412 F.3d 39 (2nd Cir. 2005), 03-9242, Fairbrother v. Morrison

Docket Nº:03-9242-CV.
Citation:412 F.3d 39
Party Name:Greta FAIRBROTHER, Plaintiff-Appellant, v. Pamela MORRISON, Chief of Human Resource Operations, I/O, and Jo-Anne Libera, Material Witness, Defendants, STATE of Connecticut, Department of Mental Health and Addiction Services, Defendant-Appellee.
Case Date:June 14, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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412 F.3d 39 (2nd Cir. 2005)

Greta FAIRBROTHER, Plaintiff-Appellant,


Pamela MORRISON, Chief of Human Resource Operations, I/O, and Jo-Anne Libera, Material Witness, Defendants,

STATE of Connecticut, Department of Mental Health and Addiction Services, Defendant-Appellee.

No. 03-9242-CV.

United States Court of Appeals, Second Circuit

June 14, 2005

Argued: Dec. 17, 2004.

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Appearing for Plaintiff-Appellant: Michelle Holmes, Esq., Sack, Spector & Karsten, LLP, West Hartford, CT.

Appearing for Defendant-Appellee: Joseph A. Jordano, Esq., Assistant Attorney General, Office of the Attorney General, for Richard Blumenthal, Attorney General, Hartford, CT.

Before: NEWMAN, POOLER, and KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge.

At trial, Greta Fairbrother presented significant evidence of sexual harassment that was sharply disputed by her employer, the State of Connecticut's Department of Mental Health and Addiction Services ("DMHAS") and the other defendants.

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The jury returned a unanimous verdict in Fairbrother's favor on her claims of both sexually hostile work environment harassment under Title VII and retaliation under Title VII. The district court, however, granted the defendants' motion for judgment as a matter of law on both claims. We affirm the grant of judgment as a matter of law on Fairbrother's retaliation claim, but reverse the district court's order with respect to Fairbrother's hostile work environment claim.


We present first the evidence generally supporting Fairbrother's case, followed by that generally supporting the defendants' case. We then summarize briefly the procedural history.

A. Fairbrother's Case

Unless otherwise noted, the following facts are either undisputed, or based on Fairbrother's testimony or other evidence introduced by Fairbrother at trial.

Fairbrother began working for the State of Connecticut in September 1983, and, as of March 1996, worked for the state's Whiting Forensic Institute ("Whiting"), a division of DMHAS, which serves as a maximum-security facility for the criminally insane. At Whiting, Fairbrother worked as a Forensic Treatment Specialist, and in that capacity, provided care and treatment to Whiting's patients.

Whiting is divided into six units, and Forensic Treatment Specialists are assigned to work on specific units during one of three specific shifts. After working on Whiting's Unit Five for approximately two years, Fairbrother transferred to Unit One in 1998. The transfer appealed to her because it enabled her to move from the third to the second shift. Fairbrother was the only female working the second shift on Unit One. She reported to William Boisvert, the lead Forensic Treatment Specialist for the unit. 1

According to Fairbrother, Unit One was permeated with hostility toward her, and much of it was of a sexual nature. This was particularly true after the fall of 1999, once the Head Nurse, to whom Boisvert reported, left the unit. 2 Boisvert and the other Forensic Treatment Specialists would not answer her questions or give her messages when people called for her, and when patients would inquire concerning her whereabouts, her colleagues would not tell them where she was. Pornographic magazines were kept in the staff office and the staff bathrooms, and her male co-workers would often show her pictures from these magazines and ask her impression. At any given time, "probably two or three" sexually explicit jokes were posted on the office bulletin board. When Fairbrother brought coffee to her colleagues, she was asked "something to the effect" of "Where's your French maid outfit?" or "Why isn't it on you?". Fairbrother's male colleagues talked about "sex that they had with their wives," and asked Fairbrother about her sexual practices. Boisvert and several of her co-workers, including Forensic Treatment Specialists Chris Colavito, Jacques Ouimette, and James Young, would often call her a "bitch" and a "whore." The discussions concerning sex

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lives and referring to Fairbrother as a "bitch" happened almost every day. Fairbrother was called a "whore" between ten and fifteen times.

