Christine March
v.

Technical Employment Services, Inc.
And
Daniel Duncanson

ES(H) 5838-96
EEOC: 16D960388

DECISION OF THE COMMISSION

I. Factual Background

Christine March was hired as a clerical assistant by Daniel Duncanson, president and majority stockholder of Technical Employment Services, Inc., in October, 1992. Because of her good work performance, she was promoted to service representative. During her employment, she developed both a professional relationship and a social friendship with Mr. Duncanson.

The social friendship involved activities outside the office which included going to a concert in the company of others, visits by Mr. Duncanson to Ms. March's home, attendance by Mr. Duncanson at Ms. March's 30^th birthday party, providing rides to and from work and the exchange of greeting cards. The friendship also resulted in Mr. Duncanson being at Ms. March's home on the evening of Friday, December 15, 1995.

As Ms. March and Mr. Duncanson left work together that afternoon, he asked what she was doing that evening. She told him that she had invited some mutual friends to her apartment. When Mr. Duncanson asked if he could attend also, she granted her approval. Mr. Duncanson then proceeded to do some Christmas shopping. At approximately 7:00 PM, he called her apartment to see if it was still acceptable for him to visit. She indicated that he was welcome to visit but that there was a shortage of beer. Mr. Duncanson agreed to bring a six-pack.

In addition to Mr. Duncanson and Ms. March, the gathering was attended by Ms. March's friend, Karen Tardivo, Ms. March's former boyfriend, Craig Ferry and Frank Rotundo. All were previously acquainted. The exact details are somewhat unclear because all witnesses testified to "feeling the effects of alcohol."

It is undisputed that Mr. Duncanson kissed Ms. March twice during the course of that evening. Based on the kissing incidents and subsequent communications and conversations in the office, Ms. March quit her job and filed a complaint that she was subjected to sexual harassment in violation ofRSA 354-A:7, V and 42 U.S.C Section 2000e-2(a)(l). She alleges that Mr. Duncanson and TES subjected her to both quid pro quo and hostile work environment sexual harassment. She further argues that she was compelled to resign because of the sexual harassment.

II. Legal Standards

In order to prevail on her quid pro quo claim, the complainant must establish that submission to unwelcome sexual advances, requests for sexual favors and other verbal, non-verbal or physical conduct of a sexual nature is made either explicitly or implicitly a term or condition of her employment or that submission to or rejection of such conduct is used as the basis for employment decisions affecting her. RSA 354-A:7, V. More specifically, Ms. March must prove (1) that she is a member of a protected class; (2) that she was subjected to unwelcome sexual harassment in the form of sexual advances or requests for sexual favors; (3) that the harassment complained of was based on sex; (4) that her submission to the unwelcomed advances was an express or implied condition for receiving job benefits or that her refusal to submit to her supervisor's demands resulted in a tangible job detriment; and (5) the existence of employer liability. Highlander v. K.F.C. National Management Company.805 F. 2d 644, 648 (6th Cir. 1986); Henson v. Citv of Dundee, 682 F. 2d 897, 909 (11th Cir. 1982).

Proof of a hostile work environment claim requires the following elements: (1) that she belongs to a protected class; (2) that she was subject to unwelcome sexual harassment; (3) that the harassment complained of was based on sex; (4) that the harassment complained of affected a "term, condition or privilege" of employment in that it was sufficiently severe or pervasive to alter the conditions of her employment and create a working environment that a reasonable person would find hostile or abusive; (5) establishment of employer liability. Sparks v. Pilot Freight Carriers. Inc., 830 F. 2d 1554, 1557 (11th Cir. 1987); Harris v. Forklift Systems, 510 U.S. 17 (1993); RSA 354-A:7. V.

III. Analysis

The complainant clearly meets two elements common to both claims: (1) she is a member of a protected class and (2) the conduct was directed toward her because of her gender. That leaves five contested issues:

A. Whether the conduct was unwelcome (for both claims);

B. Whether maintaining a personal relationship with the employer became a term or condition of employment (quid pro quo);

C. Whether rejection of her employer's advances resulted in a tangible job detriment (quid pro quo);

D. Whether the conduct complained of was sufficiently severe or pervasive to alter the conditions of her employment and create a working environment that a reasonable person would find hostile or abusive, (hostile working environment); and

E. Whether the working conditions would have been so difficult or unpleasant that a reasonable person would have felt compelled to resign (constructive discharge).

