ORDER ON DEFENDANT POSTMASTER GENERAL'S MOTION FOR SUMMARY JUDGMENT
Claiming sex discrimination, sexual harassment, andretaliation, Randall Oakstone has filed a civil rights actionunder Title VII against the Postmaster General. Mr. Oakstoneclaims the Postal Service, uncritically accepting demonstrablyfalse allegations of physical abuse, has taken sides in favor ofa female non-supervisory co-employee against him by reassigning,harassing, and demoting him. This Court denies the PostalService's Motion for Summary Judgment. There are factualquestions as to whether in lodging a false complaint of male onfemale physical abuse, Ms. Philbrook, a co-worker, engaged in anact of impermissible gender bias under Title VII and whether thePostal Service in undertaking tangible employment actions againsthim despite knowing these charges were false, should be heldresponsible as his employer under Title VII.
I. Statement of Facts.1 Randall Oakstone and Ramona Philbrook were lovers. From July 1,1994 to April 1, 1997, Mr. Oakstone and Ms. Philbrook wereinseparable and contemplated marriage. On April 1, 1997, forreasons both immaterial and complex, Mr. Oakstone decided tobreak off the relationship. The break was not clean. Ms.Philbrook initially refused to accept the fact the relationshiphad ended. In April and May 1997, she repeatedly attempted toconvince him to reconsider.
Mr. Oakstone and Ms. Philbrook were also employees of theUnited States Postal Service; each worked at the Hampden MaineDistribution Center. Some time in late April or early May 1997,Ms. Philbrook presented Mr. Oakstone with an ultimatum: shedemanded they discuss the conflict in their relationship. Mr.Oakstone refused, saying there was no more relationship todiscuss. When Mr. Oakstone punched out of work that day, Ms.Philbrook confronted him in the parking lot. She followed Mr.Oakstone as he walked to his truck and demanded they discusstheir personal issues. When he refused, she hung onto him andwent limp in an effort to prevent him from entering his vehicle.He did not touch Ms. Philbrook, but responded loudly.2
The hubbub attracted the attention of postal supervisors, whoasked them if they needed assistance. They both responded "No,"and explained it was a personal matter. They tried EAP counseling, which was unsuccessful, and in lateMay 1997, Mr. Oakstone began to see other women. When Ms.Philbrook found out, she cooled considerably and since June 1997,they have not spoken. They have not work together either. InDecember 1998, Mr. Oakstone became engaged to his currentwife.3
In February 1999, a fill-in position as an inside and outsideexpediter opened up and Mr. Oakstone expressed an interest in theposition. Carolyn Smith, the supervisor, assigned Mr. Oakstone totrain as a fill-in inside and outside expediter, positionsrequiring a close working relationship with Ms.Philbrook.4 The expediter positions provided Mr. Oakstonewith additional overtime opportunities and a Level 6 pay rate,higher than his regular Level 5 rate.
Ms. Philbrook spoke up. She went to Ms. Smith and protested Mr.Oakstone's assignment. She informed her of their past intimacy.She also claimed he had been abusive, specifically referring tothe parking lot incident. She asserted he had physicallyassaulted her, pushed her down and dragged her across the lot;she said she was afraid of him. As noted, these allegations werefalse. She went on to say that Mr. Oakstone had requested theassignment to antagonize her, that he had deliberately hungaround her at work to make her uncomfortable, that he wasmanipulative, and that, if given the opportunity, he wouldantagonize her on the walkie-talkie they were required to use atwork. She demanded Mr. Oakstone not be allowed to train as anexpediter and not be allowed to work with her. Ms. Philbrook'sallegations against Mr. Oakstone were not merely untrue, but wereacts of retaliation against him for having broken off theirrelationship. In response, in February 1999, under the postal service's zerotolerance policy, Ms. Smith suspended Mr. Oakstone's training andinvestigated the allegations.5 She was unable tosubstantiate Ms. Philbrook's allegations against Mr. Oakstone. Atabout the same time, Mr. Oakstone and another co-employeecomplained Ms. Philbrook had a gun on postal premises. Under thesame zero tolerance policy, Ms. Smith placed Ms. Philbrook onadministrative leave while she investigated the allegation; shecould not substantiate that complaint either.
Following these investigations, in an effort to compromise, Ms.Smith attempted through scheduling, to allow Mr. Oakstone thehigher level opportunity while at the same time avoiding unduestress for Ms. Philbrook. On March 17, 1999, "Back-up/AssistPlatform Expediter on Sunday" was officially added to Mr.Oakstone's job description. On March 20, 1999, Ms. Smith stoppedsupervising both Mr. Oakstone and Ms. Philbrook, and the newsupervisor assigned was Jeff Clark.
