AREAS OF INTEREST: Title VII – Sexual Harassment
LEGAL IMPACT: Reversal of trial court’s decision granting summary judgment in favor of employer on Title VII hostile work environment and quid pro quo sexual harassment claims where employee alleged three incidents of offensive conduct by supervisor followed by employee’s demotion.
Gerald v. University of Puerto Rico, et al, First Circuit Court of Appeals, No. 11-2143 (January 28, 2013)
The plaintiff, Dr. Melissa Gerald, was a scientist employed by the University of Puerto Rico as an Associate Professor at its Caribbean Primate Research Center (“CPRC”). The defendant, Edmundo Kraiselburd, was the Director of the CPRC and Gerald’s immediate supervisor.
Gerald and Kraiselburd engaged in a brief sexual affair during a conference which they attended together, however, on their return to the university campus Gerald rejected Kraiselburd’s interest in pursuing the relationship. Approximately two years later, within a period of three months, Kraiselburd allegedly committed three acts of sexual harassment toward Gerald, including: 1) grabbing her breast; 2) sexually propositioning her; and 3) crassly asking her in the presence of others why she would not have sex with him. Kraiselburd denied the claims and insisted that he and Gerald often bantered and exchanged off-color remarks and jokes of a sexual nature.
Subsequently, Kraiselburd informed Gerald that pursuant to a restructuring she would be relieved of her administrative duties and colony management responsibilities. Her title was changed to Resident Scientist and her bonus reduced from $800 a month to $200 a month. Kraiselburd claimed that the change was made due to concerns with Gerald’s job performance. However, Gerald was also promoted to Associate Professor at the University’s Medical Sciences Campus and given a $1,000 a month pay raise.
Gerald filed an administrative sexual harassment complaint within the university system. The investigating officer concluded that Gerald was not credible and the changes in her job were performance related. The University dismissed the complaint and transferred Gerald to a Staff Scientist position at a different CPRC facility which resulted in a longer commute.
Gerald then filed a complaint with the EEOC and resigned from her Staff Scientist position, claiming that she was unfairly demoted, had no work, was seeking help for depression and was being forced to sacrifice time with her daughter due to the extended commute. The EEOC issued a right to sue letter, and Gerald brought a Title VII sexual harassment, retaliation and constructive discharge claim, as well as state law claims, against the University and Kraiselburd.
The federal district court granted summary judgment in favor of the defendants on all claims, ruling that Gerald could not show that: 1) Kraiselburd’s conduct was severe or pervasive; 2) her employment hinged on her acceptance of Kraiselburd’s sexual advances; 3) she suffered an adverse employment action; or 4) her work conditions were so oppressive that she was forced to resign. Gerald appealed.
HOLDING: Affirmed summary judgment in favor of defendant as to retaliation and constructive discharge claims. Vacated and remanded Title VII hostile work environment and quid pro quo sexual harassment claims for further proceedings.
Sexual Harassment – Hostile Work Environment:
The Court ruled that Gerald’s sexual harassment claims based on hostile work environment were sufficient to overcome a summary judgment motion. To prevail on a hostile work environment claim the plaintiff must show: 1) membership in a protected class; 2) unwelcome sexual harassment; 3) which was based on sex; 4) was sufficiently severe or pervasive; 5) was objectively and subjectively offensive; and 6) that some basis for employer liability has been established. The Court found that the first three requirements were easily established. It then concluded that the three incidents, which included sexual propositioning and uninvited touching, could reasonably be viewed as offensive and severe, noting that a single act of harassment may, if egregious enough, be sufficient to evince a hostile work environment. Since Kraiselburd was Gerald’s supervisor, a sufficient basis for employer liability was established. The Court also ruled that although Gerald managed to get work done, a jury could still find that the harassment affected her employment.
Sexual Harassment – Quid Pro Quo:
Quid pro quo sexual harassment occurs when a supervisor uses his superior position to extract sexual favors from a subordinate and, if rebuffed, retaliates by taking action that adversely impacts the subordinate’s employment. Gerald alleged that Kraiselburd used his position to demote her because she rejected his sexual advances. After reviewing several email communications between Gerald and Kraiselburd, the Court found that there was sufficient evidence from which a jury could conclude that Kraiselburd based his decisions on Gerald’s reaction to the unwelcome harassment.
Title VII prohibits retaliation by an employer against an employee who has opposed an unlawful employment practice. The employee must show that: 1) she engaged in a protected activity; 2) she suffered an adverse employment action; and 3) the adverse employment action was causally connected to the protected activity. The Court ruled that although Gerald’s filing of an administrative complaint was a protected activity, she failed to show what specific, wrongful actions the University took against her after she filed the complaint. Since she failed to show that she suffered a materially adverse employment action, the trial court properly granted summary judgment as to the
Constructive discharge occurs when harassment is so severe and oppressive that staying on the job while seeking redress - the rule in all but exceptional cases – is “intolerable”. The Court ruled that Gerald failed to show that her working conditions, which included a transfer within the CPRC, a net gain in income and some slight commuting inconveniences and costs, had become so intolerable that a reasonable person in her position would feel forced to resign rather than stay on the job while seeking redress. Furthermore, the fact that she resigned more than a year after the last act of harassment and eight months after she was transferred to the laboratory came too late to be deemed a constructive discharge.