Business Law Assignment Answers

Case Questions

Select TWO court cases (from different chapters) from the list below, and respond in writing to the case questions…

1. Johnson v. Transportation Agency, Santa Clara County (Ch 8, p 269)
2. Lomack v. City of Newark (Ch 8, p 275)
3. Cleveland Firefighters for Fair Hiring Practices v. City of Cleveland I & II (Ch 8, p 278)
4. Gerald v. University of Puerto Rico (Ch 9, p 304)
5. EEOC v. Management Hospitality of Racine (Ch 9, p 314)
6. Hardage v. CBS (Ch 9, p 319)

Answers

Johnson v. Transportation Agency, Santa Clara County (Ch 8, p 269)

Respondent, Transportation Agency of Santa Clara County, California, unilaterally promulgated an Affirmative Action Plan applicable, inter alia [among other things], to promotions of employees. In selecting applicants for the promotional position of road dispatcher, the Agency, pursuant to the Plan, passed over petitioner Paul Johnson, a male employee, and promoted a female employee applicant, Diane Joyce. The question for decision is whether in making the promotion the Agency impermissibly took into account the sex of the applicants in violation of Title VII of the Civil Rights Act of 1964.

In December 1978, Santa Clara . . . adopted an affirmative action plan for the County Transportation Agency.

The Agency Plan provides that, in making promotions to positions within a traditionally segregated job classification in which women have been significantly underrepresented, the Agency is authorized to consider as one factor the sex of a qualified applicant. In reviewing the composition of its work force, the Agency noted in its Plan that women were represented in numbers far less than their proportion of the County labor force in both the Agency as a whole and in five of seven job categories. Specifically, while women constituted 36.4% of the area labor market, they composed only 22.4% of Agency employees. Furthermore, women working at the Agency were concentrated largely in EEOC job categories traditionally held by women. . .. As for the job classification relevant to this case, none of the 238 Skilled Craft Worker positions was held by a woman.

On December 12, 1979, the Agency announced a vacancy for the promotional position of road dispatcher. * * * Nine of the applicants, including Joyce and Johnson, were deemed qualified for the job, and were interviewed by a two-person board. Seven of the applicants scored above 70 on this interview, which meant that they were certified as eligible for selection by the appointing authority. The scores awarded ranged from 70 to 80. Johnson was tied for second with a score of 75, while Joyce ranked next with a score of 73. A second interview was conducted by three Agency supervisors, who ultimately recommended that John- son be promoted. Prior to the second interview, Joyce had contacted the County’s Affirmative Action Office because she feared that her application might not receive disinterested review [due to prior disagreements with two of the interviewers]. The Office in turn contacted the Agency’s Affirmative Action Coordinator.

The Coordinator recommended to the Director of the Agency, James Graebner, that Joyce be promoted.

Graebner, authorized to choose any of the seven persons deemed eligible, thus had the benefit of suggestions by the second interview panel and by the Agency Coordinator in arriving at his decision. After deliberation, Graebner concluded that the promotion should be given to Joyce.

