying to d o . Because she felt that things had deteriorated anyway, Ollis at that time first reported Gonzalez’s earlier sexually suggestive remarks about taking him with her on vacation.

Foti responded by encouraging Ollis to file a sexual harassment complaint with a Digital human resources representative, and he gave her a copy of Digital’s sexual harassment policy to review. Ollis refused to file a complaint. She explains in her affidavit and deposition testimony that she was afraid of retaliation by Gonzalez if she made a written complaint, but says she would have met personally with a human resources representative (but did not ask for such a meeting or make her willingness known).

Foti states in his affidavit that Ollis also asked him not to take further action or to talk about the incident with others, but Ollis denies having said that. Nevertheless, contrary to what he at least believed were Ollis’s wishes, Foti went ahead and notified a Digital human resources representative about the problems anyway. The human resources representative recommended that Foti, as supervisor, investigate the matter and question others who worked with Ollis and Gonzalez. Foti questioned each of the mail room employees, but found that none confirmed Ollis’s

9 reports about Gonzalez’s sexually suggestive remarks, or his alleged theft of Digital property. One mail room employee, Carol Vaillancourt, insists in her affidavit that she worked closely with Gonzalez, that he was never offensive or hostile toward her, and that she never saw or heard him do or say anything offensive, hostile, or inappropriate toward Ollis. Ollis counters in her affidavit that Vaillancourt and another employee, Guy Toupin, knew of the problems and that Toupin urged her to report Gonzalez’s sexual comments.

On April 1 , Ollis contacted Foti to report that an unidentified person had called her home the night before, spoke to her husband, and threatened that if Gonzalez lost his job, “someone else will be just as sorry.” Ollis believed the telephone call was aimed at stopping her from accusing Gonzalez of stealing from the company. She told Foti during the April 1 meeting that she was nervous, losing sleep, and having stomach problems due to her anxiety about the situation with Gonzalez. She wanted Foti to explain to Gonzalez that she had not accused him of theft, o r , alternatively, she wanted to confront Gonzalez about the issue. Foti responded that he did not want to confront Gonzalez, and did not want her to do so either, because there was more going on at the time, apparently referring to an ongoing company investigation of Gonzalez. During that meeting, Ollis

10 also informed Foti about the time she saw Gonzalez carrying the plastic trash bag that broke spilling office supplies. On April 4 , Ollis sent an electronic mail message to Foti informing him that Gonzalez was intercepting her interoffice messages and asking for his help to put a stop to i t . Foti agreed to talk to Gonzalez (but Ollis believes that he never did). Gonzalez was in a car accident and was out of work from April 5 until the end of the month. Ollis experienced no difficulties while Gonzalez was out of work.

When Gonzalez returned on April 2 6 , he and Ollis again argued about whether she had moved his books and mail from his bench to the floor. Foti spoke to each of them. Ollis denied having moved the books, explaining that another mail room employee had “messed up” Gonzalez’s books as a prank, although Ollis had warned him not to because she was afraid she would be blamed. The same employee had played a previous prank on Gonzalez that Gonzalez then blamed on Ollis. Although the other employee confessed, Gonzalez remained angry at Ollis, shouting at her that he could accuse anyone he wanted t o , that she did not know who she was dealing with, and that he would do “whatever it takes.”

That incident was also reported to Foti, who again contacted the human resources department to report that the conflict

11 between Ollis and Gonzalez was escalating and, in his opinion, required intervention. Foti described the past incidents as “possible sexual/threatening harassment” and “harassment and threatening . . . demonstrated by [Gonzalez] towards [Ollis].” Matt Sepe, from human resources, met with Gonzalez and Ollis individually. Gonzalez denied making sexual comments or veiled threats to Ollis, and in turn complained that she was making his job more difficult by putting piles of mail on the floor. Sepe states in his note about the meeting that he informed Gonzalez that Ollis’s complaints were serious, and, if true, his employment could be terminated.

