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James P. Tarquin, P.A. Motto
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What Should A Sexual Harassment Victim Do When The Company Finds That Her Complaint Has No Merit?

Speak out harassment sign

Sexual harassment victims are often required by an employer’s policy against sexual harassment to lodge a sexual harassment complaint with a designated employee or employees, including the company’s human resources department. Generally, employers respond to the victim’s sexual harassment complaint by conducting an investigation into the allegations. After investigating the complaint, employers will generally make a determination about the merits of the complaint, including making credibility findings and legal conclusions. Unfortunately, the determination often made by employers is that the victim’s sexual harassment complaint is without merit. Moreover, employers frequently seek to obtain evidence during the investigation that can be used to justify a finding that the complaint is meritless and develop defenses against any potential sexual harassment lawsuit. When confronted with an employer’s finding that her sexual harassment complaint is meritless, a sexual harassment victim will customarily experience feelings of anger, betrayal, and hopelessness. The decision by the U.S. First Circuit Court of Appeals in Gerald v. University of Puerto Rico, 707 F.3d 7 (1st Cir. 2013) illustrates that a company’s investigative findings are often highly questionable, and should not deter sexual harassment victims from continuing to fight for their dignity and legal rights.

Sexual Harassment Victim Refuses To “Roll Over”

In that case, Dr. Melissa Gerald (Gerald) brought a sexual harassment lawsuit pursuant to Title VII of the Civil Rights Act of 1964 (Title VII) against her former employer, the University of Puerto Rico (University). Gerald claimed that she was sexually harassed by her supervisor, Dr. Edmundo Kraiselburd (Kraiselburd), while she was employed by the University. During her employment, Gerald lodged a sexual harassment complaint against Kraiselburd with the University. Gerald reported three incidents of sexual harassment by Kraiselburd: (1) an incident where Kraiselburd sexually propositioned her in a hotel parking lot; (2) an incident where Kraiselburd grabbed her breast; and (3) an incident where Kraiselburd made an explicit sexual proposition. 

The University retained an outside attorney to investigate Gerald’s sexual harassment complaint. After interviewing employees about the allegations, the attorney reached her conclusions on behalf of the University. The attorney found that Gerald was not credible and it was unlikely the hotel proposition or breast grabbing incident occurred. As for the third incident, the attorney concluded that jokes and comments of a sexual nature were common for Gerald and Kraiselburd and it was unlikely that Kraiselburd’s comment was as vulgar as Gerald claimed. The attorney further found that even if the incidents occurred as Gerald alleged, they were not sufficiently severe or pervasive to alter Gerald’s working conditions and create a hostile work environment. In addition to her findings, the attorney also issued recommendations. The attorney recommended that the University conduct an administrative hearing into Gerald’s allegations and if the administrative hearing officer reached the same she conclusions she had, then the University should consider filing administrative charges against Gerald. The attorney also advised the University to transfer Gerald to another location. 

Based on the attorney’s findings and recommendations, the University dismissed Gerald’s sexual harassment complaint. The University further determined that administrative proceedings would be instigated against Gerald to determine whether she violated University policy by filing a false grievance. Acting on the attorney’s recommendation, the University also transferred Gerald to another location. 

As recognized by the First Circuit, Gerald refused to “roll over” and filed a sexual harassment complaint with the U.S. Equal Employment Opportunity Commission (EEOC). After the EEOC issued a right to sue notice, Gerald filed a sexual harassment lawsuit against the University. The trial court dismissed Gerald’s sexual harassment claim. On appeal, the First Circuit reversed the trial court’s decision and reinstated Gerald’s sexual harassment lawsuit.

Appellate Court Rejects Findings Of Employer’s Investigation

In reversing the trial court’s dismissal, the First Circuit disagreed with the attorney’s findings and conclusions that were made on behalf of the University. In rejecting the attorney’s factual determination that Gerald’s sexual harassment complaint was without merit because jokes and comments of a sexual nature were common for Gerald and Kraiselburd, the First Circuit explained that “[w]e fail to see how an employee telling risqué jokes means that she is amendable to being groped at work.” The appellate court further observed that Gerald did not accept the sexual proposition at the hotel room; rather Gerald turned Kraiselburd down. The appellate court also noted that Gerald specifically informed the attorney that she was bothered by Kraiselburd’s sexual proposition. Nor was there any evidence that Gerald encouraged or invited Kraiselburd to grab her breasts, and Gerald told the attorney that she was disgusted by him doing so. Thus, the appellate court concluded, it was for the jury to decide whether Kraiselburd’s sexual behavior was unwelcome. 

In rejecting the attorney’s legal conclusion that Gerald’s allegations were not sufficiently severe or pervasive to alter the conditions of her employment and create a hostile work environment, the First Circuit observed that Kraiselburd’s grabbing of Gerald’s breasts and making sexually suggestive noises “comfortably qualifies as egregious.” Moreover, the appellate court pointed out, Gerald “has alleged two incidents on top of this.” Based on such evidence, the First Circuit determined that “a reasonable jury could have found that the harassment was severe or pervasive.” Thus, the First Circuit concluded that it “cannot decisively say (as the district judge did) that a reasonable jury could not conclude that [Gerald] was subjected to a hostile environment.” As its holding and the reasoning supporting that holding reflect, the First Circuit could have added “as the investigating attorney did.”

Sexual Harassment Victim Does Not Let Employer Be Judge & Jury

The decision in Gerald reflects that the factual and legal findings reached by an employer in response to a sexual harassment complaint are often misguided and flawed. In Gerald, the First Circuit expressly rejected the University’s factual conclusion that Gerald did not find Kraiselburd’s sexually harassing behavior unwelcome. In doing so, the First Circuit directly undermined the University’s factual conclusion by explaining that simply because a sexual harassment victim may tell risqué jokes in the workplace this does not mean that she somehow consents to being groped at work. The Gerald court also emphatically rejected the University’s legal conclusion that Gerald’s allegations were not sufficiently severe or pervasive to create a hostile work environment. Indeed, unlike the University, the First Circuit found that Kraiselburd’s sexual behavior was “egregious.”

Instead of acknowledging that reasonable persons could disagree as to whether the sexually harassing behavior Gerald endured was sufficiently severe or pervasive to create a hostile work environment, the University came up with its own legally erroneous conclusion that, even assuming her allegations were true, Gerald was not the victim of hostile work environment sexual harassment because the sexually harassing behavior was not sufficiently severe or pervasive to alter the conditions of her employment. Had Gerald “rolled over” and not tenaciously fought back against not only the sexual harassment she endured, but also against a sexual harassment investigation that reached erroneous factual and legal conclusions, Gerald would have tragically allowed the University—and not the First Circuit Court of Appeals—to resolve her fate by playing the role of judge and jury.

Consultation With Employment Law Attorney

We have extensive experience protecting and vindicating the rights of sexual harassment victims. If you have been the victim of sexual harassment, or have questions about your employer’s investigation of a sexual harassment complaint, please contact our office for a free consultation. We take sexual harassment on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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