247 Conn. 148 | Conn. | 1998
Lead Opinion
Opinion
The plaintiff, Elizabeth Brittell, formerly a correction officer employed by the named defendant, the department of correction,
The trial court’s findings may be summarized as follows. In July, 1990, the plaintiff was hired by the defendant as a correction officer and assigned to the New Haven Community Correctional Center (correctional
One day, while the plaintiff was attending the academy, someone observed that she appeared to be in a hurry and asked her whether she had a date. In response, one of the plaintiffs male classmates, Tracy Felton, remarked that the plaintiff did not date men and that she liked women. The plaintiff told Felton that if she ever heard him make such a statement again, she would slap him. The plaintiff, however, did not report Felton’s comment to any of the defendant’s supervisory personnel until the spring of 1992.
Within one or two months after the plaintiff started working at the correctional center, she began to hear comments from inmates concerning her sexuality, expressed in obscene terms, implying that she had had a sex change operation and that she had male genitalia. The plaintiff, however, took no action regarding these comments at that time.
Approximately one year later, in August, 1991, the plaintiff, while supervising a bible study class in the prison gymnasium, overheard some unidentified inmates, who were located outside the gymnasium door, state that they planned to sexually assault “the half-man homo” to determine her sex. The plaintiff, who believed that the inmates were speaking about her, orally reported the incident to the duty officer, Captain Moses Riddick, but omitted any reference to the threatened sexual assault. She also told Riddick that there
On August 13, 1991, an inmate, Thomas Trimmer, who previously had sworn at the plaintiff and verbally threatened her with physical violence, asked the plaintiff whether it was true, as one or more correction officers had told him, that “you are not a woman . . . you are in fact a man and . . . you had a sex change operation.” Trimmer, however, declined to provide the plaintiff with the name of the officer or officers who purportedly had made such comments, suggesting only that she should consider whether the officer who relieved her when she worked in “Charlie Unit”
After the plaintiff lodged her complaint, Major Thomas Langner took a statement from Trimmer, but decided not to speak to any other inmates in Trimmer’s
On April 22, 1992, the plaintiff filed a written complaint with Warden Gillis. In her complaint, the plaintiff
On April 23, 1992, the plaintiff, at the conclusion of inmate visiting hours, notified the person who was visiting inmate Douglas Franklin that it was time to leave. Franklin responded by calling the plaintiff a “half-man” and referring to her in obscene terms. Franklin’s visitor, while departing, uttered a similar comment. Once outside the presence of Franklin, the plaintiff became emotionally distraught, reported the incident to Administrative Captains T.A. Cleveland and D.P. Barile, announced that she could not continue in her current position and left the correctional center on medical leave.
The plaintiff met with Major Pizighelli on April 28, 1992, informed him that she had sought psychiatric help through the employee assistance program and provided him with the names of three correction officers, Gibson, Barnes and Ricardo Flores, whom she believed might be able to identify the officers responsible for circulating the rumors concerning her sexuality. Pizighelli interviewed all three officers by May 6. Gibson and Barnes
In the meantime, Captain Barile had interviewed Franklin, who admitted that he had accused the plaintiff of being a man. Franklin, who subsequently was disciplined for his statement about the plaintiff, further stated that he had heard this rumor from other unnamed inmates, but not from any staff members. Barile notified Major Pizighelli of the interview by memorandum in early May, 1992. In his memorandum, Barile stated that he had asked the plaintiff, after the August, 1991 incident, whether she had heard any additional sexually harassing comments. According to Barile, the plaintiff informed him that she had heard such comments on one or two occasions, but was unable to attribute the statements to any particular inmate or employee. Captain Cleveland also sent a memorandum to Pizighelli, dated May 4, 1992, stating that the plaintiff had asked Cleveland in March, 1992, whether she had heard any rumors concerning the plaintiff. Cleveland informed the plaintiff that she had not. According to Cleveland, the plaintiff told her that a correction officer whom the plaintiff believed to be Barnes had called her a “half-man” in the presence of inmates, that the matter had been investigated and that there had been no further problems until the incident involving Franklin in April, 1992.
Major Pizighelli met with the plaintiff again on May 7, 1992, and informed her that a representative of the employee assistance program had notified him that, in light of the plaintiffs psychological condition, she should not return to work. Consequently, the plaintiff was placed on medical leave on May 9. At one of the meetings between the plaintiff and Pizighelli, the plaintiff mentioned that she suspected that officer Felton was one of the employees who had been spreading the offensive rumors. Felton, however, was out of work due to a work-related injury and, therefore, was not interviewed regarding the rumors.
When the plaintiff returned to work at the correctional center at the end of May, 1992, she was assigned to a position at the guardhouse, away from the inmate population.
Although all the correction officers who were interviewed denied being a source of the sexually harassing rumors about the plaintiff, most acknowledged the existence of such rumors. Furthermore, one of the employees acknowledged that officer Barnes had repeated certain rumors about the plaintiff, but the employee declined to provide a formal statement to that effect.
On the basis of these interviews, Scott and Garvey, although unable to ascribe the rumors to any particular employee, confirmed the existence of the sexually harassing rumors and comments, and concluded that they had originated at the training academy.
