[Sample of student work, 1999; not an actual court filing]
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is a proceeding for injunctive relief and monetary damages for discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1), for failure to prevent harassing conduct and to maintain a work environment free of discrimination. Plaintiff Barbara Paine's Complaint was filed and served upon Quintessential Airlines on February 11, 1999. On February 24, 1999, five days after filing its Answer, Defendant filed a Motion for Summary Judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. However, Plaintiff shows in this Memorandum of Law that she can establish a prima facie case of hostile environment sexual harassment and thus demonstrates that genuine issues of material fact exist in the Pleadings and Affidavits. Therefore, Plaintiff requests that the Court deny Defendant's Motion for Summary Judgment and allow this case to proceed to trial where she can exercise her right to cross-examine witnesses and submit evidence to a jury.

STATEMENT OF FACTS

Since 1993 Plaintiff Barbara Paine, age twenty-eight, has worked as a flight attendant for Defendant Quintessential Airlines ("Quintessential"), a corporation based in Minneapolis, Minnesota. (Paine Aff. ¶ 1.) She enjoyed her job until Defendant began its "Quintessential Quickie" advertising campaign in November, 1998. (Paine Aff. ¶ 2; Compl. ¶ 16.) The new campaign promotes Quintessential's hourly shuttles to New York City and Washington, D.C. (Krol Aff. ¶ 2; Paine Aff. ¶ 3.)

Paine's Affidavit reveals that Quintessential adopted two slogans: "Enjoy a Quintessential Quickie," (Paine Aff. ¶ 3), and "Fly with us and Receive a Quintessential Quickie," (Paine Aff. ¶ 3). Both slogans continue to appear in newspapers and on television and radio, (Paine Aff. ¶ 3), but Quintessential has admitted the existence and use the first slogan only, (see Krol Aff. ¶ 4).

Immediately after Quintessential started the "Quickie" advertising campaign, male passengers began to make sexually suggestive comments to the flight attendants, including Paine, and began asking for dates more frequently. (Paine Aff. ¶ 4.) They also began to make unwelcome sexual propositions and touch the flight attendants inappropriately, such as fondling their buttocks. (See Compl. ¶ 20; Paine Aff. ¶ 11.) While such incidents are not unknown among flight attendants, they have dramatically increased since Quintessential began this campaign. (Paine Aff. ¶ 5.)

Paine can name five instances in which she felt personally violated by male passengers since the "Quickie" campaign began. (Paine Aff. ¶¶ 5, 6.) In one incident, a man intimidated Paine by asking, "How about a quickie for me, toots?" (Paine Aff. ¶ 6.) On three separate trips men have exploited Paine physically by patting her buttocks as she passed them in the center aisle during flights. (Paine Aff. ¶ 6.) Even worse, in late November or early December 1998, a male passenger sitting on the aisle violated Paine's modesty by staring down her blouse when she had to reach over him to hand a drink to the person sitting by the window. (Paine Aff. ¶ 6.)

Paine felt restricted from reprimanding the offenders since flight attendants are required to act professionally and pleasantly toward passengers, but she did feel very upset because she found the passengers' remarks and actions intimidating and offensive. (Paine Aff. ¶ 7.) Accordingly, Paine began to dread going to work. (Compl. ¶ 22.) Thus, she resorted to lodging a complaint with Quintessential's vice president in charge of human resources, Jarome R. Krol, (Paine Aff. ¶ 8), the management official designated to handle such complaints, (Def. Ex. C ¶ 4). Paine met with Krol on December 2, 1998, (Paine Aff. ¶ 8; Krol Aff. ¶ 5), and discussed the increasing offensive conduct of passengers. Krol, however, considered Paine's complaint as only "allegations" and the increase in offensive incidents only as a "perceived" increase. (Krol Aff. ¶ 5.)