The assessment of the legality of the Agency Plan must be guided by our decision in Weber. In that case, the Court addressed the question whether the employer violated Title VII by adopting a voluntary affirmative action plan designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” The respondent employee in that case challenged the employer’s denial of his application for a position in a newly established craft training program, contending that the employer’s selection process impermissibly took into account the race of the applicants. The selection process was guided by an affirmative action plan, which provided that 50% of the new trainees were to be black until the percentage of black skilled craft workers in the employer’s plant approximated the percentage of blacks in the local labor force. Adoption of the plan had been prompted by the fact that only 5 of 273, or 1.83%, of skilled craft workers at the plant were black, even though the work force in the area was approximately 39% black. Because of the historical exclusion of blacks from craft positions, the employer regarded its former policy of hiring trained outsiders as inadequate to re- dress the imbalance in its work force. We upheld the employer’s decision to select less senior black applicants over the white respondent, for we found that taking race into account was consistent with Title VII’s objective of “[breaking] down old patterns of racial segregation and hierarchy.” As we stated: It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long” constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy. We noted that the plan did not “unnecessarily trammel the interests of the white employees,” since it did not require “the discharge of white workers and their replacement with new black hirees.” Nor did the plan create “an absolute bar to the advancement of white employees,” since half of those trained in the new pro- gram were to be white. Finally, we observed that the plan was a temporary measure, not designed to maintain racial balance, but to “eliminate a manifest racial imbalance.” As JUSTICE BLACKMUN’s concurrence made clear, Weber held that an employer seeking to justify the adoption of a plan need not point to its own prior discriminatory practices, nor even to evidence of an “arguable violation” on its part. Rather, it need point only to a “conspicuous . . . imbalance in traditionally segregated job categories.” Our decision was grounded in the recognition that voluntary employer action can play a crucial role in furthering Title VII’s purpose of eliminating the effects of discrimination in the work- place, and that Title VII should not be read to thwart such efforts.

In reviewing the employment decision at issue in this case, * * * the first issue is therefore whether consideration of the sex of applicants for Skilled Craft jobs was justified by the existence of a “manifest imbalance” that reflected underrepresentation of women in “traditionally segregated job categories.” In determining whether an imbalance exists that would justify taking sex or race into account, a comparison of the percent- age of minorities or women in the employer’s workforce with the percentage in the area labor market or general population is appropriate in analyzing jobs that require no special expertise. Where a job requires special training, however, the comparison should be with those in the labor force who possess the relevant qualifications.

If a plan failed to take distinctions in qualifications into account in providing guidance for actual employment decisions, it would dictate mere blind hiring by the numbers, for it would hold supervisors to “achievement of a particular percentage of minority employment or membership . . . regardless of circumstances such as economic conditions or the number of available qualified minority applicants. . . .” The Agency’s Plan emphatically did not authorize such blind hiring. It expressly directed that numerous factors be taken into account in making hiring decisions, including specifically the qualifications of female applicants for particular jobs. Thus, despite the fact that no precise short-term goal was yet in place for the Skilled Craft category in mid-1980, the Agency’s management nevertheless had been clearly instructed that they were not to hire solely by reference to statistics. The fact that only the long-term goal had been established for this category posed no danger that personnel decisions would be made by reflexive adherence to a numerical standard. Furthermore, in considering the candidates for the road dispatcher position in 1980, the Agency hardly needed to rely on a refined short-term goal to realize that it had a significant problem of underrepresentation that required attention. Given the obvious imbalance in the Skilled Craft category, and given the Agency’s commitment to eliminating such imbalances, it was plainly not unreasonable for the Agency to determine that it was appropriate to consider as one factor the sex of Ms. Joyce in making its decision. The promotion of Joyce thus satisfies the first requirement enunciated in Weber, since it was undertaken to further an affirmative action plan designed to eliminate Agency work force imbalances in traditionally segregated job categories. We next consider whether the Agency Plan un- necessarily trammeled the rights of male employees or created an absolute bar to their advancement.

The Plan sets aside no positions for women. The Plan expressly states that “[the] ‘goals’ established for each Division should not be construed as ‘quotas’ that must be met.” Rather, the Plan merely authorizes that consideration be given to affirmative action concerns when evaluating qualified applicants. As the Agency Director testified, the sex of Joyce was but one of numerous factors he took into account in arriving at his decision.

The Agency Plan requires women to compete with all other qualified applicants. No persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants. In addition, petitioner had no absolute entitlement to the road dispatcher position. Seven of the applicants were classified as qualified and eligible, and the Agency Director was authorized to promote any of the seven. Thus, denial of the promotion unsettled no legitimate, firmly rooted expectation on the part of petitioner. Furthermore, while petitioner in this case was denied a promotion, he retained his employment with the Agency, at the same salary and with the same seniority, and remained eligible for other promotions. Finally, the Agency’s Plan was intended to attain a balanced work force, not to maintain one.

