# Petition for Writ of Certiorari — Roberts v. Slater

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0788%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1160

## 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

a

ee
y
3
a
¥
:

IAL RRC aM EMOTE REE TY OTT NI NT

i
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?

il

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

Eo

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

D3

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

2

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)

4

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

5

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.

1.

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

6

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

-
d

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,

8

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

9

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

)
4
i
4

10

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,

11

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

12

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

+
2
i
§
:
%
8
z
y
:

;
:
x
%
3

13

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”.

14

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

15

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”).

.

16

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

3
3
|

PIV tet ea Ae Hie IO!

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

17

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

18

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.

19

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

la

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

2a

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

%
2
$
%
4

.
3
-
3
i
q

3a

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVSION

CIVIL ACTION NO. 98-736-A

FRANCINE ROBERTS, Plaintiff
V.

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

4a

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

*
:
i
4
.
j

Sa

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

6a

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)).

8a

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 =

4
{
i
3
{
{
{

ate eae

ha. GT >

9a

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0788%3A1. Public record. Not legal advice.