per hour on August 31, 1989; $ 7.00 per hour on November 6, 1989; and $ 7.50 per hour on June 25, 1990. (T. 43, 46-47)
Defendant hired the plaintiff because she came to him with a very good recommendation. (T. 175) He gave her the three raises during the course of her employment, despite the fact that she was having some problems with her job. His target was to get her up to $ 8.00 per hour as soon as possible. (T. 177)
It is the plaintiff's contention that starting in August 1989, she was subjected to various acts of sexual harassment by the defendant which finally caused her to quit her job on August 6, 1990. She filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on or about September 24, 1990, and, after the passage of 180 days without action, plaintiff requested and received a "right to sue" letter. The defendant denies any acts of sexual harassment or the creation of a hostile work environment.
In August 1989, during the course of a silkscreening operation, there was some casual banter between the defendant and other female employees about having his baby. (T. 24) He directly asked employees Jesse Piasecki and Helina Malinowski whether they would have his baby. (T. 94) He told them that he wanted to have a son. (Id.) He also asked the plaintiff if she would have his baby. In response, she replied that she did not appreciate these comments or suggestions; although she thought at first he was joking with the other employees whom he knew well. (T. 24-26) Approximately one month later there was a second similar type of conversation in the presence of other employees about having his baby, and plaintiff again told him that she did not appreciate this type of humor. (T. 26) These were the only two occasions when there was talk about having his baby, although there were other conversation about a "Unitec baby" born to Jesse Piasecki. (T. 275-76)
Several weeks later, defendant began to have physical contacts with plaintiff which she described as "full body hugs." (T. 28-29) These were face-to-face embraces which were mostly in the presence of other employees.
Each time she would push him off and tell him to keep his hands off of her. (T. 29, 120) He would explain that he did not mean anything by it, or that he was old enough to be her father. (T. 121) She received twenty to thirty of these "full body hugs" during the course of the year she worked for the defendant. (T. 119) She reprimanded the defendant on each occasion; once she even threatened to break his bones if he did it again. (T. 31) On another occasion he came up behind plaintiff and ran an object up the side of her "butt". (T. 30, 122) She told him, "You keep your stinking hands off me." (T. 30) Again he told her she had nothing to worry about because he was old enough to be her father. (Id.) On one other occasion, in the presence of other employees, when she asked him if he needed anything else upon completion of an assignment, he replied, "Yes, sex." (T. 33) She took this remark seriously and not as a joke. (T. 34) On July 17, 1990, in private, he came up to her and said, "It's a beautiful day to have sex, isn't it?" (T. 48) Plaintiff walked out of the room.
On still another occasion, plaintiff was bending over in the spray room,
and the defendant came up behind her with a can of spray paint. When she turned around, defendant said he was "Going to spray you in the butt, but I knew you'd knock me out." (T. 31) Plaintiff said he was "absolutely right." (Id.) At one time, Jesse Piasecki asked plaintiff if she and the defendant were lovers. (T. 77) On a few occasions defendant invited her out to lunch or to go on boat rides with him. (T. 34) She did go to lunch with him twice at a nearby diner, but with other people. She refused the boat ride invitations.
In July 1990, plaintiff discussed these events with defendant, and told him such acts would no longer be tolerated. (T. 35-36) He replied by saying he only did those things because he knew it bothered her. (T. 37) She also explained that his activities violated her religion and moral ethics as a Jehovah's Witness. (T. 37-38) Despite this conversation, defendant continued to make unwelcome advances and repeatedly embraced the plaintiff,
although there were never any work-related promises made for the exchange of sexual favors. (T. 131-32)
Because of defendant's unwelcome embraces, touchings, advances and sexual innuendoes, plaintiff lost the respect of her subordinates. (T. 40) This resulted in a deterioration of her work performance and ability to delegate work to other employees. (T. 182) In fact, the other employees made complaints about her to the defendant. (T. 63-64, 195-96)
The defendant denies that the above events took place. He did admit that on five or six occasions he innocently touched her shoulder or arm (T. 180-81), but he claims she never complained until a few weeks prior to quitting when she told him to stop touching her even on the shoulder because it looked bad in front of the employees she was required to supervise. (T. 182) Despite the fact that she had some serious problems in her job, made many mistakes (at least one very substantial one (T. 65)), and on one occasion even made some false entries regarding the time she reported to work (T. 15-16, 192-94), there were never any bad performance reports in her personnel file, and she continued to receive raises. (T. 47-48) The defendant's two employees, Piasecki and Malinowski, also testified that they never saw any full body hugs or other improper behavior on the part of the defendant.