Ollis, who lived in Saugus, Massachusetts, contacted the Saugus Police Department that same day (April 26) about

Gonzalez’s threats at work. The police told Ollis that Gonzalez had a prior criminal record and advised her to work with the personnel department at Digital. On April 2 8 , Ollis received ten to sixteen anonymous “hang up” telephone calls at her home, which she promptly reported to Matt Sepe. Ollis warned Sepe that she intended to report Gonzalez’s threats and calls to the Nashua Police Department. Sepe discouraged her and assured her that he would have a meeting to deal with the problems.

A meeting was held the next day (April 29) among Ollis, Gonzalez, Foti, Matt Sepe, and Jim DiRico, the Digital facility

12 manager. Sepe’s notes indicate that Gonzalez again denied making threats against Ollis. Sepe directed Foti and DiRico to monitor the situation between Gonzalez and Ollis and to work with security to watch Gonzalez. Ollis says in her affidavit that Gonzalez initially denied the remarks, but then admitted that it could have happened, and he did not deny making the telephone calls. Sepe reported that at another meeting between Ollis and Gonzalez held a short time later (May 2 ) , Gonzalez denied making any threats toward Ollis and said that he was sorry if Ollis interpreted their argument as threatening.

Foti and the human resources department considered moving Gonzalez to another department, and Sepe told Ollis that Gonzalez would be moved. In the meantime, the company temporarily moved Ollis to the copy center and then divided Gonzalez’s time between the mail room and shipping. When she was back in the mail room, Ollis reported to Sepe several times that Gonzalez was still in the mail room, but he admonished her to let Foti handle the situation. Ollis also reported to DiRico that Gonzalez was still in the mail room when he was supposed to be in shipping. Ollis continued to complain to Foti that Gonzalez was waiting in the mail room when she arrived in the morning, which continued to cause her anxiety. Ollis asked to have her hours changed so that there would be other people around when she began work, but Foti

13 refused the change. Instead, he told Ollis that he would assign work to Gonzalez during the first hour, ostensibly to give him something to do away from the mail room. For his part, Gonzalez again complained that Ollis was not putting his mail on his bench for sorting, although she did so for other mail room employees, and that management was not addressing the problem between them. Gonzalez filed a

“corporate” complaint about being treated unfairly in connection with the ongoing problem with Ollis. One of the other mail room employees told Foti that Ollis seemed to be going out of her way to put Gonzalez’s mail on the floor.

On May 2 0 , the mail room employees attended a meeting with Foti to address mail sorting and work-related issues. Foti’s report of the meeting discloses that there was a difference of opinion between Ollis and Gonzalez “as to who is doing what to whom.” After discussion, they agreed that only bags of mail too heavy to lift and sort on the benches would be left on the floor. Foti also changed the hours of all mail room staff so that they would all work the same shift. Ollis objected to that schedule. Several days later, Ollis complained to Foti that she was unhappy that Gonzalez won the argument about the proper way to sort mail and that her way, not Gonzalez’s, was right. An office

14 memorandum to Gonzalez from Foti says that he was to begin to work in shipping as of May 2 5 . Jim DiRico reported in an office memorandum that he met with Ollis at her request on May 23 to discuss her concerns about Gonzalez’s impact on Ollis’s job performance. DiRico told her that Gonzalez was to be moved to shipping. When he asked her if she felt that management was taking the right action, she responded that they were trying but it was not working. He talked with her about Digital’s open door policy, and she said that she knew that she could go above the facility management at any time. An interoffice memorandum from Foti to Sepe and DiRico dated May 25 reports that Foti transferred Gonzalez to shipping as of that date, both to fill a place in shipping and to separate Gonzalez and Ollis, each of whom felt threatened by the other. In the memorandum, Foti also states that he will ask security to investigate Ollis’s allegations of theft and threats of violence.