The Agency acknowledged the difficulties that it would confront in remedying the imbalance in its work force, and it anticipated only gradual increases in the representation of minorities and women. It is thus unsurprising that the Plan contains no explicit end date, for the Agency’s flexible, case-by-case approach was not expected to yield success in a brief period of time. Ex- press assurance that a program is only temporary may be necessary if the program actually sets aside positions according to specific numbers.

We therefore hold that the Agency appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted to the road dispatcher position. The decision to do so was made pursuant to an affirmative action plan that rep- resents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency’s work force. Such a plan is fully consistent with Title VII, for it embodies the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace. Accordingly, the judgment of the Court of Appeals is [a]ffirmed.

CASE QUESTIONS

1. What was the legal issue in this case? What did the Supreme Court decide?
2. 2.What does this case reveal about the conditions under which affirmative action is legal?
3. What evidence did the county have of the need for affirmative action?
4. Why does the Court conclude that the measures used to implement the county’s affirmative action plan do not unduly burden white males such as Johnson?
5. Do you agree with this decision? Why or why not?

Gerald v. University of Puerto Rico (Ch 9, p 304)

Dr. Melissa S. Gerald, a scientist formerly employed by the University of Puerto Rico (“University”), says she was sexually harassed by her supervisor, Dr. Edmundo Kraiselburd.

The [district] court granted summary judgment in favor of the defendants, dismissing the complaint in its entirety. Gerald appealed. After due consideration, we . . . vacate in part.

The Medical Sciences Campus is an institutional unit of the University. Within the Medical Sciences Campus is the Caribbean Primate Research Center (“CPRC”), a research, training, and education center for the study of non-human primates. The CPRC is made up of four integrated facilities: . . .[m]ost relevant here is Cayo Santiago, a forty-acre is- land located less than a mile off the coast of Puerto Rico. There hundreds of monkeys live in semi-natural conditions for the purpose of conducting behavioral and non-invasive biomedical research. During the time frame important to us, Kraiselburd . . . was the Principal Investigator and Director of the CPRC, as well as a Professor of the Medical Sciences Campus. His role with the CPRC meant that he oversaw and supervised the operation of its four integrated facilities. Gerald (hired in 2001) had a dual role as “Scientist in Charge” of Cayo Santiago and as an Assistant Professor at the Medical Sciences Campus, a tenure track position which conBusiness Law Assignment Answersd her advancement to Associate Professor.

Her supervisor was Kraiselburd.

By all appearances Kraiselburd and Gerald worked together and were friends for a number of years without anything of note occurring. Then in 2005, at a conference in Cuba, the two apparently engaged in a week-long sexual affair. According to Gerald, Kraiselburd insisted on pursuing the relationship when they returned home and Gerald, embarrassed by the fling, rebuffed him.

A couple years later, Gerald was approached by a film production company, which was producing a documentary about the life and work of prominent evolutionary biologist, E.O. Wilson. They wanted to bring Wilson for a visit to Cayo Santiago (a re-creation of his visit fifty years earlier) and film it. * * * [F]ilming went forward in mid-April 2007. As part of the festivities, a dinner was held on April 15, and Gerald gave Kraiselburd a ride from his hotel to the dinner. At the end of the evening, she dropped him back off at his hotel and, according to Gerald, Kraiselburd sexually propositioned her. She says he gestured at the hotel and referenced an offer being on the table, which Gerald took as an invitation to his room. Gerald, who had her young daughter in the car, declined the solicitation. Gerald says she could tell Kraiselburd was angry with her refusal.

Gerald and Kraiselburd continued to clash the following month as they worked to make arrangements for more visiting scientists coming to Cayo Santiago. In email correspondence the two went back and forth about the visits’ planning and Kraiselburd’s frustration with Gerald appeared to grow. The heated exchange culminated with an email from Kraiselburd to Gerald dated May 24, 2007, in which Kraiselburd accused Gerald of not being dependable and also declared she was not the type of person needed at Cayo Santiago. He added: “We now have to formally talk. I think I will have to ask you to step down. And now I am dead serious. You will receive a letter shortly.”

