Rosario v. The Department of the Army, et al

Filing 920100602

Opinion

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var WPFootnote1 = 'Of the Tenth Circuit, sitting by designation.\
'

var WPFootnote2 = ' The other defendants are Dr. Francis J. Harvey, who was\
Secretary of the Army when the lawsuit was filed; Pete Geren,\
Harvey\'s successor in the position; Ivan Arroyo, Rosario\'s\
supervisor and the alleged harasser; and Lieutenant Colonel (LTC)\
Kyle D. Campbell, who was in charge of the health clinic during the\
relevant time period.\
'

var WPFootnote3 = ' Hernández and others whose testimony is reported in this\
factual summary appeared as witnesses at an evidentiary hearing\
conducted by the Army\'s Equal Employment Opportunity (EEO)\
investigator on July 3, 2004.\
'

var WPFootnote4 = ' At the EEO hearing, Arroyo explained that he and Rosario sat\
in close proximity to each other, and the way she sat, "her\
underwear was being exposed. The backside was being exposed to\
me."\
'

var WPFootnote5 = ' When asked how many times Arroyo brought people to see her\
underwear, she replied: "[I]t was almost every day. Every day he\
have something to say with my clothes."\
'

var WPFootnote6 = ' Although Cournier did not explicitly state that these\
comments were overheard by Rosario, it is a fair inference that,\
like the comments reported by Hernández, the conversation and\
laughter she described occurred in close proximity to Rosario.\
'

var WPFootnote7 = ' Maldonado went on to say that "that\'s the way he treated all\
the females and also the males. But, for some reason or another,\
the other females never said anything because she[sic] was a\
reservist, and when my time is gone, I\'m gone." Although the\
syntax is confusing, it appears that Maldonado was saying that\
female Army reserve members who worked at the clinic did not\
complain about Arroyo\'s treatment because they were assigned there\
only temporarily.\
              Later, when questioned about his comment that Arroyo would\
treat both men and women poorly, Maldonado said Arroyo would not\
treat them "the same way he was treating her." Maldonado\
explained:\
\
              He behaves – his behavior towards everyone was the same. \
But for [Rosario], it was more a gender issue . . .\
[b]ecause, everything was about the way she dressed. \
Everything was about her. Everything was about the way\
she talks to people.\
\
In emphasizing Maldonado\'s statement that Arroyo mistreated both\
men and women, the district court overlooked Maldonado\'s\
explanation of Arroyo\'s distinct behavior toward Rosario. \
'

var WPFootnote8 = ' Rosario testified that, when she met with her second-level\
supervisor, LTC Campbell, "he didn\'t take me serious[ly]." \
Maldonado testified that he also reported Arroyo to Campbell, who\
told Maldonado "[t]hat he was going to handle it." Maldonado\
assumed that nothing was done, however, "[b]ecause I was there the\
whole time and things that began there continued on and on." He\
further recounted:\
\
              When I brought it up to LTC Campbell and the rest of the\
folks who were in the chain of command, they didn\'t do\
anything about it. But he continued to behave towards\
her the same way as before. He had the same behavior. \
Nothing changed.\
'

var WPFootnote9 = ' This formal counseling appears to have consisted of Arroyo\'s\
completing a "Developmental Counseling Form," an official document\
issued by the US Army Training and Doctrine Command, and Rosario\'s\
written response. The form, dated November 6, 2002, explains the\
purpose of the counseling as follows:\
\
              To develop a clear understanding on appropriate dress\
code in the work place. Ruth I want to let you know I\
have done lots of research about the subject on dress\
code, I have talked to many high ranking civilian here in\
PR and in the States to get advice and here is the\
answer. There is not a dress code for civilians. The\
employee needs to be aware of the work place, consider\
the customers and the coworkers, and dress accordingly. \
I can not enforce a dress code on anybody. You know\
where you work, your customers, and your coworkers as\
well as supervisors. If you make someone unco[m]fortable\
about the way you are dress in the work place and they\
voice a complaint about you, you will have to deal with\
that situation accordingly. I will not enforce a dress\
code because there i[s] not one.\
\
In her handwritten response on the form, dated 11/21/02, Rosario \
queried why Arroyo initiated the counseling if there was not a\
dress code and stated that she "always presented [her]self in a\
professional, clean, office attire."\
\
              At the EEO hearing, Arroyo testified that he did not remember\
the incident that triggered the form, but that he "must have seen\
something that was totally in contrary to . . . what we have talked\
about." He said the misunderstanding was cleared up, and the\
counseling never took effect.\
'

var WPFootnote10 = ' Campbell, however, testified that he was informed by another\
clinic employee, Specialist Lara, that female patients and wives of\
patients at the clinic had complained about Rosario\'s "excessively\
revealing clothing." He described the issue as "sheer or see-through clothing and/or very low cut blouses."\
'

var WPFootnote11 = ' Arroyo acknowledged that the memo was never given to Rosario\
and explained that it was prepared at that time because a new\
rating period was beginning. He stated that it was "an initial\
counseling for a new rating period" and that "I am counseling her\
on expectations on the new rating period that\'s about to begin."\
'

var WPFootnote12 = ' Cournier testified that Arroyo would get sexually oriented\
jokes from the computer and "then be talking about it and showing\
pictures or whatever." She said he did that in a loud voice,\
"mostly . . . when [Rosario] was there." Maldonado reported that\
Arroyo commented to him and "to everybody else too[,] [t]o other\
guys" that she dressed "like a street girl, or a working girl." \
Maldonado explained that labeling someone a "woman of the streets"\
or "a street girl" was not as bad as calling her a prostitute, that\
it was "more girlish, you know, her breasts were out or showing her\
cleavage."\
'

var WPFootnote13 = ' To succeed with a Title VII hostile work environment claim,\
a plaintiff also must prove that she (or he) is a member of a\
protected class, that she was subjected to unwelcome sexual\
harassment based upon sex, and that there is a basis for employer\
liability. Agusty-Reyes v. Dep\'t of Educ. of P.R., 601 F.3d 45, 52\
n.6 (1st Cir. 2010).\
'

var WPFootnote14 = ' Although the district court\'s ruling focused primarily on\
the "severe or pervasive" element of Rosario\'s claim, it explicitly\
or implicitly dealt with all aspects of a Title VII hostile work\
environment claim other than employer liability. See Agusty-Reyes,\
601 F.3d at 52 n.6 (listing six elements). Our analysis follows\
the same course. We leave the issue of employer liability to the\
court and the parties on remand, as it was not argued on appeal.\
'

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