Munroe v. Compaq Computer

Munroe v . Compaq Computer             CV-00-379-JM 10/18/02        P
                UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE

Terri Munroe

     v.                                      Civil N o . 00-379-JM
                                             Opinion N o . 

Compaq Computer Corporation,
f/k/a Digital Equipment Corporation


                                  ORDER

     In this action, the plaintiff, Terri Munroe alleges that she

was subjected to sexual harassment while employed by the

defendant, Compaq Computer Corporation, formerly known as Digital

Equipment Corporation,1 in violation of Title VII of the Civil

Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq., and N.H.

Rev. Stat. Ann. (“RSA”) 354-A:7 (I) and (V)(c).       Defendant has

moved for summary judgment under Rule 56 of the Federal Rules of

Civil Procedure (document n o . 2 4 ) .   Munroe filed an objection.

The parties appeared for oral argument on the motion on October

1 0 , 2002.   For the reasons set forth herein, Defendant’s summary

judgment motion is granted with respect to Munroe’s state law


     1
      Munroe was employed by Digital during the time period
relevant to this matter. Munroe filed this action against
Compaq, which acquired Digital subsequent to the events in
question. Subsequent to the commencement of this action, Compaq
was acquired by Hewlett-Packard. For convenience, Compaq is
referred to hereinafter as either “Defendant” or “the Company.”
sexual harassment claim, but the motion is denied with respect to

her sexual harassment claims under Title VII.

                         Standard of Review

     Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”      Fed. R. Civ. P.

56(c); see Lehman v . Prudential Ins. C o . of Am., 

, 327

(1st Cir. 1996).   A genuine issue is one “that properly can be

resolved only by a finder of fact because [it] . . . may

reasonably be resolved in favor of either party.”      Anderson v .

Liberty Lobby, Inc., 

 4 2 , 250 (1986).   A material fact

is one that affects the outcome of the suit. See id. at 248.

     Provided that there has been adequate time for discovery, a

properly supported summary judgment motion must be granted

“against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at

trial.”   Celotex Corp. v . Catrett, 

 1 7 , 322 (1986).   The

party moving for summary judgment bears the initial burden of



                                  2
establishing that there is no genuine issue of material fact.

See id, at 323. If that burden is met, the opposing party can

avoid summary judgment only by providing properly supported

evidence of disputed material facts that would require trial.

Id. at 324.

     In ruling on a summary judgment motion, the court construes

the evidence in the light most favorable to the non-movant,

resolving all inferences in its favor, and determines whether the

moving party is entitled to judgment as a matter of law.    See

Saenger Org. v . Nationwide Ins. Licensing Assocs., 

 5 ,

57 (1st Cir. 1997).   The undisputed facts, viewed in the light

most favorable to Munroe, are recited below.

                            Background

     The Company hired Munroe as a temporary employee in October

1993.   As a Logistics Associate, Munroe worked in a warehouse

facility located in Salem, New Hampshire. Her responsibilities

included receiving, storing, selecting and delivering computer

components.   At times Munroe was the only woman working on her

shift, which included as many as forty other workers. She was

hired as a full-time employee on September 3 0 , 1996.   Munroe

alleges numerous instances of harassment at the Company between



                                 3
early 1996 and her resignation on April 2 0 , 1998.

I.   Co-worker Harassment Allegations

     Real Guilbeault, one of Munroe’s co-workers, was hired by

the Company in the fall of 1993. Beginning in 1996, Guilbeault

began making sexual advances toward Munroe. Munroe alleges that

Guilbeault’s comments became increasingly offensive over time.

Initially, Munroe tried to ignore Guilbeault or walk away.     When

that did not end the comments, Munroe told Guilbeault not to talk

to her.

     Despite her negative reactions, Guilbeault persisted by

telling Munroe that she had a “luscious ass” and calling her

“sweet cheeks.”   On at least three occasions Guilbeault asked

Munroe to go to the Red Roof Inn with him during break.   He

repeatedly told Munroe “I want you.”    Many times Guilbeault’s

comments were accompanied by a sexually suggestive gesture, such

as sucking his lips.   In addition to making offensive comments,

Guilbeault committed the following acts: (1) he closed the door

where he and Munroe were working and blocked it with his body to

prevent Munroe from leaving; and (2) he left a bottle of wine or

champagne, make-up, and a nightgown in Munroe’s locker with a

note containing sexually suggestive comments.



                                 4
      In 1998, Guilbeault sent Munroe three sexually suggestive e-

mail messages,2 and touched Munroe inappropriately on two

occasions in April 1998. On the first occasion, Guilbeault

grabbed Munroe by the arm and pulled her onto his lap.   On the

second occasion, Guilbeault touched Munroe on her buttocks.

