Gauthier v . NH Dept. of Corrections CV-98-298-M 08/28/00 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kathleen Lohnes Gauthier, Plaintiff

v. Civil N o . 98-298-M Opinion N o .

New Hampshire Department of Corrections, Defendant

O R D E R

Kathleen Lohnes Gauthier brings this action pursuant to

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq., seeking damages for what she claims was a hostile work

environment and quid pro quo sexual harassment. Gauthier’s

former employer and defendant in this proceeding, the New

Hampshire Department of Corrections, denies liability and has

moved for summary judgment. Gauthier objects.

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.

56(c). 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’l Ass’n of Machinists and

Aerospace Workers v . Winship Green Nursing Center,

(1st Cir. 1996) (citations omitted). And, 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.” Griggs-Ryan v . Smith,

(1st Cir. 1990).

Background

Viewing the record in the light most favorable to plaintiff,

the material facts appear as follows. Gauthier began work at the

New Hampshire Department of Corrections (“DOC”) in August of

1994, as a correctional trainee at the Men’s Prison in Concord,

New Hampshire. In the Spring of 1995, she attended the

2 correctional academy, where she received training i n , among other

things, the DOC policy prohibiting sexual harassment and its

procedures for reporting complaints.

After completing her training at the correctional academy,

Gauthier was assigned to work at the Women’s Prison in Goffstown.

In June of 1996, at her request, she was transferred to the Men’s

Prison. Gauthier resigned from her position at the Men’s Prison

in June of 1997, complaining that she was the subject of ongoing

sexual harassment by her co-workers and supervisors. On

September 5 , 1997, Gauthier filed a complaint with the New

Hampshire Human Rights Commission (the “HRC”). In February of

1998, the Equal Employment Opportunity Commission issued a “right

to sue letter,” and on May 1 1 , 1998, she initiated this suit.

Gauthier alleges that she was subjected to sexual harassment

by her immediate supervisor, Sergeant Gathercole, as well as

several other DOC employees, including Sergeant Thyng, Sergeant

Tarillo, Corporal Brochu, Officer Patrick, Officer Kingsbury,

3 Officer Lacert, and Counselor Hart. She concedes, however, that

she failed to exhaust her administrative remedies with regard to

the alleged conduct of Officers Kingsbury and Lacert, which

apparently occurred while Gauthier was assigned to the Women’s

Prison, during 1995 and 1996. She also acknowledges that part of

Officer Patrick’s alleged conduct occurred in 1994 and 1995 and,

therefore, more than 300 days before she filed her complaint with

the HRC. See 42 U.S.C. § 2000e-5(e)(1).

Gauthier’s complaint includes references to numerous

incidents of alleged sexual harassment by her co-workers and

supervisors. They need not be recounted in detail. It is

sufficient to note that, if the allegations are true (and they

must be accepted as true at this stage), plaintiff was subjected

to fairly pervasive, severe, and ongoing sexual harassment, which

included sexually explicit jokes, comments, and remarks by

Sergeant Gathercole. Complaint at para. 10. These comments

included Gathercole’s alleged statements about sexually explicit

dreams he had had about Gauthier, references to his having

4 masturbated while at work, and questions such as whether she put

sunscreen on her nipples when she went to the beach. Other

incidents involved DOC employees touching plaintiff

inappropriately, commenting on her breasts, discussing how exotic

dancers they had seen frequently shaved their pubic areas, and

telling Gauthier things such as how they would like to “bend

[plaintiff] over his desk for payment.” Plaintiff’s deposition

at 4 1 .

The DOC’s sexual harassment policy provides that any

employee who believes that he or she has been subjected to

unlawful discrimination “may file a complaint in writing with a

Discrimination Review Committee.” DOC Policy and Procedure

Directive 2.15, Exhibit G to defendant’s memorandum (document n o .

14). The State of New Hampshire Policy of Sexual Harassment,

which is attached to the DOC sexual harassment policy, provides

that any employee of the State may file a complaint of sexual

harassment, either orally or in writing, to the Director of the

Division of Personnel. Alternatively, “[c]omplaints may also be

5 accepted by a supervisor, who shall then refer the complaint to

the Director.” Id., at Section III(A).