Thereafter, on August 13, 1992, Scott and Garvey recommended to Warden Gillis that the plaintiff be offered a transfer, on a “first available” basis, to another institution within a reasonable commuting distance of New Haven, where the plaintiff resided. Specifically, they recommended that she be given a choice to transfer to another correctional facility in New Haven or to any one of four such facilities in Cheshire. Because a transfer to one of these institutions would have required a somewhat longer commute for the plaintiff, who did not own a car, Scott and Garvey provided the plaintiff with information concerning car pools from New Haven to those institutions. The plaintiff, however, rejected the idea of a transfer, stating as reasons that she had a new apartment, she did not have a car and her mother lived nearby.
Sometime in August, 1992, however, the plaintiff, without Warden Gillis’ knowledge, applied to the deputy warden for a transfer to Camp Hartell in Windsor Locks, a facility for persons convicted of certain white collar
After Warden Gillis received the affirmative action unit’s report and recommendations, he. considered the investigation to be closed. He informed the plaintiff that, because she was no longer on leave, she would be required to return to the six week rotation cycle applicable to all correction officers, which would, once again, put her in contact with the inmate population. In accordance with the recommendation of the affirmative action unit, however, Gillis proposed that the plaintiff accept a transfer to another institution. The plaintiff, however, voiced concern over the possibility that officers and inmates from the correctional center also might be transferred to the same institution as the plaintiff, which could lead to a recurrence of the rumors. The plaintiff, therefore, declined to return to work and, on August 24, 1992, applied for medical leave. The defendant granted her request the following day. The plaintiff continued on unpaid medical leave
After having first procured the statutorily required release from the commission on human rights and opportunities; see General Statutes §§ 46a-100
On appeal, the plaintiff renews her claims that the trial court was required to find, as a matter of law, that: (1) the defendant failed to take adequate steps to investigate and remedy the sexual harassment in violation of the Fair Employment Practices Act; and (2) she was constructively discharged from her employment with the defendant. We disagree and, consequently, we affirm the judgment of the trial court.
I
The plaintiff first claims that the trial court improperly determined that liability for the sexual harassment could not be imputed to the defendant because she failed to establish that the defendant’s remedial
Subdivisions (1) and (8) of § 46a-60 (a) prohibit an employer or its agents from discharging, discriminating against or harassing an employee on the basis of sex. In defining the contours of an employer’s duties under our state antidiscrimination statutes, we have looked for guidance to federal case law interpreting Title VII of the Civil Rights Act of 1964, the federal statutory counterpart to § 46a-60. E.g., State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 469-70, 559 A.2d 1120 (1989). “Although the language of [Title VII of the Civil Rights Act of 1964, § 703 (a) (1); 42 U.S.C. § 2000e-2 (a)]
We look to federal case law for guidance, first, in determining the appropriate standard of review. Although there is some disagreement among the federal courts as to whether determinations under Title VII represent questions of fact or mixed questions of fact
Traditionally, a claim of sexual harassment under federal law has proceeded “on one of two theories: (1)
“A plaintiff pursuing a hostile work environment claim must establish a basis, rooted in common law agency principles, on which to hold an employer liable for the conduct of its employees. See Meritor Sav[ings] Bank, FSB v. Vinson, All U.S. 57, 72, 106 S. Ct. 2379, 2408, 91 L. Ed. 2d 49 (1986).” Gallagher v. Delaney, supra, 139 F.3d 348. “The law is clear that an employer may not stand by and allow an employee to be subjected to a course of . . . [sexual] harassment by co-workers . . . (Internal quotation marks omitted.) Torres v. Pisano, 116 F.3d 625, 636 (2d Cir. 1997). Accordingly, an employer will be held liable for harassment perpetrated by its employees if “the employer provided no reasonable avenue for complaint, or.. . the employer knew (or should have known) of the harassment but unreasonably failed to stop it.”
The plaintiffs challenge to the adequacy of the defendant’s response to her complaints of harassment is predicated on two claims: (1) the defendant’s investigations of the plaintiffs complaints were neither prompt nor sufficiently thorough; and (2) the remedial measures taken by the defendant, consisting of generalized written and verbal warnings to staff and offers to transfer the plaintiff to a different correctional institution, were insufficient. We disagree.
Guided by the principles set forth in the federal cases discussed above, we turn, first, to the defendant’s course of action following the plaintiffs August, 1991 complaint. We conclude that the trial court’s determination that the defendant had taken adequate remedial measures to investigate and remedy the harassment was not clearly erroneous. The defendant responded promptly when the plaintiff reported to Lieutenant Moore that Trimmer, one of the inmates, had told her that an officer or officers had made inappropriate comments concerning the plaintiffs sexuality. Moore immediately questioned several officers about the matter, none of whom provided her with any information likely to have assisted her in developing leads upon which further investigation might have been predicated. In addition, Major Langner, immediately upon his receipt of the incident reports prepared by the plaintiff and Moore, questioned Trimmer, but Trimmer refused to disclose the identity of the officer who, he claimed, had made the offensive comments about the plaintiffs sexuality. Moreover, Langner testified that, based on his professional experience, he had decided not to interview any other inmates because he was concerned that to do so would only exacerbate the problem.