      Some time after Guilbeault’s conduct occurred, Munroe

complained to Vincent Kanhai-Singh (“Singh”), who had become her

direct supervisor in early 1996. Munroe told Singh about the

incidents of Guilbeault blocking the door and leaving gifts in

her locker.   Munroe also told Singh about the e-mails that

Guilbeault sent. According to Munroe, Singh did nothing about

her complaints. When Munroe informed Singh about Guilbeault’s e-

mails, Singh laughed when he read them and then deleted them from

her computer. Singh told Munroe to speak with Guilbeault and

resolve the problem on her own.

II.   Supervisor Harassment Allegations

      Munroe alleges that Singh began making offensive comments to

her in 1996. Munroe estimates that Singh made offensive comments

approximately twice per week.   On one occasion, Munroe asked

Singh where he wanted her in reference to where she should stand

      2
      Munroe submitted one of the e-mails she received from
Guilbeault with her objection.

                                  5
to perform a particular job. Singh responded that Munroe should

not ask that question of “a man who isn’t getting any sex at

home.”   On another occasion, when Munroe was ill, she asked Singh

if she could go home. Singh told Munroe that she could only

leave if she left with him.   Munroe refused and Singh forced her

to work the rest of her shift.

      In 1998, Singh told Munroe that he had “a job for her under

his desk.”   Singh also told Munroe to stop wearing shorts at work

because they were not short enough, and therefore unacceptable.

At unspecified points, Singh also did the following: (1) asked

Munroe to wear a skirt to work so that he could stand below her

while she was standing on high equipment or a ladder and direct

her where to g o ; (2) took out his checkbook and asked Munroe how

much money she wanted to go out with him; (3) asked Munroe to go

home with him; (4) asked Munroe on three occasions to go to

Foxwoods Casino with him offering to pay the expenses; (5) told

Munroe in front of a male co-worker that she was not happy unless

she has “a [penis] hanging in front of her face.”

IV.   The Company’s Sexual Harassment Policy

      When Munroe began her employment in October 1993, the

Company had an anti-harassment policy in place, which prohibited



                                 6
sexual harassment. Under the policy, employees were encouraged

first to report instances of harassment to their supervisors or

managers, but they were not required to do s o . The policy

indicated that others were available to receive complaints

referencing the Company’s “Open Door Policy” and Equal Employment

Opportunity/Affirmative Action representatives. The policy

stated that “[m]anagers, supervisors and other designated

resources either observing or receiving reports of harassment are

required to treat the issue seriously and take appropriate steps

to ensure compliance with this policy.”   The policy directed that

investigations were to be conducted in a timely manner and

confidentially.

     On September 2 9 , 1997, the Company issued a separate sexual

harassment policy (“Sexual Harassment Policy”).   The Sexual

Harassment Policy states in pertinent part:

     Employees who believe that they have been sexually
     harassed are encouraged to pursue their complaint
     within [the Company] by contacting their manager or
     supervisor, Human Resources professional, or their
     Regional EEO/Diversity Manager. Manager, supervisors
     or Human Resource professionals observing or receiving
     such complaints must contact the U.S. EEO/Diversity
     organization for direction in investigating the
     complaint.

In addition, the Sexual Harassment Policy provided a 24-hour



                                 7
hotline number that was available for receipt of complaints,

which the employee could file anonymously if desired.

     There is evidence that the Company had a practice of giving

its anti-harassment and sexual harassment policies to newly-hired

employees during orientation, and that the policies were posted

on the bulletin boards throughout the facility.   There is also

evidence that the policies were accessible to employees on the

Company’s computer system.   However, there is no direct evidence

that Munroe received a copy of the Company’s anti-harassment

policy when she began working at the Company.   It is undisputed

that Munroe received sexual harassment training on or about

December 1 2 , 1997, and that the training included a discussion of

ways that an employee could make a complaint of harassment.

V.   Munroe Complains to Human Resources and Resigns

     On April 2 0 , 1998, Munroe reported to Diane O’Connor, a

human resources consultant for the Company, that she was being

harassed by Guilbeault and Singh.    Munroe reported that the

harassment was getting worse and she could not take it anymore.

She states that she did not report the harassment earlier because

she was very intimidated by Singh.   According to Munroe, Singh

held daily meetings wherein he told the employees he supervised



                                 8
that they should never “go over his head” by reporting a problem

to anyone else. Singh directed Munroe and her co-workers to come

to him with complaints.3   Munroe did not believe that reporting

the harassment prior to resigning would do any good because she

had reported the incidents involving Guilbeault to Singh and

nothing had been done about i t .

     Upon receiving Munroe’s complaint, O’Connor immediately

relayed the matter to Robert Brintz, an attorney working in the

Company’s EEO Compliance organization.   Munroe resigned on April

2 0 , 1998 even though Brintz urged her to stay and told her that

the Company would conduct a thorough investigation.

