Petition for Writ of Certiorari — Roberts v. Slater

Supreme Court brief2000

Ask Donna

What actually matters in this document.

Text

a i a pass (4 Jovoreme Court, =

PILE D

89 1097 DEC 201999

OFPICE OF ING GLERK

No.

In the

Supreme Court of the United States

FRANCINE ROBERTS,

Petitioner,

versus

RODNEY SLATER, SECRETARY, DEPARTMENT OF

TRANSPORTATION,

Respondent.

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Terrell N. Roberts, III

Counsel of Record

6801 Kenilworth Avenue

Suite 202

Riverdale, Maryland 20737

(301) 699-0764

Curry & Taylor (202) 393-4141 /ussupremecoun@hotmail.com

LN NLR

CET Pea eeepURN TET LMOTED he OK PeeMOTy wee

IAL RRC aM EMOTE REE TY OTT NI NT

QUESTIONS PRESENTED FOR REVIEW

I. DOES THE HOLDING OF FARAGHER V. CITY OF

BOCA RATON APPLY TO CO-WORKER SEXUAL

HARRASSMENT UNDER TITLE VII, IF SO, DID THE

EMPLOYER FAIL TO ESTABLISH THE AFFIRMATIVE

DEFENSE THAT IT EXERCISED REASONABLE CARE

TO PREVENT AND CORRECT PROMPTLY ANY

SEXUALLY HARRASSING BEHAVIOR, WHERE

PETITIONER ADDUCED EVIDENCE IN HER CASE

THAT A SUPERVISOR OF THE EMPLOYER KNEW

THAT A CO-WORKER HAD SEXUALLY HARRASSED

OTHER WOMEN AND FAILED TO INVESTIGATE,

DOCUMENT OR REPORT THE SEXUAL

HARRASSMENT TO UPPER MANAGEMENT AND

SUCH FAILURE WAS APPROXIMATE CAUSE OF THE

CO-WORKERS SEXUAL HARRASSMENT OF OTHER

WOMEN INCLUDING PETITIONER.

Il. WHETHER THERE EXISTED A GENUINE ISSUE OF

FACT AS TO WHETHER THE EMPLOYER TOOK

MEASURES PROMPTLY TO REMEDY THE PROVEN

SEXUAL HARASSMENT AGAINST THE PETITIONER?

Ill. WHETHER THE LOWER COURT INCORRECTLY

WEIGHED THE DIRECT EVIDENCE OF _ THE

HARASSMENT, AND INSTEAD, PLACED A HEAVIER

BURDEN OF PROOF UPON THE PETITIONER IN

ORDER TO BE COMPENSATED?

TABLE OF CONTENTS

PAGE

Quemtaonn Presetited oe et ee i

TAU TENA i era li

TIRES OE ONS ns RS Vv

(EME DOOW 5s CE ee ee I

mubpecactnnal Sitement es ar l

Relevant Constitutional Provisions, Treaties,

Statutes, Ordinances, and Regulations Involved ......... l

Seenrnent OF the Cane = ee cc he 2

Reasons for Granting the Writ ...................... 5

athe aden eae

ers Do Saba PET LOTTE A, BAR kr ree

ill

I. DOES THE HOLDING OF FARAGHER V.

Cig GF . BOCA -RATON APPLY . TO

CO-WORKER SEXUAL HARRASSMENT

UNDER TITLE VII, IF SO, DID THE EMPLOYER

FAIL TO ESTABLISH THE AFFIRMATIVE

DEFENSE THAT IT EXERCISED REASONABLE

CARE TO PREVENT AND CORRECT

PROMPTLY ANY SEXUALLY HARRASSING

BEHAVIOR, WHERE PETITIONER ADDUCED

BViveENce IN- HER CASE THAT A

SUPERVISOR OF THE EMPLOYER KNEW

THAT A CO-WORKER HAD SEXUALLY

HARRASSED OTHER WOMEN AND FAILED

TO INVESTIGATE, DOCUMENT OR REPORT

THE SEXUAL HARRASSMENT TO UPPER

MANAGEMENT AND SUCH FAILURE WAS

APPROXIMATE CAUSE OF THE CO-WORKERS

SEXUAL HARRASSMENT OF OTHER WOMEN

f © ER © i) 80 2 Oh ee O | 01 Sem RRR apenas era 7

Il. WHETHER THERE EXISTED A GENUINE

ISSUE OF FACT AS TO WHETHER THE

EMPLOYER TOOK MEASURES PROMPTLY TO

REMEDY THE PROVEN SEXUAL

HARASSMENT AGAINST THE PETITIONER? ..... 1]

; Il. WHETHER THE LOWER COURT

INCORRECTLY WEIGHED THE DIRECT

EVIDENCE OF THE HARASSMENT, AND

INSTEAD, PLACED A HEAVIER BURDEN OF

PROOF UPON THE PETITIONER IN ORDER TO

OME Sig S65 4-05 Seip bo 6 Me eo be 8s 16

Appendix

Decision of the Circuit Court

Decision of the District Court

CN 55 eS OSES ie aN See Se oe ee

SN gi LT

TABLE OF AUTHORITIES

CASES: PAGE

Baskerville v. Culligan International Co., ...........: 16

Beard v. Annis, 730 F.2d 741, 743 (11th

NN at GUase Es kia neeek mee and tbe 12

Bell v. Bolger, 706 F.2G T31Z (1953S)... ww cere eens 13

Birkbeck v. Marvel Lighting Corp., 30

F.3d 507, 512 (4th Cir.), cert.

denied, 513 U.S. 1058, 115 S.Ct.

G66; 130 L. BATE GOO TIGFR)S nic cieccccs 14

Burlington Industries, Inc. v. Ellerth, 524

U.S. 2257, 141 L.Ed.2d 662

RR eg ects Ne ara Se AO yates oa ig Wee ae 10, 13

Earley v. Champion International Corp.,

907 F.2d 1077, 1081 (11th Cir.

FR CON irae ale Oia aN Seve Ne 12

Faragher v. City of Boca Raton, 118 S.Ct.

pegye Spee ilo ) SRR STs a eo aan age ae Pere 7

Franks v. Bowman Transportation Co.,

MOG F4T, TOP CIO IORS 606 oh 6 coh iahe ue ss 18

Harris v. Forklift Systems, Inc., 510 U.S.

17, 19, 114 S.Ct. 367, 370, 126

Lic AOE CAPE 95 Sea NN aco SRR 6, 8, 15

Harris v. L&L Wings, Inc 132 F.3d 978,

POU COR: APPT oi Feo Loe Sh ea 16

Hetzel v. County of Prince William, 89

F.3d 169 (4th Cir.), cert. denied,

SIF Cids SUERTE OR aa ceek ch kena eeee se 18

Hoy v. Angelone, 456 Pa.Super. 596, 691

Pile Sr TEPER. a's 8a ke a KG oo a 8

In Meritor Savings Bank v. Vinson, 477

Rs eS EE. Sig gs do eS ek ed OA 6, 7

Kaiz v. Dole, 709 F.2d 251, 256 (4th Cir.

