Master's Thesis, 2006
25 Pages, Grade: A
TABLE OF AUTHORITIES
STATEMENT OF JURISDICTION
STATEMENT OF THE ISSUE
STATEMENT OF THE CASE
STATEMENT OF FACTS
SUMMARY OF ARGUMENT
I. THE COURT OF APPEALS SHOULD REVERSE THE PARTIAL SUMMARY JUDGMENT GRANTED BY THE DISTRICT COURT OF MAINE, BECAUSE TITLE VII PROHIBITS CREATING A HOSTILE WORK ENVIROMENT ON THE BASES OF THE SEVERITY AND PERVASIVENESS OF THE CONDUCT OF MR. CARSON.
A. The Court should reverse the partial summary judgment, because Mr. Carson’s actions were threatening and humiliating, because the appellant expressed his sexual desire for her, called her “Luscious Lisa,” and touched her on several occasions created an objective hostile workplace environment sufficiently severe to alter the condition of the victim’s employment.
1. An hostile workplace harassment is objectively hostile when the actions of touching a co-worker are severe enough to alter the term of the employment.
2. Comments that are severe enough to alter the work place create a hostile workplace environment.
3. Innuendos create an uncomfortable work environment because are an unwelcome sexual invitation.
B. The Court of Appeals should reverse the partial Summary Judgment, because the appellant was the object of pervasive conduct that permeated the workplace environment, because Mr. Carson frequent actions, touching her hips and making remarks or calling her with an inappropriate nick name several times altered the condition of the victim’s work environment.
1. Frequency can be created by a serial of discriminatory animus towards a person.
2. The duration of sexual remarks, innuendoes, ridicule, and intimidation can occur “over a series of days or perhaps years” may be sufficient, in order to have a hostile workplace environment.
For the reasons stated herein the Court should reverse the Motion for Partial Summary Judgment granted by the district court.
Harris v. Forklift System, Inc 510 U.S. 17 (1993)
Meritor Saving Bank v.Vinson 477 U.S. 57 (1986)
O`Rourke v. City of Providence 235 F.3d 713,718 (1st Cir.2006)
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7(1st Cir. 2002)
Morgan v. Massachusetts General Hospital 901 F.2d 186 (1st Cir. 1990)
Oncale v. Sundower Offshore 523 U.S.
Chamberlin v. 101 Reality, Inc, 915 F.2d 777, 783 (1st Cir. 1990)
Hernandez- Loring v. Universidad Metropolitana 233 F.3d 49 (1st Cir. 2000)
Lee-Crespo v. Schering-Plough del Caribe Inc. 354 F.3d 34 (1st Cir 2003)
Crowley v. L.L.Bean, Inc., 303 F.3d 387 (1st Cir. 2002)
White v. New Hampshire Department of Corrections 221 F.3d 254 (1st Cir 2000)
Noviello v. City of Boston 398 F.3d 76 261 (1st Cir. 2005)
National RailRoad Passenger Corporaton v. Morgan 536 U.S. 101,114 (1st Cir. 2002)
Riviera-Rodriguez v. Frito Lay Snacks Caribbean, 265 F.3d (1st Cir 2001)
Valentin-Almeyda v. Municipality of Aguadilla 477 F.3d 85 (1st Cir. 2006)
42 U.S.C.A. § -2000e-2(A)(1)1964
1 The district court had subject matter jurisdiction of this case pursuant to the federal rules of Civil Procedure P. 56 2006.
2 This appeal is form a final order of the United States District Court of Maine Motion for Partial Summary Judgment.
3 This Court has jurisdiction of the appeal pursuant to FRCP R. 56
The District Court of Maine erred to grant Motion for Summary Judgment, because Title VII of the Civil Right Act of 1964 prohibits creating a hostile work environment based on sexual harassment.
Did the court err when granted partial summary judgment?
The Complaint in this case was filed on August 23, 2005, by plaintiff Lisa Hebert, for violation of Tile VII of the Civil Rights Act of 1964.
The Defendant moved for partial Summary Judgment pursuant to Fed. R. Civ. P.56.
The plaintiff filed a memorandum in opposition to the defendant’s motion for partial summary judgment.
