Drew v. First Sav. of NH CV-95-495-SD.P 04/02/97

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eunice Drew; Joan Wentworth

v. Civil No. 95-495-SD

First Savings of New Hampshire; Stephanie Kruv

O R D E R

Plaintiffs object to a Report and Recommendation (R & R) of

the magistrate judge. The court has conducted the reguisite de

novo review of the R & R.

(b)(1)(C); Elmendorf

Grafica, Inc. v. D.S. America (East), Inc.,

(1st Cir. 19 95).

1. Background1

Plaintiffs Eunice Drew and Joan Wentworth are former

1As the R & R at issue concerned a motion to dismiss filed by defendant First Savings of New Hampshire (Bank) , the alleged facts herein, taken from plaintiffs' complaint, are considered as true, indulging every inference helpful to plaintiffs' cause. Garita Hotel, Ltd. v. Ponce Fed. Bank,

(1st Cir. 1992) . employees of defendant Bank. Seeking relief under federal and

state law, they claim money damages for perceived sexual harass­

ment against them by defendant Stephanie Kruy, a supervisory

employee of Bank.2

Drew was employed by Bank as a servicing clerk,

receptionist, and switchboard operator in the period between

October 1991 and January 20, 1995. Wentworth's employment as a

receptionist and customer service representative commenced in

June 1986 and terminated on February 24, 1995. Each of the

plaintiffs was employed in Bank's main office located in Exeter,

New Hampshire.

In early January 1995 defendant Kruy transferred from Bank's

Stratham office to become branch manager of Bank's main office.

Within a short time of her arrival, Kruy instituted a policy she

had employed in Stratham since 1993 that reguired female

employees of the Bank to hug her when receiving their paychecks.

Plaintiffs had previously heard of this practice, considered it

to be repugnant, and believed that Kruy was a lesbian.3

21he federal law claims directed against Bank are grounded on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seg. Kruy is charged with the tort of battery under state law .

3Kruy has apparently denied under oath that she is a lesbian, but, for purposes of resolution of the issue now before

2 The first payday after Kruy commenced her employment at

Bank's main office fell on January 5, 1995. On that date, Kruy

exclaimed, "I look forward to Thursdays because I get to hug

everyone before I give them their paychecks." Kruy then hugged

Bank's female employees, including Drew, and gave each of them,

in addition to the paycheck, a bagful of chocolate hearts and a

note signed, "Love, Steph." Drew described the January 5 embrace

as a "full frontal hug."

As Wentworth was out sick from work on January 5, she

expected Bank to follow its former practice of mailing her

paycheck. However, when she returned to work on January 9, she

also received the "full frontal hug," together with the bag of

candy and note.

On that day, January 9, Wentworth complained of this hugging

policy to Carol Cross of Bank's Human Resources Department.

Wentworth also inguired of Cross whether there had been other

such complaints. Cross, who had been receiving complaints of

Kruy's hugging policy, falsely answered this inguiry in the nega­

tive. Wentworth did not therefore press the matter, and Cross

did not further investigate or take further action.

Kruy repeated the hugging practice on the next payday.

the court, the court assumes plaintiffs' allegations to be true.

3 January 12, 1995. Neither the complaint nor plaintiffs' legal

memo claims that plaintiffs were recipients of hugs, but the

complaint does allege that plaintiffs felt "humiliated, degraded,

and helpless because it was obvious that [Bank] was going to

allow Stephanie Kruy to continue" such conduct. Plaintiffs

further allege that the close friendship between Kruy and Brenda

Dolan, Senior Vice President of Bank, made them afraid to further

press the matter.

Kruy was absent from the Bank on January 19, and paychecks

were distributed without hugs by a representative of the Human

Resources Department. Drew observed that other female employees

were relieved that they were not subjected to the hugging

practice, and she expressed her own relief to the Human Resources

representative.

On January 20, 1995, Kruy approached Drew with complaints

about her performance as a switchboard operator. Drew's response

was to tell Kruy she could not continue working for someone who

reguired hugs from her female subordinates as a condition of

receipt of paychecks. Drew then tendered her resignation onthe

ground that she had been under continued sexual harassment, which

was causing her stress, and that the Human Resources Department

had failed to put an end to this harassment.

4 Cross distributed the paychecks on January 26, 1995. When

she gave Wentworth her paycheck, she advised Wentworth that their

prior conversation of January 9 "had never taken place as it

could mean my job." Distressed by this conversation, which

Wentworth interpreted to mean that improper pressure was being

put on Cross by Kruy and Dolan, Wentworth was stricken with an

unspecified illness, and her doctor put her on sick leave as of

February 13, 1995. On February 24, 1995, Wentworth tendered her

resignation because "she was physically and emotionally unable to

return to [Bank] to work in an environment that condoned and

fostered degradation and humiliation of its female employees."