The plaintiff nevertheless contends that the defendant failed to do enough to ascertain the identify of the officers pmportedly responsible for originating or spreading the malicious rumors. In particular, the plaintiff claims that, at a minimum, the defendant should have interviewed inmates and officers in Trimmer’s cell-block. The plaintiff also emphasizes that the defendant failed to relay the information regarding the sexually offensive rumors to the affirmative action unit or to internal affairs, either of which, she claims, likely would have conducted a more thorough investigation of her complaint.
“[T]he law does not require that investigations into sexual harassment complaints be perfect.” Knabe v. Boury Corp., supra, 114 F.3d 412. “The question before us is not whether the investigation was adequate . . . but rather whether the remedial action was adequate.” (Emphasis added.) Id. Nevertheless, we agree with the plaintiff that, inasmuch as the choice of an appropriate remedial measure often will depend upon information
We do not agree, therefore, that, in this case, the scope of the defendant’s investigation of the plaintiffs August, 1991 complaint called into question the defendant’s good faith or precluded the defendant from taking appropriate remedial measures. After reasonable efforts to identify the inmates and officers responsible for the rumors about the plaintiff were unsuccessful, the defendant immediately issued a strongly worded warning to staff that sexual harassment would not be tolerated. Furthermore, the plaintiff had ready access to supervisory personnel in the event of a recurrence of the harassment. Indeed, the plaintiff periodically
We turn next to the actions taken by the defendant following the plaintiffs filing of her second harassment complaint in April, 1992. Although the adequacy of the defendant’s response to this complaint presents a closer question, we conclude that the trial court’s determination with respect to that response was supported by the record.
The plaintiff contends, first, that the investigation conducted by the defendant was deficient because it
Although the affirmative action unit interviewed numerous persons identified by the plaintiff as possible sources of information, there were, as the trial court observed, “weaknesses in the defendant’s responses to the harassment.” One such weakness was the affirmative action unit’s unexplained delay in investigating the plaintiffs complaint. We agree with the plaintiff that “[a] slow response may be perceived as a reluctant response and call into question the bona fides of an employer’s anti-harassment program.” (Internal quotation marks omitted.) Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 537, 691 A.2d 321 (1997). Among other things, a delayed response creates a risk that persons with knowledge of the harassment might not be able to remember details about the offensive conduct that would be helpful in identifying the responsible party or parties. The trial court noted, however, that “all correction officers interviewed denied their own active involvement and could not or would not recall specifically others who had spread rumors or made comments.” (Emphasis added.) Consequently, the trial court expressly found that “it is doubtful whether more
Furthermore, the defendant’s response to the plaintiffs second complaint was not limited to the actions taken by the affirmative action unit. At the end of March, 1992, when officer Gibson told the plaintiff that officers Felton and Barnes had made inappropriate comments to inmates concerning the plaintiffs sexuality, the plaintiff, on April 1, reported Gibson’s comment to Major Pizighelli. The plaintiff followed up her oral report with a written statement on April 22 that detailed six separate instances of harassment over the preceding eighteen months. At that time, however, the plaintiff did not provide Pizighelli with any names. Later in April, when the plaintiff did provide Pizighelli with the names of three employees, namely, Gibson, Barnes and Flores, who might be able to identify the person or persons responsible for the rumors, Pizighelli interviewed all three within one week. Moreover, Franklin, the inmate who had called the plaintiff a “half-man,” was disciplined for his offensive comment. Finally, the plaintiff, upon her return to work in May, 1992, initially was assigned to a position that did not require direct inmate contact.
It is appropriate, when considering the adequacy of the investigative steps taken by an employer, to evaluate the measures that an employer might have taken but did not. Although it appears that the defendant could
We emphasize that sexual harassment in the workplace is intolerable, and an employer has a serious legal obligation to conduct a reasonably thorough investigation of a harassment complaint. An employer’s response to such harassment, however, must be considered in its totality; see Snell v. Suffolk County, supra, 782 F.2d 1105; and its reasonableness viewed in the context of the nature of the harassing conduct. In light of all of the remedial measures taken by the defendant in response to the plaintiffs complaint, and in view of the fact that the sexual harassment consisted of rumors and innuendo spread by uncooperative prison inmates and staff, we cannot say, notwithstanding certain infirmities in the defendant’s investigation, that the trial
Finally, the plaintiff, in challenging the reasonableness of the remedial measures taken by the defendant following her April, 1992 complaint, asserts that a transfer to another institution was not an acceptable remedy, inasmuch as it would have penalized her rather than her harassers. She also argues that the offer of a transfer came too late because, by August, 1992, she was medically unfit to work in a prison setting. We are not persuaded by the plaintiffs arguments.