The U.S. District Court of Maine granted motion for summary judgment in favor of the defendant, because the court believed that the conduct of Mr. Carson was not sufficiently severe or pervasive to establish an objective hostile work environment under Title VII. R.8.
Plaintiff, Lisa Hebert, was hired by Defendant Gentile Glow, Inc. R.10
Ms. Hebert left Gentile Glow on August 24, 2004. R10
On June 10, 2004, Mr. Carson came into the marketing group office, and another co-worker introduced him to Ms Hebert. He smiled and said, “Welcome to Gentle Glow- we certainly could use your pretty face around here.” Then he placed his arms around Ms. Hebert, hugging her, and said, “Let me give you a proper welcome. Sometimes there’s a lot of stress here- I’m a big believer in hug therapy.” R11
On June 15, Mr. Carson approached Ms. Hebert as she was leaving the marketing group office. He set his hand on a bottle of bath oil which Ms. Hebert happened to be holding. He said “This oil works best if you rub it all over yourself-or better yet, if you rub it all over your partner’s body, and he rubs it all over you. We could test it together.” Ms. Hebert tried to pull the bottle away. As she did so, Mr. Carson’s hand brushed across her breast. He laughed and said, “That was nice-want to try it again?” R 11
On Friday June 25, at a company softball game after work, Mr. Carson approached Ms. Hebert, who was wearing shorts and a t-shirt which adverse a local pizzeria. Mr. Carson stared at the shirt, smiled at Ms. Hebert, and, as he was reaching out his hand towards her chest, said, “Boy, I sure could go for a piece of that.” Ms. Hebert jumped back and walked away. R11
From late June until August 24, 2004, when Ms. Hebert left, Mr. Carson would meet Ms. Hebert more than three times a week, and he often would refer to Ms. Hebert as “Lucious Lisa” R12
On July 6 2004, Mr. Carson opened a bottle of make-up which the group the group received fro a market research, and he rubbed some on Ms. Hebert’s cheek, commenting, “This looks perfect on a gorgeous brunette with green eyes, just like you.” R12
The next day, Mr. Carson, after approaching Ms. Hebert’s desk, sprayed a new fragrance on her neck, bended in towards her to smell it, and murmured, “This makes you even more irresistible.” R12
Mr. Carson went on vacation during the weeks of July 19 and 26. R12
On August 9, 2004, Ms. Hebert was walking down the aisle toward the marketing group office when Mr. Carson came up next to her. He put his hand on her hip, saying, “Someone’s in great shape. I bet you can do fabulous thing with those hips” R12
At the end of that week in August, 2004, Mr. Carson came up behind Ms. Hebert as she was leaving the marketing group office. He placed his hand on her shoulders and began to rub them. He said, “How about a good massage from an expert- you seem tense.” Ms. Hebert hurried away. R12
On August 20, Mr. Carson came up next to Ms. Hebert at her work station while she was eating, and he wiped some crumbs off her mouth with his hand, although Ms. Hebert tried to pull away. Other workers of the marketing group were in the office. Mr. Carson then said, “Here a woman I wouldn’t throw out of the bed for eating crackers.” R12
On August 23, Mr. Carson gave Ms. Hebert and two other employees in the marketing group a ride back to the office from a luncheon meeting at a restaurant with the Vice-President for Marketing. After Ms. Hebert was seated in his car, Mr. Carson took her seat belt and pulled it across her body, touching her torso as he hooked the seat belt. He said, “Even dressed, you are something to touch.” Ms. Hebert got out the car and asked for a ride to office with another associate. R 13
On August 24, Ms Hebert left Gentile Glow, because of Mr. Carson behavior. R13
Ms. Hebert filed a complaint with EEOC, taking legal action against Gentile Glow for a violation of Title VII. R13
In May, 2005, Ms. Hebert obtained a right to sue letter form the EEOC and then filed this lawsuit on August 23, 2005 in United Stated District Court for the District of Maine. R 13
The conduct of Mr. Carson towards Ms. Hebert was sufficiently severe and threatening because his action altered the workplace environment with hostility and these actions were frequent because hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice.