5 i) Mee ere aay ye aad os eee PaCS ey 17

Kerns v. Capital Graphics, Inc., 178 F.3d

ROLSE SME Ds s v 6 x5 hos LAs skye RRS en 13

.Kolstad v. American Dental Association,

Ls? F350 956 (DC. Car. 19FRe os a. &. Bs 8 17

Landgraf v. USI Film Products, et. al., 511

LD. SOS, 2D IDO EN AE a’. was Ow ROARS EO 18

Vil

McCorstin v. United States Steel Corp.,

621 F.2d 749, 753-54 (Sth Cir.

I ea iV NG a RR ee As a Melee we BUS 15

McKinnon v. Kwong Wah Restaurant, 83

ek Ba 2g oa a re ee 18

Meeks v. Computer Data Association

International, 15 F.3d 1013, 1019

$e) 2S | Ey een Oren mr re irae a 12

Oncale v. Sundowner Offshore Services,

66 U.S.L.W. 4175 (U.S. March 5,

1 EE PASE RR TSE a ie ap aere oe See 6, 8

Paroline v. Unisys Corp., 879 F.2d 100,

105 (1989), vacated in part on

other grounds, 900 F.2d 27 (1990). ...........-. 8

Patterson v. PHP Healthcare Corp., 90

F.3d 927 (Sth Cir. 1996), cert.

ee ee BE IS 6h) a a Pe 18

Petitti v. New England Telephone and

Telegraph Co., 909 F.2d 28, 34

PRUE SOI ons cee See eb Lae snes esenenes 12

Scott v. County of Ramsey, 180 F.3d 913

RI a i ea tawnes Oe ake vip 8 ayine wes 12

Sal Tis

Vill

Serapion v. Fred H. Marrtinez, 1997 WL

SORGOS CIM CH TORT ee 8 ee POP ces 14

Smith v. St. Louis University, 109 F.3d

ZOU (SU Ot SP ES RIS Os 12

Sparks v. Pilot Freight Carriers, Inc., 830

F 2 SSE Pea ea i 6

Spicer v. Virginia Department of

Corrections, 66 F.3d 705, 711 (4th

CO SOS ea ek oe eee ir ATR 10

Tomka v. Seiler Corp., 66 F.3d 1295, 1313

EME. PCN oie 6 ib ohne nea e ess 14

Williams v. Banning, 72 F.3d 552 (7th Cir.

eg) MOE ELIT tage ailgie Sicede e < AB yn ee 14

Wrightson v. Pizza Hut of America, Inc.,

99 F.3d 138, 142 (4th Cir. 1996). .............. 7

STATUTES

BO UB Bee SOR ie ws ho 0.0 oes capremeas ens 17

G2 UR ee ROE cali » in wig ak he Bete inoue 17

B23. BS FOO ined nad caw annua ot enwi Mees l

OOOO

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Fourth Circuit dated September 20, 1999, is set forih

in the Appendix, p. la. (1999 LEXIS 22774). The opinion of

the United States District Court for the Eastern District of

Virginia at Alexandria dated January 22, 1999 is set forth in

the Appendix, p. 3a.

STATEMENT OF THE BASIS OF

JURISDICTION OF THE SUPREME COURT

The statutory provision for this Court's jurisdiction is

98 U.S.C. Section 1254. The United States Court of Appeals

for the Fourth Circuit issued its Decision in this case on

September 20, 1999. This Petition was timely filed after the

Fourth Circuit's opinion.

CONSTITUTIONAL, STATUTORY AND ORDINANCE PROVISIONS

INVOLVED IN THIS CASE

1. Title VII of the Civil Rights Act of 1964 ("Title VII"), 42

U.S.C. Section 2000¢ et. seq.

42 U.S.C. Section 2000e-2 provides:

Unlawful Employment Practices

(a) Employer practices

It shall be an unlawful employment practice for an employer

- to fail or refuse to hire or discharge any individual, or

otherwise 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...

STATEMENT OF THE CASE

Francine Roberts, the Plaintiff-Appellant, (hereinafter

referred to as the "Petitioner") was employed as a flight

service specialist at the Leesburg Automated Flight Service

Station, a facility operated by the FAA within the Department

of Transportation, the Defendant-Appellee, (hereinafter

referred to as the "Employer").

At the Leesburg station, there was another employee

named Larry Martin, (hereinafter referred to as the

"harasser"), who was an electronics technician.

In December of 1994, the harasser began to make

unwelcome sexual advances towards the Petitioner, including

making remarks with sexual overtones to the Petitioner about

her appearance, clothing and eyes, and making actions

consisting of gestures permeated with sexual overtones and

innuendo. On several occasions, the harasser touched the

Petitioner. In January of 1995, the Petitioner experienced a

greater amount of sexual comments and touchings by the

harasser. By the last week in February, the Petitioner could

no longer subject herself to the harassment. The Petitioner

spoke with other female employees and discovered that he

had been harassing other employees, and that, in fact, his

supervisor had warned him in the past not to harass another

female. On March 2, 1995, he invaded her office and private

belongings and became physical. On March 3rd, he once

again began to grab her personal belongings and make sexual

connotations. On March 10th, the Pet. mer and another

a ee a ae

Se ee ee

female employee complained to their supervisor. Their

supervisor told the harasser's supervisor who responded that

he had violated his direct order not to speak with the women.

The complaint was forwarded to the higher authorities of the

Employer. Two other women complained to the Employer.

During an investigation, the Petitioner discovered that

three years earlier, the harasser was sexually harassing a

female secretary, which was witnessed by other employees.

However, the Employer never investigated, documented, or

reported to upper management of the incident. The harasser's

supervisor never ordered any training in sexual harassment

for his employee and never notified anyone of the

complaints.

On March 13, 1995, the harasser was temporarily

assigned to another building while the investigation was

ongoing. The harasser denied any wrongdoing and alleged

that the Petitioner's complaint was racially motivated.

On April 17, 1995, the Employer's investigator

reported that there was a potential for a hostile work

environment because. of the harasser's behavior. The

Employer's Civil Rights Division also concluded that the

harasser created a hostile work environment and that it was in

the Employer's best interest not to reassign the harasser to the

same building as the Petitioner. The Security Division

acknowledged that the harasser created a potential violation

of agency policy against sexual harassment, by failing to

provide a workplace where employees are treated with

dignity and respect and is free of sexual harassment. On May

10th, the harasser received a letter of reprimand but was then

directed to report to work in the same building as the

Petitioner. The Petitioner was forced to take several days off

aa)

as "traumatic leave" due to the harasser's return. The

Petitioner was forced to seek counseling and was diagnosed

with suffering from an acute stress disorder with symptoms

of tension, fear and abdominal upset and a feeling of unease,

as a direct result of the harassment experienced at work.

The Petitioner returned to work on June 30, 1995. .

The harasser went out of his way to intimidate her. In August

the harasser was offered a transfer, a promotion, and a salary

increase.

A ee ee Le

The Petitioner filed a formal Equal Employment

Opportunity complaint alleging sexual discrimination on July

14, 1995. The agency did not attempt to interview witnesses

until September 18, 1997. In a decision dated July 13, 1998,

the EEO determined that "the harassment had the effect of

unreasonably interfering with the work environment and/or

creating an intimidating, hostile, or offensive work

environment".

