Janowicz v. Martin, et al. CV-97-336-M 02/05/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Joseph Janowicz, Plaintiff

v. Civil No. 97-336-M

Leo Martin; Joseph Panarello; and State of New Hampshire Department of Corrections, Defendants

O R D E R

Defendant State of New Hampshire Department of Corrections

(the "Department") moves for summary judgment in this suit

alleging sexual harassment in violation of Title VII of the Civil

Rights Act of 1964, as amended.1 See 42 U.S.C. § 2000e-2(a) (1) .

For the reasons that follow, the Department's motion is denied.

Standard of Review

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

Plaintiff's complaint also included state law claims for violation of state civil rights contrary to R.S.A. 354-A-7; constructive discharge; negligent supervision, training and retention; battery; intentional infliction of mental distress; and invasion of privacy. The complaint also named two individuals, Leo Martin and Joseph Panarello, as defendants. On November 25, 1997, the court granted defendants' partial motion to dismiss the Title VII claims against the individual defendants and the state law claims against all defendants, without prejudice to bringing the state law claims against the Department in state court. The only remaining claims, therefore, are the Title VII claims against the Department. 56(c). When ruling upon a party's motion for summary judgment,

the court must "view the entire record in the light most

hospitable to the party opposing summary judgment, indulging all

reasonable inferences in that party's favor." Griqqs-Rvan v.

Smith,

(1st Cir. 1990).

The moving party "bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett,

(1986). If the

moving party carries its burden, the burden shifts to the

nonmoving party to demonstrate, with regard to each issue on

which it has the burden of proof, that a trier of fact could

reasonably find in its favor. DeNovellis v. Shalala,

(1st Cir. 1997).

At this stage, the nonmoving party "may not rest upon mere

allegation or denials of [the movant's] pleading, but must set

forth specific facts showing that there is a genuine issue" of

material fact as to each issue upon which he or she would bear

the ultimate burden of proof at trial. I d . (guoting Anderson v.

Liberty Lobby, Inc.,

(1986)). In this context,

"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."

Intern'1 Ass'n of Machinists and Aerospace Workers v. Winship

2 Green Nursing Center,

(1st Cir. 1996)

(citations omitted).

Background

Viewed in the light most favorable to plaintiff, the facts

are as follows. At all times relevant to this action, plaintiff

held the rank of corporal in the Department's hierarchy and was

assigned to the day shift on the Secure Psychiatric Unit ("SPU").

Plaintiff primarily worked on the SPU's third floor.

Sergeant Leo Martin also worked the day shift on the SPU.

As a sergeant, Martin was superior to plaintiff in rank.

Martin's duties were primarily administrative, and he usually

worked on the SPU's fourth floor. Occasionally, however, Martin

was the officer in charge on the third floor and therefore, at

times, he acted as plaintiff's direct supervisor. Martin himself

worked for, among others. Administrative Director Joseph

Panarello.

Plaintiff's usual supervisors were Sergeants Kevin

Gathercole and Jeff Kennett. Plaintiff had a good working

relationship with Gathercole, but thought that Kennett had held a

grudge against him ever since an incident in which plaintiff

turned off the light in an elevator in which Kennett was riding.

Since that time, Kennett was constantly trying to write plaintiff

up and get him in trouble. Plaintiff felt that Kennett treated

him differently than other corporals.

3 Plaintiff considered working on the SPU, which involved

dealing with psychotic persons, to be dangerous and stressful.

One experience plaintiff found particularly disturbing was having

to cut down a patient who had tried to hang himself.

Beginning in November, 1995, Martin began asking plaintiff

to go out to dinner or to go to Martin's house for dinner. He

extended each invitation five or six times over the next three

months. Each time, plaintiff declined.

One December morning in 1995, while plaintiff was stationed

at the entrance gate, Martin grabbed plaintiff's buttocks while

plaintiff was opening the gate for Martin. Martin made a comment

to the effect that plaintiff had "nice buns." Although plaintiff

said nothing to Martin at the time, he telephoned Martin later

that day and told Martin he considered such conduct offensive and

reguested that Martin not repeat it.