From late March 1999, when Mr. Clark took over, to the present,the Postal Service has systematically deprived Mr. Oakstone ofexpediter training and work. The basis for its denial of theexpediter opportunity to Mr. Oakstone has been the PostalService's uncritical acceptance of Ms. Philbrook's repeatedallegation that she is unable to work with him, because of a pastabusive relationship. The Postal Service has gone to unusuallengths to prevent Mr. Oakstone from performing expeditor duties,including having supervisors perform the work, letting untrainedjunior employees perform the duties, recruiting and trainingyounger female employees to perform the job, and even leaving theposition vacant. Further, due to Ms. Philbrook's false allegations and Mr.Oakstone's own complaints about them, management at the PostalService adopted a negative attitude against Mr. Oakstone. Theysingled Mr. Oakstone out by imposing movement restrictions on himfrom some time in 1999 to April 2000. They changed his duties inunusual and negative ways, informed him he had an abusiverelationship with Ms. Philbrook, denied him work and overtimeopportunities, monitored and limited his breaks, and gave himmore work and less time to complete it than other employees. Inan effort to entrap Mr. Oakstone, Mr. Clark placed $30 in U.S.currency on the work area floor in Mr. Oakstone's work area inhopes he would pick up the money and be subject to discharge.When another employee picked up the money, Mr. Clark immediatelyclaimed it. This action violated Postal Service procedures andregulations.
In late February 2000, following a labor-management meeting inwhich Mr. Oakstone's complaint was discussed, Mr. Oakstone wasinformed that the Postal Service was eliminating his job. Theelimination of his job was officially announced on March 11,2000, to be effective May 2000. On May 19, 2000, in directretaliation for his complaints, Mr. Oakstone's manual racks jobwas eliminated. Other employees were assigned his manual racksduties. In June 2000, Mr. Oakstone was reassigned to a Level 4job in Automation at a lower rate of pay and at a loss of regulartime and overtime opportunities.
Finally, Postal Service management has allowed Ms. Philbrook todeny Mr. Oakstone participation in common employee activities andto retaliate against employees she perceives are friendly withMr. Oakstone. For example, Ms. Philbrook controlled the "coffeelist," a list of employees who contributed to a pool of money forcoffee. She refused to add Mr. Oakstone to the list and when co-employeessigned up for him under their names, she excluded them as well.The Postal Service acknowledges that Ms. Philbrook has a veryintense and emotional personality and its decision not to assignMr. Oakstone to the inside expediter position was to avoidplacing undue stress on Ms. Philbrook by requiring them tocommunicate by walkie-talkie. Postal Service Supervisor WallySmyth said that Ms. Philbrook had management "over a barrel" andhe was handling Mr. Oakstone's work assignments differently dueto her allegations.
Mr. Oakstone has repeatedly complained to management that Ms.Philbrook's allegations are false and should not be used as abasis for denial of job opportunities and mistreatment. However,the Postal Service has handled Mr. Oakstone's situationdifferently than they have addressed similar complaints by femaleemployees. Despite Mr. Oakstone's requests, the Postal Servicehas never investigated his complaints or taken any correctiveaction to address them. Complaints by female employees ofharassment by male co-workers are promptly investigated and actedupon.
Postal Service standard practice when an employee complains ofsexual harassment or retaliation by a co-employee, is to performa prompt investigation. If the investigation confirms theinappropriate conduct, the standard practice is for the PostalService to instruct both workers to leave their personalrelationship at the door and to treat one another civilly. ThePostal Service recognizes its obligation to make certain that anywork place harassment or retaliation from a failed romance ceaseand to take prompt and effective corrective action to assure theconduct stops. The Postal Service in this case, however, failedto follow its standard practice and instead, treated Ms.Philbrook's false allegations as true and retaliated against Mr. Oakstone byaffecting the terms and conditions of his employment.
As a consequence of the Postal Service's acceptance of Ms.Philbrook's unfounded allegations, Mr. Oakstone has suffered lossof overtime expediter work opportunities, loss of expediter workopportunities at a pay rate higher than his usual rate, loss ofregular pay and benefits, loss of overtime pay and benefits, jobelimination, and demotion. He has also suffered non-economicconsequences, including loss of enjoyment of life and stress.