A security department report dated May 2 7 , 1994, prepared by investigator Tracey Greenwood, describes a meeting among Greenwood, Sepe, and Ollis held on that date. The report summarizes the problems and incidents Ollis had reported relative to Gonzalez. At that meeting, the report states, Ollis said she was concerned about comments and allegations Gonzalez might make against her, that she did not know “what he’s up to,” and that

15 she was uneasy around him. When asked what might have caused the friction between her and Gonzalez, Ollis mentioned her rejection of Gonzalez’s suggestion that she take him with her on vacation, the theft issue, and Gonzalez’s complaints about her work performance. Greenwood and Sepe told Ollis that the company would provide an escort to and from her car and other accommodations designed to make her feel safe. Ollis replied that she was not afraid of a physical confrontation with

Gonzalez, but was concerned about arguments and false accusations he might make against her.

Although Gonzalez was officially transferred to shipping as of May 2 5 , 1994, Ollis contends that he did not actually work in shipping while she was employed at Digital; her employment continued until June 1 0 . While the record is not clear, Gonzalez may have been out of work during that time due to disability. By the end of May, Ollis was considering leaving her job because she was experiencing increased anxiety and stomach problems. Ollis recalls that Matt Sepe told her that he believed Foti was “dragging his feet” in dealing with Gonzalez. However, Ollis reports no complaints or problems with Gonzalez after May 2 6 , 1994.

On May 3 1 , 1994, Foti met with his staff and changed their working hours to a uniform 8 a.m. to 5 p.m. shift (Gonzalez did

16 not attend, apparently because he was out on disability having injured his back). Immediately after that meeting, Ollis gave notice to Foti that she intended to resign because of the change in hours, but also because of the situation with Gonzalez. In her deposition, Ollis explained that she did not want to arrive and leave work at the same time as Gonzalez.

Ollis submitted her resignation on June 6, and her employment at Digital ended on June 1 0 , 1994. Ollis’s personnel records describe the reason for her departure as follows: “Employee leaving because she felt threatened by another employee who is currently the subject of a corporate investigation.”

After obtaining a “right to sue” letter from the Equal Employment Opportunity Commission on January 1 3 , 1995, Ollis filed suit in this court, on January 2 6 , 1995, alleging that Digital had allowed her to be subjected to sexual harassment in violation of Title V I I , which forced her to quit her job.

DISCUSSION

Digital contends that Ollis cannot show that Gonzalez’s

conduct, which prompted her resignation, constituted sexual

harassment or caused her constructive discharge under Title VII.

In addition, Digital asserts, even if she could satisfy the

discrimination element of a Title VII claim, she cannot show that

17 Digital failed to act reasonably under the circumstances. Ollis

counters that Gonzalez’s hostile and threatening conduct toward

her was motivated by her rejection of his lunch invitations and

his remarks implicitly suggesting a sexual relationship, and that

Digital failed to stop Gonzalez’s harassment despite knowledge of

the conflict between them.

A. Sexual Harassment

Title VII prohibits an employer from discriminating “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.A. § 2000e-2(a)(1). Harassment based on the sex of the

victim constitutes actionable discrimination under Title VII.

Meritor Sav. Bank, FSB v . Vinson,

7 , 66 (1986); see

also

(a) (Equal Employment Opportunity

Commission’s interpretation of Title VII’s prohibition of sexual harassment). Sexual harassment occurs in two forms. “Quid pro

quo 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.,

(1st Cir. 1996). “Hostile

environment harassment” consists of “offensive, gender-based

18 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.”

(quoting Harris v . Forklift Systems, Inc.,

7 , 21

(1993)).

To maintain a hostile work environment sexual harassment

claim, a plaintiff must show: (i) that he/she is a member of a protected class; (ii) that he/she was subject to unwelcome sexual harassment; (iii) that the harassment was based upon sex; (iv) that the harassment was sufficiently severe or pervasive so as to alter the conditions of plaintiff’s [employment] and create an abusive [employment] environment; and (v) that some basis for employer liability has been established.