A. Unwelcome Nature of Conduct

Mr. Duncanson clearly believed that his approaches to Ms. March were welcomed. He testified that he felt there was "chemistry" and a "spark" between them from working closely together over several years, from kidding around and from confiding in each other. He testified that she "returned" his first kiss in the kitchen and placed her hands on his hips. When they returned to the livingroom, she chose to sit on the couch where he had been sitting rather than on the floor where she had been previously. He describes the second kissing incident as "necking" for approximately ten minutes. He denies that there was any objection demonstrated by Ms. March through flailing her arms or any other method. Indeed, he claims she straddled him in order to look out the window behind the couch. His testimony that they hugged upon his departure is supported by Craig Ferry.

The accounts of the events of that evening are conflicting on critical elements. The witnesses were under the influence of alcohol and the complainant's account is logically inconsistent. The Commission finds that the complainant has failed to prove by a preponderance of the evidence that the conduct was unwelcome.

It was only after Ms. March refused to return his phone calls and refused to return to work that Mr. Duncanson began to understand that his advances were unwelcome. When his card of apology prompted a "hate letter" from Ms. March, he described himself as devastated and felt like he "could have had a heart attack". The first opportunity for a face-to-face conversation occurred on Thursday, December 21, 1995, when Ms. March returned to work. Mr. Duncanson met with her in the late afternoon and emotionally described his feelings for her. At that time, she clearly and unequivocally rejected him.

B. Term or Condition of Employment

Complainant's argument that maintaining a personal, sexual relationship with Mr. Duncanson was a term or condition of her employment rests upon a belief that once the kissing incident occurred, the employer took steps to reinforce that if there was no personal relationship, there would be no job. Ms. March did not report for work for three days following the party. On December 21, 1995, she made it clear that his sentiments toward her were not mutual. She worked the next day until noon, went out to lunch with Mr. Duncanson and a co-worker and then went shopping. She did not return to work until January 4,1996.

A meeting occurred on January 4th or 5th between Ms. March and Mr. Duncanson. Her version is that the meeting was a repeat of the December 21st meeting. Mr. Duncanson's testimony was that the purpose of the meeting was to re-establish the working relationship, which existed before December 15th. Ms. March was admittedly uncommunicative, distant and cold. In such a small office, it was necessary for the parties to communicate. Mr. Duncanson's version is consistent with legitimate business principles and is found to be the more likely. Accordingly, there was no requirement that a personal, sexual relationship be a condition of her employment, only that the parties needed to maintain a professional, working relationship. Complainant's willful lack of communication with her employer, including the refusal to respond to legitimate inquiries about returning to work and the misrepresentations regarding the reasons for not returning to work, contribute to the inability to validate her claim that there was a job requirement for an improper personal relationship.

C. Tangible Job Detriment

Ms. March's rejection of Mr. Duncanson's advance certainly did not result in any adverse employment consequence. To the contrary, when Ms. March repeatedly engaged in activity which could have justified termination, i.e. failure to appear at work without notice, the employer did not fire her, but continued to pay her regular salary. Respondent paid complainant for several weeks when she performed no work, continued to urge her to return to the office and placed her on unpaid leave reluctantly. He made no serious attempt to recover money loaned for the purchase of a vehicle. Accordingly, it cannot be said that respondent used economic power to extort a sexual relationship from complainant. Therefore, the commission concludes that the complainant was not subject to quid pro quo sexual harassment.

D. Severe or Pervasive Conduct

In Harris v. Forklift Systems, supra, the Supreme Court ruled that a plaintiff must prove that the challenged conduct is "severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive..." Harris, supra at 22. Whether an environment is hostile can be determined only by looking at all the circumstances. These may include the 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.

The conduct complained of, two kisses followed by verbal expression of personal feelings, did not occur with sufficient frequency to meet the legal standard for pervasiveness. The parties worked together for three years without a similar incident. Even the complainant's mother testified that Mr. Duncanson had always acted professionally.

Complainant's argument for pervasiveness might be bolstered if the commission believed her version of two events. The first event is a shopping trip, which occurred after Ms. March, Mr. Duncanson and a co-worker, went to lunch on December 22, 1995. Ms. March testified that she told the respondent that she was going to do some shopping at Wal-Mart, when in actuality she intended to go to Osco Drug. When she reached Osco, Mr. Duncanson was there. She felt scared and angry because she believed that Mr. Duncanson had followed her.

Mr. Duncanson's version is that Ms. March and he had agreed to go shopping together at Wal-Mart as they had on previous occasions. They took separate vehicles to avoid the necessity of returning to the downtown area. Because the traffic was so horrendous, Ms. March, in the lead vehicle, signaled to turn into Osco Drug. Mr. Duncanson followed her in, finding a parking spot in another row. They then shopped separately and together. After shopping, they wished each other a Merry Christmas and Ms. March gave him a hug.