On December 8, 1998, in response to Paine's concerns, Quintessential only posted signs inside the doors of its airplanes. (Krol Aff. ¶ 6; Paine Aff. ¶ 9.) The signs contained enlarged copies of the second paragraph of Quintessential's anti-harassment policy, (Krol Aff. ¶ 6; Paine Aff. ¶ 9), including a definition of harassment and a statement that "Quintessential Airlines will not tolerate harassing conduct . . .." (Def. Ex. C ¶ 2.) This action was the company's only response to Paine's distress. (Paine Aff. ¶¶ 9, 11.) Unfortunately, the posting of signs had no effect on the conduct of the male passengers and the work environment remained hostile. (Compl. ¶ 26; see Paine Aff. ¶ 11.) A week after Paine's meeting with Krol, and just a day after posting the signs, Krol met with Plaintiff's supervisor, Samuel Bates, and advised him that Plaintiff's concerns had been handled to the company's satisfaction. (Krol Aff. ¶ 7.)

The next afternoon, Bates met with Paine to discuss how Defendant had handled her concerns. (Bates Aff. ¶ 4.) Bates advised Plaintiff that the company had posted its anti-harassment policy on the doors of all its airplanes and was satisfied that this action was sufficient to deter further incidents with passengers. (Bates Aff. ¶ 5.) He said Defendant would do nothing more, (Paine Aff. ¶ 10), and repeated Krol's statement that the company would not change its slogan or discontinue is campaign, because the ads had boosted company revenues by ten percent. (Bates Aff. ¶ 5; Paine Aff. ¶ 10.)

Paine then filed a complaint with the Equal Employment Opportunity Commission, (Compl. ¶ 28), which issued a right-to-sue letter on January 13, 1999, (Pl.'s Ex. A). She received the letter on or about January 20, (Compl. ¶ 11; Paine Aff. ¶ 12).

Defendant has taken no further action to remedy the continuing harassment. (See Compl. ¶¶ 19, 26; Paine Aff. ¶ 11). Paine continues to feel violated, offended, and abused at work. (Paine Aff. ¶ 11.) She dreads going to work, (Compl. ¶ 22), and suffers anxiety attacks, (Paine Aff. ¶ 11). She has already paid $4,000 for psychotherapy and prescription anti-anxiety medication to help her cope at work, but the medication has not helped much and therapy is expected to continue indefinitely. (Paine Aff. ¶ 11.)

ARGUMENT

Paine can readily establish a prima facie case of hostile environment sexual harassment that was proximately caused by Quintessential's "Quickie" advertising campaign and which continues due to Quintessential's ineffective response to Paine's concerns. Besides the genuine issue as to material fact which is raised by Plaintiff's statement of a prima facie case, several material facts are also in dispute in the Pleadings and Affidavits. Since Plaintiff states a meritorious claim and demonstrates genuine issues as to material fact, summary judgment would be inappropriate.

I. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THE FACTS ESTABLISH A MERITORIOUS CLAIM OF HOSTILE ENVIRONMENT SEXUAL HARASSMENT.

Title VII of the Civil Rights Act of 1964, § 703(a)(1), as amended by the Civil Rights Act of 1991, provides that it is unlawful for an employer "to discriminate against any individual with respect to [her] . . . terms, conditions, or privileges of employment, because of such individual's . . . sex . . .." 42 U.S.C. § 2000e-2(a)(1) (1994). Since 1981 the Equal Employment Opportunity Commission Guidelines have provided that "[h]arassment on the basis of sex is a violation of section 703 of Title VII." 29 C.F.R. § 1604.11(a) (1981). Likewise, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court of the United States held that hostile environment sexual harassment "is a form of sex discrimination prohibited by Title VII." 477 U.S. 57, 65 (1986).