Brown v . Hot, Sexy and Safer Productions, Inc.,

(1st Cir. 1995) (listing elements, taken from Title VII cases, in

context of Title IX case), cert. denied, 116 S . C t . 1044 (1996);

see also Hayes v . Henri Bendel, Inc.,

7 4 , 380 (D. Mass. 1996). Whether a sexually abusive hostile environment3

3 Courts have recognized that retaliation based upon rejection of sexual overtures or a prior relationship may be sexual harassment in the Title VII context. See Fuller v . City of Oakland, Cal.,

(9th Cir. 1995); Babcock v . Frank,

(S.D.N.Y. 1990); Keppler v . Hinsdale Tp. High School Dist. 8 6 ,

6 2 , 867 (N.D. Ill. 1989); Hollis v . Fleetguard, Inc.,

3 1 , 635-37 (M.D. Tenn. 1987), aff’d

(6th Cir. 1988); but see Galloway v . General Motors Serv. Parts Operations,

(7th 19 existed in the plaintiff’s workplace must be determined from the

totality of the circumstances taken from the record as a whole.

Lipsett v . University of Puerto Rico,

8 1 , 897-98 (1st

Cir. 1988). A hostile environment analysis contains both

objective and subjective elements, see Brown,

4 0 , so

that to avoid summary judgment in this case, Ollis must be able

to show both that a reasonable person in her position would have

felt that her work environment was hostile based on her sex and

that she actually perceived such discriminatory abuse.

The record, taken in the light most favorable to Ollis,

establishes that Ollis, a woman, is a member of a protected

class; that Gonzalez made unwelcome overtures of a sexual nature

to her; that Gonzalez later subjected her to harassment that was

hostile, but was not explicitly, implicitly, or suggestively

Cir. 1996); Carter v . Caring for the Homeless of Peekskill,

(S.D.N.Y. 1993). In addition, courts have found that conduct which is not explicitly sexual may nevertheless constitute sexual harassment if the abusive treatment is based on or aimed at the gender of the victim. See, e.g., Morrison v . Carelton Woolen Mills, Inc., N o . 96-1224, slip op. at 30 (1st Cir. Mar. 1 9 , 1997); King v . Hillen,

(Fed. Cir. 1994); Kopp v . Samaritan Health Sys., Inc.,

6 4 , 269-70 (8th Cir. 1993); Hall v . Gus Const. Co.,

(8th Cir. 1988); Ruffino v . State Street Bank and Trust Co.,

, 1036 n.28 (D. Mass. 1995). Explicitly sexual harassment motivated by personal enmity or hooliganism, rather than the gender of the victim, also may be actionable under Title VII. See Quick v . Donaldson Co., Inc.,

(8th Cir. 1996); Burns v . McGregor Electronic Industries, Inc.,

(8th Cir. 1993); Winsor v . Hinckley Dodge, Inc.,

(10th Cir. 1996). 20 sexual in character; and that Digital was aware of Gonzalez’s conduct and Ollis’s objection to i t . Digital contends that Ollis cannot show that Gonzalez’s hostile conduct, following Ollis’s vacation, was based on sex. Thus, the connection between Gonzalez’s sexually suggestive remarks before Ollis’s vacation and his presumed hostile conduct after her vacation is essential to Ollis’s claim.

Ollis provides little factual support in her opposition to summary judgment for her claim that Gonzalez’s subsequent hostility was sexually motivated.4 She states, in a conclusory fashion, that Gonzalez’s invitations and remarks before her vacation “evolved into threats, intimidation, and false accusations which hindered her work performance and created a

4 In disparate treatment cases, when direct evidence of discriminatory intent is not available, the court employs the burden-shifting analysis established in McDonnell Douglas Corp v . Green,

(1973), “to sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Dept. of Community Affairs v . Burdine,

4 8 , 255 n.8 (1981). Because sexual harassment as a form of disparate treatment is ordinarily explicitly sex-based, most sexual harassment claims include direct evidence of discriminatory intent, making the McDonnell Douglas analysis unnecessary. See, e.g., Chamberlin v . 101 Realty, Inc.,

7 7 , 782 n.7 (1st Cir. 1990); Andrews v . City of Philadelphia,

, 1482 n.3 (3d Cir. 1990). Although direct evidence is absent in this case, the burden-shifting analysis does not resolve the issue of discriminatory intent as the record provides credible evidence of other reasons for Gonzalez’s conduct — the matter of his alleged pilfering of Digital supplies and his perceptions about Ollis’s reporting his conduct.

