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A worker who delayed complaining about her boss’s alleged sexual advances for nine months is not barred from later suing under Title VII if she explains that the delay stemmed from fear of losing her job, a federal judge has ruled. In his 21-page opinion in Hawk v. Americold Logistics, U.S. District Judge Berle M. Schiller was forced to tackle a series of open legal questions that arise in cases where the defendant invokes the “affirmative defenses” outlined in a pair of 1998 U.S. Supreme Court decisions. In Faragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth — a pair of opinions that are now routinely referred to simply as Faragher/Ellerth — the justices outlined a two-part defense available in sexual harassment cases. In the first step, the employer must show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” The second step focuses on whether the plaintiff employee “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” In other words, the defendant is entitled to summary judgment if it can show that it had adopted appropriate policies designed to prohibit sexual harassment and to punish violators but that the plaintiff failed to take advantage of them. Christine Hawk’s case against Americold raised a slew of questions about the Faragher/Ellerth defense, including whether Hawk had delayed too long in complaining, whether company policies were reasonable, and whether Hawk’s decision to resign after she encountered her alleged harasser was a “constructive discharge.” In the suit, court documents say, Hawk says that she began working for Americold as a temporary employee in June 1999, making pallets, but that by the end of that year, she had been promoted to a permanent post as a forklift driver. Americold, according to its Internet Web site, is “the largest provider of temperature-controlled food distribution services in the country” and ships more than 11.2 million cases of product daily from 100 facilities. It has 6,200 employees and annual sales of more than $700 million. Hawk claims that early on in her employment, she developed a friendship with one of her supervisors, Jack J. Bambary, but that he soon began to harass her, according to court documents. During her first month, Hawk claims in court documents, she and Bambary went to see Hawk’s friend perform exotic dance at a club, and Bambary told her that she would “look better up there dancing,” to which Hawk replied that she was not a dancer. After that, Hawk said, Bambary began paging her every day and calling her at home — even after she said she wanted him not to, according to court documents. Bambary once went to Hawk’s house when she was sick, the suit alleges, explaining that he had come to check on her. On another occasion, Bambary allegedly went to Hawk’s home and began to recite his affections for her and refused to leave despite her requests that he do so, court documents say. At work, the suit says, Bambary frequently called Hawk in to the dock office when she worked the Saturday shift. Other workers testified that Bambary made a practice of interrupting conversations that Hawk had with male co-workers. Hawk claims that she was forced to ward off constant sexual advances. Bambary sent suggestive messages on her forklift computer, Hawk said in court documents, and frequently spoke to her about her having sex with him. Once, she said, Bambary told her to kiss him and grabbed her arm and tried to pull her toward him. On another occasion, the suit says, Bambary shoved Hawk up against a wall and asked her to have sex with him. Hawk claims that she delayed complaining because she is a single mother and feared losing her job. In August 1999, Hawk told Eric Wilmont, a supervisor, that someone was harassing her but that she did not wish to discuss the matter further because she could handle it herself, court documents say. In March 2000, Hawk made a formal complaint to Americold’s human resources department. Within days, Hawk was transferred to another facility so that she would not have to work with Bambary during the investigation. But at the new job, Hawk claims, she was told by a co-worker that a supervisor had said Hawk was a “slut” and a “liar” and that she had seen Hawk “hanging on” men in the other facility, court documents say. When the investigation was done, Americold concluded that Bambary had been “unprofessional at times” but had not sexually harassed Hawk, court documents say. Hawk was told that Bambary was to be disciplined and instructed not to have contact with her. To avoid their working together, Bambary’s shift was to be changed. Hawk agreed to return to her original job but stayed only for one day because she had contact with Bambary. Americold later fired Bambary for comments he allegedly made to Hawk upon her return. But Hawk declined the company’s invitation to return to her job. Instead, she went to court. SUMMARY JUDGMENT MOTION In its summary judgment motion, Americold’s lawyers — David Lichtenberg, Carla D. Macaluso and John M. Nolan of Jackson Lewis — argued that Hawk was unable to show that the harassment she suffered was “severe” or “pervasive.” Schiller disagreed, saying that Hawk’s allegations are that the sexual harassment stretched over an eight-month period, occurring “every day,” and sometimes culminating in severe incidents. “The frequency and severity of these occurrences coupled with the fact that Ms. Hawk felt that Mr. Bambary was in control of the situation because he knew she could not lose her job indicate that this behavior was humiliating,” Schiller wrote in court documents. “Hawk was daily subject to unwanted communication of a sexual nature, both at work and at home. Surely, such harassment must be viewed as severe and pervasive.” Schiller also found that a jury must decide whether Hawk’s resignation was a “forced” one prompted by intolerable working conditions. Americold argued that Hawk was not terminated or demoted and that she “voluntarily” made the decision to resign her employment. Schiller disagreed, saying the evidence that Hawk encountered Bambary when she returned to work could be enough for a jury to label the resignation a “constructive discharge.” “Where a victim of harassment is required to work in close proximity to the alleged harasser, it adds to the hostility of her environment,” Schiller wrote. As a result, Schiller said, Hawk “has sufficiently shown that she suffered a tangible employment action, so as to preclude application of the Faragher/Ellerth affirmative defense.” Schiller also found that the jury could conclude that Americold’s policy was not good enough, according to court documents. Hawk has evidence, Schiller said, that management employees were told to “keep quiet” about her harassment claim. And Hawk was “never given the option of a permanent position” in the other facility where she would have been sure not to encounter Bambary, Schiller said in the opinion. Bambary was ultimately terminated, Schiller noted, “but not before plaintiff had indicated her belief that she had been constructively discharged.” Schiller also rejected Americold’s claim that Hawk waited too long before complaining. Although Hawk was “far from prompt,” Schiller found, Hawk’s explanation that she feared for her job was enough evidence to allow a jury to find that she “did not unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer.”

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