     Brintz then conducted an internal investigation between

April 24 and May 4 , 1998. He interviewed more than a dozen

employees including Munroe. On May 7 , 1998, Compaq terminated

Guilbeault and prompted Singh’s resignation.

     Brintz informed Munroe of the terminations and urged her to

return to work.   Despite her initial resistance, the Company

continued to contact Munroe and she returned to work in July

     3
       Munroe states in her affidavit that she believed that she
could be fired if she violated Singh’s order. Munroe Aff. at ¶
2 0 . However, Munroe admitted at her deposition that her fear
arose out of her status as a contract worker. Munroe did not
fear losing her job after she became a full-time employee in
September 1996. Munroe Deposition Transcript at 80:18-23.

                                    9
1998.   Munroe does not allege that she suffered any sexual

harassment following her reinstatement.   However, on July 8 ,

1998, Munroe filed a complaint with the New Hampshire Commission

for Human Rights (“NHCHR”) and the U.S. Equal Employment

Opportunity Commission (“EEOC”) alleging that the Company

violated Title VII and N.H. RSA 354-A.

     Munroe remained employed at the Company’s Salem, New

Hampshire, facility until it was closed in late 1999. She filed

this action on August 4 , 2000, which followed the dismissal of

her administrative complaint pending before NHCHR.

                            Discussion

     Defendant argues that it is entitled to summary judgment on

Munroe’s Title VII claims of supervisor and co-worker harassment

on the grounds that (a) Munroe failed unreasonably to notify

Defendant of the alleged misconduct of her co-worker and

immediate supervisor; (b) Defendant responded immediately and

effectively when it learned of the problem; and (c) Title VII’s

300-day statute of limitations renders untimely most of Munroe’s

allegations.   With respect to Munroe’s state law claim, Defendant

argues that it is entitled to summary judgment because there is

no private right of action under N.H. Rev. Stat. Ann. 354-A.



                                10
I.   Title VII Claims

     Title VII makes it unlawful for an employer “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.”    42 U.S.C. § 2000e-

2(a)(1).   Sexual harassment is unlawful discrimination on the

basis of sex under Title VII. Meritor Sav. Bank, FSB v . Vinson,

 7 , 66 (1986); Provencher v . CVS Pharmacy, 

 ,

13 (1st Cir. 1998).

     A.    Statute of Limitations

     Under 42 U.S.C. § 2000e-5(e)(1), a Title VII plaintiff must

file a charge with the EEOC within a certain period “after the

alleged unlawful employment practice occurred.”    This period is

either 180 days, or 300 days if the plaintiff instituted

proceedings with a state or local agency with authority to seek

relief based on the plaintiff’s claims. 42 U.S.C. § 2000e-

5(e)(1).   Here, the 300-day period applies to Munroe because she

filed a charge with the NHCHR and the EEOC on July 8 , 1998.

     Defendant argues that the 300-day limitations period renders

untimely most of Munroe’s allegations. Applying the 300-day



                                 11
rule, Defendant argues that Munroe’s Title VII claims are limited

to allegations that occurred after September 1 1 , 1997. Munroe

argues in response that she meets the requirements of the

continuing violation doctrine, an exception to the 300-day

limitations period.   Under the continuing violation doctrine, a

plaintiff may recover for events outside of the 300-day

limitations period if the acts “are deemed part of an ongoing

series of discriminatory acts and there is some violation within

the statute of limitations period that anchors the earlier

claims.”   O’Rourke v . City of Providence, 

 (1st

Cir. 2001) (internal quotations omitted).

     This Court need not consider whether Munroe meets the

requirements of the continuing violation doctrine because the

Supreme Court recently clarified that a “charge alleging a

hostile work environment claim . . . will not be time barred so

long as all acts which constitute the claim are part of the same

unlawful employment practice and at least one act falls within

the time period.”   National R.R. Passenger Corp. v . Morgan, --

U.S. –-, 122 S . C t . 2061, 2077 (2002).   As the Supreme Court

explained, a hostile work environment is created by “a series of

separate acts that collectively constitute one ‘unlawful



                                  12
employment practice.’” 

 at 2074 (quoting 42 U.S.C. § 2000e-

5(e)(1)).   The Court further explained that Title VII “does not

separate individual acts that are part of the hostile work

environment claim from the whole for purposes of timely filing

and liability.”   Id. at 2075.   To meet the statute of

limitations, “the employee need only file a charge within [300]

days of any act that is part of the hostile work environment.”