We first note that on April 2, the day after the plaintiff made her second complaint, Major Pizighelli issued a notice condemning sexual harassment, which was read at roll call for the succeeding seven days. Because this immediate response to the sexually offensive rumors and comments included an admonition regarding the disciplinary action that would be taken against anyone found to be in violation of the defendant’s sexual harassment policies, it constituted a good faith effort by the defendant to address the problem. Because the warnings alone were not likely to put an end to the circulation of rumors and comments concerning the plaintiff,
We also are not persuaded that the trial court was required to conclude that the defendant’s offer of a transfer came too late. Although we do not diminish the psychological effect that the harassment had on the plaintiff, her own suggestion, in August, 1992, to transfer to Camp Hartell seriously undermines her claim that she was unable to work in any prison setting. Moreover, the mere possibility that, by virtue of transfers of personnel and inmates among facilities, the rumors might recur at a different institution does not, in light of the other relevant circumstances, compel a conclusion that
II
The plaintiff also claims that the trial court improperly rejected her claim of constructive discharge. The plaintiff asserts that her decision, in August, 1992, to take a permanent medical leave without pay constitutes a constructive discharge because the defendant, by failing to put an end to the harassment she faced at work for nearly two years, created a work environment so hostile that any reasonable person in her position would have left. We disagree.
“Normally, an employee who resigns is not regarded as having been discharged, and thus would have no right of action for abusive discharge. . . . Through the use of constructive discharge, the law recognizes that an employee’s ‘voluntary’ resignation may be, in reality, a dismissal by an employer.” (Citation omitted; internal quotation marks omitted.) Seery v. Yale-New Haven Hospital, 17 Conn. App. 532, 540, 554 A.2d 757 (1989). “Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.” (Emphasis added.) Chertkova v. Connecticut General Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996); accord Seery v. Yale-New Haven Hospital, supra, 540. “Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” (Internal quotation marks omitted.) Chertkova v. Connecticut General Life Ins. Co., supra, 89. Accordingly, “[a] claim of constructive discharge must be supported by more than the employee’s subjective opinion that the job conditions have become so intolerable that he or she was forced to resign.” Seery v. Yale-New Haven Hospital, supra, 540.
The judgment is affirmed.
In this opinion CALLAHAN, C. J., and BORDEN and MCDONALD, Js., concurred.
The American Federation of State, County and Municipal Employees, Local 1565 (union) also was a defendant in this action. Before trial, however, the plaintiff and the union reached a settlement. Accordingly, references in this opinion to the defendant are to the department of correction.
The correctional center houses both maximum and minimum security risk inmates.
The training program included, among other things, instruction on issues relating to sexual harassment and on how to deal with abusive treatment from inmates.
The term “Charlie Unit” refers to cellblock “C.”
The trial court’s memorandum of decision contains no mention of the four interviews conducted by Moore or of the incident report Moore filed regarding those interviews. The plaintiff, however, does not dispute the fact that Moore questioned the four correction officers regarding the rumors reported to her by the plaintiff. We note that Moore was deceased at the time of the trial in this case.
At trial, Langner testified that he recalled that only inmates, and not staff, were alleged to have been spreading the rumors about the plaintiff. Moreover, a memorandum that Langner received from Captain Riddick regarding Trimmer’s comments stated that the plaintiff had reported Trimmer’s comments to Riddick in a joking manner.
Following the August, 1991 incident, the plaintiff periodically asked her supervisors whether they had heard malicious rumors or comments about her from inmates or other correction officers. The plaintiffs supervisors indicated that they had not heard any such rumors or comments.
Arasimowicz, however, was transferred to another prison facility in September, 1991.
The defendant’s employee assistance program provides counseling referrals, substance abuse treatment and advice concerning opportunities for legal redress in certain circumstances.
We note that, at the time of the plaintiffs August, 1991 incident report, the defendant did not have in place an official policy regarding sexual harassment. The defendant’s employee handbook, however, contained a
The notice provided as follows: “Employees shall not engage in sexually harassing conduct. Conduct which shall constitute sexual harassment includes but is not limited to:
“a. Any sexual flirtation, touching, advance or proposition;
“b. Verbal abuse of sexual nature;
“c. Any graphic or suggestive comment about an individual’s dress or body; “d. Sexually degrading words to describe an individual;
“e. The display in the workplace of sexually suggestive objects or pictures, including nude photographs;
“f. Making a comment and/or circulating a rumor which embarrasses, ridicules or demeans a person because of the individual’s gender or sexual orientation; or
According to the plaintiff, Major Pizighelli had informed her that the paperwork regarding the status of the complaint was misplaced.
At trial, however, Barnes testified that he had lied to Pizighelli due to pressure from the union. He stated that the rumors about the plaintiff were generated by officers who were in the plaintiffs class at the training academy, and that employees holding management positions with the defendant— i.e., persons with the rank of lieutenant or higher — had participated in spreading the rumors. Barnes was dismissed by the defendant in 1993 following a conviction for receiving stolen property.
Prior to taking medical leave in May, 1992, the plaintiff had observed graffiti inside the prison, as well as a small, hermaphroditic figure that was accompanied by the word “he man” and scratched into the wall of a shack located near the guardhouse gate, both of which she believed referred to her.
As a consequence of the telephone call, the plaintiff became frightened and refused to obey an order from a superior officer to supervise the feeding of inmates in one of the prison dormitories.
In addition, Warden Gillis had contacted the employee assistance program about the sexually harassing rumors, and a representative of that program also contacted the affirmative action unit. Under the provisions of the defendant’s sexual harassment policy, however, the defendant was required to report any complaints of sexual harassment directly to the affirmative action unit.
Without such a statement, the terms of the contract between the state and the union precluded the state from taking any disciplinary action against Barnes.
Neither the affirmative action unit nor Warden Gillis, however, sought to interview the correction officers who had attended the training academy at the same time as the plaintiff.
