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Arquero v. Hilton Hawaiian Village LLC6/10/2004
Eng'g Sch., 309 F.Supp.2d 732, 740 (D.Md. 2004) ("Summary judgment will be denied if reasonable minds could differ as to whether the [employer's] remedial action was reasonably calculated to end the harassment." (Citations and internal quotation signals omitted.) (Alteration in original.)). We recognize that there may be situations in which a court could conclude that an employer's response was sufficient as a matter of law because no reasonable fact-finder could conclude that the employer's response was inadequate. See, e.g., Walton v. Johnson & Johnson Serv., Inc., 347 F.3d 1272, 1288-89 (11th Cir. 2003) (holding that no issue of material fact existed as to the reasonableness of an employer's response where the offending employee was promptly suspended and fired). However, if reasonable minds could differ as to whether the employer's response was reasonably calculated to end the harassing behavior, summary judgment is inappropriate. See Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 107-08, 839 P.2d 10, 24 (1992) ("Inasmuch as the term 'reasonableness' is subject to differing interpretations . . . , it is inherently ambiguous. Where ambiguity exists, summary judgment is usually inappropriate . . . . However, 'reasonableness' can constitute a question of law for the court 'when the facts are undisputed and not fairly susceptible of divergent inferences[.]'" (Quoting Broad & Branford Place Corp. v. J.J. Hockenjos Co., 39 A.2d 80, 82 (N.J. 1944).)); see also Potts v. BE & K Const. Co., 604 So.2d 398, 402 (Ala. 1992) (reversing the trial court's grant of summary judgment because a jury could find either that the employer's response was or was not reasonably calculated to end the harassing behavior).
The circuit court did not reach the issue of whether Hilton's response was reasonably calculated to end the harassing conduct. Given the record before us, we are unable to conclude as a matter of law that Hilton's response was sufficient because reasonable minds could differ as to whether Hilton's response was reasonably calculated to end Rodas's harassment. Several factors point to Hilton's conduct satisfying the reasonableness standard: Hilton promptly informed Rodas that his conduct was "clearly inappropriate and would not be tolerated"; Assistant Manager Short warned Rodas that he would face a more severe sanction, namely a written warning, if he sexually harassed Arquero a second time; and Rodas indicated to Assistant Manager Short that he understood. However, several factors also point to the insufficiency of Hilton's response: Hilton continued to have Rodas and Arquero work at the same restaurant; Rodas was given only an oral warning and the threat of a future written reprimand and was not specifically informed that he could be suspended or terminated if his behavior continued (notwithstanding that Hilton in fact terminated Rodas following Incident #2); Assistant Manager Short told Arquero that Rodas did not take the oral warning seriously; and the harassment, in fact, continued.
Because a reasonable fact-finder could conclude either that Hilton's actions were sufficient or that Hilton's actions were not sufficient, affirming the circuit court's grant of summary judgment based on Hilton's response to Rodas's conduct would be inappropriate.
IV. CONCLUSION
Based on the foregoing, we (1) reverse the circuit court's October 31, 2000 order granting Hilton's motion for summary judgment insofar as the order concluded that the March 29, 1998 touching incident was insufficiently severe to constitute sexual harassment, (2) vacate the circuit court's February 22, 2001 final judgment in favor of Hilton because there are genuine issues of material fact that make
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