On a day in January, 1996, plaintiff was standing with other

employees at the nurses' station in the SPU when Martin

approached him from behind and grabbed his genitals. Plaintiff,

upset by the experience, called Martin a "dirty bastard" or

something similar and walked away. Martin laughed and stated

that plaintiff had a "nice piece of Polish sausage." About a

week after this incident, plaintiff began having flashbacks and

nightmares about sexual abuse he had suffered as a child.

On another occasion in January, 1996, while plaintiff was

seated at a desk, Martin again approached him from behind and

4 began massaging his neck. While doing so, Martin told plaintiff

he could go a long way in the Department with Martin's help.

Toward the end of February, 1996, plaintiff asked to take

two days off. Kennett agreed to let plaintiff take the first

day, but said he was unsure of staffing needs for the second day

and would call plaintiff in the morning if plaintiff was needed.

On the afternoon of the second day, plaintiff found out that he

was missed at work and that Kennett denied signing plaintiff's

leave slip. This incident, in plaintiff's words, "put [him] over

the edge." He called his psychiatrist, who told him to stay out

of work.

Plaintiff took a disability leave for mental stress. On

February 29, 1996, he submitted an accident/injury reporting form

with an attached statement detailing the causes of his stress.

These causes included being unfairly treated by Kennett and

another superior. Lieutenant McGill, finding the patient who had

tried to hang himself, and being touched by Martin on several

occasions in sexually harassing ways.

On March 5, 1996, Department employee John J. Kovacs called

plaintiff to inguire further about the alleged sexual harassment.

Kovacs asked plaintiff to provide a written statement detailing

the incidents of sexual harassment, and plaintiff did so. The

Department conducted a sexual harassment investigation, taking

witness statements from numerous Department employees. A report

of the investigation, submitted on March 21, 1996, contained

findings that the touchings reported as the first and third

5 incidents (grabbing plaintiff's buttocks and massaging his neck)

likely did occur but, under the circumstances, did not constitute

sexual harassment. It was also found, however, that Martin did

touch plaintiff's genitals and that conduct did constitute sexual

harassment. On April 1, 1996, Martin was suspended without pay

for 15 days due to his unprivileged touching of plaintiff.

Plaintiff has been diagnosed as suffering from Major

Depressive Disorder and Post Traumatic Stress Disorder and has at

times been suicidal. His symptoms have prevented him from

returning to work at the Department. In June, 1996, plaintiff's

employment with the Department was formally terminated for

nondisciplinary reasons, namely, that because of a medical

condition, his presence in the workplace is deleterious to his

health.

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 . . . sex." 42 U.S.C.A.

§ 2000e-2(a)(1)(1994). Sexual harassment is a form of

discrimination based on sex. See Provencher v. CVS Pharmacy,

Div. Of Melville Corp.,

, 13 (1st Cir. 1998) .

Furthermore, the Supreme Court held in Oncale v. Sundowner

Offshore Serv., Inc., __ U.S. __ ,

, 1001-02

6 (1998), that same-sex sexual harassment, such as that alleged

here, is prohibited by Title VII.

Plaintiff claims that he has suffered both quid pro quo and

hostile work environment harassment. The Supreme Court, however,

has recently diminished the significance of the labels "quid pro

quo" and "hostile work environment." The Court explained that

"[t]he principal significance of the distinction is to instruct

that Title VII is violated by either explicit or constructive

alterations in the terms or conditions of employment and to

explain the latter must be severe or pervasive." Burlington

Indus., Inc. v. Ellerth, __ U.S. __ ,___

, 2264

(1988). Discrimination is explicit when an employer conditions

employment benefits on submission to sexual advances, see

conduct commonly described as quid pro quo harassment. What

Burlington clarified is that when such discrimination does not

result in a tangible employment action it must meet the severe or

pervasive reguirement:

When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive.