A few days later, on May 29, Gerald met with Kraiselburd in his office and attempted to smooth things over. Gerald says she apologized and Kraiselburd accepted. The two then said farewell with a hug and kiss on the cheek. As the embrace broke apart, Gerald says Kraiselburd grabbed her breast and made sexually suggestive grunting noises. Gerald was disgusted but said nothing for fear of losing her job.

A week or so later, on June 7, Gerald, Kraiselburd, and other co-workers attended a meeting to discuss an upcoming conference. During the meeting Gerald mentioned that she would be busy during the evenings of the conference because she had a friend attending. According to Gerald this led Kraiselburd to say some- thing along the lines of: “What will it take for you to f**k me? Is this one of your girlfriends or one of your boyfriends? If it is one of your girlfriends, I’ll f**k both of you.” If it is one of your boyfriends, “I will be outside your hotel door peeking giving you directions how to f**k your boyfriend.” It is unclear from the record if or how Gerald responded.

Then, on June 12, Gerald and Kraiselburd lunched with another visiting scientist. Gerald and Kraiselburd quarreled about whether she had done something he had asked her to do and when Gerald said she had to leave lunch early to get her daughter, Kraiselburd began questioning Gerald about what hours she actually worked. Gerald, embarrassed at being questioned in this manner in front of a colleague, argued back in a raised voice and ultimately left the restaurant.

The evening of the heated lunch exchange, Kraiselburd sent Gerald an email indicating that due to budget limitations Gerald would be removed from the position of Scientist in Charge by the end of the month. And then a few days later, on June 18, Kraiselburd re- canted. He sent Gerald another email: after considering the situation at Cayo Santiago, it was decided Gerald would in fact retain her title as Scientist in Charge, but no more $800 a month bonus. Gerald responded via letter to Kraiselburd, lobbying for her bonus and re- questing an in-person meeting to discuss matters.

Her plea fell on deaf ears and on June 29, Kraiselburd sent Gerald another letter. After evaluating things at Cayo Santiago he wrote, it had been decided that a restructuring was needed. Gerald was relieved of all administrative duties and colony management responsibilities. To reflect these changes, her title was changed to Resident Scientist. Her bonus was set at $200 a month. It was not all bad news for Gerald though as she was promoted from Assistant Professor to Associate Professor at the Medical Sciences Campus a couple days later on July 1. The promotion came with a $1,000 a month pay raise.

On August 3, 2007, Gerald met with the Chancellor of the Medical Sciences Campus, Dr. José R. Carlo Izquierdo, and other University personnel, to lodge an administrative sexual harassment complaint against Kraiselburd. Gerald was emotional and crying, and apparently Carlo found her credible. Gerald was told that she should formalize her complaint in writing so that it could be investigated. Gerald did so the next day. An outside attorney, Maritza Miranda López, was brought in as the investigating officer . . .

López issued her findings in a seventeen-page investigative report, dated October 22, 2007.

López reached her conclusions. She did not find Gerald credible and determined it unlikely that the hotel proposition or breast grabbing incident occurred. To the extent the latter had taken place, she found that the incident did not appear to impact or even matter to Gerald. As for the third incident, López’s report noted that jokes and comments of a sexual nature were admittedly common for Gerald and Kraiselburd and it was unlikely Kraiselburd’s wording was as crude as Gerald suggested. To the extent any of the incidents did take place, they were deemed not severe or offensive enough to alter Gerald’s work conditions. The changes in Gerald’s job, López concluded, were strictly performance related.