In the Eighth Circuit, Paine can establish a prima facie case of hostile environment sexual harassment simply by showing by the preponderance of the evidence that: "(1) she belongs to a protected group, (2) she was subject to unwelcome sexual harassment, (3) the harassment was based on sex, (4) the harassment affected a 'term, condition, and privilege' of employment, and (5) [her] employer knew or should have known of the harassment in question and failed to take proper remedial action." Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986) (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir. 1982)); accord Davis v. City of Sioux City, 115 F.3d 1365, 1368 n.5 (8th Cir. 1997).

The first element is rarely disputed in sexual harassment cases, Moylan, 792 F.2d at 749, nor is it disputed here. Under Title VII, women are a protected group. E.g., Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992). A plaintiff can establish that he or she belongs to a protected class by pointing to "a simple stipulation that the employee is a man or a woman." Benson v. City of Dundee, 628 F.2d 897, 903 (11th Cir. 1982). Quintessential stipulates that Paine is a woman, (Answer ¶ 5; see Krol Aff. ¶ 5; Bates Aff. ¶ 4), and thus stipulates the first element. Therefore, this discussion will focus on the remaining four elements, which Paine can also readily establish.

A. The Complaint and Plaintiff's Affidavit establish that Paine was subject to unwelcome sexual harassment from male passengers.

Paine's facts show that the harassing conduct of male passengers was unwelcome "in the sense that [she] did not solicit or invite it, and [she] regarded the conduct as undesirable or offensive." Moylan, 792 F.2d at 749. Nothing in the record even implies that Paine solicited or invited the male passengers' harassing conduct. To the contrary, Paine testified that she subjectively found it intimidating, abusive, offensive, and upsetting. (Compl. ¶ 22; Paine Aff. ¶ 7). Moreover, objective evidence also clarifies that Paine found the passengers' sexually-charged conduct unwelcome: she developed anxiety attacks and began to dread going to work as a result of frequently being subjected to male passengers' abuse. (Compl. ¶ 22; Paine Aff. ¶ 11.)

B. The Complaint and Plaintiff's Affidavit establish that the harassment from male passengers was based on Paine's sex.

The third element is rarely disputed in sexual harassment cases, Moylan, 792 F.2d at 749. The Eighth Circuit has stated that "sexual behavior directed at a woman raises the inference that the harassment is based on her sex." Burns, 955 F.2d at 564. To establish that "the harassment was based on sex," Paine need only show that "but for the fact of her sex, she would not have been the object of harassment." Benson, 628 F.2d at 904. Paine implies only that she and other female flight attendants suffered harassment, and only by male passengers. (See Compl. ¶ 20; Paine Aff. ¶ 4, 11.) Even though Quintessential denies that the conduct amounted to harassment, it does not deny that male passengers engaged in some inappropriate conduct directed at women, (see Bates Aff. ¶ 5). Neither party has alleged that male flight attendants, if there were any, were subjected to similar treatment from passengers.

Since all inferences must be drawn in the light most favorable to Plaintiff as the nonmoving party in this case, see Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), it must be inferred that only women employees suffered harassment on Quintessential flights. Therefore it is reasonable to conclude that Paine would not have been the object of harassment but for being a woman, and thus the third element is also established.

C. The Complaint and Plaintiff's Affidavit establish that the harassment affected a term, condition, or privilege of Paine's employment.

The EEOC guidelines provide that "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when . . . such conduct has the purpose or effect of unreasonably interfering with . . . work performance or creating an intimidating, hostile, or offensive working environment." 29 C.F.R. § 1604.11(a) (1998). Paine has certainly suffered the type of "verbal and physical conduct" described here for several months, (see Compl. ¶ 20; Paine Aff. ¶¶ 4, 11), requiring that Paine put up with it if she wants to keep her job.

The Supreme Court of the United States uses two-pronged test to determine if harassment is pervasive enough to alter the terms, conditions, or privileges of the plaintiff's employment: the objective or "reasonable person" test and the subjective test. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (relying on Meritor, 477 U.S. 57).