Additionally, after completing sexual harassment training,

each DOC employee is required to sign a form, acknowledging that

he or she has received such training. That form further requires

the employee to acknowledge that “I have the right and the

responsibility to either communicate [complaints of sexual

harassment] directly to the harasser or to a non-involved

supervisor.” Acknowledgment of Sexual Harassment Training,

Exhibit C to defendant’s memorandum. Thus, it is evident that

employees of the DOC may, pursuant to the sexual harassment

policies implemented by both the State and the DOC, report

incidents of alleged sexual harassment either orally or in

writing. And, such reports may be directed to one or more of

several individuals, including the alleged harasser or a non-

involved supervisor.

6 Gauthier admits that during the course of her employment she

never filed a written complaint of sexual harassment with her

supervisor(s), the Discrimination Review Committee, or the

Director of Personnel. She does, however, say that she

repeatedly complained of unwelcome sexual harassment to Corporal

Brochu, Lieutenant Dragon, and Lieutenant Hogan. Defendant

vigorously disputes that claim. See Defendant’s memorandum at

24-25. Nevertheless, for purposes of ruling on defendant’s

motion for summary judgment, the court must accept it as true.

According to Gauthier, none of her complaints resulted in

any sort of investigation nor did they serve to stop the

harassment (again, defendant denies that claim). Following her

resignation, however, Gauthier, through her attorney, filed a

written complaint of sexual harassment. At that point, defendant

promptly began an investigation into Gauthier’s claims. That

investigation revealed that Counselor Hart, Sergeant Tarillo, and

Sergeant Gathercole had all engaged in inappropriate sexual

conduct. Tarillo and Hart were disciplined and, because of the

7 severity of Gathercole’s conduct, his employment was terminated.

Discussion

I. Exhaustion of Administrative Remedies.

Title VII obligates plaintiffs to exhaust administrative

remedies before filing suit in federal court. See Lawton v .

State Mutual Life Assurance C o . of America,

(1st Cir. 1996). The general rule provides that charges of

discrimination must be filed with the EEOC within 180 days of the

discriminatory act, unless the charge is first filed with an

authorized state agency, in which case it must be filed with the

EEOC within 300 days of the discriminatory act. See 42 U.S.C.A.

§ 2000e-5(e); E.E.O.C. v . Commercial Office Products Co.,

(1988).

The purpose of requiring an employee to file a charge of

discrimination is “to provide the employer with prompt notice of

the claim and to create an opportunity for early conciliation.”

8 Lattimore v . Polaroid Corp.,

(1st Cir. 1996).

Plainly, it would frustrate that purpose “if the employee were

permitted to allege one thing in the administrative charge and

later allege something entirely different in a subsequent civil

action.”

Consequently, the Court of Appeals has held that

“the scope of the civil complaint is . . . limited by the charge

filed with the EEOC and the investigation which can reasonably be

expected to grow out of that charge.” Powers v . Grinnell Corp.,

4 , 38 (1st Cir. 1990) (citation and quotation marks

omitted).

Here, the complaint Gauthier filed with the HRC addresses

only alleged acts of sexual harassment while she was employed at

the Men’s prison. It makes no reference to alleged sexual

harassment, whether committed by Kingsbury, Lacert, or others,

while she was employed at the Women’s Prison. And, as noted

above, Gauthier concedes that any claims relating to alleged

sexual harassment while she was at the Women’s Prison occurred

more than 300 days prior to the filing of her complaint with the

9 HRC. Consequently, only Gauthier’s claim that she was subjected

to unlawful sexual harassment while she was employed at the Men’s

Prison requires analysis.

As to Gauthier’s claims regarding the alleged harassment of

Brochu and Tarillo, defendant says that she cannot show that such

conduct occurred within 300 days of her having filed the

complaint with the HRC. Instead, defendant says that, at best,

all Gauthier can show is that Brochu and Tarillo sexually

harassed her at some point during her tenure at the Men’s Prison,

at least four months of which occurred outside of the 300-day

window established by Title VII. See Defendant’s Memorandum at

14 (“Plaintiff is unable to meet this burden, since she admits

that she does not know when these events [relating to Brochu and

Tarillo] happened, and thus cannot established that they occurred

[within 300 days of filing her complaint].”) Gauthier disagrees,

saying that while she cannot identify the precise dates on which

Brochu and Tarillo harassed her, she can say with confidence that

their unlawful conduct “occurred regularly during the year [she]

10 was assigned to the men’s prison,” see plaintiff’s responses to

interrogatories, and such conduct occurred “repeatedly” and “on

many occasions.” See Plaintiff’s deposition at 28-31;

Plaintiff’s complaint filed with the HRC.

