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American Legion Post 12 v. Susa11/30/2005
whether a complainant has a viable hostile work environment harassment claim. Id. at 22-23 (citing O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)). It must be determined whether (1) the employee is a member of a protected class; (2) the employee was subjected to unwanted harassment; (3) that harassment was based upon his or her sex [or ancestral origin]; (4) 'that the harassment was sufficiently severe and pervasive so as to alter the conditions of plaintiff's employment and create an abusive work environment'; (5) that harassment 'was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so;' and (6) 'that some basis for employer liability has been established.'
Id. (citing and quoting O'Rourke, 235 F.3d at 728). Hostile work environment claims based on racial or ancestral origin harassment are subject to the same scrutiny and standards as those based on sexual harassment. See Galdamez v. Potter, 415 F.3d 1015, 1023 (9th Cir. 2005); AMTAK v. Morgan, 536 U.S. 101, 116 (2003); Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 277 (3rd Cir. 2001).
"There is no 'mathematically precise test' to determine whether [a party] presented sufficient evidence that he [or she] was subjected to a hostile work environment." Ugurhan Akturk Kosereis v. Rhode Island, 331 F.3d 207, 216 (1st Cir. 2003) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). Rather, the fact finder is to look to all 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." Harris, 510 U.S. at 23. Furthermore, " he effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive." Id.
After a review of the record, this Court does not find that the Commission's decision- finding sexual and ancestral origin harassment against both Ms. Cote and Ms. Pacheco-was arbitrary or clearly erroneous in view of the reliable, probative, and substantial evidence. With respect to the alleged sexual harassment, the record reveals that substantial evidence existed for the Commission to find the Legion liable for hostile work environment sexual harassment under the applicable six-part test. Ms. Cote described how one patron grabbed her breast and another licked her on the arm in a sexual manner. Ms. Pacheco testified that one man licked her arm and then made offensive comments of a sexual nature; another customer made lewd, offensive comments concerning her breasts, and a third patron-while on suspension for grabbing Ms. Cote's breast-entered the bar area and exposed his genitals to her. Both women testified that they were extremely upset by the incidents and that they reported them to either Ms. Potter or Mr. Kettelle. Despite being notified of the patrons' deplorable conduct, the Legion either took no corrective action or, in one case, failed to enforce the suspension it issued which, subsequently, led to a repeat offense by the suspended individual. The Legion did not dispute, and the record supports, the occurrence of these episodes.
With respect to the Commission's determination that the women were victims of ancestral origin harassment, the record again reveals sufficient evidence to support the finding. Shortly after she started working for the Legion complainant Cote was given an ethnic derogatory nickname. Upon notifying Mr. Kettelle that she was upset by the name calling, he told the offenders to "knock it
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