Id.; see also, Marrero v . Goya of Puerto Rico, Inc., 

 ,

18 (1st Cir. 2002) (“the statute of limitations is satisfied as

long as the plaintiff files a charge within 300 days of one of

the many acts that, taken together, created the hostile work

environment”).    Munroe meets the applicable standard.   She

alleges that the discriminatory acts of her co-worker and

supervisor over time created a hostile work environment.     She

filed her charge with the NHCHR and EEOC on July 8 , 1998, which

was within 300 days of the touching incidents by Guilbeault that

Munroe alleges occurred in April 1998. Therefore, all of

Munroe’s allegations of harassing conduct may be considered in

determining whether Munroe was subjected to an actionable hostile

work environment. See National R.R., 122 S . C t . at 2074 (a court

may consider the entire period of the alleged hostile work



                                 13
environment provided that an act contributing to the claim occurs

with the filing period).

     B.   The Existence of a Hostile Work Environment

     To establish a hostile work environment under Title V I I ,

Munroe must show that the harassment based on her sex was

“sufficiently severe or pervasive to alter the conditions of her

employment,” and that “the work environment was both objectively

and subjectively offensive, one that a reasonable person would

find hostile or abusive, and one that [the plaintiff] in fact did

perceive to be so.”   Conto v . Concord Hosp., Inc., 

 9 ,

82 (1st Cir. 2001) (internal quotations and citations omitted).

This is not a precise test, and the decision as to “whether an

environment is ‘hostile’ or ‘abusive’ can be determined only by

looking at all the circumstances.”    Harris v . Forklift Sys.,

Inc., 

 7 , 22-23 (1993); see also, Conto, 

(a determination as to whether the defendant subjected the

plaintiff to a hostile work environment “necessarily entail[s] a

fact-specific assessment of all the attendant circumstances.”).

“Several factors typically should be considered in making this

determination: ‘the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or



                                 14
a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance’.”       O’Rourke, 

 (quoting Harris, 

 3 ) .     However, no single

factor is required.   See Harris, 

 3 .

     The requirement that the harassment be sufficiently severe

or pervasive to alter the plaintiff’s employment conditions

“takes a middle path between making actionable any conduct that

is merely offensive and requiring the conduct to cause a tangible

psychological injury.”   

 at 2 1 . Accordingly, while offhand

comments and isolated incidents are insufficient to constitute

harassment under Title V I I , see id.; O’Rourke, 

,

“Title VII comes into play before the harassing conduct leads to

a nervous breakdown.”    Harris, 

 2 .

     Defendant argues that Munroe’s harassment allegations were

not sufficiently severe or pervasive to alter her conditions of

employment. Munroe alleges that she was subjected to repeated

sexual propositions and offensive comments based on her sex.       She

also alleges that over time those comments became more offensive.

Munroe later received offensive sexually-charged e-mails, and was

subjected to offensive touching in the workplace. And she

alleges that she was denied sick leave on one occasion because of



                                  15
Singh’s harassment. Accepting the evidence in the light most

favorable to the plaintiff, she has shown that the allegedly

harassing behavior was consistent and even habitual over the

course of her employment. See DeNovellis v . Shalala. 

 (1st Cir. 1997) (harassment that is severe enough to

alter the victim’s workplace experience or pervasive enough to

become the defining condition of the workplace violates Title

VII).   Because harassment serious enough to create a hostile work

environment often involves a cumulative process in which a series

of acts or events mount over time to create an unlawfully hostile

atmosphere, the question as to when offensive conduct violates

Title VII is often better resolved by the factfinder at trial and

not on summary judgment.   See O’Rourke, 

. Again,

Munroe has introduced sufficient evidence of harassment to

satisfy her burden on summary judgment. Whether the conduct that

Munroe was subjected to was or at some point over the course of

her employment became sufficiently severe or pervasive to support

a Title VII harassment claim is best reserved for trial.

    C.    Ellerth/Faragher Affirmative Defense for Supervisor
          Harassment Claims

    A defendant employer may avoid vicarious liability for the

misconduct of a supervisor in a Title VII hostile work


                                16
environment case by establishing that it is entitled to the

affirmative defense set forth in the Supreme Court’s holdings in

Burlington Indus., Inc. v . Ellerth, 

 (1998) and

Faragher v . Boca Raton, 

 (1998).   The defense, which

is only available when no tangible employment action has been

taken against the plaintiff, “comprises two necessary elements:

(a) that the employer exercised reasonable care to prevent and

correct promptly any . . . 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.”   Faragher, 

. See

also White v . New Hampshire Dep’t of Corr., 

 5 4 , 261

(1st Cir. 2000) (setting forth the elements of the affirmative

defense).   The Ellerth/Faragher affirmative defense is “subject

to proof by preponderance of the evidence.”     Ellerth, 

 (citing Fed. R. Civ. P. 8(c)).