With the exception of hardship cases, the contract between the defendant and the union provides that any transfer between institutions is subject to seniority rights. Pierpont sought and received authorization to offer the plaintiff a hardship transfer to Niantic.
In March, 1993, the plaintiff filed a workers’ compensation claim, alleging that the rumors regarding her sexuality had brought on depression that necessitated regular medication and psychotherapy. The plaintiff ultimately settled her claim for $62,000.
General Statutes § 46a-100 provides: “Discriminatory employment practices. Cause of action upon release from commission. Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82, alleging a violation of section 46a-60 and who has obtained a release from the commission in accordance with section 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred or in which the respondent transacts business, except any action involving a state agency or official may be brought in the superior court for the judicial district of Hartford-New Britain.”
General Statutes § 46a-101 (a) provides: “No action may be brought in accordance with section 46a-100 unless the complainant has received a release from the commission in accordance with the provisions of this section.”
The complaint also sought attorney’s fees, costs and prejudgment and postjudgment interest.
General Statutes § 46a-60 provides in relevant part: “Discriminatory employment practices prohibited, (a) It shall be a discriminatory practice in violation of this section:
“(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s . . . sex . . .
“(8) For an employer, by himself or his agent, for an employment agency, by itself or its agent, or for any labor organization, by itself or its agent, to harass any employee, person seeking employment or member on the basis of sex. ‘Sexual harassment’ shall, for the purposes of this section, be defined as any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when . . . (C) such conduct has the purpose or effect of substantially interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment. . . .”
General Statutes § 46a-70 provides in relevant part: “Guarantee of equal employment in state agencies, (a) State officials and supervisory personnel
“(b) All state agencies shall promulgate written directives to carry out this policy and to guarantee equal employment opportunities at all levels of state government. They shall regularly review their personnel practices to assure compliance.
“(c) All state agencies shall conduct continuing orientation and training programs with emphasis on human relations and nondiscriminatory employment practices.
“(d) The Commissioner of Administrative Services shall insure that the entire examination process, including qualifications appraisal, is free from bias.
“(e) Appointing authorities shall exercise care to insure utilization of minority group persons.”
General Statutes § 46a-69 provides: “Discriminatory practices by state. It shall be a discriminatory practice to violate any of the provisions of sections 46a-70 to 46a-78, inclusive.”
The plaintiffs complaint originally did not include a count alleging constructive discharge. At the conclusion of the trial, however, the court granted the plaintiff permission to file an amended complaint including that claim.
The defendant has not challenged this determination for purposes of this appeal.
The plaintiff challenges the trial court’s factual finding that the defendant offered to transfer her to any other state correctional facility. At trial, the plaintiff testified that the only discussion concerning transfers that she recalled occurred in May, 1992, when she met with Scott and Garvey, who, according to the plaintiff, recommended that she consider Camp Hartell. She also points out that she never received anything in writing concerning a transfer, and that the recommendations for transfers in the affirmative action unit’s report do not include either Camp Hartell or Niantic. With respect to Niantic, she contends that if the defendant did make such an offer, it did not occur in September, 1992, as the defendant asserts, but, instead, no earlier than May, 1993, when it was mentioned in a memorandum from Scott to Warden Gillis. The trial court, however, evaluated the conflicting evidence on this issue and chose to credit the evidence adduced by the defendant.
Section 2000e-2 (a) of title 42 of the United States Code provides: “It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to 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; or
“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
Although this case was brought alleging a hostile work environment caused by the plaintiffs coworkers, it is worthy of note that the United States Supreme Court, in two recently issued opinions, has clarified the standards for imputing liability to an employer for certain harassing conduct on the part of a supervisor, reducing, to some extent, the importance of the distinction between the two theories for sexual harassment claims. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Faragher v. Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998). Historically, the lower federal courts had held an employer vicariously liable if an employee established a quid pro quo claim. Burlington Industries, Inc. v. Ellerth, supra, 751-52. In Ellerth, the court addressed the issue of whether an employer also may be held vicariously liable for a supervisor’s harassment “where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?” (Internal quotation marks omitted.) Id., 753. The court rejected the notion that “the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability.” (Emphasis in original.) Id., 754. The court, instead, held: “An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages .... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. ... No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.” (Citation omitted.) Id., 765; accord Faragher v. Boca Raton, supra, 807-808. The court, however, did not alter the standards for establishing a hostile work environment or for imputing liability to an employer for a coworker’s harassing conduct.
We note that the trial court, in setting forth the legal principles governing an employer’s remedial obligation, variously referred to the standard for imputing liability as the failure to take “prompt remedial action,” “inaction or lack of adequate action,” and doing “little or nothing” about the harassment. Notwithstanding the seeming inconsistencies among these articulations, the plaintiff, at oral argument, expressly disavowed any claim that the trial court had applied an improper legal standard.
The United States Supreme Court recently observed that “[United States] Courts of Appeals in sexual harassment cases have properly drawn on standards developed in cases involving racial harassment. . . . Although racial and sexual harassment will often take different forms, and standards may not be entirely interchangeable, we think there is good sense in seeking generally to harmonize the standards of what amounts to actionable harassment.” (Citations omitted.) Faragher v. Boca Raton, supra, 524 U.S. 787 n.1.