I d . at 2265. The Court also explained that once actionable

discrimination is proved, an employer's vicarious liability for

harassment by its employee is not determined by the concepts of

quid pro quo and hostile work environment but by the factors set

forth in Burlington.

7 Burlington itself involved an employee who resisted

unwelcome sexual advances by a supervisor but suffered no

negative tangible employment conseguences. I_d.,

. The Court held that where the actions complained of

involve only unfulfilled threats, the case "should be categorized

as a hostile work environment claim which reguires a showing of

severe or pervasive conduct." JCd. at 2265.

The instant case is analogous. The third alleged incident

of harassment - in which Martin massaged plaintiff's neck and

told him he could go a long way in the Department with Martin's

help - appears to set up a potential quid pro quo situation: the

conditioning of a job benefit on submission to the unwelcome

sexual advances of a superior. However, plaintiff has presented

no credible evidence that his resistance to those advances

resulted in any tangible employment action.

"A tangible employment action constitutes a significant

change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits." Burlington,

. Plaintiff argues that

a tangible employment action occurred, because the stress caused

by Martin's harassment caused plaintiff to leave the Department

and eventually led to termination of his employment. However,

plaintiff's voluntary exit from the Department, even if motivated

by stress resulting from the harassment, is not a tangible

employment action. See Sconce v. Tandy Corp.,

(W.D. Ky. 1998) (no tangible employment action where

plaintiff voluntarily requested transfer to a lower paid position

because of anxiety caused by the harassment). "To create . . .

liability in what is referred to as a quid pro quo ’ 'refusal'

claim, the supervisor must do something in addition to making

sexual advances. He must do something else which causes or

creates a j ob detriment." JCd. ; see also Burlington,

("A tangible employment decision requires an official act of

the enterprise, a company act.").

Plaintiff does point to one action by Martin which he claims

to be tangible employment action. Plaintiff cites Martin's

deposition testimony in which Martin opines that plaintiff left

the Department because Martin caught plaintiff stealing state

time and reported it to the Lieutenant in charge who then engaged

in an angry confrontation with plaintiff, which caused plaintiff

to leave the Department. Plaintiff argues that "[a] jury could

reasonably conclude that Sg t . Martin's investigating, determining

and reporting to the Lieutenant in charge for action that the

plaintiff was 'stealing state time' was conduct taken by Sgt.

Martin in response to plaintiff's rejection of Sgt. Martin's

sexual advances." Plaintiff further argues that this could be

construed as tangible employment action.

The court disagrees. Even if Martin's conduct was

retaliatory, there is no evidence that Martin caused plaintiff to

be fired or disciplined, or resulted in any other tangible

employment action by the Department. All that is alleged is speculation that the consequences of Martin's allegedly

retaliatory actions caused plaintiff to voluntarily leave the

Department. As noted above, that is insufficient to constitute

an adverse employment action. See Sconce,

6.

Moreover, it is contradicted by plaintiff's own testimony that it

was the confrontation with Kennett over the two day leave that

put plaintiff "over the edge" and caused him to leave the

Department. A confrontation over allegedly stolen state time is

not even mentioned as one of the causes of plaintiff's stress in

the three page statement appended to his accident/injury

reporting form.

Plaintiff has failed to establish the existence of any

genuine issue of material fact regarding tangible employment

action. Thus, plaintiff's alleged incidents of harassment must

qualify as severe or pervasive under the rubric commonly called

hostile work environment. See Burlington,

; see

also Sconce,

(where supervisor

conditioned job benefits on sexual favors but plaintiff's refusal

resulted in no adverse consequences, claim was for hostile work

environment not quid pro quo harassment).

A claim of hostile work environment requires a showing that

the harassment is "sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive

working environment." Meritor Sav. Bank, FSB v. Vinson,

(1986) (internal quotation marks and brackets omitted).