The second event is the meeting on January 4th or 5th. If indeed Mr. Duncanson was continuing to profess his personal feelings for her, then one could speculate that these meetings would continue into the future and ultimately become pervasive. The commission does not so find.

Ms. March carries the burden of proving her version of events by a preponderance of the evidence. The commission finds Mr. Duncanson's version to be the more credible.

By this ruling, the commission does not suggest it condones an employer kissing a subordinate employee, but in determining whether alleged conduct meets the severity standard, the commission must look at the record as a whole and the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. Hum 403.02 (b).

The kissing occurred at a gathering of friends at the complainant's home where witnesses testified to "feeling the effects of alcohol". Testimony of Craig Ferry, Karen Tarvido. This did not occur in the workplace or at a company sponsored social event. The nature of the sexual advances, two kisses, while described as unwelcome by complainant, did not involve sexual physical contact to an intimate part of the plaintiffs body or physically threatening behavior. Moreover, there is no evidence that kisses or any other unwelcome physical contact occurred either before or after the party on December 15, 1995.

Whether a reasonable person would have found the work environment to be hostile or abusive requires further analysis of the fact. Complainant's reaction to the kissing incident is puzzling. After the first kiss at the party, she testified that she asked her friend, Karen Tardivo, to remain with her while the two other males went out to buy more beer. When she returned to the living room, she chose to sit on the couch where Mr. Duncanson had been sitting, rather than sitting by herself in a chair. During the second kissing incident on the couch, which she describes as Mr. Duncanson pushing her down on the couch, she didn't push him away, punch him, kick him, bite him or scream, rather she tried to signal to Karen by using sign language to spell out the words, "Help me," which apparently Karen does not even understand.

The second kissing incident ended when the two men returned. The complainant remained seated on the couch next to respondent. She did not ask for the intervention of her ex-boyfriend. When Mr. Duncanson left at the end of the evening, he and Ms. March exchanged a hug according to the testimony of respondent and Craig Ferry.

By Saturday, she apparently felt so violated, scared, disgusted and devastated (in her words), that she decided not to return to work. By Sunday at least, Mr. Duncanson was leaving messages on her answering machine that he wanted to talk with her. She refused to accept or return any of these calls until a brief conversation Sunday evening in which she indicated that she would be present at work on Monday.

She did not report to work on Monday, Tuesday or Wednesday. By Monday, Mr. Duncanson realized that Ms. March objected to the kisses. He then apologized to her on her answering machine and in writing.

Complainant provided transcripts of the answering machine messages from Monday, December 18, 1995. Plaintiffs Exhibit Rebuttal A. Mr. Duncanson says, "I guess you must be pretty angry with me. But I really wish you would just give me a couple of minutes to talk to you. I'm sure it's, ah, nothing that you and I as a couple of mature adults can't work out. I'm sorry if I hurt you." Later messages suggest a concern for her health and well-being. (There was testimony that Ms. March is subject to hypoglycemia.) The complainant testified that she found these messages to be "offensive". Indeed, she seeks compensatory damages for "pain, suffering, embarrassment and humiliation arising from...insistent telephone messages to complainant." Complainant's Pre-Hearing Damage Statement, 3(b).

Also on Monday, December 18, 1995, Mr. Duncanson sent Ms. March a greeting card expressing his apologies. It contained a printed message with the following words: "I don't know quite how to make things better between us. I can start by saying I'm sorry. I really am." To this he added a handwritten note: "Just a note to let you know - What ever way you decide to go with this, I will always be your friend and hold you in the highest regards. Dan." Plaintiffs Exhibit 3. Complainant testified that her response was anger. She replied by sending to him what she describes as a "hate letter".

On Thursday, December 21, 1995, she returned to work. She spent most of the day catching up on her work. Around 3 PM, Mr. Duncanson entered her office and closed the door. (He testified that he thought it would be less intimidating to meet in her office rather than inviting her to his office and that he routinely closed the door when discussing personal matters.) The parties agree that he described the feelings that he had for her and that she indicated she did not share those feelings. Although her sworn complaint of April 30, 1996 states that the meeting lasted 45 minutes, she testified that it lasted 1-1 1/2 hours.