The plaintiff adduced no evidence challenging Langner’s judgment in deciding not to interview other inmates.
The plaintiff also underscores that fact that the defendant, at that time, “did not even have an official policy against sexual harassment . . . .” “However, there is no basis for a per se rule that the absence of a written sexual harassment policy, standing alone, permits a finding that the employer has failed to provide [a] reasonable avenue for complaint or that the employer knew of the harassment but did nothing about it.” (Internal quotation marks omitted.) Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1180 (2d Cir. 1996).
That the spreading of rumors and gossip in a maximum security prison is likely to be more difficult to address than similar conduct in a more traditional work environment cannot be reasonably disputed.
In support of her claim that the defendant’s investigation was inadequate, the plaintiff cites to several cases involving harassment investigations that, she claims, were more extensive than that of the defendant, but in which the court, nonetheless, found them to be insufficient. See Amirmolcri v. Baltimore Gas & Electric Co., 60 F.3d 1126, 1131-32 (4th Cir. 1995) (trial court’s summary judgment in favor of defendant employer reversed on appeal because genuine issues of fact existed as to whether defendant’s investigation of harassment was sufficient); Fuller v. Oakland, 47 F.3d 1522, 1529 (9th Cir. 1995) (trial court’s judgment in favor of defendant employer reversed because evidence definitively established that employer’s investigation was seriously flawed); Carr v. Allison Gas Turbine Division, General Motors Corp., 32 F.3d 1007, 1012 (7th Cir. 1994) (same); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), cert. denied, 513 U.S. 1082, 115 S. Ct. 733, 130 L. Ed. 2d 636 (1995) (same). The responses of the employers in these cases, however, bear little similarity to the investigative efforts undertaken by the defendant. Therefore, we find no support 'for the plaintiffs claim in these cases.
The plaintiff also compares the scope of the investigation in this case to the more extensive investigation conducted by the employer in Hirras v. National R. Passenger Corp., supra, 95 F.3d 396, which a panel of the Fifth Circuit Court of Appeals determined to be adequate. We reject any claim, however, that the scope of the investigation conducted in Hirras establishes a floor below which an investigation will be deemed to be inadequate. The determination of whether an investigation is reasonable will necessarily depend on all of the facts and circumstances of the particular case.
The fact that inmates as well as staff had made sexually offensive comments reduced the likelihood that warnings to staff about the consequences of sexual harassment would suffice to remedy the situation.
Dissenting Opinion
dissenting. In light of the gravity of the sexual harassment endured by the plaintiff, Elizabeth Brittell, the severity and persistence of that harassment,
Title VII of the Civil Rights Act of 1964 (Title VII) makes employment discrimination based on sex illegal.
I begin by reviewing the trial court’s findings, other undisputed facts, and the record as a whole to demonstrate the full extent of the defendant’s failure to take reasonable action to remedy the hostile work environment at the correctional center.
(1) In August, 1990, when the plaintiff was assigned to work at the correctional center, the defendant did not have in place an official policy regarding sexual
(2) In August, 1991, the plaintiff notified the defendant that the rumors circulating about her — that she was a “half-man homo” — had made it uncomfortable for her to work at the correctional center. On August 13, 1991, after learning from an inmate in her cellblock, Thomas Trimmer, that one or more of her fellow correctional officers had started and spread these sexually hostile rumors, including the officer “who relieved her when she worked in Charlie Unit,”
(3) In late August, 1991, the plaintiff met with the defendant’s Deputy Warden Donald Arasimowicz, and informed him that, even though the comments had subsided in her current post in F block, she feared a renewal of such rumors when she received a new assignment in a different cellblock.
(5) The defendant failed to do the following in response to the plaintiffs complaint: (a) Interview the officer who relieved the plaintiff when she worked in C block; (b) interview other inmates or officers in her current cellblock, F block, to determine if anyone else had heard the rumors; (c) meet with the plaintiff in the fall and winter of 1991 to monitor the situation; (d) provide the plaintiff with a status report, including results of its investigation and steps it had taken to eliminate the sexually hostile work environment; (e) inform the plaintiffs supervisors of the plaintiffs allegations; and (f) call in the affirmative action unit, or internal affairs unit to investigate the plaintiffs allegations.
(6) The harassing comments recurred near the end of March, 1992. At that time, officer Vemetha Gibson informed the plaintiff that officers Tracey Felton and Kenneth Barnes had been making comments to the inmates about the existence and size of the plaintiffs supposed male genitalia. Moreover, on two separate occasions between January, 1992, and March 30, 1992, “she observed a small hermaphroditic figure scratched into [a] wall with the word ‘heman’ near the guardhouse
(7) The plaintiff promptly informed Major Mario Pizighelli on April 1,1992, of her concern that staff members were making comments about her sexuality to other staff members and to inmates.
(8) On April 22, 1992, the plaintiff filed a written complaint with Warden Robert J. Gillis in which she detailed the sexually harassing comments that had been made about her by inmates and unnamed officers in each of her prior assignments over the last one and one-half years. She claimed that these comments placed her in danger and that she should be removed from contact with the general inmate population until the rumors had ceased and the responsible correctional officers had been disciplined. Notwithstanding the clear mandate in administrative directive 2.2 that all administrators at the correctional center were to notify the affirmative action unit of all sexual harassment complaints, Gillis failed to inform the affirmative action unit of the plaintiffs complaint. Compelled by the inaction of the defendant, the plaintiff contacted the unit herself on April 30, 1992, and subsequently filed a formal complaint on May 18.