Whether a work environment is hostile or abusive is to be

10 determined from the totality of the circumstances, which may

include "the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or

a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance." Harris v.

Forklift Svs., Inc.,

(1993). Moreover, "a

sexually objectionable environment must be both objectively and

subjectively offensive, one that a reasonable person would find

hostile or abusive, and one that the victim in fact did perceive

to be so." Faragher v. City of Boca Raton, __ U.S. __, __

(1998).

The Department asserts that Martin's conduct, though crude

and vulgar, was not severe or pervasive enough to create a

hostile work environment. The Department states that horseplay

involving physical contact was not uncommon among the male staff

of SPU, and included such acts as tickling and pats on the

buttocks.

The court finds, however, that plaintiff has presented

evidence from which a reasonable jury could find a hostile work

environment. Plaintiff has alleged incidents of demeaning and

humiliating physical touching in the workplace which included

grabbing his genitals. Equal Employment Opportunity Commission

("EEOC") guidelines presume that "a physical, forced groping of

an intimate part of the Plaintiff's body . . . creates an

actionable hostile work environment." Fall v. Indiana Univ. Bd.

of Trustees,

(N.D. Ind. 1998) (citing

11 EEOC Policy Guidance on Sexual Harassment ("EEOC Policy"), 8 Fair

E m p . Prac. Man (BNA) 405:6691 (March 19, 1990)); see also

DeNovellis,

(looking to EEOC Policy in

determining whether harassment is severe or pervasive).

Plaintiff has at least raised a genuine issue of fact as to

whether Martin's harassment of him was severe or pervasive enough

to be actionable under Title VII.

The Department also argues that it is entitled to summary

judgment, even if the harassment was severe or pervasive, because

it is neither vicariously nor directly liable for determining

Martin's harassment of plaintiff. The standard for determining

vicarious liability is set forth in Burlington and Faragher:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Burlington, 118 S.Ct. at 2270; Faragher,

.

Plaintiff does not dispute that the Department had a sexual

harassment policy in place at the time of Martin's offending

conduct. Plaintiff struggles against the tide, however, by

arguing that it was not an effective policy because "sexual

harassment was not taken seriously" in the Department, and the

staff was afraid of retaliation for reporting sexual harassment.

12 Plaintiff offers the testimony of two witnesses who saw Martin

grabbing plaintiff's genitals and who claim that they suffered

retaliation after giving statements about the event. Plaintiff

also says he did not believe anything would have been done had he

complained earlier, given that unfair treatment of him by other

officers had also gone unaddressed.

These after-the-fact speculations, however, are insufficient

to counter the Department's conclusive evidence establishing that

plaintiff did make a complaint, that an investigation was

conducted promptly, that witnesses were not deterred from making

statements, and did in fact make statements, and that after the

facts were determined by the agency the accused harasser was

disciplined - in other words, that the policy, at least in

plaintiff's case, was effective. Plaintiff has failed to raise

any genuine issue of material fact as to whether the Department

had an effective sexual harassment policy in place; the

Department has therefore satisfied the first prong of the

affirmative defense. See Jones V. USA Petroleum Corp., 20 F.

Supp. 2d at 1355 (noting that "the effective promulgation of a

workable anti-harassment policy satisfies the first element's

reasonable care standard.")

It is also undisputed that plaintiff did not report Martin's

harassing conduct until after plaintiff left the Department due

to stress. Plaintiff concedes that " [e]mbarrassment was a major

factor" in his failing to immediately report the harassment.

Mere embarrassment cannot provide a reasonable excuse for failing

13 to invoke the protection of a workable anti-harassment policy put

in place by the employer. Cf. Sconce,

(finding "a threat of termination, without more, is not enough to

excuse an employee from following procedures adopted for [his]

protection"). Plaintiff has failed to raise any genuine issue of

material fact as to whether he unreasonably failed to utilize the

Department's policy and procedures for reporting and remedying

sexual harassment. The court finds as a matter of law that the

Department has established the elements of the affirmative

defense to vicarious liability described in Burlington and

Faragher.