            1.   Tangible Employment Action

     An employer will be subject to vicarious liability when a

supervisor takes a tangible employment action against a

subordinate. Ellerth, 

. According to the Supreme

Court, “[a] tangible employment action constitutes a significant



                                 17
change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

benefits.”   Ellerth, 

. A tangible employment

decision “requires an official act of the enterprise, a company

act.”   

. That decision is usually “documented in

official company records, and may be subject to review by higher

level supervisors.”    

    If Singh’s conduct resulted in a tangible employment action

within the meaning of the Supreme Court’s definition, then the

Defendant is not entitled to assert the Ellerth/Faragher

affirmative defense. I turn to that issue in the next section.

           2.   Constructive Discharge

        In her objection, Munroe argues that she was constructively

discharged in April 1998, and that her constructive discharge

constitutes a tangible employment action that renders the

Ellerth/Faragher affirmative defense unavailable to the

Defendant. Although there is no claim labeled “constructive

discharge” in Munroe’s Complaint, the Defendant conceded at oral

argument that paragraph 19 of the Complaint provided fair notice,

under the principles of notice pleading, that Munroe contended



                                 18
that she was constructively discharged.4

     Nevertheless, Defendant argues that constructive discharge

is not a “tangible employment action” since it is not an action

by the Company.     There is considerable dispute whether a

constructive discharge constitutes a tangible employment action

under Ellerth/Faragher.     See Caridad v . Metro-North Commuter

R.R., 

 (2d Cir. 1999) (constructive

discharge is not a tangible employment action because, among

other things, it is not ratified or approved by the employer),

cert. denied, 

 (2000); Scott v . Ameritex Yarn, 

 8 7 , 594 (D.S.C. 1999) (constructive discharge is not a

tangible employment action because it is not made with the

authority or approval of the employer); Desmarteau v . Wichita, 

 (D. Kan. 1999) (the Supreme Court’s focus

on the tangible actions of the supervisor logically excludes

actions which are “constructively” attributed to h i m ) ; but see

Jackson v . Ark. Dept. of Ed., Voc. and Tech. Ed. Div., 

         The Complaint states in relevant part that:

     On April 2 0 , 1998, Munroe could no longer tolerate the
     extremely hostile work environment and management’s
     failure to take any correct[ive] actions. Munroe, was
     left with no choice but to terminate her employment.

Compl., ¶ 19.

                                  19
1020, 1026-27 (8th Cir. 2001) (finding that constructive

discharge constitutes a tangible employment action and citing

Ellerth), cert. denied,-- U.S. --, 122 S . C t . 2366 (2002); Durham

Life Ins. C o . v . Evans, 

, 149 n.5 (3d Cir. 1999)

(finding it clear under the holdings of Ellerth and Faragher that

a constructive discharge renders the affirmative defense

unavailable); Cherry v . Menard, Inc., 

, 1171-

74 (N.D. Iowa 2000) (constructive discharge resulting from a

supervisor’s harassment is a tangible employment action).    The

First Circuit has not squarely addressed this issue.

     The Court does not attempt to settle this debate here.       Even

considering the most well-reasoned argument in support of finding

vicarious liability based on a theory of constructive discharge,

the undisputed facts of the instant case show that Singh’s

conduct cannot be construed as a tangible employment action by

the Company.

     It is undisputed that the Company, through Brintz, informed

Munroe on the same day that she resigned that the Company would

conduct a thorough investigation of her complaint and urged her

to remain at work.   The Company then conducted its investigation

promptly, including by interviewing Munroe, and caused the



                                 20
terminations of Munroe’s alleged harassers. At no point did the

Company affirm or ratify Singh’s harassing conduct. To the

contrary, the Company expressly repudiated i t . If the Company

failed to take any action to address Munroe’s complaint after she

resigned, Munroe would at least have a viable argument that her

constructive discharge was an official act of the company.    But

that is not case. Therefore, the Court finds that Munroe cannot

establish the existence of a tangible employment action by the

Company.   The Defendant is entitled to assert the

Ellerth/Faragher affirmative defense in this action.

           3.   Reasonable Care to Prevent and Correct Harassment

     Depending on the employment context, proof that an employer

has promulgated an anti-harassment policy with a complaint

procedure may be sufficient for the employer to show that it has

taken reasonable care to prevent harassment. See Marrero v . Goya

of Puerto Rico, supra, 

 (“the availability of the

affirmative defense often will turn on whether the employer had

established and disseminated an anti-discrimination policy,

complete with a known complaint procedure.”); Shaw v . AutoZone,

Inc., 

 (7th Cir. 1999) (the existence of an

appropriate anti-harassment policy will often satisfy the first



                                21
prong of the Ellerth/Faragher affirmative defense).          While there

is no direct evidence the Munroe was given a copy of the

Company’s anti-harassment policy prior to December 1997, it is

undisputed that the policy was posted on bulletin boards

throughout the Company and available on the Company’s computer

system, which was accessible to Munroe. It is also undisputed

that Munroe attended a sexual harassment training by December 1 2 ,

1997 wherein the Company’s policy was discussed.         The policy

identifies various avenues for making a complaint including a

hotline number that employees may call anonymously.          The policy

also informs employees that retaliation against individuals who

make complaints is unlawful and will not be tolerated.