Although she described herself as feeling "trapped, scared and disgusted", she returned to work the next morning and went to lunch with Mr. Duncanson and a co-worker, Diane Robinton. What occurred next is the shopping incident discussed above which is the subject of sharp dispute. She did not return to work again until January 4, 1996 when their second meeting occurred. She worked briefly on January 5th and then left the office, never to return again. The tension in the work environment was created in part by the way in which Ms. March handled the situation. For whatever reasons, she seemed determined to frustrate efforts to establish a constructive working relationship. That behavior made it impossible to determine whether the employer's conduct was the instrumental cause in the failure of the workplace relationship. Viewing the circumstances as a totality, the commission finds that an objective, reasonable person would not have found this work environment to be hostile or abusive.

E. Constructive Discharge

Complainant presented much emotional testimony that her job with TES was of great value to her, that she planned to make it her career and that it enabled her to spend significand quality time with her children. Given the substantial importance of the position, it defies common sense that she would not have made a greater effort to retain her job.

Nevertheless, she argues that she was compelled to quit. To establish constructive discharge, she must demonstrate that "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Landgraf v. USI Film Products, 968 F.2d 427, 59 FEP 897 (5th Cir. 1992), aff'd in part on other grounds. 128 L. Ed. 2d 229, 64 FEP 820 (1994). See also Appeal of T&M Associates. Inc, 134 N.H. 617(1991). Complainant's behavior as an employee was so unusual that it cannot be said that the employer's behavior after December 21 made the working conditions unpleasant or difficult. The Commission rules that she failed to carry the burden of showing that her employer made the conditions of employment so unbearable that she was justified in leaving the job.

Conclusion

The application of formal legal principles to the complexities of human behavior and interaction is not always a neat fit. Ofttimes, the best analytical tools are common sense, principles of reasonableness and assessment of credibility. The commission finds that the complainant's version of the events conflicts with common sense, that her response to the situation was unreasonable and that her credibility was undermined by inconsistent and evasive answers. The complainant bears the burden of proof by a preponderance of the evidence. The commission rules that she has not carried that burden.

FINDINGS OF FACT
AND
RULINGS OF LAW

A. Complainant's Request for Findings of Fact

1. granted
2. denied
3. granted
3(a). granted
4. granted
5. granted
6. granted
7. denied
8. denied
9. denied
10. denied
11. granted
12. granted
13. granted
14. granted
15. denied
16. denied
17. granted
18. granted
19. granted
20. granted
21. granted
22 a. granted
b. granted
c. granted
d. granted
e. granted
f. granted
23. denied
24. granted
25. granted
26. granted
27. denied
28. denied
29. granted
30. granted
31. granted
32 a. denied
b. denied
c. denied
d. denied
e. denied
33. granted
34. granted
35. granted without emphasis
36. denied
37 a. denied
b. denied
c. denied
d. denied
e. denied
f. denied
g. denied
f (sic) denied
g (sic) denied
38. granted
39. denied
40. denied
41. denied
41 a. denied
41b. denied
41c. denied

B. Complainant's Proposed Rulings of Law

1. granted
2. granted
3. denied
4. granted
5. granted
6. neither grant nor deny
7. granted
8. granted
9. denied
10. granted
11. denied
12. granted

Because the commission finds for the respondent, the commission declines to rule on requests related to Damages, Mitigation of Lost Pay Damages, Prejudgment Interest, Attorney Fees and Expenses and Joint and Several Liability, numbers 13-20.

C. Respondent's Requests for Findings of Fact

Fl granted
F2 granted
F3 granted
F4 granted
F5 denied
F6 granted
F7 granted
F8 granted
F9 granted
F10 granted
F11 denied
F12 granted
F13 granted
F14 granted
F15 granted
F16 granted
F17 denied
F18 granted
F19 granted
F20 granted
F21 granted
F22 granted
F23 granted
F24 granted
F25 granted
F26 granted with correction of second date to read: December 15, 1995
F27 granted
F28 granted
F29 granted
F30 granted
F31 granted
F32 granted
F33 granted
F34 granted
F35 granted
F36 granted 2-1 vote
F37 granted
F38 granted
F39 granted
F40 granted
F41 denied
F42 granted

D. Respondent's Proposed Rulings of Law

LI granted
L2 granted
L3 granted
L4 granted with substitution in sentence 3 of "her gender" for "Ms. March"
L5 granted
L6 granted
L7 denied
L8 granted
L9 denied - citation to non-existent rule
L10 denied - citation to non-existent rule
L11 granted
L12 granted
L13 granted
L14 granted
L15 granted
L16 granted
L17 denied
L18 denied
L19 granted
L20 granted
L21 granted

Accordingly, judgment is entered for Respondents Technical Employment Services, Inc. and Daniel Duncaoson.

So ordered.

5/26/98

Maureen Raiche Manning, Esq.
Chair of Hearing Panel

Richard Hesse, Esquire
Elizabeth Lown

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