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Rosario v. Dept. of the Army, No. 08-2168 (1st Cir. June 2, 2010)

| Jun 1, 2010 | Daily Developments in EEO Law |

The district court in this Title VII sex-harassment action believed — bottom-line — that the alleged harasser in this case was merely “a rude man that [sic] lacked courtesy and professionalism.” But the First Circuit reverses summary judgment and finds enough evidence to warrant a trial over whether the behavior was severe or pervasive, and motivated by sex.

Rosario v. Dep’t of the Army, No. 08-2168 (1st Cir. June 2, 2010): The plaintiff was a medical records technician, a civilian position, and Ivan Arroyo was Rosario’s supervisor. The summary judgment record included evidence that Arroyo singled the plaintiff out for mistreatment:

“Arroyo’s treatment of Rosario and others at the clinic became abusive on a daily basis. He would throw medical records around, throw personal belongings into the trash, and disparage his co-workers with derogatory names and racial comments. According to Rosario, an African-American woman identified as Private Carter broke down in tears at one point and ultimately left
the section ‘due to the continue[d] daily hostile environment cause[d] by [Arroyo].’ In late April, according to Rosario, Arroyo started to make her life miserable by, inter alia, constantly
complaining about the way she dressed, always watching the clock when she conversed with patients, and ‘telling doctors [who worked at the clinic] about [his] personal opinion about my person.’ She claimed he would complain about her spending time talking with patients, but made no comments when other employees talked or joked with them.”

Arroyo disparaged Rosario’s clothes as too revealing, “walk[ed] behind her and ma[de] faces as he looked at the person with whom she was speaking. . . . He threw away Rosario’s food and removed the other items from her desk.” These activities were carried out daily for some two years.

The nub of the defense is that Arroyo’s rude behavior, such as it might have been, was motivated by performance not gender. Arroyo wrote the plaintiff up for dress violations, though the “evidence presented at the EEO hearing supports her contention that her clothing was always appropriate. [Supervisors] Maldonado, Hernández and Cournier all testified that they did not consider her attire inappropriate, and Rosario asserted that her nearly twenty years of experience in the private and government sectors provided her with ‘the knowledge [of] what to wear or not.’ Indeed, Arroyo acknowledged at the EEO hearing that, after March 2002, her clothing had improved ‘300 percent’ and he considered her attire proper.” The plaintiff complained to the agency, but the investigation ended with findings in support of Arroyo.

The First Circuit holds that although Arroyo did not touch Rosario or express any sexual interest in the plaintiff, the record presented a triable issue of fact about whether the abuse was motivated by sex, as required by Title VII:

“Although the sexually oriented jokes reported . . . may not have amounted to much on their own and were of uncertain frequency – indeed, Rosario did not cite them in the report attached to her administrative complaint – they nonetheless suggest a lack of respect by Arroyo for his female colleagues, lending weight to the inference that his behavior toward Rosario was inappropriately motivated by gender. That was not, however, the only evidence that his conduct was “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Maldonado testified that Arroyo treated
other females who worked at the clinic similarly, observing that ‘[h]e’d just intimidate them.’ Maldonado named Private Carter in particular and stated that Arroyo ‘drove her nuts.’ Arroyo’s
repeated conversations with others about Rosario’s underwear ‘and especially her panties’ (as reported by Hernández), as well as his references to her as a woman of the streets in conversations with Maldonado and ‘other guys,’ provides addition al support for a finding that his behavior toward Rosario was sex-based.”

Moreover, “[t]he fact that certain of the complained-of conduct appeared to have no sex-based connotation at all – for example, throwing her food away and removing items from her desk – does not diminish the force of the evidence indicating gender-based animus. Indeed, as we have noted, such acts may be added to the mix in assessing a hostile work environment claim.” And although the record revealed that Arroyo also abused male employees, “[t]he record as a whole would thus permit a reasonable jury to conclude that Rosario was exposed to harassment that differed in both kind and degree from that imposed on male employees.”

Thus, the panel reverses summary judgment and remands the claim for trial

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