     Munroe argues that the Company did not take reasonable care

to prevent harassment because the Company allowed Singh to remain

in a supervisory role despite past allegations of misconduct

against him.    Munroe submitted evidence that three accusations of

inappropriate sexual remarks were made about Singh prior to

Munroe’s allegations.5     Two of these remarks were allegedly made

     5
      See P l . Opp., Ex. 8 , p p . 6 and P l . Opp., Ex. 1 0 , p . 4 . The
Defendant disputes Munroe’s contention that Singh’s inappropriate
remarks were sexual in nature. Defendant also argues that
Plaintiff’s evidence pertaining to Singh’s remarks is
inadmissible. For the purposes of summary judgment, however, the
Court construes the evidence in the light most favorable to

                                    22
prior to 1985. There is no record of any action the Company took

with respect to the earliest allegation, but Singh was

disciplined for a remark he made in 1984. He received a written

warning for the third remark, which occurred in July 1997.

Munroe argues that the Company did not take reasonable care to

prevent further harassment because there is no evidence that the

Company limited or monitored Singh’s supervisory role after the

July 1997 warning.

    The Court finds that Munroe has raised a genuine issue of

material fact regarding whether the Company exercised reasonable

care to prevent harassment. Munroe points to some evidence that

the Company was aware of Singh’s misconduct, but did not take

reasonable care to prevent further harassment. In this regard,

the Court notes that the Defendant bears the burden of proof on

this issue. When the moving party bears the burden of proof on

the issue in question, the court may only grant summary judgment

if the moving party’s evidence is uncontradicted and unimpeached.


Munroe. In addition, the nonmoving party need not produce
evidence in a form that would be admissible at trial to avoid
summary judgment. See Celotex, 

. Under Rule
56(e), a party opposing summary judgment may do so by referring
the court to any of the kinds of evidentiary material in Rule
56(c), except the mere pleadings alone. 

 Munroe provided the
Company’s Answers to Interrogatories in support of the 1997
remark.

                               23
See Marrero, 

 (explaining the standard for judgment

as a matter of l a w ) ; see also, Anderson v . Liberty Lobby, Inc.,

 4 2 , 250 (1986) (the standard for granting summary

judgment mirrors the standard for a directed verdict).      As

discussed above, Munroe points to some material evidence to

support her argument that the Defendant did not act reasonably to

prevent harassment. Whether the Defendant has the preponderance

of the evidence on the issue of reasonable care to prevent

harassment is a question for the factfinder at trial.

     The decisions cited by Defendant where the Court determined

that the employers took reasonable care to prevent harassment as

a matter of law are inapposite. In Shaw v . AutoZone, supra, the

court noted that the employer presented undisputed evidence that

it acted reasonably to prevent and respond to harassment.        

. Thus, the court found, as a matter of law, in favor

of the employer on the first prong of the Ellerth/Faragher

affirmative defense. Similarly, in Scrivner v . Socorro Indep.

Sch. Dist., 

, 971 (5th Cir. 1999), the court found

that the employer was entitled to the affirmative defense because

the plaintiff failed to cite any material evidence in opposition

to the evidence submitted by the defendant employer. The facts



                                 24
of Shaw and Scrivener are distinguishable from the facts in the

instant case.

     Because the court finds that Munroe raises a genuine issue

of material fact on the first element of the Ellerth/Faragher

defense, the Court need not consider the second element of the

defense.   The Company’s motion for summary judgment on Munroe’s

supervisor harassment claim is denied.

     D.    Co-Worker Harassment Claim

     Courts apply a negligence standard for determining employer

liability for co-worker harassment. See Crowley v . L.L. Bean,

Inc., N o . 01-2732, --F.3d--, 

 (1st Cir.

Sept. 1 9 , 2002); White, supra, 221 F.3d at 261. This standard

requires a Title VII plaintiff to show that the employer “knew or

should have known of the charged sexual harassment and failed to

implement prompt and appropriate corrective action.”   Crowley,

 at * 1 1 ; White, 221 F.3d at 261.

     The Company argues that it is entitled to summary judgment

on Munroe’s co-worker harassment claim because Munroe did not

give the Company notice of Guilbeault’s harassment. As part of

this argument, the Company contends that Munroe’s complaints to

Singh cannot be imputed to the Company.    The Court disagrees.



                                 25
Munroe acted in accordance with the Company’s sexual harassment

policy in reporting Guilbeault’s harassment to her direct

supervisor, and Munroe was entitled to rely on Singh to take

appropriate action in response to her complaint.