II. Discussion.
A. Standard For Review.
The Postal Service filed a motion to dismiss or in thealternative a motion for summary judgment.6 The movingparty is entitled to a summary judgment if there is no genuineissue as to any material fact and the moving party is entitled tojudgment as a matter of law. Fed.R.Civ.P. 56(c). The FirstCircuit has defined "material" to mean "a contested fact has thepotential to change the outcome of the suit under the governinglaw if the dispute over it is resolved favorably to thenonmovant." McCarthy v. Northwest Airlines, Inc. 56 F.3d 313,315 (1st Cir. 1995). It has defined "genuine" as "the evidenceabout the fact is such that a reasonable jury could resolve thepoint in favor of the nonmoving party." Id. The moving partymust demonstrate an absence of evidence to support the nonmovingparty's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325(1986).
The trial court is obligated to view the entire record "in thelight most hospitable to the nonmovant" and indulge "allreasonable inferences in that party's favor." Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997); see alsoGriggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). ThisCourt has stated, however, that in discrimination actions,"caution is appropriate when considering summary judgment for anemployer." Bilodeau v. Mega Indus., 50 F. Supp.2d 27, 44 (D.Me. 1999).
B. Title VII: 42 U.S.C. § 2000e.
42 U.S.C. § 2000e provides that an employer may not"discriminate against any individual with respect to hiscompensation, terms, conditions or privileges of employment,because of such individual's race, color, religion, sex, ornational origin."7 Title VII makes it illegal for anemployer to discriminate against an employee on the basis of sex,to create a hostile working environment on the basis of sex, orto retaliate against the employee for making a charge ofdiscrimination. 42 U.S.C. § 2000e-2, 3(a).
C. Retaliation.
This Court can quickly dispose of the Postal Service's motionson the retaliation theory. Other than the blanket statement that"Mr. Oakstone has not alleged sufficient facts to establish thecausation element of any other claim under Title VII, such as. . . retaliation," the Postal Service has failed to address hisretaliation claim in either its initial or reply memorandum.
To make out a prima facie case of retaliation under42 U.S.C. § 2000e-3(a), an employee must show: (1) he engaged in protectedactivity; (2) he suffered adverse employment action after orcontemporaneous with such activity; and, (3) there existed acausal link between the protected activity and the adverse jobaction. Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 38 (1stCir. 2003); Benoit v. Technical Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003); Wyatt v. City of Boston, 35 F.3d 13,15 (1st Cir. 1994). As a matter of law, Mr. Oakstone'sretaliation claim may be viable even if the underlyingdiscrimination claim is not. Benoit, 331 F.3d at 174; Mesnickv. General Electric, 950 F.2d 816, 827 (1st Cir. 1991); Petittiv. New England Tel. & Tel. Co., 909 F.2d 28, 33 (1st Cir. 1990).The employment activity or practice that Mr. Oakstone opposedneed not be a Title VII violation so long as Oakstone had areasonable belief that it was and he communicated that belief tohis employer in good faith. Benoit, 331 F.3d at 174-75;Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,261-62 (1st Cir. 1999).
The record confirms that Mr. Oakstone engaged in protectedactivity. Beginning March 1999, he repeatedly complained tomanagement that Ms. Philbrook was improperly and unlawfullyblocking his training and his work as an expediter in retaliationfor his declining her sexual advances and breaking off theirromantic relationship. He asserted to management that her actionsand its responses violated his Equal Employment Opportunityrights.8
The record also confirms that the Postal Service took "adverseemployment action" against Mr. Oakstone. The First Circuit hasdefined "adverse employment action" as including a variety ofconduct, including "demotions, disadvantageous transfers orassignments, refusals to promote, unwarranted negative jobevaluations, and toleration of harassment by other employees."Hernandez-Torres v. Intercontinental Trading, Inc.,158 F.3d 43, 47 (1st Cir. 1998). Mr. Oakstone has satisfied thiscriterion. The last element is a causal link between the protectedactivity and the adverse job action. In Mesnick, the FirstCircuit described the evidence that may be relevant fordetermining whether causation exists: (1) differential treatmentin the workplace;9 (2) temporal proximity;10 (3)statistical evidence; and, (4) comments by the employer thatintimate a retaliatory mindset.11 Mesnick, 950 F.2d at828. Mr. Oakstone has produced circumstantial evidence ofdifferential treatment, temporal proximity, and commentsindicative of a retaliatory mindset. He has not producedstatistical evidence.
Under the familiar burden shifting analysis mandated byMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Mr.Oakstone has sustained his burden to establish a prima faciecase of retaliation. Under McDonnell Douglas, the burden thenshifts to the Postal Service to articulate a legitimate,non-discriminatory reason for its actions. Because the PostalService did not brief this issue, the Court can only speculatewhy it contends there were such reasons. Although the PostalService, in making its other arguments, has stated Mr. Oakstonewas not singled out for job elimination, it has failed to respondto Mr. Oakstone's other points. Accordingly, this Court findsthat the Postal Service has not sustained its burden ofproduction on the retaliation issue and, therefore, denies itsmotion to dismiss and motion for summary judgment on this part ofMr. Oakstone's claim. D. Sexual Harassment.
