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A worker who complains to top management about sexual harassment but doesn’t file a claim with the U.S. Equal Employment Opportunity Commission within the next 300 days cannot later sue under the “continuing violation” theory to include every incident she claims was sexually hostile, a federal judge has ruled. Instead, U.S. District Judge Eduardo C. Robreno found that such a plaintiff is limited in court to complaining about the alleged incidents that occurred within the 300-day period immediately preceding the filing of her EEOC claim. “Even under the continuing violation theory … the statutory clock begins to run at the time that the plaintiff becomes aware, or should have become aware, that her rights had been violated under Title VII,” Robreno wrote in his 19-page opinion in Cronin v. Martindale Andres & Co. After narrowing the scope of what he would consider, Robreno went on to dismiss Patricia Cronin’s sexual harassment claim because the few incidents she complained about were not pervasive and regular enough to constitute a “hostile environment.” But Robreno refused to dismiss Cronin’s entire case, saying she may still be able to prove that she was retaliated against for complaining because a jury could reject the company’s argument that Cronin quit her post and instead credit Cronin’s claim that she specifically said she was not resigning. In another significant legal ruling, Robreno rejected Cronin’s claim that she was sexually harassed by offensive material she found during a search of the company’s computer. “The mere fact that sexually offensive material exists somewhere on company property does not constitute evidence of sexual harassment,” Robreno wrote, noting that the U.S. Supreme Court has held that “Title VII does not mandate a sanitized work place.” Instead, Robreno said, “the offensive materials must be either aimed at the plaintiff or generally displayed to the public.” In Cronin’s case, he said, “plaintiff affirmatively sought out the offensive materials by searching for it on the company’s computers at her own initiative. But for plaintiff’s own work as a sleuth, she would not have been subjected to the offensive materials.” Robreno concluded that “because … the materials were neither public nor aimed at plaintiff, but rather hidden from view until plaintiff voluntarily exposed herself to them, the existence of the offensive materials in the company’s computer is not evidence of a hostile environment.” With the computer pornography out of the case, Cronin was left with just three claims to support her sexual harassment charge. She claimed that Martindale Andres refused to grant her leave — either paid or unpaid — to take a trip to California in December 1999, which resulted in what she alleges was her firing. She also complained about a joke made by Daniel Mullen, the company’s director of investment operations, about the maximum number of women golfers permitted in a golf foursome; and that she was excluded from a company golf outing in favor of a male employee. Robreno found that the denial of the vacation/leave request could not be considered evidence of sexual harassment. “Not every friction in the workplace between a man and a woman supports a claim of sexual harassment. Nor does Title VII enact a general labor code which addresses all forms of disputes between co-workers,” Robreno wrote. “Plaintiff points to nothing but conjecture to suggest that her supervisors’ actions in denying her permission to take her planned vacation was taken because of her sex.” With nothing but a single joke and her exclusion from a single golf outing, Robreno found that Cronin could never meet the U.S. Supreme Court’s test for proving a hostile work environment, which the justices defined as: “a workplace [that] is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” In Cronin’s case, Robreno said, “clearly, the two events cited by plaintiff are more properly characterized as isolated incidents of inappropriate behavior, which even if true do not satisfy the requirement that the sexually harassing conduct alleged be pervasive and regular.” RETALIATION CLAIM SURVIVES But Robreno refused to dismiss Cronin’s retaliation claim, finding instead that a jury must decide the critical issue of whether she was fired or quit. Martindale Andres’ lawyers, Katherine H. Levering and James G. Fannon of Drinker Biddle & Reath, argued that Cronin quit her post and therefore cannot claim that she suffered an “adverse employment action” — an element of the plaintiff’s prima facie case in a retaliation claim. As authority, the defense lawyers cited the 8th Circuit’s decision last year in Williams v. City of Kansas City, which also involved a dispute over whether the plaintiff was entitled to take vacation time. But Robreno found that Williams was factually different since the plaintiff in that case “abruptly quit” when she was told that her vacation request was denied. “The court in Williams emphasized that the plaintiff never gave the employer a chance to fix the problem,” Robreno wrote. By contrast, Robreno said, Cronin was told in a letter that “failure to report as scheduled will be considered job abandonment — voluntary dismissal,” but she responded with a letter of her own that she was not resigning. Cronin took her vacation, but then reported to work on Jan. 2, 1998 — just as she had said in her letter that she would. The defense team also argued that Cronin can’t dispute the company’s “nondiscriminatory reasons” for denying her vacation time in order to prove that her firing was pretext to hide the company’s true intention to retaliate against her for complaining about sexual harassment. Robreno disagrees, saying Cronin pointed to the handwritten notes of the company’s human resource manager, which detail a conversation that she had with the company’s president. The notes, Robreno said, could be seen by a jury as suggesting “that the two discussed a ‘game plan’ for dealing with plaintiff where they would ‘continue to build the case based on performance issues.’ “ As a result, Robreno said, “these notes raise the question as to whether [the company] intended to ‘build a case’ for firing plaintiff in response to her sexual harassment complaints.” Cronin is represented by attorney Michael M. Weinkowitz of the Console Law Office.

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