On May 26, 1998, the Petitioner filed suit against the

Employer in the United States District Court for the Eastern

District of Virginia at Alexandria asserting a claim under

Title Vil of the Civil Rights Act of 1964. She alleged sexual

discrimination in the terms and conditions of employment

due to hostile work environment. In response, the Employer

filed a Motion for Summary Judgment.

On January 22, 1999, the District Court granted

summary judgment against the Petitioner. The court ruled

that the allegations of harassment were not sufficiently severe

to create a hostile or abusive work environment. Also, the

court ruled that the harassment was not attributable to the

Employer because it took prompt corrective action.

WER AGA Bote et CPiad amen ated on

The Petitioner filed a Notice of Appeal to the Circuit

Court of Appeals for the Fourth Circuit. The Circuit Court

affirmed the District Court's decision on September 20, 1999.

The Circuit Court held that the transfer of the harasser to

another location was an adequate remedy as a matter of law.

Also, the Circuit Court did not discuss the issue as to whether

the conduct amounted to harassment.

The Petitioner has filed a Petition for Certiorari based

upon the issues and argument presented herein.

ARGUMENT

DOES THE HOLDING OF FARAGHER V. CITY OF

BOCA RATON APPLY TO CO-WORKER SEXUAL

HARRASSMENT UNDER TITLE VII, IF SO, DID THE

EMPLOYER FAIL TO ESTABLISH THE

AFFIRMATIVE DEFENSE THAT IT EXERCISED

REASONABLE CARE TO PREVENT AND CORRECT

PROMPTLY ANY SEXUALLY HARRASSING

BEHAVIOR, WHERE PETITIONER ADDUCED

EVIDENCE IN HER CASE THAT A SUPERVISOR OF

THE EMPLOYER KNEW THAT A CO-WORKER

HAD SEXUALLY HARRASSED OTHER WOMEN

AND FAILED TO INVESTIGATE, DOCUMENT OR

REPORT THE SEXUAL HARRASSMENT TO UPPER

MANAGEMENT AND SUCH FAILURE WAS

APPROXIMATE CAUSE OF THE CO-WORKERS

SEXUAL HARRASSMENT OF OTHER WOMEN

INCLUDING PETITIONER.

If this Court determines that the Petitioner's Writ of

Certiorari should be granted, the Court must determine the

liability of the employer and an adequate remedy for the

employee in situations where the victim of harassment does

not submit to the sexual advances of the harasser and

continues to be subjected for a period of time to the

misconduct and the Employer is on notice of the harassment,

because of previous victims. Moreover, it should be the role

of the jury to determine whether unwelcome and offensive

sexual remarks, innuendo, gestures, and physically

intimidating conduct by a male employee was severe enough

to create an abusive working environment in violation of

Title VII of the Civil Rights Act..

Title VII of the 1964 Civil Rights Act prohibits

"discrimination...because of...sex," including _ sexual

harassment directed at an employee because of her sex.

Oncale v. Sundowner Offshore Services, 66 U.S.L.W. 4175

(U.S. March 5, 1998). In Meritor Savings Bank v. Vinson,

477 U.S. 57 (1986) and Harris v. Forklift Systems, Inc., 114

S.Ct. 367 (1993), this Court relied upon the position taken by

the Equal Employment Opportunity Commission (EEOC)

that there are two types of sexual harassment prohibited in

Title VII. The first, "abusive work environment" or "hostile

work environment" sexual harassment. The second type of

sexual harassment includes threats of harassment. Sparks v.

Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987).

The Petitioner was subjected to both types of harassment so

she should be entitled to an adequate remedy.

In assessing the Petitioner's Title VII claim against the

Employer, the Fourth Circuit erred in its determination that

the Employer cannot be liable on the grounds that they had

taken action. However, the Circuit Court failed to address

the issue of whether the Employer's acts were sufficient given

the fact that the Employer was on notice of previous

harassment by the same employee and failed to take

appropriate preventive action to avoid future harassment of

co-workers. If the Employer took adequate and effective

remedies after the 1992 incident, then the same employee

would not have subjected the Petitioner to the harassment.

The Petitioner's case should have never been disposed

of upon a summary judgment motion. The Petitioner by way

of depositions, affidavits and other competent evidence

showed a_ substantial and continuing hostile work

environment. The Supreme Court has recognized a cause of

action under Title VII for sex discrimination when the

discrimination results in that person's workplace being turned

into a hostile work environment, because a hostile work

environment alters the "terms, conditions, or privileges of

employment." Meritor, supra, at 477 U.S. 64-67. The

District Court ruled that there were no material facts in

dispute with respect to whether the conduct at issue amounted

to harassment and whether the Petitioner's employer provided

an effective remedy. The Circuit Court of Appeals affirmed

the latter issue and did not discuss the first issue.

A prima facie case of sexual harassment is made

when the plaintiff proves that (1) she was harassed because of

her sex; (2) that the harassment was unwelcome; (3) that the

harassment was sufficiently severe to create an abusive

working environment; and (4) that some basis exists for

imputing liability to the employer. Wrightson v. Pizza Hut of

America, Inc., 99 F.3d 138, 142 (4th Cir. 1996). Where the

sexual harassment complained of is not so severe to create a

subjectively and objectively hostile or abusive work

environment, a prima facie case of Title VII discrimination

has not been made. See Faragher v. City of Boca Raton, 118

S.Ct. 2275, 2283 (1998), citing, Harris v. Forklift Systems,

Inc., 510 U.S. 17, 19, 114 S.Ct. 367, 370, 126 L.Ed.2d 295

(1993); Hoy v. Angelone, 456 Pa.Super. 596, 691 A.2d 476

(1997) (the Court stated that being aware of the hostile

environment is constructive notice to the employer to impose

liability). The District Court only ruled that the harasser's

acts did not amount to severe conduct necessary to prove a

prima facie case of sex discrimination due to a hostile work

environment.

Courts review the allegations to determine whether an

environment is hostile or abusive "by looking at all the

circumstances" alleged, paying special attention to (1) the

frequency of the discriminatory conduct; (2) its severity; (3)

whether it is physically threatening or humiliating, or a mere

offensive utterance; and (4) whether it unreasonably _

interferes with an employee's work performance. /d

The Fourth Circuit recognizes that the question

whether harassment was sufficiently severe is a question of

fact. Paroline v. Unisys Corp., 879 F.2d 100, 105 (1989),

vacated in part on other grounds, 900 F.2d 27 (1990).

Courts and juries must "not mistake ordinary socialized in the

workplace for discriminatory ‘conditions of employment."

Oncale, supra.