1. Gender-Based Harassment.
In its motion, the Postal Service contends it is entitled tojudgment, since the gravamen of Mr. Oakstone's sexual harassmentcomplaint is not sex discrimination, but the spiteful retributionof a former lover.12 The Postal Service argues Ms.Philbrook's retaliation against Mr. Oakstone is not because he ismale; it is because she feels jilted. The Postal Service cites anumber of cases that have ruled against claims arising out offailed office romances. Taken v. Oklahoma Corp. Comm'n,125 F.3d 1366, 1368 (10th Cir. 1997); Huebschen v. Dep't of Health &Social Serv., 716 F.2d 1167, 1168 (7th Cir. 1983); Kahn v.Objective Solutions, Inc., 86 F. Supp.2d 377, 379 (S.D.N.Y.2000); Keppler v. Hinsdale Township High School, 715 F. Supp. 862,864 (N.D. Ill. 1989); Freeman v. Cont'l Technical Serv.,Inc., 710 F. Supp. 328, 329 (N.D. Ga. 1988).13
The seminal case is Huebschen. In Huebschen, the SeventhCircuit addressed a claim by an employee that his femalesupervisor had terminated his probation after he had spurned hersexual advances. Huebschen, 716 F.3d at 1168-69. TheHuebschen case did not involve Title VII.14 Huebschen's analysis wasconfined to the plaintiff's argument that the supervisor'sactions constituted a violation of the Equal Protection Clause.Although gender discrimination can provide a basis for an equalprotection claim, Davis v. Passman, 442 U.S. 228 (1979),Huebschen found that the supervisor's discrimination was notbased on gender, but on "the group of persons with whom [she] hador sought to have a romantic affair." Id. at 1172. Huebschenwas not "persuaded that the Equal Protection Clause shouldprotect such a class." Id.
The Huebschen holding is an intriguing and counterintuitiveresult.15 The attempt is to draw a bright line betweenTitle VII cases, prohibiting discrimination due to gender, andother cases of inappropriate, even mean spirited employmentactions, generated by personal animosity, but not related togender bias. McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir.1986) (noting "personal animosity is not the equivalent of sexdiscrimination and is not proscribed by Title VII"). The linedims when the reason for personal animosity is past sexualrejection. In the instant case, there is no sign that Ms.Philbrook wished to reinitiate her romance with Mr. Oakstone; tothe contrary, her fire had turned to ice. Instead, her motivationwas fueled by the destructive power of revenge, almost two yearsafter the breakup. Under Huebschen, this alone would beinsufficient. However, Ms. Philbrook's choice of weapon makes a difference.To illustrate, this Court contrasts two Eleventh Circuitdecisions: Succar v. Dade County Sch. Bd., 229 F.3d 1343 (11thCir. 2000) and Lipphardt v. Durango Steakhouse of Brandon,Inc., 267 F.3d 1183 (11th Cir. 2001). In Succar, a maleteacher was verbally and physically harassed by a female teacherafter he terminated an affair. Id. at 1344. Maintaining thathis employer, the school board, had taken insufficient steps toremedy the problem, he filed suit alleging gender discrimination,claiming a hostile work environment due to his gender. Id. TheEleventh Circuit, in a brief per curiam opinion, agreed with thedistrict court's summary judgment, since Title VII is "not ashield against harsh treatment at the work place." Id. Succarconcluded: "In other words, Lorenz's harassment of Succar wasmotivated not by his male gender, but rather by Lorenz's contemptfor Succar following their failed relationship; Succar's genderwas merely coincidental." Id.
By contrast, in Lipphardt, a female employee began dating hermale supervisor. When she terminated the relationship, Mr. Knuth,the supervisor, engaged in a pattern of harassment. Lipphardt,267 F.3d at 1185. He ultimately concocted an employment violationby Ms. Lipphardt and she was fired. Id. at 1187. In contrastingthe facts in Lipphardt to Succar, the Eleventh Circuit statedthat "[i]t is important that Knuth's conduct towards Lipphardtwas sexual in nature, while the harassment that Succar sufferedwas not." Id. at 1188. As part of his reaction to Ms.Lipphardt's rejection, Mr. Knuth solicited her at work toreinstate their intimate relationship and several times brushedup against her in an inappropriate way at work. Id. at 1189.This was sufficient to allow a jury to conclude that Ms. Lipphardt had an objectivebelief that she was the victim of harassment based on hergender.16 Id.