21 hostile environment, until she resigned in June 1994.” However,

she points to no evidence in the record to connect Gonzalez’s

early remarks to his later conduct, other than that she suspected

that her negative response to Gonzalez’s suggestive remarks,

along with other possible issues, might be the cause of

Gonzalez’s hostility. Although the most likely cause of

Gonzalez’s hostile behavior seems to have been a work-related

conflict with Ollis, see Callanan v . Runyun,

, 1296

n.4 (8th Cir. 1996), nevertheless, under the applicable summary

judgment standard, all reasonable inferences, including the

inference that Gonzalez’s abusive conduct was linked to his

earlier sexual remarks, must be resolved in Ollis’s favor. Cf.

Morrison v . Carleton Woolen Mills, Inc., N o . 96-1224, slip o p . at

31-32 (1st Cir. Mar. 1 9 , 1997) (on review of verdict following

trial, appeals court ruled that the evidence did not establish a

connection between earlier sexual and later nonsexual workplace

harassment).

The factual record presented here could support an inference

that Gonzalez’s hostility was in retaliation for Ollis’s

rejection of his earlier implicit sexual invitation. An inferred

connection between Gonzalez’s sexually suggestive remarks and his

later hostility toward Ollis is sufficient to create a factual

question as to whether his harassing behavior was or was not

22 sexually motivated. Therefore, based on the record presented

here, Digital is not entitled to summary judgment on grounds that

Ollis cannot prove the discrimination element of her sexual

harassment claim — perhaps she can, but whether she can or cannot

turns on disputed material facts.

B. Digital’s Response

Employers are not strictly liable under Title VII for acts

of sexual harassment perpetrated by their employees. But,

employers are not automatically shielded from liability just

because they have a policy against discrimination enforced by an

established grievance procedure.5 Meritor Savings Bank v .

Vinson,

7 , 72-73 (1986). Instead, employers are liable

if they knew, or should have known, of sexual harassment and

failed to take “‘appropriate steps to halt it.’”. Morrison v .

Carleton Woolen Mills, Inc., N o . 96-1224, slip op at 18-19 (1st

Cir. Mar. 1 9 , 1997) (quoting Lipsett,

0 1 ) ; see also Waymire v . Harris County, Tex.,

2 4 , 428 (5th Cir. 1996);

5 Digital has not argued that its sexual harassment policy, or its open door policy, had they been invoked by Ollis, would have been more effective than the procedure that was followed. See, e.g., Gary v . Long,

(D.C. C i r . ) , cert. denied,

(1995); Bouton v . BMW of North America, Inc.,

(3d Cir. 1994). Digital also has not filed a copy of either policy with the court. 23 Hayes,

. An employer is obligated to take

reasonable steps, under the circumstances, to end harassment.

DeGrace v . Rumsfield,

, 805 (1st Cir. 1980). “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.” Waltman v . International Paper Co.,

6 8 , 479

(5th Cir. 1989). An employer is not obligated to implement the

most effective remedial measures as long as it responds with

reasonably adequate remedial efforts. Spicer v . Commonwealth of

Virginia, Dep’t of Corrections,

(4th Cir.

1995) (en banc). An employer who is on notice of allegations of

sexual harassment will not be liable under Title VII if “[i]t

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.” Carmon v . Lubrizol Corp.,

9 1 , 795 (5th

Cir. 1994).