At this stage of the litigation, therefore, Gauthier has

alleged sufficient facts to support a claim that the conduct

ascribed to Brochu and Tarillo constitutes a “continuing

violation” under Title VII, at least a portion of which occurred

within the 300-day limit. See generally, Thomas v . Eastman Kodak

Co.,

8 , 53-54 (1st Cir. 1999), cert. denied,

(2000); Lawton,

(1st Cir. 1996).

Consequently, to the extent defendant asserts that, as a matter

of law, Gauthier’s claims relating to the alleged conduct of

Brochu and Tarillo is time barred, the court disagrees.

II. Title VII and Employer Liability.

Title VII of the Civil Rights Act of 1964 (as amended) makes

it unlawful for employers “to fail or refuse to hire or to

11 discharge any individual, or otherwise 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. § 2000e-2(a). As a result, the Supreme Court

has held that “sexual harassment so ‘severe or pervasive’ as to

‘alter the conditions of [the victim’s] employment and create an

abusive working environment’ violates Title VII.” Faragher v .

City of Boca Raton,

(1998) (quoting Meritor

Savings Bank, FSB v . Vinson,

7 , 67 (1986)).

The Supreme Court has also distinguished between two types

of sexual harassment claims that are actionable under Title VII:

quid pro quo harassment and hostile work environment harassment.

[In Meritor], we assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer’s sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. The principle significance of

12 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 Industries, Inc. v . Ellerth,

4 2 , 752

(1998). See generally Meritor, 477 U.S. at 6 5 . In this case,

Gauthier claims she was subject to both quid pro quo and hostile

environment sexual harassment. With regard to the former, her

claim appears to be limited to the allegation that Sergeant Thyng

repeatedly requested that she go out with him, prompting Gauthier

to fear that if she refused those requests, Thyng would hinder

her ability to secure a transfer away from Sergeant Gathercole

(the DOC employee who Gauthier says subjected her to the most

offensive and pervasive harassment).

Defendant moves for summary judgment, asserting that

Gauthier cannot, as a matter of law, point to sufficient facts to

hold it liable for the allegedly wrongful conduct of either its

supervisory or non-supervisory employees. Gauthier objects.

13 A. Employer Liability for Non-Supervisory Employees.

Under Title V I I , employers are not strictly liable for

unlawful sexual harassment committed by their employees. See

generally Burlington Industries, supra. Thus, as the Court of

Appeals for the Seventh Circuit has held:

The liability of an employer for sexual harassment by one nonsupervisory employee of another is not strict. The plaintiff must prove that the employer was negligent in having failed to discover and prevent i t . The sheer pervasiveness of the harassment might support an inference that the employer must have known of i t , as might a complaint from someone other than the victim.

Zimmerman v . Cook County Sheriff’s Department,

(7th Cir. 1996).

Here, Gauthier has pointed to sufficient facts to withstand

defendant’s motion for summary judgment as to the allegedly

unlawful conduct of its non-supervisory employees. First,

Gauthier alleges that she repeatedly informed supervisory

employees of the sexual harassment to which she claims to have

been subjected. And, it would appear that under the sexual

14 harassment policies implemented by DOC and the State of New

Hampshire, making such oral reports to supervisory employees was

both permissible and sufficient to put defendant on notice of her

claims. See generally The State of New Hampshire Policy on

Sexual Harassment, Section III (A) (“Complaints may also be

accepted by a supervisor, who shall then refer the complaint to

the Director.”). Additionally, defendant was aware, as early as

February of 1996, that Officer Patrick had sexually harassed a

female co-worker at the Men’s Prison. See Report of Sexual

Harassment Investigation (February 2 0 , 1996), Exhibit 8 to

plaintiff’s memorandum. Finally, Gauthier has submitted portions

of Counselor Hart’s testimony in another Title VII suit, in which

Hart testified that he discussed with the Warden of the Men’s

Prison in the summer of 1997 his belief that correctional

officers were engaging in inappropriate sexual discussions and

banter in various sections of the prison. See Exhibit 5 to

plaintiff’s memorandum, Trial transcript from White v . Dept. of

Corrections, Day 2 at 156-57.