From these cases emerges a distinction: In failed romancecases, where employment harassment follows, there is a differencefor Title VII purposes between non-gender based and gender-basedharassment. If the means for revenge is non-gender based, it doesnot trigger a Title VII response; if the means is gender-based,it does. The factual distinctions can be subtle and in the wordsof the Lipphardt Court, "there is a point where inappropriatebehavior crosses the line into Title VII harassment."Lipphardt, 267 F.3d at 1188.
This Court concludes there is sufficient evidence to generate afactual issue, requiring jury resolution, as to whether Ms.Philbrook's retribution crossed the line into Title VIIharassment. Ms. Philbrook chose to use as her weapon a falseallegation of male on female physical abuse and there issufficient evidence in this record from which a jury couldconclude that her choice of weapon was an act of gender-basedharassment.17
During the parking lot incident, Ms. Philbrook hung on Mr.Oakstone, placed her full body weight against him and went limp,"so that I had to stop, otherwise she'd fall." In other words,Mr. Oakstone stated that Ms. Philbrook placed herself in such aposition that if he had continued to walk, she would have tipped over. Mr.Oakstone testified he was "very afraid and [he] wanted to getinto the safety and security of [his] truck." Based on thisdescription, a factfinder could find Ms. Philbrook's actions inthe parking lot were an attempt to deliberately provoke Mr.Oakstone into a physical confrontation and thereby cause himtrouble.
Nearly two years later, having failed to provoke a physicalresponse from Mr. Oakstone in the parking lot, Ms. Philbrookconcocted one at work. By falsely claiming Mr. Oakstone hadassaulted her, that he had pushed her down, that he had draggedher across the parking lot, and that she was afraid of him, ajury could conclude that Ms. Philbrook, as a female, was making acharge against Mr. Oakstone, as a male, she knew would trigger animmediate and irreparable consequence for him, due to astereotype about his gender.18
In 1986, three years after Huebschen, the Supreme Courtdecided Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57(1986), which concluded that in addition to the "quid pro quo"misconduct, Title VII prohibits harassment based the creation ofa hostile work environment. In deciding Meritor, the SupremeCourt relied on the EEOC Guideline 29 C.F.R. § 1604.11(a), whichreads: [a] Harassment on the basis of sex is a violation of section 703 of title VII. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive environment.Id. (emphasis added).
A direct reading of this Guideline fits Mr. Oakstone's versionof the facts in this case. Ms. Philbrook made "sexual advances"to Mr. Oakstone, which were "unwelcome." He rejected thoseadvances. His rejection of those advances precipitated Ms.Philbrook's false charges. The Postal Service used her falsecharges as the basis for employment decisions affecting Mr.Oakstone.
2. Employer Liability.
The final issue is whether the Postal Service is responsiblefor acting on Ms. Philbrook's vendetta. In BurlingtonIndustries, Inc. v. Ellerth, 524 U.S. 742 (1998), the SupremeCourt addressed the scope of employer liability fordiscriminatory actions of its agents. It discussed the instanceswhere the employee has been subjected to a "tangible employmentaction," which it defined as a "significant change in employmentstatus, such as hiring, firing, failing to promote, reassignme ntwith significantly different responsibilities, or a decisioncausing a significant change in benefits." Id. at 761. TheBurlington Industries Court stated that in those instances,because a tangible employment action "brings the official powerof the enterprise to bear on the subordinates" and "requires anofficial act of the enterprise, a company act," it is properlyattributable to the employer. Id. at 761-62. In doing so, theBurlington Industries decision cited with approval JudgePosner's use of the term, "cat's paw" to refer to employerliability that accrues when the employer acts as the conduit of asubordinate's prejudice. Id. at 762 (citing Shager v. UpjohnCo., 913 F.2d 398, 405 (7th Cir. 1990)). See also Gee v. Principi, 289 F.3d 342, 346 (5th Cir. 2002) (finding "when theperson conducting the final review serves as the "cat's paw" ofthose who were acting from retaliatory motive, the causal linkbetween the protected activity and adverse employment actionremains intact."); Christian v. Wal-Mart Stores, Inc.,252 F.3d 862, 877 (6th Cir. 2001); Willis v. Marion County Auditor'sOffice, 118 F.3d 542, 547 (7th Cir. 1997) (noting "there can besituations in which the forbidden motive of a subordinateemployee can be imputed to the employer because, under thecircumstances of the case, the employer simply acted as the"cat's paw" of the subordinate."); Kramer v. Logan County Sch.Dist. No. R-1, 157 F.3d 620, 624 (8th Cir. 1998); English v.Colo. Dep't of Corr., 248 F.3d 1002, 1011 (10th Cir. 2001);Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1249 (11thCir. 1999); Griffin v. Washington Convention Ctr.,142 F.3d 1308 (D.C. Cir. 1998).