Armed with López’s findings, the University . . . dismissed Gerald’s sexual harassment complaint. The resolution further indicated that administrative proceedings would be instigated against Gerald to deter- mine whether she had violated University regulations by breaching her job duties or filing a false grievance. Also, in accordance with López’s recommendation, the resolution decreed that Gerald be transferred to an- other CPRC facility . . .

On June 26, 2008, Gerald voluntarily resigned from the University via a letter to Chancellor Carlo. She accused Carlo of mishandling the investigation and wrongly believing Kraiselburd over her. Gerald claimed that she had been unfairly demoted and that there was no work for her in her new position. * * * Gerald’s last day with the University was August 2, 2008. That same month she started working for the National Institute of Health (located in Maryland) and was not unemployed at any time after her departure. A few months after leaving the University, Gerald brought this lawsuit against the University and Kraiselburd. The complaint alleged that she was sexually harassed by Kraiselburd (and that the University should be held liable for this conduct) . . .

HOSTILE WORK ENVIRONMENT

Requiring a person “to work in a discriminatorily hostile or abusive environment” violates Title VII. To prevail on a hostile work environment sexual harassment claim, a plaintiff must establish in essence: (1) membership in a protected class and (2) unwelcome sexual harassment, (3) which was based on sex, (4) was sufficiently severe or pervasive, (5) was objectively and subjectively offensive, and finally (6) that some basis for employer liability has been established.

The district court found that there was a factual question as to whether Kraiselburd’s conduct was unwelcome. . .. The University . . . argued that Gerald’s own conduct, namely her voluntarily engaging in off-color banter of a sexual nature with Kraiselburd, showed that his conduct was not unwelcome. This argument does little to convince. We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. Instead the evidence here was enough, at the very least, to raise a factual question as to whether Kraiselburd’s conduct was unwelcome. Gerald did not accept his invitation to her hotel room; she turned him down. Gerald informed López during the administrative investigation that she was bothered by Kraiselburd’s proposition. There is no evidence that Gerald encouraged or invited Kraiselburd to grab her breasts and she indicated during the investigation that she was disgusted and bothered by him doing so. Similarly, there is no evidence that Gerald welcomed the comments made during the staff meeting even if she indeed mentioned the intimate nature of her relationship with another person. In the context of sexual harassment claims, the question of “whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact,” and this case is no exception.

For harassment to be based on sex it need not be an act motivated by sexual desire but rather the harassment must be gender specific. Here the record contained sufficient evidence from which a reason- able jury could conclude that Kraiselburd’s actions were triggered by Gerald’s gender. Kraiselburd sexually propositioned Gerald, grabbed her breasts, and made comments about engaging in sexual relations with her; it is reasonable to conclude that these actions were con- nected to Gerald being a woman.

We proceed to the real bone of contention here— whether the harassment was sufficiently severe or pervasive. This is the factor the district court found lacking and it is also the entire focus of the University’s argument on appeal.

Pointing to the fact that Gerald and Kraiselburd often engaged in off-color banter, the University says the supposed harassment was not severe. We disagree and think a jury could have seen things otherwise. Gerald says Kraiselburd grabbed her breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him. The University is not denying these occurrences for summary judgment purposes. These offensive incidents, which involved sexual propositioning and un- invited touching, can reasonably be viewed as severe; and, in the case of the breast grabbing incident, physically threatening (not to mention criminal) . . ..It is clear that “behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile work environment claims . . ..” This is precisely the type of conduct we have here.

On the frequency front, the University likens what happened to a brief three-incident blip in another- wise uneventful six years of working together. We are not convinced. Though Gerald has alleged just three acts of harassment, a “single act of harassment may, if egregious enough, suffice to evince a hostile work environment.” The incident in which Kraiselburd grabbed Gerald’s breasts and made sexually suggestive noises comfortably qualifies as egregious. And Gerald has alleged two incidents on top of this.

A closer question is whether the three incidents interfered with Gerald’s work performance. The University says they did not, making much ado of cordial and sometimes joking emails that Gerald sent Kraiselburd after each of the three instances. But these emails do not give us a great deal of pause. The fact that Gerald managed to get work done despite Kraiselburd’s actions is not fatal to her hostile work environment claim.