If only vicarious liability were at issue, the Department

would be entitled to summary judgment. However, plaintiff also

makes a claim based on the Department's own negligence in failing

to remedy sexual harassment of which it had knowledge. "An

employer is negligent with respect to sexual harassment if it

knew or should have known about the conduct and failed to stop

it." Burlington, 118 S.Ct. at 2267. Plaintiff essentially

claims that the Department should have known of and remedied

Martin's harassment of him before he complained. As neither

Burlington nor Faragher resolved claims of direct employer

negligence, that theory of liability remains intact. See

Burlington, 118 S.Ct. at 2267 ("Negligence sets a minimum

standard for employer liability under Title VII; but Ellerth

seeks to invoke the more stringent standard of vicarious

liability."); Faragher,

(noting that "the

14 reversal necessary on the theory of supervisory harassment

renders any remand for consideration of imputed knowledge

entirely unjustifiable (as would be any consideration of

negligence as an alternative to a theory of vicarious liability

here)").

The Department argues that it was not negligent because it

did not know Martin was harassing plaintiff until he made a

complaint, and, once it received the complaint, it took prompt

and effective remedial action. The Department asserts that there

is no evidence that it knew or even should have known of Martin's

harassing behavior.

Plaintiff, however, advances two bases for charging the

Department with prior knowledge. Plaintiff first contends that

the Department should have known of Martin's generally harassing

behavior because some evidence suggests the Department may have

been aware of similar offensive physical contact by Martin with

other male employees, well before the incidents involving

plaintiff. Plaintiff also claims that the Department should have

known Martin was harassing him because the genitals-grabbing

incident was witnessed by other officers, including a "superior

officer," Sergeant Gathercole. Plaintiff then imputes the

knowledge of these witnesses to the Department itself.

Neither party has adeguately briefed the negligence issue,

or provided the court with a sufficient record to even determine

whether any genuine issue of material fact exists. For example,

plaintiff submitted deposition testimony by Sergeant Gathercole

15 in which he purported to recall a conversation among two other

sergeants and himself during which one sergeant supposedly stated

that a named corporal had complained to him that she had, in

turn, received a complaint from a corrections officer to the

effect that Martin freguently touched him. Gathercole stated

that he reported that information to the Administrative Director,

Joseph Panarello, and that his concerns were essentially brushed

aside. The evidence is unclear, however, as to when Gathercole

notified Panarello of these attenuated reports of Martin's

harassing others. Gathercole's affidavit implies that he

notified Panarello at the time of the conversation. His

deposition testimony, on the other hand, suggests that he spoke

to Panarello before plaintiff left the Department, which suggests

a more recent date. Similarly, plaintiff cites as incriminating

evidence a note apparently written by Marilee Nihan, the

investigator assigned to plaintiff's complaint, that "Leo

[Martin] likes young guys." However, plaintiff provides no

evidence suggesting when the notation was made.

The Department, in turn, merely declares that the existence

of rumors cannot suffice to impute knowledge of Martin's

propensity for, or engagement in, sexual harassment. The

Department cites no legal authority for, nor does it develop that

position.

Plaintiff also submitted evidence tending to establish that

Sergeant Gathercole actually witnessed the genitals-grabbing

incident. Neither party, however, has adeguately addressed the

16 legal bases for imputing or not imputing Gathercole's knowledge

to the Department. In the absence of an adeguate factual record

and sufficiently developed legal argument by the parties, the

court simply cannot resolve these issues on summary judgment.

Since the Department's motion for summary judgment reaches beyond

vicarious liability, to that extent it must be denied. As to

plaintiff's claims asserting vicarious liability theories,

however, the Department's motion is granted.

Conclusion

For the foregoing reasons, the Department's motion for

summary judgment (document no. 14) is denied in part and granted

in p a r t .

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 5, 1999

cc: James F. Lafrance, Esg. Martha A. Moore, Esg.

17