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DeCamp v. Dollar Tree Stores6/14/2005
otected class; (2) the employee was subjected to unwanted harassment; (3) that harassment was based upon his or her sex; (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." O'Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001).
As is often the case, there is little doubt that plaintiff "is a member of a protected class and that she considered defendants' conduct unwelcome." Id. at 728. This is a much closer case in regard to the remaining elements.
Concerning the element requiring the harassment be based on gender, defendants argue credibly that plaintiff cannot prove by competent evidence that Braz's unwelcome harassment had anything to do with her gender. Indeed, none of the incidents involving Braz and plaintiff includes an express reference to her gender, such as referring to her by a derogatory term associated with women. This argument, however, ignores Dravenstott's typed notes and deposition testimony indicating that Braz had been accused of treating women differently and especially poorly. This evidence of Braz's mistreatment of women is the nexus between Braz's treatment of plaintiff and a conclusion that he mistreated her because of her gender. Although this evidence of gender-based treatment may be less than compelling, the evidence that Braz generally treated women especially poorly, when viewed in the light most favorable to plaintiff, creates a genuine issue of material fact about whether Braz's mistreatment of plaintiff was based on her gender for purposes of summary judgment.
Cf. Gliottone v. Ethier, 870 A.2d 1022, 1028 (R.I. 2005) (holding the less than compelling evidence of photographs of the vehicular damage creates a potential issue of fact barring summary judgment in an automobile negligence case). To hold otherwise would preclude claims in which the harasser, after being counseled not to treat women poorly, has the good sense not to state the true motivations for blatant mistreatment.
Concerning the creation of an abusive work environment, Title VII, and therefore FEPA and RICRA, are violated " hen the workplace 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.'" Harris, 510 U.S. at 21. A review of the totality of circumstances reveals at least seven specific incidents from September 2000 to December 2000 in which Braz was said to have mistreated plaintiff. The most severe incidents occurred when, on one occasion, he slammed his fist on a desk and screamed at her to leave the store, and, on another occasion, he kicked over a register full of money and then proceeded to stand over plaintiff and laugh while she cleaned it up. These incidents were not isolated; he also maintained she did not have half a brain, told her "to get her s---together," criticized the way she dressed, and repeatedly threatened her job. Although reasonable minds may differ on the ultimate issue at trial, we disagree with the motion justice's finding and hold that this evidence could allow a reasonable juror to conclude that Braz's treatment constituted a frequent pattern of abusive behavior that altered plaintiff's work environment.
The next element of a hostile work environment claim requires that the harassment be objectively and subje
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