In this case, the Postal Service cannot immunize itself fromthe misinformation supplied by its employee, even though theemployee was not Mr. Oakstone's supervisor. The reason is,according the Mr. Oakstone, the supervisors took Ms. Philbrook'spart in her vindictive campaign against Mr. Oakstone, subjectedhim to numerous "tangible employment actions," and exercised the"official power of the enterprise" against him.
Both parties point for support to Cargilia v. Hertz Equip.Rental Corp., 363 F.3d 77 (1st Cir. 2004). In Cargilia, theFirst Circuit recently concluded, in an age discrimination caseunder a Massachusetts state statute, that an employer may be heldliable for employment discrimination where the decisionmakerharbored no discriminatory animus, but made the decision based onfalse or misleading information provided by an employee who didharbor such animus. Cariglia, 363 F.3d at 87-88; see alsoWebber v. Int'l Paper, Co, 2004 U.S. Dist. LEXIS 10473 * 14(D.C. Me.). The Postal Service argues that Cariglia does not apply, since theemployee supplying the manipulated information to the neutraldecision-makers was himself a manager.
As in Cariglia, the information was being manipulated by theemployee, Ms. Philbrook, but, unlike Cariglia, the PostalService had performed an investigation and could not substantiateher allegation. Yet, the Postal Service ignored its owninvestigation and proceeded as if the manipulated informationwere true. If the neutral decision-makers in Cariglia had beeninformed the information was being manipulated, but had firedCariglia anyway, Mr. Cariglia would have been entitled to arguethat the "neutral-decisionmakers" were no longer neutral at alland instead had adopted their subordinate's impermissibleanimus.19
As the First Circuit noted in Reed v. MBNA Marketing Systems,333 F.3d 27, 32 n. 1 (1st Cir. 2003), where the sexual harassment"is by a non-supervisory co-worker, the employer is liable onlyif the plaintiff can demonstrate that the employer was negligent,i.e., that it "knew or should have known of the charged sexualharassment and failed to implement prompt and appropriateaction." (quoting Crowley v. L.L. Bean, Inc., 303 F.3d 387, 401(1st Cir. 2002). Viewing the facts in a light most favorable toMr. Oakstone, the Postal Service had confirmed that the Philbrookcharges were unsubstantiated and it not only failed to implementprompt and appropriate action, but to the contrary, repeatedlypunished Mr. Oakstone for what it had concluded was an unfoundedcomplaint. The Postal Service's motion for summary judgment onthe sexual harassment theory is denied. E. Gender Discrimination.
In addition to the retaliation and gender-based harassmentclaims, Mr. Oakstone has also posited a claim of sexdiscrimination. He bases this claim on two factual assertions:(1) that female workers with less experience were granted theexpediter training he has been denied; and, (2) that the PostalService has treated the complaints of female workers morefavorably than his complaint.
A prima facie case of sex discrimination requires thefollowing: (1) membership in a protected group; (2) qualificationfor the job in question; (3) an adverse employment action; and,(4) the position remained open or was filled by a person withsimilar qualifications.20 Swierkiewicz v. Sorema, N.A.,534 U.S. 506, 510 (2002); Kosereis v. Rhode Island,331 F.3d 207, 212-13 (1st Cir. 2003). The First Circuit has reiteratedthat at the prima facie stage, a plaintiff is not required todemonstrate in a disparate treatment case that he was treateddifferently than similarly situated employees who were not in theprotected class. Id. at 213; Fernandes v. Costa Bros. Masonry,Inc., 199 F.3d 572, 585-86 (1st Cir. 1999); Conward v.Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999). It hasalso described the showing for a prima facie case as "notonerous" and a "small showing." Kosereis, 331 F.3d at 213.
In this case, Mr. Oakstone has clearly demonstrated the firstthree criteria: (1) he is male; (2) he is qualified for theexpediter position; and, (3) he has been denied training andplacement in the position. He has also alleged that females whowere junior to him have been given the expediter work he has beendenied, citing specific examples. These allegations, viewed in a light most favorable to Mr. Oakstone,sustain his burden of demonstrating a prima facie case on thisissue.
He also asserts his repeated complaints were ignored; whereas,similar complaints from female workers have been promptlyinvestigated and addressed.21 Again, viewing thepleadings in a light most favorable to Mr. Oakstone, he hassustained his prima facie burden on this argument as well.