(9) On April 23, 1992, approximately three weeks after it received the plaintiffs complaint about the
(10) On or about the same day, the plaintiff was again subjected to harassing comments regarding her sexuality from Douglas Franklin, an inmate, who referred to her as a “half-man bitch.” The incident had a devastating effect on the plaintiff, leaving her emotionally distraught. After reporting the incident to her immediate supervisors, she told them she could not continue working in such a hostile work environment, and then she took a leave from the correctional center.
(11) Less than one week later, on April 28, 1992, the plaintiff met with Pizighelli and provided him with the names of three correction officers — Gibson, Barnes and Ricardo Flores — that she believed could identify those responsible for the rumors concerning her sexuality. Up until that point, Pizighelli had not interviewed any of the plaintiffs coworkers. It took Pizighelli more than one week to complete the interview of these three officers.
(12) On May 7, 1992, Pizighelli met with the plaintiff at her request. At this meeting, or one of his earlier meetings with the plaintiff, Pizighelli was notified that he should speak with Felton regarding the origination and/or the spreading of the harassing rumors. Pizighelli, however, never interviewed Felton.
(13) The plaintiff also was placed on sick leave, effective May 9, 1992. While on sick leave, on May 14, 1992, she met with Ana T. Scott and Michelle Garvey of the defendant’s affirmative action unit to discuss her sexual harassment complaint. At this meeting, the plaintiff asked Scott and Garvey to interview officers Felton,
(14) On August 6,1992, Scott and Garvey finally interviewed some of the persons on the plaintiffs eleven person list: noticeably absent from the one day interview session was Felton, the same person whom Pizighelli had failed to interview, and one of the officers who attended the training academy with the plaintiff.
(15) After conducting these interviews, Scott and Garvey found the harassing rumors had been spread by unnamed officers and that the rumors originated at the academy, and they recommended that Gillis transfer the plaintiff to another institution within reasonable commuting distance of New Haven. They refused to recommend any further action because they stated they could not establish who was responsible for the rumors.
(16) When Gillis received the report of the affirmative action unit he interpreted it to be the close of the investigation. Gillis then met with the plaintiff, and informed her that he could not assure her that the rumors had stopped. He also told her that in the immediate future, she was to be treated “as a member of the regular work force,” and “that she would have to return to the regular rotation cycle . . . applicable to all correction officers” — that is, she could no longer work in the guardhouse away from inmates and most of her fellow officers. The plaintiff refused to return to the cellblocks and dormitories of the inmate areas because she felt
(17) At his final meeting with the plaintiff in August, 1992, Gillis discussed the option of transferring her to another correctional institution. The plaintiff resisted this move because she was worried that the harassment would continue because correction officers and/or inmates from the correctional center would eventually be transferred to her new location.
(18) The plaintiff continued on unpaid medical leave from August 25, 1992 to April, 1994. While on medical leave, the defendant offered her a hardship transfer to one of its facilities in either Cheshire or Niantic. After failing to submit necessary medical documents in April, 1994, the plaintiff was considered to have resigned.
The plaintiff must establish the following five criteria to prove the defendant should be held hable for a hostile work environment: “(1) she belongs to a protected class; (2) she was subject to unwelcome sexual harassment; (3) the harassment was based on sex; (4) the harassment affected a term, condition, or privilege of employment. . . and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.” Hirras v. National R. Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996), citing Jones v. Flagship International, 793 F.2d 714, 719-20 (5th Cir. 1986), cert. denied, 479 U.S. 1065, 107 S. Ct. 952, 93 L. Ed. 2d 1001 (1987). The trial court found that the plaintiff established the first four criteria, but not the fifth. Therefore, as the majority correctly points out, the plaintiff bears the burden on appeal of proving that the trial court’s determination that the defendant had taken reasonable steps to eliminate the harassment was clearly erroneous.
The reasonableness of the defendant’s remedial actions in a sexual harassment case depends upon several factors. The most relevant factors for our analysis
The harassment reported by the plaintiff was frequent and of the utmost gravity. Gillis testified that by causing and perpetuating this harassment of the plaintiff, his employees had created “one of the most serious security issues that can develop in a correctional institution.” Moreover, Gillis and Arasimowicz knew as early as August, 1991, that the rumors had affected the plaintiffs psyche and that she was worried they would recur in her next assignment and that she would have a difficult time gaining the respect of the inmates in another cellblock. Furthermore, Pizighelli testified that, in May, 1992, the plaintiff was very distraught and had lost confidence in her ability to perform her duties as a result of the sexual harassment. Indeed, Storey informed Scott and Garvey of the affirmative action unit in August, 1992, that he thought the plaintiffs life would be endangered if she were assigned to a cellblock again.
