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Agganis v. T-Mobile USA Inc.

United States District Court, D. Maine

March 12, 2018

ANGELA AGGANIS, Plaintiff
v.
T-MOBILE USA INC., Defendant

          DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

          D. Brock Hornby United States District Judge

         In this employment sex discrimination case, a former employee has moved for summary judgment on her employer's affirmative defense that she failed to mitigate her damages, and the employer has moved for summary judgment on her claims of hostile work environment and constructive discharge.[1] After oral argument on March 7, 2018, I Grant the plaintiff's motion, and I Grant in part and Deny in part the defendant's motion. I conclude that that there is no mitigation defense remaining in the case, that the plaintiff's constructive discharge claim fails as a matter of law, and that there are jury issues raised by the hostile work environment claim and the defendant's affirmative defense to that claim under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

         Factual Background

         I discuss the relevant facts, disputed and undisputed, as appropriate to the particular legal issue.

         Analysis

         The Mitigation Defense

         If a former employee “has made some effort to secure other employment, the burden to prove failure to mitigate normally resides with the defendant-employer.” Quint v. A.E. Staley Mfg. Co., 172 F.3d 1, 16 (1st Cir. 1999). The employer concedes that this plaintiff “made at least the requisite minimal effort to obtain new employment after leaving.” Def.'s Opp'n at 4 (ECF No. 101). It thus must prove that “(i) though substantially equivalent jobs were available in the relevant geographic area, (ii) the claimant failed to use reasonable diligence to secure suitable employment.” Quint, 172 F.3d at 16.

         The employer cannot carry its burden. After discovery, it has not offered any evidence regarding Quint's first requirement, the availability of substantially equivalent jobs in the relevant area. As a result, it cannot show that the former employee failed to mitigate her damages, [2] and the plaintiff's motion for partial summary judgment on mitigation is Granted. (But as appears below, I am granting the employer's motion for summary judgment on the constructive discharge claim, which means that the former employee has no back pay claim to which the mitigation defense might apply.[3])

         Hostile Work Environment

         To prevail on a hostile work environment claim, an employee must show that:

(1) she is a member of a protected class; (2) she was subject to harassment; (3) the harassment was based on her membership in a protected class; (4) the harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and create an abusive work environment; (5) the harassment was both objectively and subjectively offensive; and (6) there exists some basis for employer liability.

Flood v. Bank of America Corp., 780 F.3d 1, 10 (1st Cir. 2015). The parties agree on only the first element.

         “There is no ‘mathematically precise test' for determining when conduct in the workplace moves beyond the ‘merely offensive' and enters the realm of unlawful discrimination.” Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 18 (1st Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Rather, “all the circumstances” must be considered, “including 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.'” Id. at 18-19 (citations omitted); accord Flood, 780 F.3d at 11.

         “Pervasiveness and severity are questions of fact. Subject to some policing at the outer bounds, 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.” Flood, 780 F.3d at 11 (quotations and alterations omitted).

         The parties hotly contest whether this former employee was sexually harassed at all and if so whether that harassment was objectively offensive and severe or pervasive. Crediting the plaintiff's version of events where supported by the record as I must at summary judgment, Reed v. MBNA Mktg. Sys., Inc., 333 F.3d 27, 37 (1st Cir. 2003), I conclude that she has raised triable issues of fact on sexual harassment sufficient to go to a jury. There is nothing to be gained by recounting the specific assertions and denials; suffice it to say that a reasonable jury could find the complained-of conduct was “because of” sex, Burns v. Johnson, 829 F.3d 1, 17-18 (1st Cir. 2016), and was both subjectively and objectively offensive and sufficiently severe or pervasive so as to alter the conditions of her employment and create an abusive work environment.

         R ...


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