1. The offensive conduct was sufficiently severe or pervasive that a reasonable person in Plaintiff's position would find Plaintiff's work environment to be hostile or abusive.

No single factor is required in order to find the environment objectively hostile. Rather, a jury must consider all the circumstances, including "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 118 S. Ct. 2275, 2283 (1998) (quoting Harris, 510 U.S. at 23). The jury should consider that "each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes." Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991).

Paine has shown that the male passengers' degrading conduct was frequent and continuous and that it went beyond "mere offensive utterance." Not only did they make unwelcome sexual propositions and sexually-suggestive comments, but they actually crossed the line into physical assault, even groping Paine's and other women's buttocks. (See Compl. ¶ 20; Paine Aff. ¶ 11.)

In similar cases, even less-serious conduct has been deemed objectively hostile to a reasonable person. For example, in Harris, 510 U.S. at 23, the Court agreed that a company president's frequent sexual innuendoes and sex-based insults could be objectively hostile even if the plaintiff suffered no substantial psychological harm. In Paine's case, the conduct and damages far outweigh those in Harris, even including the groping of an intimate body part. In Grozdanich v. Leisure Hills Health Center, Inc., the perpetrator, a supervisory co-worker, very briefly fondled a nurse's thighs, buttocks, and pubic region, touching different parts each time on three separate occasions over a period of months. The Grozdanich court reasoned that, where the harassment "involv[es] the unwanted touching or groping of a victim's intimate body parts," even "a single [such] sexual assault has a far greater potential to adversely alter the work environment" than would extensive verbal abuse. The court held that the harassment, even though short-lived, was "so offensive . . . and . . . repugnant" that a "reasonable jury . . . could properly find that the Plaintiff was subjected to a hostile work environment, in violation of Title VII." 25 F. Supp. 2d 923, 970 (D. Minn. 1998). Likewise, a jury could reasonably find that the similar harassment in Paine's case was objectively pervasive and severe.

2. At the time the offensive conduct occurred, Plaintiff believed her work environment to be hostile or abusive.

Paine testified that she found the passengers' conduct intimidating, abusive, offensive, and upsetting. (Compl. ¶ 22; Paine Aff. ¶ 7.) She began to dread going to work and even developed anxiety attacks requiring psychotherapy and prescription medication. (Compl. ¶ 22; Paine Aff. ¶ 11.) Thus, a jury could reasonably find that she believed her work environment to be hostile or abusive.

D. The Complaint and Affidavits establish that Quintessential knew or should have known of the harassment but failed to take proper remedial action to end the harassment.

Paine notified a management official, which the courts have deemed sufficient to put an employer on notice. E.g., Faragher, 118 S. Ct. at 2284-85. Not only her own supervisor, but also a vice-president, was aware of Paine's allegations. The company's action of posting a notice on the doors of its planes was not sufficient to stop the harassment; in fact, the posters had no effect on the passengers. (Compl. ¶ 26; see Paine Aff. ¶ 11.) Surprisingly, Krol did not even wait to see if there would be an improvement in their conduct before he notified Bates that the company had taken sufficient measures by posting the notices. This questionable timing raises doubts about Quintessential's good faith effort, especially when the company has refused to modify or change its advertising campaign--the one action which Paine believes would effectively remedy the harassment.

On the other hand, the EEOC Guidelines require that "[a]n employer should take all steps necessary to prevent sexual harassment from occurring . . .." 29 C.F.R. § 1604.11(f) (1998). Since the environment remains hostile while Paine asserts that a change in advertising could remedy the problem, a jury would likely find that Quintessential did not take "all steps necessary" to halt and prevent the harassment.

II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE PLAINTIFF'S ESTABLISHMENT OF A PRIMA FACIE CASE RAISES A GENUINE ISSUE FOR TRIAL ALONG WITH OTHER ISSUES OF MATERIAL FACT IN THE PLEADINGS AND AFFIDAVITS.