On the factual record presented for summary judgment, it is

undisputed that Ollis did not notify Digital of Gonzalez’s

sexually suggestive remarks (the lunch invitations and vacation

suggestions) before March 1 5 , 1994, when she told her supervisor,

Joe Foti, about those remarks in the context of a discussion

24 related to general workplace hostility and friction between her and Gonzalez. Ollis does not contend that Digital should have known any sooner that the conflict between them might be sexually motivated. Accordingly, Digital’s response to the conflict between Ollis and Gonzalez, beginning with Ollis’s report to Foti about Gonzalez’s sexually suggestive remarks, must be examined to determine whether Digital made reasonable and appropriate efforts under the particular circumstances presented in this case.

When Ollis reported Gonzalez’s remarks, Foti urged her to file a formal sexual harassment report, gave her a copy of Digital’s sexual harassment policy, and, when she declined to file an official complaint, Foti sought advice from Digital’s human resources department, despite his understanding that Ollis did not want him to take any action. Foti then acted on the advice obtained from the human resources department and

investigated Ollis’s report by questioning Ollis’s and Gonzalez’s fellow employees. That effort did not reveal facts or evidence sufficient to corroborate Ollis’s charges. Nevertheless, Foti did not drop the matter; he remained concerned about the friction between Ollis and Gonzalez and continued to meet with them and others in an attempt to resolve what appeared to him to be ongoing workplace conflict primarily (though perhaps not

25 entirely) based on an ordinary dispute between co-workers rather than one involving sexual harassment. When the conflict between Ollis and Gonzalez escalated in late April, Foti again sought assistance from the company’s human resources department. Foti identified the conflict as possibly related to sexual harassment or threatening harassment, despite the thin factual support developed during his investigation to support a claim that gender bias or sexual motivation was driving the conflict. Matt Sepe, from the company’s human resources department, met with Gonzalez and directly warned him that Ollis’s complaints were serious, and that if they were true, he could be fired. Digital management then began to work on ways to separate Ollis and Gonzalez during the workday as a means of resolving the problem in a manner fair to both employees, still without any substantial corroborating evidence that the friction between them was anything other than work-based conflict. While Ollis complained to Foti, Sepe, and others about Gonzalez, Gonzalez also complained about unfair treatment of him and favoritism toward Ollis.

When the conflict still did not abate, Digital took stronger action, transferring Gonzalez from the mail room to the shipping department. Ollis contends that the transfer was ineffective, but made no further complaints about incidents involving Gonzalez

26 and harassing activities. At the end of May, Digital voluntarily offered Ollis an escort service and any other accommodation that she might feel necessary for her safety, but she declined, explaining that her concern at that time was not personal safety but false accusations from Gonzalez.

Thus, the record shows that from mid-March, when Ollis first told Foti about Gonzalez’s implicitly sexual remarks, until Ollis resigned in early June, a period of less than three months, Digital took Ollis’s complaints seriously, affirmatively investigated the situation, acknowledged the possibility of sexual harassment even though the conflict seemed primarily work- related and not gender based, and met with Gonzalez and Ollis, made it clear to Gonzalez that Ollis’s complaints were serious, and threatened him with losing his job if Ollis’s complaints were confirmed. Finally, when the company’s initial remedial efforts failed to resolve the conflict between the two employees, Digital took more affirmative steps, transferring Gonzalez to the shipping department. Whether Gonzalez’s transfer effectively resolved the conflict is not known because Ollis quit before it could be tested. Digital’s remedial actions were all taken even though its investigation provided little evidence corroborating Ollis’s claim that Gonzalez’s harassment was sexually motivated or motivated by gender bias.

27 This court might reasonably conclude, as a matter of law,

that Digital management responded to Ollis’s complaints and

concerns promptly and appropriately, particularly given the

difficulty of assessing, fairly to both parties, the actual

causes o f , nature o f , and severity of the problem. C f . Morrison

v . Carleton Woolen Mills, Inc., N o . 96-1224, slip o p . at 22-23

(1st Cir. Mar. 1 9 , 1997) (evidence established that management

was aware of harassing conduct and discriminatory atmosphere but

allowed situation to continue without taking any corrective

action); see also, e.g., McCoy v . Macon Water Auth., ___ F. Supp.

