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Bertolini v. Whitehall City School District Board of Education9/26/2000
was applied to the present case was the following:
Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature may constitute sexual harassment where:
*
3. such conduct has the purpose or effect of unreasonably interfering with an individual's work or educational performance or creating an intimidating, hostile or offensive working or educational environment.
The trial court stated, "the Court agrees with the Board that the harassment was offensive and certainly not an isolated event. It went on daily and clearly pervaded [appellant's and Wood's] relationship." However, this statement by the court conflicts with some of the findings of fact by the referee. For example, the referee found that:
Patti Woods also testified that she was never afraid of [appellant]; and that she never thought she was being sexually harassed by [appellant]. Further, she testified that she never considered filing sexual harassment charges against him.
Woods did testify that she thought appellant's actions created an environment that "could be called a hostile environment." However, when asked whether her employment was "ever conditioned upon maintaining that relationship as romantic or sexual," Woods answered " o."
While the trial court was correct in its statement that the referee "was not trying a sexual harassment case, he was trying a wrongful termination case," it is appropriate in the present case to look at the standard for a hostile work environment as set forth by the United States Supreme Court in Faragher v. City of Boca Raton (1998), 524 U.S. 775, 118 S.Ct. 2275. In order to determine whether the work environment was sufficiently hostile, the court looks at all of the circumstances 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 787-788, quoting Harris v. Forklift Systems, Inc. (1993), 510 U.S. 17, 23, 114 S.Ct. 367, 371. The reason why this standard should be followed is "to ensure that courts and juries do not mistake ordinary socializing in the workplace * for discriminatory 'conditions of employment.'" Oncale v. Sundowner Offshore Serv., Inc. (1998), 523 U.S. 75, 81, 118 S.Ct. 998, 1003. A review of all of the evidence shows that even though appellant's actions towards Woods were inappropriate and made her feel uncomfortable, they did not rise to the level of creating a hostile work environment sufficient to justify appellant's termination based upon the board's sexual harassment policy.
The board's computer use policy included a requirement that e-mail be used "in a responsible, efficient, ethical and legal manner." Unacceptable uses include "language which may be offensive to another user." The court found that the non-reciprocal nature of appellant's e-mails to Woods about personal matters "amounts to at least offensive if not harassing conduct." However, Woods testified that appellant's actions did not affect her work and that she was able to ignore them. Appellant stopped sending e-mail messages to Woods several weeks before she talked to Dr. Crawford about his actions toward her. Evidence was also presented that the board's policy allowed personal e-mail messages and that others in the administration used the school's e-mail system for purposes that were not solely work-related. No evidence was presented that appellant was ever told to stop using the e-mail system in a harassing manner before February 21, 1998, or that he continued to use the e-mail system in an unauthorized
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