In Paroline, the Fourth Circuit stated:

In a hostile environment case under Title VII,

we will impute liability to an employer who

anticipated or reasonably should have

anticipated that the plaintiff would become a

victim of sexual harassment in the workplace

and yet failed to take action reasonably

calculated to prevent such harassment. An

employer's knowledge that a male worker has

previously harassed female employees other

than the plaintiff will often prove highly

relevant in deciding whether the employer

should have anticipated that the plaintiff too

would become a victim of the male

employee's harassing conduct. (citations

omitted). Of course, an employer's knowledge

of previous incidents of sexual harassment of

other female workers will not necessarily

indicate that an employer should have

anticipated the plaintiffs harassment as well.

But that is generally an issue for the

factfinder, not one for the disposal on

summary judgment.

(emphasis added).

There is no dispute that the Petitioner and her

co-workers were subjected to inappropriate comments and

gestures over a period of three months, with the misconduct

increasing in intensity over that period. There is no dispute

that the Employer had notice of the harasser's conduct since

there were complaints of his behavior in 1992. Since the

Employer had notice, and they failed to act commencing in

1992, then the Employer must be held responsible. Even

having prior notice of the harassment, the harasser was only

temporarily removed from the facility. When he returned, the

Petitioner was forced to take traumatic leave. The Employer

was on notice of the harasser's acts, and they did not provide

a quick and adequate remedy of the situation. His

supervisors failed to act and initiate a closer supervisor of

him. Since he had poor supervision, he continued to harass

the Petitioner and other women, even when there were claims

pending against him. There was no discipline imposed, not

)

in 1992 and not in 1995, since the harasser was given a

promotion and pay increase. In fact, the remedy is Clearly

inadequate. The lower courts erred in stating that it was a

proper remedy of the claim when the co-worker was

reprimanded and transferred to another location, thus

depriving him of the opportunity to continue mistreating the

Petitioner. The remedy stopped the improper conduct and

therefore was sufficient as a matter of law. The lower courts

cited Spicer v. Virginia Department of Corrections, 66 F.3d

705, 711 (4th Cir. 1995) and Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270-71, 141 L.Ed.2d

633 (1998) in support of their position. However, the

Employer was on notice of the harassment, and reassigned

the harasser back into the facility.

In Faragher, court ruled that an employer is subject to

vicarious liability to a victimized employee for an actionable

hostile environment. 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 has two elements: (1) that the

employer exercised reasonable care to proven and correct

promptly any sexually harassing behavior; and (2) that the /

plaintiff employee unreasonably failed to take advantage of

any prevention or corrective opportunities provided by the

employer or to avoid harm otherwise. Id., at 59-60. While

proof that an employer had promulgated an antiharassment

policy with complaint procedure is not necessary in every

instance as a matter of law a valid defense. No affirmative

defense is available when the harassment culminates in a

tangible employment action, such as discharge, demotion, or

undesirable reassignment. Jd; Burlington Industries, Inc. v.

Ellerth, 524 U.S. 2257, 141 L.Ed.2d 662 (1998).

PRE ee SEE Pe eee eT ne

AE SMS aint CARRE sda olny,

In our case, the Employer is barred from raising the

affirmative defense. The first element is not met since the

Employer had prior notice of the harasser's conduct and failed

to remedy the situation. The Employer's supervisory staff

was to closely monitor the operation floor and watch the

employees. The fact that the harasser was giving unwelcome

attention to the Petitioner as well as two other employees for

a three to six month period should have promptly the

supervisors to recognize the harasser's whereabouts. A

reasonably jury could find that the supervisors had to know

that the harasser was bothering Petitioner and other women,

and did not do anything. Moreover, the harasser's supervisor

knew of his conduct in 1992 when other female employees

complained; however, no remedy was taken. The Employer

did have prior notice of his acts.

The second element of the defense is also not proven.

The Petitioner filed a formal Equal Employment Opportunity

complaint alleging sexual discrimination on July 14, 1995.

The agency did not attempt to interview witnesses until

September 18, 1997. In a decision dated July 13, 1998, the

EEOC determined that "the harassment had the effect of

unreasonably interfering with the work environment and/or

creating an intimidating, hostile, or offensive work

environment". The Petitioner took advantage of filing an

EEOC claim as a measure to prevent future harm.

Furthermore, since the Petitioner was forced to take traumatic

leave when she learned that the harasser returned to the

facility substantiates a tangible employment action leaving no

affirmative defense available.

Determinations of motive and intent, particularly in

discrimination cases are questions better suited for the jury.

Petitti v. New England Telephone and Telegraph Co., 909

F.2d 28, 34 (Ist Cir. 1990). Obviously, the Employer's

motive and intent were central issues to the underlying cause

of action - why they failed to cure a hostile work

environment, why they failed to take appropriate permanent

corrective action once they had direct evidence that

harassment occurred, and why they promoted an employee

and gave him a salary increase when there was direct

evidence and an investigation proving that he harassed female

workers. Employment discrimination cases should be

disposed of at summary judgment only with "extreme

caution". See Beard v. Annis, 730 F.2d 741, 743 (11th Cir.

1984).

Discrimination can be proved with direct or indirect

evidence. Meeks v. Computer Data _ Association

International, 15 F.3d 1013, 1019 (11th Cir. 1994); including

presenting a statistical pattern in the actual workplace where

the discrimination occurred. Earley v. Champion

International Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

The Petitioner showed a pattern of discriminatory actions

against her and other female employees. When there is

evidence of disparate treatment as well as other

circumstantial evidence, there is sufficient evidence of proof

of pretext discrimination; the evidence does not need to reach

the degree of certainty required of plaintiffs who present no

proof of discrimination besides disparate treatment. Scott v.

County of Ramsey, 180 F.3d 913 (1999).

The Petitioner showed a pattern of discriminatory

behavior both prior to and after her complaints with the

Employer thereby meeting her burden of proof to overcome a

motion for summary judgment. Smith v. St. Louis University,

109 F.3d 1261 (8th Cir. 1997); Harris, supra, at 21. A

Statistical evidence of pattern of discrimination coupled with

;

other evidence is a pretext for an employment discrimination

case. Bell v. Bolger, 708 F.2d 1312 (1983). The statistical

pattern is direct evidence that overcomes the standard for a

motion for summary judgment. See Kerns v. Capital

Graphics, Inc., 178 F.3d 1011(1999).

Il. THERE EXISTED A GENUINE ISSUE OF FACT

AS TO WHETHER THE EMPLOYER TOOK

MEASURES PROMPTLY TO REMEDY THE

PROVEN SEXUAL HARASSMENT AGAINST

THE PETITIONER.

The Supreme Court has made employers vicarious liable for

unlawful harassment. See Burlington Industries, supra;

Faragher, supra. The purpose of these previous ruling was

to encourage employers to prevent harassment. But if there

is a none harassment environment and there is no sufficient

remedy, the Employer must be held liable.

In our facts, the Employer failed to take permanent

measures to stop the harassment. At first, the harasser was

temporarily reassigned, and, then, after the second complaint,

the Employer gave him a promotion and salary increase and

i then transferred him to a new building. Upon further

investigation, the Petitioner discovered the harasser harassed

women in the workplace commencing in 1992, and his

supervisors and the Employer failed to take any action

against him. There is a genuine issue of fact as to whether

the remedy was adequate in the Petitioner's facts.

