Gallagher v. Delaney

• Decision Date: 19 March 1998
• Docket Number: Docket No. 97-7726
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 700 Carmel A. GALLAGHER, Plaintiff-Appellant, v. George J. DELANEY, Robert A. Hansen, and Consolidated Edison Company of New York, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 338

139 F.3d 338

76 Fair Empl.Prac.Cas. (BNA) 700

Carmel A. GALLAGHER, Plaintiff-Appellant, v. George J. DELANEY, Robert A. Hansen, and Consolidated Edison

Company of New York, Inc., Defendants-Appellees.

Docket No. 97-7726.

United States Court of Appeals, Second Circuit.

Argued Feb. 4, 1998.

Decided March 19, 1998.

Kim Berg, White Plains, NY (Jane Bilus Gould, Lovett & Gould, of Counsel), for Plaintiff-Appellant.

Kenneth G. Standard, New York City (Jeanmarie Schieler, Mary Schuette, of Counsel), for Defendants-Appellees.

Before: KEARSE, and WALKER, Circuit Judges, and WEINSTEIN, ^* Senior District Judge.

WEINSTEIN, Senior District Judge:

Appellant Carmel Gallagher sued her former employer and supervisors charging discrimination in the form of sexual harassment and retaliation. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; New York Executive Law § 296. The Equal Employment Opportunity Commission issued a Right to Sue letter.

The United States District Court for the Southern District of New York, Charles L. Brieant presiding, granted summary judgment against Gallagher. Rejecting a continuing violations theory, it held: any claims of harassment or retaliation prior to May 3, 1995 were time-barred; there was no actionable sexual harassment after that date; in any event, the employer promptly and adequately took corrective action; and there was no retaliation.

The evidence, viewed in the light most favorable to the appellant, requires a trial. Creating a mosaic with the bits and pieces of available evidence, a reasonable juror might picture either a malign employer using his position to pressure a subordinate for sexual favors or a benign boss trying--however ineptly--to express concern for his secretary in a non-erotic manner that she mistakenly viewed as sexually aggressive. The jury could also find either retaliation for a complaint of sexual harassment or a sensible managerial decision to promptly separate a supervisor and an employee who were incompatible.

I. INTRODUCTION

"[T]he law of sexual harassment continues to develop at a brisk pace." Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213, 114 S.Ct. 2693, 129 L.Ed.2d 824 (1994). So too do the mores of the workplace. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., --- U.S. ----, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (same sex discrimination); Ganzy v. Allen Christian School, 995 F.Supp. 340 (E.D.N.Y.1998) (history of female sexuality and of women in the workforce); What Is Sexual Harassment? passim (Karin L. Swisher ed., 1995) (collecting sharply differing views on what should be proscribed).

Characterizing behavior as sexually harassing can only be accomplished in a specific context. Is it harassing for a supervisor to continually seek to date a subordinate or to compliment him or her on physical attributes or clothing selection? When a boss gives a gift, is it an act of good will or of sexual innuendo? Is behavior deemed inappropriate by an etiquette savant sexual harassment? The answer often depends upon perceptions of the circumstances.

A federal judge is not in the best position to define the current sexual tenor of American cultures in their many manifestations. Such an effort, even were it successful, would produce questionable legal definitions for the workplace where recognition of employees' dignity might require standards higher than those of the street.

[N]o principled argument supports the view that sex-based offensive behavior in the workplace is immune from remedy simply because it may be culturally tolerated outside of the workplace. The purpose of Title VII is not to import into the workplace the prejudices of the community, but through law to liberate the workplace from the demeaning influence of discrimination, and thereby to implement the goals of human dignity and economic equality in employment.

King v. Hillen, 21 F.3d 1572, 1582 (Fed.Cir.1994). "[J]udges should be careful to remember that American popular culture can, on occasion, be highly sexist and offensive. What is, is not always what is right, and reasonable people can take justifiable offense at comments that the vulgar among us, even if they are a majority, would consider acceptable." Torres v. Pisano, 116 F.3d 625, 633 n. 7 (2d Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 563, 139 L.Ed.2d 404 (1997).

Today, while gender relations in the workplace are rapidly evolving, and views of what is appropriate behavior are diverse and shifting, a jury made up of a cross-section of our heterogenous communities provides the appropriate institution for deciding whether borderline situations should be characterized as sexual harassment and retaliation.