* Gerald, for her part, does not give us much more as to how the incidents affected her work performance. She refers in her formalized sexual harassment complaint to being unable to “work effectively” and to her work productivity being affected but does not elaborate be- yond this. And although Gerald did seek psychiatric counseling for depression, there is no evidence that Gerald’s work performance suffered as a result of this depression. But in the end, subject to some policing on our part, “it is for the jury to . . . decide whether the harassment was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her employment.”

The next inquiry is whether the complained of conduct was objectively and subjectively offensive. Said another way, would a reasonable person find the conduct hostile and abusive and did the complain- ant in fact perceive it to be so. On the issue of subjective offense there was adequate evidence: Gerald was bothered by Kraiselburd’s invitation to his hotel room, disgusted by him grabbing her breasts, and she was depressed, seeing a psychiatrist, and taking anti- depressants. The fact that the complained of conduct involved non-consensual physical touching, an invitation for sexual relations, and embarrassing public comments strikes us as being sufficiently in the realm of what a reasonable person might find offensive. Gerald presented enough evidence on this point to withstand summary judgment.

Taking the evidence in a light most favor- able to Gerald, we cannot decisively say (as the district judge did) that a reasonable jury could not conclude that she was subject to a hostile work environment. The court erred in granting summary judgment on Gerald’s hostile work environment claim.

QUID PRO QUO

Quid pro quo sexual harassment is when a supervisor uses his superior position to extract sexual favors from a subordinate and, if rebuffed, retaliates by taking action that adversely impacts the subordinate’s employment. This type of harassment “can be shown where a supervisor uses employer processes to punish a subordinate for refusing to comply with sexual demands.”

Gerald claims that is precisely what happened here. Because she rejected Kraiselburd’s sexual advances, she says he used his position to get her demoted from Scientist in Charge. The University counters that there is no evidence that Kraiselburd conditioned Gerald’s continued employment on her accepting his advances and that Gerald’s change in title stemmed from her noncompliance with her job responsibilities and insubordinate attitude. Gerald’s response: the University is exaggerating, if not misrepresenting, the scope of her responsibilities and supposed non-compliance, and it is no coincidence that Kraiselburd started complaining about her performance right around the time she spurned him. She calls his complaint suspiciously inconsistent with earlier high praise of her. The district court, after reviewing the evidence, accepted the University’s version of things. We are less convinced.

Sometimes in these quid pro quo cases the defendant superior does not mince words and the plaintiff employee is able to present direct evidence that the defendant threatened to exact retribution. We have nothing so crystalline here. Instead we have references that Kraiselburd made via email the day before he propositioned Gerald in the hotel parking lot that could (as Gerald suggests) be read as part of his attempt to sexually proposition her or could (as the University suggests) be innocuous references to something else entirely. Specifically, in one email Kraiselburd said: “Just relax. [You] live only once.” In another, he tells Gerald: “Offer still on the table.” Similarly, ambiguous is an email exchange the day after the proposition in which Kraiselburd writes: “Sorry, I have to draw the line somewhere. Hope that you will be able to eat your own words without too much ketchup.” As with the other emails, it is not entirely clear what Kraiselburd is referring to—Gerald’s rejection the night before or something else.

Construing the evidence and reason- able inferences in Gerald’s favor as we must, it is plausible to read these emails to mean what she says they do, but we acknowledge we are getting close to speculative territory. Were this all Gerald had, it would likely not be enough to create a trial-worthy issue, but Gerald also presented a good amount of evidence rebut- ting the University’s contention that she was demoted for job related reasons, as opposed to for rejecting Kraiselburd.