CAA NID ie PA RB INGE ie Os ee Es

MEP VP SG Se shel ie

| Since the Petitioner cannot impose individual liability

j under Title VII', she is left without a remedy if the Employer

| The First Circuit had declined to answer the question, describing the

issue of individual liability under Title VII as “potentially difficult”.

is not held responsible. See Tomka v. Seiler Corp., 66 F.3d

1295, 1313 (2nd Cir. 1995); Birkbeck v. Marvel Lighting

Corp., 30 F.3d 507, 512 (4th Cir.), cert. denied, 513 US.

1058, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); Williams v.

Banning, 72 F.3d 552 (7th Cir. 1995). Obviously, the

Petitioner was subjected to sexual harassment by clear and

convincing direct evidence. By stating that the Petitioner's

problem was cured by the removal of the harasser does not

compensate her for past compensatory and other damages.

The Employer was on notice of the sexual harassment; they

had previously temporarily removed the harasser from the

same building as the Petitioner. So when the harassment

commenced when he returned to the building, the Employer's

action of later permanently transferring him and increasing

his salary was not an adequate remedy for the Petitioner.

Moreover, the harasser's supervisor was aware of his acts

since there were complaints three years earlier from other

workers. The supervisor never reported the incidents and

never instructed the harasser to attend a sexual harassment

course. The Employer was reckless in their act by not

permanently removing the harasser from the premises after

they concluded that the Petitioner was sexually harassed.’

Serapion v. Fred H. Marrtinez, 1997 WL 394605 (Ist Cir. 1997).

? The Civil Rights Act of 1991 was included in large part because

Congress recognized that Title VII had not previously provided adequate

compensation for the harm suffered by victims of discrimination, and of

sexual harassment in particular. Civil Rights Act of 1991, Pub.L.No.

102-166 Section 3(1), 105 Stat. 1071, 1071 (1991) (listing among

Statute’s purposes “to provide appropriate remedies for intentional

discrimination and unlawful harassment in the workplace”). H.R.

Rep.No. 40, 102nd Cong. ,1st Sess.; pt. 2, at 1 (1991), reprinted in 1991

U.S.C.C.A.N. 694, 694 (Act was intended “to provide more effective

deterrence and adequate compensation for victims of discrimination”);

Id., at 25, 1991 U.S.C.C.A.N. at 718 (discussing the problem of

inadequate compensation for victims of discrimination, focusing

primarily on “the severe consequences of the lack of a damages remedy

The Employer was on notice, actually since 1992, the

sexual harassment reoccurred, and the Petitioner suffered

damages. The same harasser had previously harassed another

female employee, the supervisor failed to properly investigate

the harassment, to discipline the harasser or to require

counseling and sexual harassment training. The Employer

did not exercise reasonable care as alleged by the lower

courts. Reasonable care would have been to take action in

1992. But for the Employer's lack of response to the 1992

complaint, the Petitioner experienced sexual harassment.

The Petitioner met her burden of proof to overcome a

summary judgment motion and to rule otherwise would be an

overburden to any burden seeking damages for being

subjected to sexual harassment in the workplace. Emotional

distress, including but not limited to severe psychological

injury, is unquestionably one aspect of the harm that sexual

harassment produces. Harris, supra, at 22.

Discrimination exists "in forms as myriad as the

creative perverseness of human beings can provide."

McCorstin v. United States Steel Corp., 621 F.2d 749, 753-54

(Sth Cir. 1980). Therefore, the Petitioner's claim should not

have been disposed of upon summary judgment and she

should be adequately compensated for her damages since the

current remedy does not justify the Employer's acts of poor

supervision, poor procedures in preventing a known

harasser's acts and poor procedures in remedying a known

hostile work environment.

This Honorable Court must grant this Petition for

Certiorari so that it may clarify the standard when there is a

in Title VII for claimants who suffered severe harassment on the job”).

pattern and history of discriminatory acts, further develop the

Petitioner's burden of proof, and order that the remedy was

inadequate.

III. | THE LOWER COURT INCORRECTLY WEIGHED

THE DIRECT EVIDENCE OF THE

HARASSMENT, AND INSTEAD, PLACED A

HEAVIER BURDEN OF PROOF UPON THE

PETITIONER.

Does not the mere acquiescence of a knowing pattern

of harassment justify a cause of action against an Employer?

The lower courts erred in ruling that since the harasser

was ultimately transferred out of the facility on a permanent

basis, with only limited access to return, the Employer

provided an adequate remedy to the Petitioner. The courts

used the standard of "prompt and adequate remedial action"

and stated that the law does not require an employer to

discharge every employee accused of sexual harassment, see

Harris v. L&L Wings, Inc., 132 F.3d 978, 984 (4th Cir.

1997), and because the gravity of the alleged harassment

helps determine what is a reasonable corrective action,

Baskerville v. Culligan International Co., 50 F.3d 428, 432

(7th Cir. 1995), the courts erroneously agreed that the

Employer's corrective actions were both prompt and adequate

in this case. Transferring the harasser to a better position

with a higher pay is not an adequate remedy - it is an award

to the harasser for sexually harassing women. It was a clear

inadequate remedy - awarding the harasser and punishing the

victim, the Petitioner.

The Employer had concrete factual evidence of the

sexual harassment and hostile work environment, but took no

PIV tet ea Ae Hie IO!

ib hi ccc donihisinss ea, eh aarti A Satin nb ct ss al dS al ay aided

effectual action to correct the situation. Katz v. Dole, 709

F.2d 251, 256 (4th Cir. 1983).

Under the Civil Rights Act, a complaining party may

recover punitive damages if he/she demonstrates that the

respondent engaged in a discriminatory practice or

discriminatory practices with malice or with reckless

indifference to the federally protected rights of an aggrieved

individual. 42 U.S.C. Section 1981(b)(1). The plain

meaning of the provision is that once a plaintiff has put

forward sufficient evidence to go to the jury on the issue of

intentional discrimination, he or she may also go the jury on

the question of punitive damages. Kolstad v. American

Dental Association, 139 F3d 958 (D.C. Cir. 1998).

Therefore under the Civil Rights Act, once there is a

discriminatory practice, a plaintiff may recover punitive

damages.

Why should Title VII not follow the same standard as

other statutes, especially since the Civil Rights Act furthers

damages occurred in a Title VII case? The Petitioner

established by sufficient direct evidence that she was sexually

harassed, she should be compensated for her damages, such

as her stress and humiliation. One of the fundamental

problems driving the effort to pass the Civil Rights Act of

1991 was the inadequacy of remedies for intentional

violations of Title VI!. The remedies available for intentional

violations of Title VII does not include the common-law

compensatory and punitive damages that are available for

violations of 42 U.S.C. Section 1981 and for violations of

Title [IX of the Education Amendments of 1972, 20 U.S.C.

Section 1681. The Title VII remedies do not even include the

punitive "liquidated damages" available for violations of the

Age Discrimination in Employment Act, 29 U.S.C. Section

626(b).

The Petitioner submitted evidence of her emotional

injury, which should be compensated. See McKinnon v.