The factual issues in this case cannot be effectively settled by a decision of an Article III judge on summary judgment. Whatever the early life of a federal judge, she or he usually lives in a narrow segment of the enormously broad American socio-economic spectrum, generally lacking the current real-life experience required in interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit communications. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 18, 76 S.Ct. 1, 6, 100 L.Ed. 8 (1955) ("Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions, and habits."); United States v. Shonubi, 895 F.Supp. 460, 482-88 (E.D.N.Y.1995) (methods triers of fact employ in deciding cases), rev'd on other grounds, 103 F.3d 1085 (2d Cir.1997).

The dangers of robust use of summary judgment to clear trial dockets are particularly acute in current sex discrimination cases. Compare Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) ("Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis."), and DiLaurenzio v. Atlantic Paratrans, Inc., 926 F.Supp. 310, 314 (E.D.N.Y.1996) (determination of whether a workplace is hostile or not is "the sort of issue that is often not susceptible of summary resolution"), with Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) ("salutary purposes of summary judgment ... apply no less to discrimination cases than to commercial or other areas of litigation"), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). See also Judith Olans Brown, Stephen N. Subrin, & Phyllis Tropper Baumann, Some Thoughts About Social Perception and Employment Discrimination Law: A Modest Proposal for Reopening The Judicial Dialogue, 46 Emory L.J. 1487 (Fall 1997).

In this period of rapidly changing and conflicting views of appropriate gender relationships in the workplace, decisions by a jury in debatable cases are sound in policy and consonant with the Seventh Amendment. The facts of this case illustrate the sharp differences in inferences that can be supported, depending upon the trier's hypotheses. See, e.g., What Is Sexual Harassment? passim (Karin L. Swisher ed., 1995); Taking Sides, Clashing Views on Controversial Issues in Human Sexuality passim (Robert T. Francoeur ed., 2nd ed.1989); Thomas Moore, At Work, Accentuate the Sensuous, Newsday, Mar. 9, 1998, at A25; Jeffrey Toobin, The Trouble With Sex, The New Yorker, Feb. 9, 1998, at 55. Sexual communications can be subtle or direct. See, e.g., Lee Alan Dugatkin & Jean-Guy J. Godin, How Females Choose Their Mates, Sci. Am., Apr. 1998, at 56 ("not a phenomenon unique to humans"); Eckhard H. Hess, The Role of Pupil Size in Communication, Sci. Am., Nov. 1975, at 110 (sexual arousal can be detected by measuring automatic increases in pupil size; the person who observes the pupil dilation will react without being aware of the stimulus causing the response); Natalie Angier, Study Finds Signs of Elusive Pheromones in Humans, N.Y. Times, Mar. 12, 1998, at A22 (pheromones emitted by women induced hormonal responses in others who were unaware of their odor); JCPenney Spring & Summer '98 Catalog (1998), available in http://www.jcpenney.com/jshopping/jcpenney/collections/catalog (clothing, hair accessories, cosmetics, perfumes, and other allures offered to both men and women). Sexual attraction cannot be eliminated, nor does the applicable legislation seek to do so.

II. FACTS

Gallagher began working for appellee Consolidated Edison as an executive secretary in 1990. In April 1992, she was assigned as secretary to appellee Robert A. Hansen, Con Ed's General Manager for Customer Operations in Westchester County.

The working relationship between Gallagher and Hansen was unexceptional until June 4, 1993, when he told her that he had a dream that she kissed him. Three days later, Hansen gave Gallagher a potted plant. The next day, when Gallagher went into Hansen's office, he told her that, because there were boxes and stacks of paper on the office chairs, the only place for her to sit was on his lap. The following day, Gallagher informed Hansen that his lap comment was totally inappropriate and offensive.

From June 4, 1993 through August 1995, Gallagher alleges that Hansen invited her to lunch on numerous occasions. Though she did dine with him voluntarily on occasion, in keeping with the social climate of the workplace, there were times when she contends she was ordered by Hansen to eat with him and others.

Hansen gave Gallagher gifts of, among other things, jewelry, a Vermont Teddy Bear, a single pink rose, and a book about angels. He sent her cards with handwritten notes that read, for example, "Believe me, your [sic] the last person on Earth I want to see hurt." He complimented her on her physical appearance, gave her days off...