Kruy was never disciplined by Bank for her hugging practice,

and in fact she was named employee of the month in March 1995.

Defendant Bank moved to dismiss plaintiffs' Title VII claim

(document 11), and plaintiffs objected (document 12). The motion

was referred to the magistrate judge, who filed his R & R, which

recommended that the motion to dismiss be granted as to

plaintiffs' Title VII claims and that the exercise of supple­

mental jurisdiction over the remaining claims be denied. Docu­

ment 21, at 16, 17.4 Plaintiffs filed a timely objection to the

4Initially, the magistrate judge considered and correctly rejected Bank's claim that "same sex" sexual harassment was not actionable under Title VII. Document 21, at 7 (citing King v.

5 R & R. Document 22.

2. Discussion

Under Title VII, it is "an unlawful employment practice for

an employer . . . to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin." 42 U.S.C. § 2000e-2 (a) (1) . And sexual

harassment constitutes unlawful discrimination under Title VII.

Meritor Savings Bank, F.S.B. v. Vinton,

(1986).

Workplace sexual harassment may take either of two forms.

"Quid pro guo harassment" consists of promises of favorable

treatment or threats of unfavorable treatment calculated to

coerce an employee into submitting to unwelcome sexual advances.

Lattimore v. Polaroid Corp.,

(1st Cir. 1996).

"Hostile environment harassment" consists of "offensive gender-

based conduct that is 'severe or pervasive enough to create an

objectively hostile or abusive work environment--an environment

that a reasonable person would find hostile or abusive' and is

subjectively perceived by the victim to be abusive."

Town of Hanover, No. 94-274-JD (D.N.H. May 17, 1996)). The magistrate judge also recommended the mooting of plaintiffs' motion to strike defendants' reply brief.

6 (quoting Harris v. Forklift Systems, Inc.,

(1993)). The instant case is a "hostile environment harassment"

case.

The determination of whether a plaintiff has established a

hostile or abusive workplace environment requires the court to

consider all of the circumstances, but particularly those con­

cerning (1) the frequency of the discriminatory conduct; (2) its

severity; (3) whether it is physically threatening or humiliating

rather than a mere offensive utterance; and (4) whether it

unreasonably interferes with an employee's work performance.

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

(1st Cir. 1995), cert, denied, ___ U.S. , 116 S. C t . 1044

(1996) (citing

) .5 As previously

indicated, the relevant factors must be viewed both subjectively

and objectively.

Viewed through such legal lens, the circumstances of which

plaintiffs here complain do not serve to bring their claims

within the purview of Title VII. The gist of the complaint

concerns two uninvited hugs over a three-week period, accompanied

by candy and "Love, Steph" notes, and the falsehood told Went­

5Although Brown was a Title IX case, it made use of the quoted elements which were taken from Title VII cases.

7 worth, followed by a request for protective silence from a

supervisory employee. Moreover, it appears that the first time

plaintiffs directly complained to Kruy that they found her

hugging practice offensive was on the occasion of Drew's resigna­

tion, which occurred on January 20, 1995. Thereafter, the hugs

did not continue.

This is not the type of case which this Circuit,6 applying

the Harris factors, would find "sufficiently severe or pervasive

to . . . create an abusive working environment." Morrison v.

Carleton Woolen Mills, Inc., No. 96-1224, slip op. at 18 (1st

Cir. Mar. 19, 1997) (citing and quoting Lipsett v. University of

Puerto Rico,

(1st Cir. 1988)). See also

Chamberlin v. 101 Realty, Inc.,

(1st Cir.

1990) .

It follows that the magistrate judge correctly recommended

that the Title VII claims of the plaintiffs be dismissed. The

R & R is, accordingly, accepted without modification.

6In the R & R, the magistrate judge cited as comparative examples certain Seventh Circuit cases, and plaintiffs attack on the unsupported ground that these decisions demonstrate hostility to and a desire of that Circuit to clear its docket of unwanted sexual harassment cases. The court finds it unnecessary to enter this dispute, as the law of the First Circuit is sufficiently clear to permit it to resolve the issues currently before it. 3. Conclusion

The Report and Recommendation of the magistrate judge

(document 21) is accepted without modification.

It is accordingly herewith ordered that the defendants'

motion to dismiss (document 11) be granted insofar as it seeks

dismissal of plaintiffs' Title VII claims. As those claims form

the sole basis for federal jurisdiction, the court declines to

exercise supplemental jurisdiction over the remaining state law

claims.

(c)(3). The plaintiffs' motion to

strike (document 15) is mooted by these orders.

The clerk is directed to close this case.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

April 2, 1997

cc: Charles G. Douglas III, Esg. Mark I. Broth, Esg. Martha V. Gordon, Esg.