15 Viewing the record in the light most favorable to Gauthier,

as the court must at this stage of the litigation, there is

sufficient evidence to permit a reasonable trier of fact to

conclude that defendant either knew or should have known of the

sexual harassment to which Gauthier was allegedly being

subjected. Crediting Gauthier’s allegations as true, the record

suggests that such discrimination was both pervasive and severe.

It also suggests that defendant had actual knowledge of

Gauthier’s complaints, which she claims to have made to various

supervisory employees of defendant. At a minimum, Gauthier has

pointed to adequate evidence in the record, if credited as true,

to support a trier of fact’s conclusion that defendant should

have known that Gauthier was being subjected to sexual harassment

and was negligent in failing to stop i t .

B. Employer Liability for Supervisory Employees.

Generally, employers are vicariously liable for sexual

harassment carried out by their supervisory employees. See

generally Burlington Industries, supra. However, if the alleged

16 harassment results in no tangible employment action (e.g.,

discharge, adverse transfer, e t c . ) , an employer may avail itself

of a two-part affirmative defense.

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. 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 preventative or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Burlington Industries, 524 U.S. at 765.

Here, the parties dispute whether Gauthier suffered any

“tangible employment action.” Defendant denies that any

occurred, while Gauthier argues that her “constructive discharge”

should, as a matter of law, constitute a tangible employment

17 action. That legal question appears open to debate and has yet

to be resolved in this circuit though, as defendant points out,

in light of the Court’s discussion in Burlington Industries, an

employee’s decision to resign in the wake of sexual harassment is

unlikely to automatically constitute a “tangible employment

action.” See Defendant’s reply memorandum (document no. 17) at

4. See also Elmasry v . Veith, 2000DNH005, Civil N o . 98-696-JD

(D.N.H. January 7 , 2000) (“Determining whether a constructive

discharge can constitute a tangible employment action requires

examination of the facts peculiar to each case. There are

certainly circumstances under which a constructive discharge may

qualify as a tangible employment action.”). Nevertheless, for

the reasons discussed below, the court need not address that

issue at this time.

Even if the court were to conclude that Gauthier’s

constructive discharge was not a tangible employment action

(thereby affording defendant the opportunity to avail itself of

the affirmative defense discussed above), defendant has failed to

18 establish that Gauthier “unreasonably failed to take advantage of

any preventive or corrective opportunities provided by the

employer.” Burlington Industries, 524 U.S. at 765. According to

Gauthier, she reported at least some incidents of sexual

harassment to supervisory employees of the DOC. And, under the

sexual harassment policies implemented by the State and the DOC,

making oral reports to supervisory personnel is one means by

which an employee may notify his or her employer of unlawful

sexual harassment in the workplace.

Consequently, the court holds that the record as presently

developed precludes defendant from availing itself of the two-

part affirmative defense identified in Burlington Industries.

Conclusion

To be sure, the parties vigorously dispute whether Gauthier

reasonably availed herself of the various options available to

her to report alleged incidents of sexual harassment. Had she

simply chosen to file a written report with DOC, the record

19 suggests that DOC would have undertaken a prompt investigation

and disciplined those employees who had engaged in inappropriate

conduct. Consequently, Gauthier might well have spared herself

any further harassment. Nevertheless, under the applicable

sexual harassment policies, it appears that one means by which

DOC employees may report incidents of alleged sexual harassment

is by orally informing a supervisor. Gauthier claims to have

done just that and, while defendant disputes that assertion, the

existence of that genuine issue of material fact precludes the

court from ruling that defendant is entitled to judgment as a

matter of law.

For the foregoing reasons, defendant’s motion for summary

judgment (document n o . 14) is granted in part and denied in part.

Because the alleged incidents of unlawful sexual harassment

directed at Gauthier while she was employed at the Women’s Prison

(i.e., those allegedly involving Kingsbury and Lacert) occurred

more than 300 days prior to her having filed her complaint of

discrimination, Gauthier is barred from recovering for them. As

20 to her remaining claims (relating to her employment at the Men’s

Prison from June of 1996 through June of 1997), however,

defendant has failed to demonstrate that it is entitled to

judgment as a matter of law.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 2 8 , 2000

cc: Michael J. Sheehan, Esq. Nancy J. Smith, Esq.

21