Applying the McDonnell Douglas burden shifting analysis, theburden of production then shifts to the Postal Service to providea "legitimate, nondiscriminatory reason for its decision."Kosereis, 331 F.3d at 212; Zapata-Matos v. Reckitt & Colman,Inc., 277 F.3d 40, 44 (1st Cir. 2002). The Postal Service didnot respond to this portion of the analysis, presumably becauseits motions were based on the strength of the Huebschen line ofauthority. Without a "legitimate, nondiscriminatory reason" forits actions, the Court must deny the Postal Service's motions.
III. Conclusion.
Defendant Postal Service's Motion to Dismiss and Motion forSummary Judgment are DENIED. Plaintiff Randall Oakstone's Motionto Strike is DENIED.
SO ORDERED.
1. Consistent with the "conventional summary judgment praxis,"the Court recounts the facts in a light most favorable to Mr.Oakstone's theory of the case, consistent with record support.Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 16 (1st Cir.2002). The Court has relied either on the uncontested facts or onMr. Oakstone's version, if contested.
2. Although not in the Statements of Material Fact, during hisdeposition, Mr. Oakstone provided some further background. Herelated that numerous times during their relationship, Ms.Philbrook had told him about an incident with her former husbandThey had been arguing and Ms. Philbrook attempted to "make theconflict a physical one". Her husband held her back at arm'slength and in so doing, bruised her arms. The police were calledand her husband was arrested for spousal abuse. Oakstone Dep.at 25-26. This background helps explain Mr. Oakstone's reactionto Ms. Philbrook in the parking lot. He testified he was "veryafraid and wanted to get into the safety and security of mytruck." Id. at 30. It also buttresses Mr. Oakstone's theory that in making theallegation of male on female physical abuse, Ms. Philbrook hadengaged in an act of gender based harassment, since she had withimpunity previously provoked her ex-husband to his detriment, hadrepeatedly reiterated the story to Mr. Oakstone, and cynicallylodged this allegation confident due to gender stereotyping, heremployer would take her part. Despite its potential probativevalue, Mr. Oakstone did not include this evidence in hisStatement of Material Facts and this Court, in fairness to thePostal Service, has not considered it in arriving at itsdecision. Without this evidence, the issue becomes closer, butMr. Oakstone has still generated genuine issues of materialfact.
3. They were married in May 1999.
4. Ms. Philbrook was an outside expediter. If Mr. Oakstoneworked as an inside expediter, they would not be in physicalproximity, but would be in constant contact through awalkie-talkie.
5. There is a contradiction between the testimony of CarolynSmith and Mr. Oakstone on whether Ms. Philbrook's complaint wastreated as a "zero tolerance" complaint.
6. Under Rule 11(b), because the resolution of the motiondepends upon the consideration of matters outside the pleadings,the parties and the Court have treated the matter as a motion forsummary judgment. Fed.R.Civ.P. 11(b).
7. Mr. Oakstone also invokes the provisions of42 U.S.C. § 1981a, which provides for rights of recovery for violation of42 U.S.C. § 2000e-16. § 2000e-16 prohibits discrimination on thebasis of sex in federal government employment, includingspecifically the United States Postal Service.42 U.S.C. § 2000e-16(a).
8. In March 1999, Mr. Oakstone filed an informaladministrative complaint of discrimination. In July 1999, heparticipated in a mediation session with officials from thePostal Service. On August 30, 1999, he filed a formal complaintof discrimination. On October 25, 2000, union officials met withMr. Oakstone's supervisor, Jeff Clark, regarding Mr. Oakstone'srepeated requests for expediter training and the possibility oflegal action was discussed. In February 2000, Mr. Oakstone'srequest for expediter training was again discussed during alabor-management meeting. In March 2000, Mr. Oakstone filed asecond informal complaint of discrimination. In April 2000, heparticipated in an informal mediation regarding his secondinformal complaint. On May 30, 2000, Mr. Oakstone filed a secondformal complaint of discrimination.
9. The differential treatment includes: (1) being singled outfor movement restrictions at work; (2) being subjected tomonitoring; (3) being treated by management in an unfriendly andhostile manner; (4) being the only employee to have his positioneliminated; and, (5) refusing to allow him to train into and workin the expediter job.
10. Mr. Oakstone's examples include: (1) an October 25, 1999union-management meeting at which his complaints were raised andMr. Clark's decision on October 27, 1999 to flood him with 2½additional tons of work and to personally monitor his workefforts; and, (2) a February 23, 2000 union-management meeting atwhich his complaints were aired and a decision shortly thereafterto eliminate his job.
11. There is no direct evidence of comments by management thatconfirm its actions were taken in retaliation for his filing ofcomplaints as opposed to its perception that he had abused Ms.Philbrook.