Rule 56(c) of the Federal Rules of Civil Procedure allows for summary judgment only "if the pleadings . . . 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." To defeat a defendant's motion for summary judgment, a plaintiff "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). It is important to note that "in evaluating the movant's showing, the evidence offered by the non-moving party is to be believed and all justifiable inferences therefrom are to be drawn in the light most favorable to that party." Dull v. St. Luke's Hosp. of Duluth, 21 F. Supp. 2d 1022, 1025 (D. Minn. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Not only is a genuine issue of material fact demonstrated by Plaintiff's establishment of a prima facie case of hostile environment sexual harassment as presented in the first point, supra, but furthermore, several material facts are disputed in the Pleadings and Affidavits.

A. Plaintiff's establishment of a prima facie case inherently demonstrates a genuine issue of material fact precluding summary judgment.

The establishment of a prima facie case of sexual harassment is sufficient to preclude summary judgment because there is inherently a genuine issue of material fact when Plaintiff shows evidence upon which a reasonable jury could return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 246, 248. Although there are also specific facts in dispute, Paine's establishment of a meritorious claim would be sufficient to preclude summary judgment.

B. Other material facts are also in dispute in the Pleadings and Affidavits, further demonstrating the need for a jury trial in which the facts can be determined.

Quintessential denies that any sexual harassment has occurred and claims that the company's investigation found no credible evidence of harassment. (E.g., Answer ¶¶ 18, 20.) Defendant also denies Plaintiff's assertion that Defendant's failure to terminate the "Quickie" advertising campaign transforms the acceptance of sexual advances by the passengers into conditions of Plaintiff's continued employment and that the passengers' conduct constituting sexual harassment has thus been ratified and condoned by the Defendant. (Answer ¶¶ 18, 20, 30, 31.) These discrepancies are all issues of material fact because the outcome of a jury trial would differ depending on how the jury construes these facts. See Liberty Lobby, Inc., 477 U.S. at 252.

Another issue involves a new fact revealed in Plaintiff's Affidavit but not mentioned in the Complaint nor considered in Defendant's Motion for Summary Judgment. Her Affidavit attests to the existence and continued use of a second, more suggestive slogan ("Fly with Us and Receive a Quintessential Quickie"), which is implicitly denied in Krol's Affidavit, (Krol Aff. ¶ 4), by virtue of his exclusive mention of only one slogan, "Enjoy a Quintessential Quickie," (Krol Aff. 4).

By promising that passengers on Quintessential shuttles will "Receive a Quickie," the second slogan implies that the "Quickie" is separate from the flight itself. Given the slogan's universally-recognized double entendre and the manifest indulgence in sex-appeal marketing, Quintessential's use of the second slogan is analogous the restaurant owner's policy in EEOC v. Newtown Inn Assocs., 647 F. Supp. 957 (E.D. Va. 1986), where the employer was held liable for the resulting harassment of waitresses after implementing a marketing scheme including a policy of requiring cocktail waitresses to "wear provocative outfits" and "project an air of sexual availability to the customers." Id. at 958. Here, the use of the second slogan may influence a jury to find that harassment was caused by Defendant's marketing policy. These issues of material fact preclude summary judgment because they vitiate Defendant's claim of no genuine issue for trial.

CONCLUSION

For the foregoing reasons, Plaintiff Barbara Paine respectfully requests that the Court deny Defendant's Motion for Summary Judgment and allow this case to proceed to a jury trial on the merits.

CERTIFICATE OF SERVICE

I, Randall Burks, attorney for the Plaintiff, do hereby certify that I have served upon the Defendant a complete and accurate copy of this Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, by placing the copy in the United States Mail, sufficient postage affixed, and addressed to West Lawson, Corporate Counsel, Quintessential Airlines, Inc., 123 Wright Brothers Boulevard, Minneapolis, Minnesota 55403.

Dated this 22nd day of March, 1999.