Gerald claims that until she rebuffed Kraiselburd she received good marks for her performance. She presented an annual report issued on December 31, 2006 (about three and half-months before the first instance of alleged harassment) by the Chancellor’s Advisory Committee on the CPRC. The report indicated that overall “the Cayo Santiago program appears to be in excellent shape” and that Gerald was “doing an excellent job as Scientist-in-Charge in promoting both the CPRC and Cayo Santiago internationally, nationally and in Puerto Rico.” Gerald also produced a letter writ- ten by Kraiselburd in September 2006 when Gerald was initially evaluated for the promotion from Assistant to Associate Professor. In the letter, Kraiselburd offered his “highest recommendation” for Gerald’s promotion and he heralded the pair’s “excellent working relation- ship,” stating that Gerald had “far exceeded any of our expectations.”

Gerald also disagreed that she was not fulfilling her job responsibilities. . .. Gerald averred that her list of duties as Scientist in Charge was shorter than Kraiselburd said it was, and that the duties she was accused of neglecting were not actually hers to perform. Specifically, with respect to the fee billing failure, Gerald says that assessing fees was a group effort and that it was López not her who was in charge of invoicing the fees. For support Gerald points to a document which she calls the CPRC’s standard operating procedure, which does seem to support the proposition that she was not in charge of invoicing, though it is not totally clear what role she had in the billing team effort.

As for Kraiselburd’s claim that she was not maintaining a physical presence at work, Gerald testified she was never given any direction as to how many hours she had to work in a week, how many times she had to go to Cayo Santiago, or how many hours she had to be in the office. She testified that she often worked from home and on average she worked long hours and seven days a week, even if she was not physically present in the office.

Gerald also addressed the critiques about how she conducted herself on Cayo Santiago. She offered the deposition of Félix Román Oquendo, a Cayo Santiago employee. Román disputed the notion that Gerald forced boat personnel out in dangerous situations. He testified that it was actually the visiting scientists, and in one instance Kraiselburd, who did this. Román said Gerald simply tried to mediate between the researchers and boat personnel and that she was respectful of the latter’s assessment of ocean conditions.

As for the incident where Gerald called Viera an a**hole, Gerald testified that she was just joking and that she did not understand the complexities of the Spanish word cabrón. Román also testified about this incident and he had a similar take. Román said Viera told him that it was not a big deal because he and Gerald were just fooling around. Román said they were all very close and often joked around or spoke crassly. At his deposition, Román also theorized that Kraiselburd was trying to manufacture employee complaints in an effort to oust Gerald. As an example, Román cited the name calling incident, which he said had long been forgotten when Kraiselburd came around a few months later (and about a month after Kraiselburd propositioned Gerald) asking about it. At this time, Viera wrote the letter cited above, though Román theorized that based on how Viera speaks and how the letter reads, it was not actually Viera who put pen to paper.

“Faced with a motion for summary judgment, it was [Gerald’s] burden to establish that there existed evidence creating a trial-worthy claim.” We think she did that. Gerald presented evidence of questionable comments made by Kraiselburd over email directly before and after he propositioned her as well as evidence that countered the notion that she was not performing well in her job. With this evidence Gerald put forth a trial- worthy claim that Kraiselburd used Gerald’s reaction to unwelcome harassment as a basis for decisions that affected the terms of her employment. The district court erred in granting summary judgment on Gerald’s quid pro quo harassment claim.

CASE QUESTIONS

1. What were the legal issues in this case? What did the appeals court decide?
2. Why did the appeals court decide that the alleged conduct of the supervisor was sufficiently severe or pervasive to create a hostile environment for the plaintiff? Do you agree? Why or why not?
3. Why did the appeals court decide that the plain- tiff ’s “quid pro quo” (tangible employment action) claim was “trial-worthy”? Do you agree? Why or why not?
4. Do you think that the alleged harassment was “unwelcome” to the plaintiff? Why or why not?
5. Material facts are disputed in this case; the plain- tiff and defendants offered very different accounts of the relevant events. At trial, do you think that the plaintiff will be able to prove her allegations of harassment? Why or why not?

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