Because Boisvert was Fairbrother's supervisor, and the extent of a supervisor's involvement in harassment may affect the employer's liability, Boisvert's participation level may be relevant. Fairbrother testified that Boisvert caused the hostile work environment she faced, stating that the treatment she received was "all at his instigation." When she complained to Boisvert about the presence of pornographic magazines, he "said something to the effect, I've been here eighteen, nineteen, however many years, and I'm not going to stop doing or you're not going to prevent me from, you know, running the unit the way I want to run it." After this conversation with Boisvert, the hostility worsened. Boisvert interrupted a meeting between Fairbrother and the new Head Nurse to insist that Fairbrother be removed from the unit.

In mid-February 2000, Fairbrother was taking a break outside in the courtyard when another employee came out with a ruler to measure the snow on the ground. Fairbrother testified that, from in the staff office, Colavito yelled at the employee with the ruler, "I hope it's as much or as long as your d-i-c-k," and that Unit One Head Nurse Tammi Brown laughed at Colavito's comment.

Fairbrother testified about several instances in which she lodged complaints concerning her treatment. In October or November 1999, she complained to Boisvert "about materials and the talk on the unit." According to Fairbrother, matters only worsened. In November 1999, she complained to Al Davis, her Nurse Supervisor, about the sexually hostile work environment she was facing, providing him with specific examples of what was occurring. Fairbrother approached Davis again a few weeks later because the situation was "getting increasingly worse." Although Davis promised to set up a meeting to address her concerns, none had been arranged as of mid-February. Apparently, this delay was due in part to intervening vacation schedules of both Davis and Fairbrother.

The day after the incident involving the ruler, Fairbrother also met with a Nurse Supervisor to complain that she had found Colavito's statement offensive. At that meeting, Fairbrother declined to file a "write-up" that would have referred the matter to the personnel department, but she reiterated her request for staff meetings concerning the hostility she was facing. At this point, staff meetings involving Fairbrother, Boisvert, and other Unit One employees were arranged. Unfortunately, Fairbrother testified, these meetings degenerated into a "circus" at which her colleagues impugned her integrity and criticized her work performance.

An incident on February 13, 2000, in which Fairbrother is alleged to have assaulted Ian Walker, a co-worker, 3 is relevant to Fairbrother's case because it may help to establish when she put Pamela Morrison, a Personnel Director, on notice of her claims. Morrison testified that she learned about the incident in "late February or early March," and began an investigation. When asked about her meeting with Morrison to discuss the incident, Fairbrother stated, "I discussed everything, the whole situation to her and we went back--I went back to my unit." Fairbrother also testified about a telephone conversation with Morrison before a May 9, 2000 "prediscipline hearing" relating

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to the incident. 4 In that conversation, Fairbrother gave Morrison "all the background information of what's been happening on the unit since the fall of '99," including "[h]ostilities, the magazines, the name calling, the accusations." At the prediscipline hearing, Fairbrother discussed the hostile work environment she claimed she faced.

Fairbrother also introduced evidence supporting her claim of retaliation. She testified that, as she was leaving the hearing, Morrison told her, "If you drop your suits, I'll drop mine." Fairbrother declined the alleged offer, filing a complaint with the Connecticut Commission on Human Rights & Opportunities ("CHRO") on May 18, 2000, alleging violations of Title VII, the Civil Rights Act of 1991, and certain Connecticut statutes. This complaint described "hostility" on the unit, the prevalence of "dirty jokes" and "sexual comments" on the unit, and the presence of "Playboy magazines on the unit." After filing this charge, Fairbrother was removed from Unit One and assigned to "float[ ] the building," working in different units as needed. She was told, however, never to enter Unit One. In October 2000, Fairbrother amended her complaint with CHRO, adding a charge of retaliation and alleging that other pornographic magazines, including Hustler, Fox, and Gallery, were present at Whiting.

In June 2000, Fairbrother ceased going to work on account of back pain which she attributed to an injury sustained some years earlier. DMHAS initially contested liability for her worker's compensation claim, but eventually, the Department paid the claim. In September 2000, Fairbrother was given an appraisal with an overall rating of "Unsatisfactory." Fairbrother had never received an "Unsatisfactory" rating in the past.

B. The Defendants' Case

Unless otherwise noted, the following facts are either undisputed, or based on evidence put forth at trial by the defendants.

The defendants maintained that most, if not all, of the events that Fairbrother claimed created a hostile work environment never took place; their case was effectively built around an attack on Fairbrother's credibility. To support their position, the defendants called several of Fairbrother's co-workers and...

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