___,

(M.D.Ga. Feb. 5 , 1997) (“It is not necessary

for an employer to fire, suspend, or demote [an employee]

whenever a complaint of sexual harassment is made. In some

situations, particularly when there is some doubt as to the

seriousness or the veracity of the charge or when the complainant

is unwilling to state a formal charge, less drastic measures,

such as warning the accused harasser, or reiterating the policy

on harassment, will be more appropriate.”); Callender v . Ergon,

Inc.,

(S.D. Miss. 1996) (“This Court cannot

create a perfect world within a work environment nor can we

require employers to do the same. Rather, we must ensure that

employers prevent their working conditions from palpably

deteriorating because of sexually hostile conduct.”)

28 But, that legal conclusion is not unavoidable given the factual record. Though plaintiff’s case appears to be almost terminally weak on the merits, still, a reasonable factual inference could be drawn in Ollis’s favor (as mandated by the applicable summary judgment standard all facts and reasonable inferences must be construed in her favor at this juncture) to the effect that Digital was “dragging its feet” in dealing with Gonzalez, as Ollis says Sepe opined. A reasonable jury might also conclude that Digital’s efforts to stop the conflict and separate Gonzalez and Ollis before the end of May were not adequate, were ineffective, and even that the workplace conflict was sufficiently severe and pervasive (threats, implied threats, implicitly and actually threatening phone calls — all directly tied to rejected sexual overtures) to interfere with her work, as Foti noted several times in his interoffice memoranda. The absence of harassing incidents after Gonzalez was transferred to shipping also might be found to have been attributable to little more than Gonzalez’s absence from work, rather than to the effectiveness of Digital’s remedial action. For example, the record shows that in the recent past Gonzalez continued to show up in the mail room when he was at work, notwithstanding his temporary assignments to the shipping department, and that the

29 two departments were in close proximity (negating the likely

effectiveness of the “separation”).

Accordingly, although plaintiff’s showing is thin, and she

survives defendant’s motion for summary judgment by only the

margin of a factual inference or two that could serve to parry

the company’s defense, the factual record as it currently stands

does not adequately support the conclusion at this juncture that

Digital fulfilled its obligations under Title V I I , as a matter of

law, by taking reasonable and appropriate remedial measures to

prevent sexual harassment of Ollis by Gonzalez. Thus, Digital is

not entitled to summary judgment on Ollis’s claim.

C. Constructive Discharge

Digital challenges Ollis’s constructive discharge claim only

on grounds that she cannot prove that she was the victim of

sexual harassment. As the sexual harassment issue remains to be

resolved, Digital is not entitled to summary judgment on Ollis’s constructive discharge claim based on the grounds it raises. The

facts presented do suggest that Ollis may have resigned before

she gave Digital’s remedial efforts, particularly Gonzalez’s

permanent transfer to the shipping department, a reasonable

chance to work. If Ollis’s resignation occurred before Digital’s

remedial efforts were given a reasonable opportunity to succeed,

30 then Ollis may have preempted the possibility of showing that

Gonzalez’s transfer failed to remediate her working conditions.

See Serrano-Cruz v . DFI Puerto Rico, Inc., N o . 96-1418, slip o p .

at 11 (1st Cir. Mar. 1 9 , 1997). As the parties have not

addressed the issue raised in Serrano-Cruz, however, that is not

an appropriate basis for summary judgment on the present record.

CONCLUSION

For the foregoing reasons, Digital’s motions to strike

(documents n o . 2 2 , 2 3 , and 30) are granted as described herein.

Ollis’s motion to strike (document n o . 27) is denied. Digital’s

motion for summary judgment (document n o . 18) is necessarily

denied on this record.

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 2 8 , 1997

cc: Vincent C . Martina, Esq. Steven M . Gordon, Esq. Richard H . Alpert, Esq.

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