Kwong Wah Restaurant, 83 F.3d 498 (lst Cir. 1996);

Patterson v. PHP Healthcare Corp., 90 F.3d 927 (Sth Cir.

1996), cert. denied, 519 U.S. 1091 (1997); Hetzel v. County

of Prince William, 89 F.3d 169 (4th Cir.), cert. denied, 519

U.S. 1028 (1996).

By making punitive damages available in Title VII

cases, Congress chose to establish an additional means for

punishing defendants who have engaged in intentional

discrimination with malice or with reckless indifference to

the rights of their victims. Anti-discrimination statutes are of

the "highest priority" and that "in enacting Titlle VII of the

Civil Rights Act of 1964, Congress intended to prohibit all

practices in whatever form which create inequality in

employment due to discrimination." Franks v. Bowman

Transportation Co., 424 U.S. 747, 763 (1976). Title VII has

two distinct, but related, central statutory purposes: (1)

eradicating discrimination throughout the economy, and (2)

making persons whole for injuries suffered through past

discrimination. Landgraf v. USI Film Products, et. al., 511

U.S. 244, 254 (1993). (emphasis added). Obviously, the

Petitioner does not have to be subjected to sexual harassment

presently to be compensated, but she should be compensated

for her past experiences.

CONCLUSION

The Fourth Circuit and the District Court of Virginia

have placed a high burden of proof upon the Petitioner to

overcome a summary judgment motion. The Court should

grant certiorari to review this important matter, clarify the

parties burden, order a proper remedy for the Petitioner,

reverse the Fourth Circuit's and District Court's opinion, and

order that the Petitioner was sexually harassed.

Respectfully Submitted,

Terrell N. Roberts, III

Attomey for Plaintiff

6801 Kenilworth Avenue, Suite 202

Riverdale, Maryland 20737

(301) 699-0764

or a aaa rile:

PE i Oa I se Re ee De SH Se LN ENE Ge rae Oped Nosed et, . Ne Bn ain nak Gr Hate?

SA PS mye lel ek wt NY Lal nal OS et

id Nina eae es Ben

1999 U.S. App. LEXIS 22774, *

FRANCINE ROBERTS, Plaintiff-Appellant, v. RODNEY

SLATER, SECRETARY, DEPARTMENT OF

TRANSPORTATION, Defendant-Appellee.

No. 99-1262

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

1999 U.S. App. LEXIS 22774

August 24, 1999, Submitted

September 20, 1999, Decided

COUNSEL: Terrell N. Roberts, III], ROBERTS & WOOD,

Riverdale, Maryland, for Appellant.

Helen F. Fahey, United States Attorney, Rachel C. Ballow,

Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

JUDGES: Before WIDENER, WILKINS, and MOTZ,

Circuit Judges.

OPINION: OPINION

PER CURIAM:

Plaintiff Francine Roberts appeals from the district court's

decision granting summary judgment in favor of Defendant

Rodney Slater, Secretary of Transportation, on her claim of

sexual harassment. The court ruled that there were no

SESS 'ss a

material facts in dispute with respect to whether the conduct

at issue amounted to harassment and whether Roberts's

employer provided an effective remedy. We agree with the

court's ruling on the latter issue; accordingly, we do not reach

the first issue, and we affirm.

The record indicates that Roberts's co-worker subjected

[*2] her to inappropriate comments and gestures over a

period of three months, with the misconduct increasing in

intensity over that period. When she and other victims of the

same co-worker advised their supervisor of his conduct, the

co-worker was reprimanded and transferred to another

location, thus depriving him of the Opportunity to continue

mistreating Roberts. This remedy stopped the improper

conduct and therefore was sufficient as a matter of law. See

cf. Thus, the grant of summary judgment in favor of the

Defendant was proper. We dispense with oral argument

because the facts and legal contentions are adequately

presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

hy a Was Se ROR NR OPE Bi garits Prats vrs oe ee) eee

Selah she

‘Se pei’,

TAN si BA YF Sa alta iD a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVSION

CIVIL ACTION NO. 98-736-A

FRANCINE ROBERTS, Plaintiff

RODNEY SLATER, SECRETARY, DEPARTMENT OF

TRANSPORTATION, Defendant.

This matter comes before the Court on Defendant's

Motions for summary Judgment and Involuntary Dismissal,

Plaintiff, Francine Roberts (“Roberts"), has brought suit

alleging sexual discrimination. through the creation of a

hostile work environment in violation of Title VII of the Civil

Rights Act. See 42 U.S.C A. § 2000e et seq. 2000e-16.

Roberts is employed as an Air Traffic Conirol

Specialist at the Leesburg, Virginia Automated Flight Service

Station (“DCA AF SS”). This facility is operated by the

Federal Aviation Administration ("FAA"), within the

Department of Transportation. Plaintiff's primary job-related

duties are to provide weather and other related briefings to

pilots.

In December, 1994. Roberts alleges that Larry

Martin, also employed at DCA AF SS. began to make

unwelcome sexual advances towards her. These overtures

included touching the back of Roberts’ arm; spending an

inordinate amount of time around Roberts while she was

working and making sexually offensive statements to her,

including “Do you know how ravishing you look?’’ Roberts

first ignored Martin. When this proved unsuccessful, she

directly asked him to cease this conduct towards her.

Roberts alleges that Martin continued in his behavior

in January and February, 1995, but that in March. 1995 his

behavior got much worse. Roberts complains of an incident

on March 2, where Martin approached her at her work

station where she was sitting and stood directly over her so as

to make her feel uncomfortable. Roberts responded to this

invasion of her private space by standing up, facing the

console, and placing her foot on her chair. Roberts alleges

that Martin then kicked the chair out from under her leg,

resulting in Roberts and Martin standing face-to-face at a

very close range. Martin took stock of the situation, and then

said: “You look like you are looking for a fight. Why don't

you and me wrestle right here on the floor?"

Upon being rebuffed by Roberts, Martin then sat

down at Roberts’ desk and began to rifle through her personal

effects. Roberts then walked over to a co-worker's desk to

escape Martin's attention. While Roberts was at the

co-worker’s desk, Martin unplugged the end of the telephone

cord at Roberts’ desk, and then threw it on the floor. Roberts

proceeded back to her desk to plug in her phone, but Martin

grabbed the cord and threw it on the floor again, Then

Roberts’ phone rang, and at that time Martin plugged the cord

back into the phone.

The very next day, March 3, 1995, as Roberts was

getting ready to leave for the day. Martin followed Roberts

into the facility's break room. Only Roberts and Martin were

in the room. Roberts alleges that Martin then approached her

and said: "Good, I finally got you trapped in the corner right

where I want you. Let me help you on with your coat.”

Roberts put her arm in her coat without any assistance from

Martin, and told him to "back off. Roberts then asked Martin

to move out of the way, as he was blocking her exit. Roberts

successfully navigated her exit from the room, though Martin

was persistent in his desire to walk with her.

Roberts alleges that Martin’s conduct distracted her,

thus interfering with her ability to perform her job. Further,

Roberts states that Martin’s conduct made her fearful.

nervous and upset, leading to physical symptoms including

skin rash, insomnia, stomach pains, dizzy spells, irritability

and crying spells.