(T. 277-78; 292-93, 299)
In reviewing the testimony, the demeanor of the parties, the general attitude of the defendant, and the fact that his two witnesses were past or present employees of the defendant and under his control, the court accepts the plaintiff's version of the events as described above. These events did take place, as described by the plaintiff in detail, with exceptions as noted below.
In contrast to her specific testimony about numerous other advances of the defendant, the plaintiff testified vaguely and briefly with regard to her claims of more intimate and offensive contacts by the defendant. In response to one question, she stated, "What happened in private was he touched private parts that - he had touched my breasts, he had touched my butt. He had reached for my crotch." (T. 32) When asked to describe the frequency of such contact, she responded, "I can honestly say that if I was there and he was there, something was said or done of a sexual nature." (T. 33) That was the extent of her testimony in that regard, although her direct testimony consumed fifty-five pages of transcript. Other than the fact that such contacts occurred in private, the plaintiff's attorney made no attempt to elaborate regarding the approximate number of times such contacts occurred; where such contacts occurred; what, if anything, defendant said to the plaintiff at the time of such contacts; what, if anything she said to him in response to such contacts; whether she slapped his hands, moved him away, or retreated herself after such contacts; or whether she complained to anyone about such contacts immediately thereafter.
This testimony was in regard to the most egregious acts of defendant alleged by plaintiff, but she completely failed to give any particulars. As noted above, this is in contrast to the rest of her testimony when she went into considerable detail. The portion of plaintiff's testimony regarding "touching and reaching" was so inconsequential that the defense asked no questions on cross-examination; and the defendant was not asked on direct examination whether he ever touched her breasts or reached for her crotch. He did deny touching her buttocks. (T. 187) On cross, he also denied touching her breasts. (T. 252) If these contacts actually occurred, an experienced attorney would have brought these events strongly to the forefront with a series of follow-up questions sufficient to demonstrate that there was some foundation for the testimony, and not merely a figment of the plaintiff's imagination or an attempt to bolster her case. This plaintiff's counsel completely failed to do. Therefore, the only logical conclusion is that such acts and contacts never actually took place.
Shortly before she quit, the parties had a discussion in which she requested that he no longer even touch her on the shoulder in front of the other employees because they believed she was a favored employee. (T. 35-38, 182-83) Events came to a climax in early August 1990. On Friday, August 3, defendant put his arm around plaintiff and she said, "Don't put your hands on me." (T. 38-39) This was not a full body hug, but he had his arms around her shoulders. On Monday, August 6, she was working in her good clothes when they became dirty. Again, he went to hug her and she said, "Don't put your hands on me," and she proceeded to walk off the job and did not return after the noon hour break. (T. 50-51) The defendant testified that when he saw the plaintiff on August 6, 1990, she was rather dirty and he became concerned that she was getting her good clothes soiled doing a job to which a fellow employee was assigned; that he reached for her, and she pulled away. (T. 197-98) He told her that he was sorry. (Id.)
A few days after she left Unitec, she received a letter from the defendant (Exhibit "3"), in which he expressed sorrow and shock that she was leaving. He also set forth in detail his versions of the events beginning on Wednesday, August 1, through Tuesday, August 7. (T. 54, 56) He denied touching the plaintiff on Monday, August 6. (T. 198) He asked for a reply from her but she refused to comment on the letter itself for fear that by doing so she was agreeing to his version of the accounts contained therein. (T. 56) Plaintiff did have a telephone conference with defendant in which he attempted to entice her to come back to work, but she refused. (T. 52) When plaintiff quit, defendant did not contest her unemployment application. (T. 53-54)
The incidents testified to by the plaintiff are accepted and the defendant's denials rejected, except as to the touching of her breasts, butt, or reaching for her crotch. The question thus becomes - was this sexual harassment?
III. CONCLUSIONS OF LAW.
As an initial matter, plaintiff testified that she was not denied any work-related benefits because she refused the sexual advances of her employer, i.e., "quid pro quo" sexual harassment. Therefore, in order to recover under Title VII, plaintiff must prove that defendant created a hostile or abusive work environment. Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992).
The recent Supreme Court case of Harris v. Forklift Systems, Inc., U.S. , , 126 L. Ed. 2d 295, 114 S. Ct. 367, 370-71 (1993) has re-affirmed the standard for review in sexual harassment cases such as this.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). . . . When the workplace is permeated with "discriminatory intimidation, ridicule, and insult," 477 U.S. at 65, 106 S. Ct. at 2405, that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," id., at 67, 106 S. Ct. at 2405 (internal brackets and quotation marks omitted), Title VII is violated.
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