The Court should reverse the partial summary judgment, because the facts satisfy a sufficient severity and pervasiveness to create a hostile workplace environment. The standard of review is De Novo because the court should review the legal question anew, and reverse the Partial Summary Judgment granted by the U.S. District Court of Maine. Pursuant to Civil Right Act of 1964, as amended, 42 U.S.C.A. § 2000e-2(a)(1) makes it “an unlawful employment practice for an employer to discriminate against any individual with respect to his terms, conditions, or privileges of employment, because of such individual’s sex.” The Harris v. Forklift System,Inc 510 U.S. 17, 1993. Under Federal case law, interpreting the judicial standard for a hostile workplace environment to be actionable, the court should reverse the partial summary judgment, because abusive work environment “is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality.” Meritor Saving Bank v. Vinson, 477 U.S. 57, 67 1986. Also a plaintiff must meet the test to succeed in a hostile work environment claim: 1)That she (or he) is a member of a protected class; 2) that she was subjected to unwelcome sexual harassment; 3) that the harassment was based upon sex; 4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of the plaintiff `s employment and create an abusive work environment; 5) that sexually objectively conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so; and 6) that some basis for employer liability has been established. O`Rourke v City of Providence 235 F.3d 713, 728 (1st Cir.2001). In our case point four and five are relevant: the severity and pervasiveness of the actions and that the conduct was objectively offensive. As such this court should reverse the partial summary judgment, because Mr. Carson `s touching and remarks towards the appellant Ms. Herbert were unwelcome and objectively abusive thus severe enough to create hostile workplace environment. Mr. Carson conduct and interaction towards Ms. Hebert, for example pulling his seat belt of his car across the chest of the appellant or calling her with tedious nickname “Lucious Lisa” permeate workplace with hostility, because in this case these actions generated a disadvantageous condition to with the member of the other sex was not exposed.
Whether the environment is objectively “hostile or abusive” must be answered by reference to “all the circumstances” including the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferences with an employee’s work performance.” Id.Harris, 510 U.S at 23. The court should reverse because in this case the sexual innuendos, comments, and the unwelcome touching create an objective hostile workplace environment. Mr. Carson actions towards the appellant Ms. Herbert were threatening and humiliating sexual actions. For example hugging her at the first day of work, he said, “let me give you a proper welcome. Sometimes there is a lot of stress here – I`m a big believer in hug therapy.” R. 11. He made unwelcome innuendos, like calling her with a tedious nick name “ Lucious Lisa.” R. 12. During a lunch break Mr. Carson made a gross sexual comment. While she was eating he wiped some crumbs off her mouth with his hand and then said, “Here’s a woman I wouldn’t throw out of bed for eating crackers.” R.12. These are some of the touching comments and innuendos that generate an objective sexual harassment workplace environment.
The District court in our case ruled that the actions of Mr. Carson were not severe enough to be actionable under Title VII § 2000. There is no a mathematical test to understand when there is an abusive environment or not. Instead “sexual harassment is actionable if it is sufficiently severe to alter the condition of the victim’s employment”Id. Harris 510 U.S. at 21.
In our case the District Court of Maine held that Mr. Carson’s physical contacts, in and out of the office, did not rise to the level of being sufficiently severe. R9. The physical contacts with Ms. Hebert are six: he hugged her the first day of work, he touched her chest, he rubbed her cheeks, he wiped some crumbs off her mouth with his hand, he massaged he shoulders and he touched her torso while on the way back from a luncheon meeting. R 12.
In O` Rourke, Marrero, and Crowley, the court held that the actions were severe enough to alter the condition of employment for the same tenor of physical incidents as in our case. For example in Crowley v. L.L. Bean 303 F.3d 387 (1st Cir. 2002) the court rejected the motion of summary judgment presented by L.L. Bean because could not be held that a reasonable person could not have agreed that Juhl`s conduct towards Crowley was sufficiently sever or pervasive. Id. at 400. In 1996 Ms. Crowley began at L.L.Bean. Id. at 392. Crowley sustains that from 1996 until July 1998, her co- worker Paul Juhl stalked and harassed her. Id. During this period took place several unwelcome physical contacts.Id. For instance Mr. Juhl grabbed her foot and massaged it against her will at an L.L. Bean pool party. Id. In another occasion, in this case in the office, he physically blocked her path and thereby forcing her to be squeezed by him. Id.
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