     In Distasio v . Perkin Elmer Corp., 

 5 , 64 (2d Cir.

1998), the court found that an official’s knowledge of sexual

harassment allegations will be imputed to an employer in three

circumstances:

     (A) the official is at a sufficiently high level in the
     company’s management to qualify as a proxy for the
     company; or (B) the official is charged with a duty to
     act on the knowledge and stop the harassment; or (C)
     the official is charged with a duty to inform the
     company of the harassment.

 (quoting Torres v . Pisano, 

 (2d C i r . ) ,

cert. denied, 

 (1997)).

     Clearly, Singh was a person in the Company who was charged

with a duty to inform the company of harassment complaints.       The

Company’s Sexual Harassment Policy states that “Managers,

supervisors or Human Resource professionals observing or

receiving [sexual harassment] complaints must contact the U.S.

EEO/Diversity Organization for direction in investigating the

complaint.”   In direct contravention of the Company’s sexual

harassment policy, Singh did not transmit Munroe’s complaints.


                                  26
Moreover, Singh knew that Munroe found Guilbeault’s conduct

unwelcome, but did not make any direct attempt to correct

Guilbeault’s behavior. Under these circumstances, Munroe may

proceed with her co-worker harassment claim against the Company

by attempting to impute her supervisor’s knowledge of the alleged

harassment to the Company.   Distasio, 

 4 ; see also,

Crowley, 

 (employer subject to liability

where employer maintained a policy that permitted workers to

report sexual harassment to team leaders who had a duty to report

the complaint up the chain of command); Young v . Bayer Corp., 

 7 2 , 675 (7th Cir. 1997) (plaintiff placed her complaint in

the proper channel under the employer’s internal policies

governing harassment because the plaintiff’s department head was

one of four authorized channels for lodging a complaint).

     Defendant argues that, as a matter of law, Munroe cannot

rely on her complaints to Singh about Guilbeault because Munroe

has alleged that Singh also harassed her. Defendant cites

Finnane v . Pentel of Am., Ltd., N o . 98 C 5187, 99 C 0189, 

 at *11 (N.D.Ill. Mar. 1 4 , 2000), as support for its

assertion.   In that case, the court found that “[i]t is

unreasonable for an employee to expect a supervisor that is



                                 27
sexually harassing her to report other allegations of harassment

against the employee, which the supervisor learned during the

course of his own harassment.”   The court extended the rule in

Parkins v . Civil Constructors of Ill., 

 (7th

Cir. 1998) and Hetreed v . Allstate Ins. Co., N o . 96 C 2021, 

 at *6 (N.D. Ill. May 1 2 , 1999), that it is unreasonable

to expect an allegedly harassing supervisor to transmit

complaints to management about himself.

     The facts of Finanne are distinguishable from the facts in

the instant case. In Finnane, the plaintiff allegedly told her

direct supervisor that she had been threatened by a Pentel

manager, with whom she had formerly had a sexual relationship.

 at * 1 1 . The plaintiff informed her supervisor of

the threat during a dinner conversation in which the plaintiff

alleged that her supervisor made sexual advances towards her and

touched her inappropriately.   

    The court noted that the

plaintiff presented no evidence that her dinner conversation was

an official report of sexual harassment. 

     Under the

circumstances of the case, the court found that the plaintiff

could not reasonably rely on her supervisor to report the other

Pentel manager’s alleged harassment.     

                                 28
    In the instant case, it is undisputed that Munroe complained

to Singh about Guilbeault’s conduct. Munroe made her complaints

in the workplace and clearly intended to elicit Singh’s

assistance. On one occasion, Munroe showed Singh the offensive

e-mails that she had received from Guilbeault so that Singh could

see them for himself.

    In reporting Guilbeault’s harassment to Singh, Munroe acted

in accordance with the Company’s policy, and with Singh’s alleged

directive not to go over his head.   See Distasio, 

-

65 (employer could be held liable for co-worker harassment if the

employee remained silent because of the supervisor’s remark).

Under the Company’s sexual harassment policy, Singh was obligated

to act on Munroe’s complaints. The policy did not require Munroe

to go an additional rung up the Company hierarchy to report

harassment in the event that her direct supervisor was also

harassing her. The Court finds that Munroe was entitled to rely

on her complaints to Singh about Guilbeault’s conduct. The Court

further finds that there is a genuine issue of material fact

regarding the Company’s negligence in preventing Guilbeault’s

harassment.