12. For analytic purposes, sexual harassment has generallybeen categorized either as quid pro quo harassment or hostilework environment harassment. Lipsett v. Univ. of P.R.,864 F.2d 881, 897-98 (1st Cir. 1988). To make out a prima facie case ofquid pro quo harassment, a plaintiff must establish: (1) thatshe was subject to unwelcome sexual advances by a supervisor;and, (2) that her reaction to these advances affected tangibleaspects of her compensation, terms, conditions or privileges ofemployment. Id. at 898. To prove a claim of hostile workenvironment sexual harassment, a plaintiff must establish: (1)that she is a member of a protected class; (2) that she wassubjected to unwelcome sexual harassment; (3) that the harassmentwas based upon her sex; (4) that the harassment was sufficientlysevere or pervasive so as to alter the conditions of plaintiff'semployment and create an abusive work environment; (5) thatsexually objectionable conduct was both objectively andsubjectively offensive, such that a reasonable person would findit hostile or abusive and the victim in fact did perceive it tobe so; and, (6) that some basis for employer liability has beenestablished. Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395(1st Cir. 2002) (quoting O'Rourke v. City of Providence,235 F.3d 713, 728 (1st Cir. 2001)). The Postal Service bases itsmotion on the limited points addressed in this opinion.
13. There are more. See, e.g Poe v. Haydon, 853 F.2d 418,429 N.6 (6th Cir. 1988); Succar v. Dade County Sch. Bd.,229 F.3d 1343, 1345 (11th Cir. 2000).
14. The employee had elected to sue both his employer and hissupervisor under 42 U.S.C. § 1983, using the asserted violationof Title VII as a basis for claiming a § 1983 "deprivation of therights, privileges, or immunities secured by the Constitution andlaws." 42 U.S.C. § 1983. Noting that Title VII does not provide acause of action against individuals as opposed to employers,Huebschen concluded that § 1983 could not be used to obtainrelief not afforded by Title VII itself. Id. at 1170-71.
15. Judge Young recently cast doubt on the "relevance of thereasoning underlying this opinion" in light of subsequentjurisprudence. Perks v. Town of Huntington, 251 F. Supp.2d 1143,1157 n. 13 (E.D.N.Y. 2003). This Court concludes, as didJudge Young in Perks, that even applying the Huebschenanalysis, the result is the same.
16. In Lipphardt, the jury had found against Ms. Lipphardton the hostile work environment claim and had found for her onthe Title VII retaliation claim. The contrast between Succarand Lipphardt does not depend upon which form of Title VIIaction is being considered, but whether the cause of action fallswithin the ambit of Title VII at all.
17. The female supervisor in Perks employed a similartactic. After Mr. Perks had broken off their affair, sheconfronted him, struck him with her right hand on the left sideof his head, and grabbed the left sleeve of his jacket. Perks,251 F. Supp.2d at 1151. When Mr. Perks grabbed her arm andattempted to release her grip, she started screaming, "You hitme. You hit me." He ran to his office and locked himself inside.She later drove to the Town Police Office and filed an incidentreport for harassment against Mr. Perks. A Town commissionedindependent factfinder later wrote that his investigation had"uncovered evidence, both circumstantial and direct, that castsserious doubts on Ms. Scarpati-Reilly's claims, and moresignificantly, serious doubts of the propriety of her actions,both before and after the alleged incident." Id. at 1152. JudgeYoung did not reach the question of whether this charge standingalone, assuming it was false, would constitute genderdiscrimination; he concluded there was sufficient other evidenceof a hostile work environment. Id. at 1155.
18. Charges of male on female physical abuse are so oftenbelieved, because the sad fact is they are so often true. Thetragic history of male on female violence and the struggle ofabused women to have their complaints taken seriously by thejudicial system have been well documented. The Postal Service wascertainly correct to take Ms. Philbrook's accusation seriously,to investigate it thoroughly, and to protect her during theinvestigation. Mr. Oakstone's cause of action is based on whatthe Postal Service has done after it concluded the charge wasgroundless. No policy, however laudable, justifies an employertaking tangible employment actions against an accused based onwhat it has concluded is a false accusation.
19. To this end, it may be significant that Cariglia came tothe First Circuit after a five-day bench trial, not a dispositivemotion.
20. The Postal Service argued that Mr. Oakstone's complaintfailed to meet the minimum requirements of notice pleading. Itshould be noted that the First Circuit, following a recentSupreme Court decision, has clarified there are "no heightenedpleading standards for civil rights cases." EducadoresPuertorriquenos En Accion v. Hernandez, 367 F.3d 61, 67 (1stCir. 2004); Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 515(2002).
21. This allegation is found in paragraph 54 of the Complaint,which for purposes of the pending motions is taken as true.