On March 10, 1995, a supervisor was informed that

Martin had been sexually harassing Roberts and two other

female employees at DCA AF SS. While the supervisor

directed Martin to avoid all contact with the females at the

facility, Roberts alleges that Martin ignored this order and

approached her to ask ‘‘Have I offended you?" Martin was

then detained outside of DCA AF SS pending an

investigation of the allegations of sexual harassment.

The supervisors conducting the investigation finally

concluded that there was insufficient evidence to sustain the

allegations of sexual harassment, even though they were

aware of similar allegations concerning another employee

years before. They then directed Martin to return to DCA AF

SS. Upon Martin's return to work. Roberts requested

traumatic leave.

Roberts brings suit against the Secretary of

Transportation because it is her allegation that despite

knowledge of Martin’s propensity for sexual harassment, the

FAA failed to take prompt corrective action to discipline

Martin and to prevent recurrences. Furthermore, Roberts

alleges that the supervisors at DCA AF SS failed to properly

document complaints or incidents of sexual harassment

brought to their attention, and that they failed to ensure that

appropriate discipline and training were given to those

accused of harassment. In other words. the supervisors

allowed a hostile work environment to flourish, and she was

made to suffer because of it. Roberts is demanding $300.000

in compensatory damages and an injunction which would

force the Secretary of Transportation to take any appropriate

action to ensure that Martin will never have any contact with

Roberts while both continue in the Department of

Transportation's employ

The Defendant (‘‘U.S’’) moves for summary

judgment. Summary judgment is appropriate when there is no

genuine issue as to any material fact. See FED. R. Civ. P.

56(c). Once a motion for summary judgment is properly

made and supported, the opposing party has the burden of

showing that a genuine dispute exists. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp. 475 US 574, 586-87 (

1986). A material fact in dispute appears when its existence

or non-existence could lead a jury to different outcomes. See

Anderson v Liberty Lobby., 477 U.S. 242. 245 (1 986). A

genuine issue exists when there is sufficient evidence on

which a reasonable jury could return a verdict in favor or of

- the nonmoving party. See id. Unsupported speculation is not

enough to withstand a motion for summary judgment See

Ash v. United Parcel Serv., Inc., 800 F.2d 409.41 1-12 (4th

Cir, 1986). Summary judgment is appropriate when after

discovery, a party has failed to make a “showing sufficient to

establish the existence of an element essential to that party’s

case and on which that party will bear the burden of proof at

trial.’’ Celotex Corp. v. Catrett. 477 U.S. 317. 322 (1986).

ah OePaiie dalla Sivek eabpRde Sd

a Pte Ban

ik atthe al te a te PRE

aie x SPAS son Le ean Ae ON a >

When a motion for summary judgment is made, the evidence

presented must always be construed in the light most

favorable to the nonmoving party. See Smith v. Virginia,

Commonwealth Univ., 84 F.3d 6 72. 6 —S (4th Cir. 1996)(en

banc). .

According to Title VII, an employer cannot “fail or

refuse to hire or to discharge ... or otherwise discriminate

against any and individual with respect to his compensation

terms, conditions, or privileges of employment, because of

such individual's sex.’’ Id., at § 2000e 2(a)(1). The Supreme

reme Court has recognized a cause of action under Title VII

for sex discrimination when the discrimination results in that

person’s workplace being turned into a hostile Work

environment, because a hostile work environment alters the

"terms, conditions, or privileges of employment." Meritor

Savs, Bank v. Vinson 477 U.S. 57, 64-67, 106 S.Ct. 2399,

2403-05.91 L.Ed.2d 49 (1986).

A prima facie case of sexual harassment is made

when the Plaintiff prove that (1)

was harassed because of her sex; (2) that the harassment was

unwelcome; (3) that the harassment as sufficiently

sufficiently severe or pervasive to create an abusive working

environment: and (4) that some basis exists for imputing

liability to the employer. Wrightson v. Pizza Hut of America,

Inc F.3d 128, 142 (4th Cir. 1996). Where the sexual

harassment complained of is not so severe or pervasive as to

create a subjectively and objectively hostile or abusive work

environment, a prima facie case of Title VII discrimination

has not been made. See Faragher v. City of Boca Raton, 118

S.Ct. 2275, 2283 1998) (citing Harris v. Forklift Sys., Inc.,

510 U.S. 17. 19. 114 S.Ct. 367, 370. 126 LEd.2d 295 (1993)).

Courts review the allegations to determine whether an

environment is hostile or

abusive “by looking at all the circumstances alleged, paving

special attention to (1) the frequency of the discriminatory

conduct; (2) its severity; (3) whether it is physically

threatening or humiliating, or a mere offensive utterance; and

(4) whether it unreasonably interferes with an employees

work performance. Id. However, the aim of Title VII is not to

create “a general civility code,” Oncale v. Sundowner

Offshore Services., 118 U.S. S. Ct. 998, 1002, 140 L.Ed.2d

201 (1998). and Title VII is not a ‘federal guarantee of

refinement and sophistication in the workplace.” Hartsell v.

Duplex Products. Inc., 123 F.3d 766. 773 (4th Cir. i997).

Title VII is not concerned with "simple teasing. (Oncale, 118

1 S. Ct. at 1002, off-hand comments are isolated incidents.

Faragher, 118 18 S.Ct. at 2283. Rather, as stated above, only

severe or pervasive conduct which alter’s the terms and

conditions of employment will result in a Title VII claim

accruing.

The reason summary judgment is appropriate in this

case is because Roberts' allegations. when taken as true, do

not amount to the severe or pervasive conduct necessary to

prove-a prima facie case of sex discrimination due to a hostile

work environment

First, it is questionable whether the frequency of the

discriminatory conduct is so pervasive so as to warrant a

finding of a hostile work environment. While a handful of

comments spread over months is not so likely to have so

great an emotional impact as a concentrated or incessant

barrage. Hopkins v. Baltimore Gas & Elec. Co., 77 F3d 745.

753. it is not certain whether there were only a handful of

comments spread out over months in this case, or Martin's

comments were incessant. Even if the Court accepted as true

}

DPrvhpdenbshscesh! Os ee

oF he HOTW EMRE HE

a i arene ye 3

CPE ROI a IAEA NII EE Dw =

{

ate eae

ha. GT >

that Martin's comment in December, 1994 (“Do you know

how ravishing you look?””), was as the beginning of the

harassment (and it is well settled that this comment. even

when combined with telling the person that she is pretty, does

not establish an actionable Title VII claim. Baskerville v.