                               29
II.   Munroe’s State Law Claim

      Munroe alleged in her Complaint that the Defendant violated

N.H. RSA 354-A in addition to violating Title VII. N.H. RSA 354-

A:7 makes it unlawful for an employer to discriminate against an

individual in compensation or in terms, conditions or privileges

of employment because of sex.    N.H. RSA 354-A:7(I).   The statute

further provides that “harassment on the basis of sex constitutes

unlawful sex discrimination.” N.H. RSA 354-A:7(V).      “Unwelcome

sexual advances, requests for sexual favors, and other verbal,

non-verbal or physical conduct of a sexual nature constitutes

sexual harassment” if “[s]uch conduct has the purpose or effect

of unreasonably interfering with an individual’s work performance

or creating an intimidating, hostile, or offensive working

environment.”   N.H. RSA 354-A:7(V)(c).

      This Court has supplemental jurisdiction to hear and decide

Munroe’s state law sexual harassment claim if it is “so related

to claims in the action within [the court’s] original

jurisdiction that they form part of the same case or controversy

under Article III of the United States Constitution.”     

(a); Wisconsin Dept. of Corr. v . Schacht, 

 8 1 , 387

(1998) (supplemental jurisdiction allows federal courts to hear



                                 30
and decide state-law claims that are part of the same case or

controversy as claims within the court’s original jurisdiction).

Since there is no credible argument that Munroe’s state law claim

is not related to her federal Title VII claims, this Court has

jurisdiction to decide Munroe’s state law claim.

     Defendant argues that it is entitled to summary judgment on

Munroe’s state law sexual harassment claim because N.H. RSA 354-A

does not create a private right of action for those aggrieved by

unlawful discrimination.   In support of this assertion, Defendant

cites Evans v . Work Opportunities Unlimited, Inc., 

 (D.N.H. 1996), Tsetseranos v . Tech Prototype, Inc., 

 (D.N.H. 1995), and Doukas v . Metropolitan

Life Ins. Co., 

 (D.N.H. 1995).     Those

cases stand for the proposition that individuals alleging

unlawful employment discrimination are limited to “seeking relief

through the administrative process created by the statute and to

obtaining judicial review of the results thereof in state court.”

Tsetseranos, 

. While formerly good law,

Evans, Tsetseranos and Doukas were decided before N.H. RSA 354-A

was amended on June 1 6 , 2000.   See N.H. RSA 354-A:21-a (Supp.

2002) (adding choice of forum provisions).    Under N.H. RSA 354-



                                  31
A:21-a, a plaintiff may now bring a civil action in court to

remedy any practice made unlawful by Chapter 354-A if certain

preconditions are met. 

   Thus, Defendant’s argument does not

comport with the existing law.6

     Nevertheless, the Court finds that the Defendant is entitled

to summary judgment on Munroe’s 354-A claim because Munroe does

not meet the statutory preconditions for bringing a civil action.

The statute explicitly provides that a superior court trial shall

not be available “to a complainant whose charge has been

dismissed as lacking in probable cause who has not prevailed on

an appeal to superior court pursuant to RSA 354-A:21, II(a).”7

N.H. RSA 354-A:21a. There is no evidence in the record that

suggests that Munroe appealed the NHCHR’s adverse probable cause

finding in the state courts. A litigant may not use supplemental

jurisdiction to have a federal court instead of a state court

     6
      Munroe filed her sexual harassment claim with the NHCHR,
and the NHCHR made its probable cause determination, prior to the
amendment to N.H. RSA 354-A that permits a private cause of
action. The Court does not address whether the amendment should
apply retroactively to Munroe’s claim since the Court finds that
Munroe fails to meet the statutory preconditions for bringing a
private cause of action.
     7
      N.H. RSA 354-A:21, II(a), provides in relevant part that:
“[w]hen the investigating commissioner finds no probable cause to
credit the allegations in the complaint, the complaint shall be
dismissed, subject to a right of appeal to superior court.”

                                  32
perform judicial review of a state administrative agency decision

that a state statute assigns to state court. See e.g., Misischia

v . Pirie, 

 (9th Cir. 1995) (rejecting plaintiff’s

attempt to invoke supplemental jurisdiction to by-pass the state

court’s authority to review the state administrative agency’s

denial of a dental license).    Munroe forfeited her state law

claim because she did not follow the statutory procedure that

created the private right of action. Accordingly, the Court

finds that Defendant’s motion for summary judgment on Munroe’s

sexual harassment claim under N.H. RSA 354-A must be granted.

                              Conclusion

      Defendant’s motion for summary judgment (document n o . 24) is

denied with respect to Munroe’s sexual harassment claims under

Title VII. Defendant’s motion is granted with respect to

Munroe’s sexual harassment claim under N.H. RSA 354-A.

      SO ORDERED.


                                James R. Muirhead
                                United States Magistrate Judge

Date:    October 1 8 , 2002

cc:      Thomas J. Gleason, Esq.
         David C . Casey, Esq.
         Steven M . Gordon, Esq.



                                   33
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