The harassment was severe and persistent. First, the trial court concluded that the sexual harassment was severe or pervasive enough to alter the conditions of the plaintiffs employment and to create an abusive working environment. Second, the plaintiff offered medical testimony that her prolonged exposure to harassment initiated by her fellow officers had caused her severe or moderately severe mental depression that
The defendant’s initial remedial steps did not eliminate the hostile working environment at the correctional center. Although the law does not require that an employer’s response to a sexual harassment complaint be perfect; Knabe v. Boury Corp., 114 F.3d 407, 412 (3d Cir. 1997); it does require the response to be adequate. Although the trial court found that the rumors had subsided for a period of time after the August, 1981 incident, it never found that the hostile environment had ceased at any point. Less than seven months after she first complained of the harassment, the plaintiff was confronted with graffiti and a cartoon that she felt were directed toward her alleged “half-man homo” status. The plaintiff also was informed by a fellow officer that two other officers were spreading rumors about the existence and size of her supposed male genitalia. Moreover, nine months after the plaintiff filed her first complaint, and one month after she filed her second complaint, the harassment had become so severe that the plaintiff was given permission to take a temporary medical leave of absence. Furthermore, three months after the plaintiff filed her second complaint, the defendant conceded to her that it had not and could not stop the harassing rumors. Indeed, the defendant’s decision to transfer the plaintiff to another correctional facility after receiving the affirmative action unit’s finding of a hostile working environment at the correctional center was an implicit admission that, because its remedial
The nature of the plaintiffs work environment at the correctional center, a maximum security prison staffed by persons who adhered to a code of silence, does not excuse the defendant for its slow and inadequate responses to the plaintiffs complaints. An employer cannot sit back and wait for complaints from its employees. Hansel v. Public Service Co., 778 F. Sup. 1126, 1133 (D. Colo. 1991). It was the defendant’s duty to conduct an investigation, not the plaintiffs.
The defendant’s remedial actions were not reasonable because it did not utilize all the resources available to eliminate the sexual harassment inflicted on the plaintiff. First, the defendant failed to disseminate a formal policy on sexual harassment prior to the plaintiffs first complaint of sexual harassment. Consequently, its employees, supervisors and officers alike, were not fully aware of the severity of the plaintiffs initial claims in August, 1991. Moreover, because the statement was not tied to an established policy, or to the clear disciplinary guidelines of the employee manual or of Title VII discrimination cases, most employees probably did not understand the importance of the defendant’s statement.
Second, the defendant never sought to have the affirmative action unit, a unit designed to respond to complaints of discrimination, investigate the plaintiffs complaints. In a work environment like a prison, where it is essential to maintain security and confidentiality, the harassment investigation “should be conducted by someone outside the concerned department, such as a personnel manager, or even [from] outside the [defendant], such as an outside counsel. Both the alleged harasser and his victims should be interviewed and written statements obtained. Other employees with knowledge should be interviewed and statements obtained from them as well. Confidentiality must be maintained during this process. A detailed report, which includes a recommendation, should be prepared by the investigator. Finally, the results of the investigation should be communicated to both the complainant and the victim.” H. Comisky, “ ‘Prompt and Effective
Finally, the defendant abdicated its responsibility to preserve confidentiality in the investigative process. The defendant knew that one of the inmates, Trimmer, had implicated one or more officers in C block in spreading the harassing rumors. The defendant, however, refused to interview any officers or inmates in C block to verify this allegation. According to Langner, it was not reasonable to interview staff and/or inmates about Trimmer’s allegation because “they may start talking to someone else about the subject and other people may hear what is going on. . . . It is just something you wouldn’t want to put in anybody’s ears but the person or people involved in the incident itself.” It is illogical and inconsistent with the goals of Title VII for the defendant to justify its inadequate investigation of the plaintiffs complaint that harassing rumors were being spread by a fellow officer by arguing that a more thorough investigation would have resulted in more rumors being spread. Because it is the employer’s responsibility to remedy harassment in the workplace, it is equally the employer’s responsibility to prevent harassment from arising in the investigative process.
In conclusion, the defendant’s actions failed to satisfy either of “the twin purposes of ending the current harassment and deterring future harassment — by the same offender or others.” Fuller v. Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995). Because the defendant’s
Accordingly, I dissent.
Title 42 of the United States Code § 2000e-2 provides in relevant part: “(a) It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to 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 . . . .”
See Equal Employment Opportunity Commission Compliance Manual (CCH 1980) § 615, ¶3114, p. 3267 (compliance manual). The commission derives its authority to issue guidelines on employment discrimination, including sexual harassment, from 42 U.S.C. § 2000e-16 (b).
“Charlie Unit’' represents C block at the correctional center.
No documentary evidence of such a reminder or its content was admitted at trial. Moreover, no one, including Arasimowicz and Warden Robert J. Gillis, had any idea about the form or content of the reminder or to whom the reminder was given. Furthermore, there was no testimony as to how many times this message was given to the staff members.
Although Pizighelli replaced Langner, he was not aware that the plaintiff had made a prior complaint in August, 1991, concerning similar harassing comments.
A complainant, such as the plaintiff, cannot be expected to conduct her own investigation of the harassment because it could possibly expose her to more hostility from her coworkers.
Pizighelli and the affirmative action unit failed to interview Felton, even though he attended the training academy with the plaintiff, and the defendant knew or had reason to know that the rumors originated at the academy.