Culligan Int’! Co., 50 F.3d 428, 430-31 (7th Cir. 1995) cited

in Hopkins, 77 F.3d at 754.)) was the starting point of the

alleged harassrnent, there is scant evidence in the record that

anything happened between this statement and the events of

march 2 and 3, 1995. All Roberts states is that Martin

continued his behavior in the first two months of 1995. She

doesn’t say whether sexual comments and innuendo from

Martin occurred on a daily, weekly, or bi-weekly basis. All

she says is that they occurred. Because of this, this Court is in

no position to state definitively that the frequency of the

discriminatory conduct would lead a reasonable person to

conclude that the harassment was sufficiently severe or

pervasive to create an abusive working environment

regarding the severity of the allegations, the Court is troubled

by Martin’s acts of March 2 and March 3, 1995. However,

the Court finds that the acts alleged, when taken as true do

not rise to the level of severity actionable under Title VII. In

Hopkins the plaintiff alleged that the harasser bumped into

him, positioned a magnifying glass over his crotch, kissed the

as a way way of congratulating him, and stared at the plaintiff

while the plaintiff was in the bathroom. This Court cannot

say that Roberts’ allegations, while certainly troubling, rise to

this level. Roberts claims that Martin touched her on the arm,

told her she looked nice, spent an inordinate amount of time

near her, engaged in sexual innuendo, rifled through her desk,

unplugged her phone cord, and told her he was going to help

her put on her coat. Like in Hopkins, there is no indication

that Martin ever touched Roberts in a sexual manner. This

leads the Court to find that the severity of Martin's actions do

not, on their own. support a finding the harassment

10a

sufficiently severe or pervasive as to create an abusive

working environment.

Regarding whether Martin's actions and words were

physically threatening or humiliating as compared to mere

offensive utterances, the Court is of the opinion that in this

case there was some of both. While the Court is not familiar

with the height and weight of Martin and Roberts, the Court

can conceive that martin's concerning Roberts in the break

room would be considered physically threatening by a

reasonable person. And if Martin consistently hovered over

Roberts while she worked, this too could be considered

physically threatening to a reasonable person, as Roberts says

it was. However, a reasonable person would consider some of

the statements and acts of Martin to be mere unpleasantness

or horseplay, Which is not actionable under Title VII While

asking a person of the opposite sex whether or not they

wanted to wrestle has a sexual quality to it, the Court cannot

conceive that this was either lumiliating or physically

threatening to Roberts, or that it would be so to a reasonable

person. R Regarding the humiliation aspect. if anything, such

a comment would redound to the detriment of Martin, as

those within earshot would most likely consider him in a

lesser light for making such a statement. Further, there is

nothing in the record which indicates to the Court that

Robbers considered, Martin to be serious when he made his

offer. Even if Robbers subjectively though was serious a

reasonable person would not consider such an offer

physically threatening.

Last. concerning whether Martin’s comments and

conduct unreasonably interfered with Robbers’ work

performance, the Court certainly agrees that it interfered with

Robbers' performance. as she considered taking traumatic

leave to be in her best interest. However. on the facts of this

Ke la ade,

lla

case, the Court is unwilling to find that a reasonable person

would necessarily consider such conduct an unreasonable

interference. In Hopkins, the Court noted with approval the

decision in Morgan v. Massachusetts Gen. Hosp., 901 F.2d

186, 193 (1st Cir. 1990). wherein that Court said there was no

unreasonable interference with work performance when

plaintiff claimed that male co-worker stood behind him and

bumped into him while he mopped, "peeped" at him in the

restroom, and asked him to danee at a Christmas party. Not to

denigrate the accusations in Robert’s Complaint, but the

Court cannot see how the conduct complained of in this case

rises to the level of that in Morgan, where a finding of no

unreasonable interference was found. In this case, there is no

accusation that Martin endeavored to spy on Roberts while

she was in any state of undress. While the Court can see the

similarities between the asking a person to dance and

playfully asking a person to wrestle; and between bumping

into a person from behind and hovering over a person, the

Court cannot find that the facts is of this case are more

egregious than that in

When all of the above is considered as a whole, it is

apparent to the Court that the conduct of which Roberts

complains does not rise to the level of pervasive or severe so

as to establish a prima facie case of sexual harassment under

Title VII. To be sure, such conduct. if true, is boorish,

unpleasant, and in ill-taste. However, as a matter of law such

conduct does not create such a sufficiently hostile work

environment under Title VII to be actionable.

Even assuming that the conduct complained of did

constitute a hostile work environment. when Roberts notified

her superiors they responded by taking reasonable and

appropriate remedial action to stop Martin's conduct, thus

insulating themselves from liability.

12a

Roberts explained her discomfort with Martin's

comments and behavior after being requested by a supervisor

to do so on March 10, 1995. Air Traffic Manager Brame

began to assemble the facts of the matter within days.

Martin's supervisory chain a DCAAFSS was immediately

notified. Both Air Traffic and Airways Facilities notified

their management at John F. Kennedy Airport in the Eastern

Region.

The first thing done after the verbal complaints on

March 10th, was that Martin was notified on March 13th that

he was detailed out of the Leesburg facility pending

investigations by the Civil Rights Division and the Security

Division (investigations occurred from March 1995 through

April, 1995). Roberts did not see Martin between March 10

and Ma 11, 1995.

The Security Division determined there was a

potential for a hostile environment Martin was then issued a

Letter of Reprimand for ‘unwelcome and unsolicited”’

conduct that represented "inappropriate and unacceptable

behavior in the workplace” A sector manager verbally

instructed Martin, and a sexual harassment training was

scheduled for Martin in June. Martin as then permitted to

return to the facility on May 11, 1995, once the course of

Corrective action had been chosen.

An employer may be liable for both negligent and intentional

torts committed by all employees within the scope of his s

employment. See Burlington Industries, Inc., v. Ellerth.

U.S.S.Ct. 2257 S.Ct. 2266 (1998). An employer is liable with

respect to sexual harassment if it knew or should have known

about the conduct and failed to stop it. Negligence Sets a

minimum standard for employer liability tinder Tithe VII.

l3a

Ellerth, U.S.at118 S.Ct. at 2267: see also 29 C.F.R.

1604.11 (d) (1997). When employers are notified of claims of

sexual harassment and then take prompt, adequate corrective

measures, employers like the F.A.A. cannot be held liable for

the hostile work environment Dennis v. County of Fairfax, 55

F3d 151, 156 (4th Cir. 1995). It appears to the Court that

Roberts lawsuit is based on the fact that she does not like the

actions taken, not that the FAA did not employ prompt

adequate corrective actions. While it as Roberts' desire never

to see Martin again, the Court cannot, as a matter of km. that

this is the only corrective action reasonable under the

circumstances. The end result of the FAA’s actions is that

since the day that Roberts reported Martin's conduct, she has

not been bothered or confronted by Martin since. Further,

Martin was ultimately transferred out of the Leesburg facility

on a permanent basis, with only limited access to return,

Because the legal standard of "prompt and adequate remedial

action’ does not require an employer to discharge every

employee accused of sexual harassment, see Harris v. L & L

Wings Inc., 132 F.3d 978, 984 (4th Cir. 1997), and because

the gravity of the alleged harassment helps determine what is

reasonable corrective action, See Baskerville. 50 F3d at 432,

this Court finds that the FAA's corrective actions were both

prompt and adequate in this is matter.

Because this memoranum Opinion results in a

dismissal of the case, the Defendant’s Motion for Involuntary

Dismissal has become Moot, and the Court will not render its

opinion on the matter.

An appropriate Order shall issue.

USDJ

Filed 1/22/99

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.