Apellant Brief
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Howard University *
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Feb 20, 2024
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IN THE
UNITED STATES COURT OF APPEALS
DISTRICT OF COLUMBIA
________________________________________
Fall Term 2012
_________________________________________
No. 00-02
_________________________________________
Beyoncé Jones
Appellants
v.
Nita University
Appellees
_________________________________________
On Appeal from
The United States District Court
District of Columbia
_________________________________________
BRIEF FOR APPELLANT
_________________________________________
Richel Duncan
Attorney for Appellant
@02648028
TABLE OF CONTENTS
PAGE
Title Page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Questions Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judicial Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 & 8
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 12 & 13
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TABLE OF AUTHORITIES
CASES
Page
Burrell v. Star Nursery INC., 170 F. 3d. 951 (1999)
11
Damrow, Damrow v. Holbrook-Patterson, Inc.
951 F.2d 348, (1991). 10, 11
Ellerth v. Burlington Industries, INC
., 165 F. 3D 31 (1998)
11
Harris v. Forklift Systems
976 F.2d 733 (1993).
12
Long Beach City Employees Association v. City of Long Beach
41 Cal. 3d 937
12
Meritor Savings Bank v. Vinson ET AL
.,
477 U.S. 57 (1986).
10, 12
State of Ohio v. Sharma, 143 Ohio Misc. 2d 27, (2007) 13
Williams v. Saxbe
413 F. Supp. 654, (1976). 12
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STATEMENT OF JURISDICTION
The United States Court of Appeals for the District of Columbia has jurisdiction over this matter pursuant to 28 U.S.C. sec. 1291 (1982).
QUESTIONS PRESENTED
1.
Is the University liable for sexual harassment?
2.
Should the Ms. Jones’ 2
nd
polygraph test be considered by the University?
JUDICIAL PROVISIONS
Title VII of Civil Rights Act of 1964, as amended, Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.
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SUMMARY OF THE CASE
On May 1, 2010, a former Nita University student, Beyoncé Jones filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that she was subjected to repeated verbal and physical sexual harassment by her supervisor/tenured professor, Kobe Smith. Jones alleges that she was subjected to daily verbal harassment where Smith would make sexually suggestive comments about her body. She was also subjected to physical touching on several occasions. On or about October 10, 2008, Smith asked Jones to accompany him on a speaking engagement at Balk University but instead drove her to a motel where he asked her to have sex. Jones rejected Smith’s advances. After the motel incident, Jones went on sick leave due to Smith’s unrelenting sexual harassment. While Jones was on sick leave, Smith continued to call Jones’ cell phone. During these calls he would ask how she was doing and he would tell her that he was masturbating during their calls. In February 2009, Jones reported the harassment to the University. In June 2008, the University told Jones that her sick leave expired and she had to return to work. Upon her return to work, the University told Jones that she would be assigned to work with Associate Professor R. Ditty.
When Jones transferred to Ditty, she later learned that Ditty reported to Smith. Jones alleges that in early 2008 Smith began to make inappropriate and unwelcome comments regarding her appearance on a daily basis. Smith began asking her to have sexual relations with him. Smith would make comments to Jones like “I like your body”, “You are my little girl”, “I like the way you walk”, “I like you because you reject my advances”, “ You are the only officer who had said no to my advances”, “ I will not be calm until I have you”, “You would be in a better position if you let me have you”, “I have slept with other officers”. Smith would make these comments in front of Ditty. Jones alleges that she overheard both Smith and Ditty make comments regarding her physical appearance.
For example, she recalls that one day when she was making copies in the file room; Smith remarked that he wished he had someone who looked like Jones copying his papers. Jones also alleged that on several occasions Smith invited her to his apartment for a date but she declined.
Jones further alleges that Smith would routinely ask her to deliver reports to his office in the evening and when she would arrive in his office he would pin her against the wall and rub up against her. Jones alleges that she repeatedly rejected Smith’s advances and tried to avoid Smith. Unfortunately, she was unable to avoid delivering documents to Smith’s office because that was one of the tasks that was part of her job responsibilities.
After Jones filed her complaint, the University initiated an internal investigation. Q authorized the General Counsel’s Office to investigate the claim. After the investigation, the General Counsel’s Office determined that Jones and Smith had a consensual relationship for several years. The General Counsel’s Office concluded that neither the University nor Smith were liable.
As part of the internal investigation, several work study students and professors were interviewed. Most of the students and professors stated that Jones
had a consensual relationship with Smith. When the General Counsel’s Office interviewed Smith, he denied all of Jones’ allegations.
In or about December 2009, Jones took and failed a polygraph examination, which was administered by the University. After the examination, Jones maintained her innocence and demanded to be reexamined by an independent polygraph examiner but the University denied her request.
In or about January 2010, Jones had another polygraph examination by an independent examiner. Jones was asked the same questions that were asked by the University, as well as additional questions which could implicate her. The result of the examination revealed no deception and indicated a 99% confidence level. Jones requested the University to review the results from the January 2010 polygraph examination and they refused to review or consider the results in its final decision.
The University’s Sexual Harassment Policy
At the time of Smith’s alleged sexual harassment of Jones , the University had a sexual harassment policy explaining that the University had a zero tolerance for sexual harassment. All employees received training on the sexual harassment policy,
which Jones and Smith also received. Sections 1.2 and 2.1 of the policy allow employees who have been subjected to harassment to report the harassment to their immediate supervisors, managers or other officials in the University. Also, any employee alleging sexual harassment must take a polygraph examination. The failure of a polygraph can be a presumption of deception.
ARGUMENT
A. Employee's allegation rose the required level of severity & pervasiveness to establish a sexual harassment claim; hostile work environment.
In Damrow v, Holbrook-Patterson, INC
., 951 F.2D 348, (1991), after the employee refused sexual advances from her immediate supervisor, he began harassing her. Shirley argued that "she had presented sufficient facts to establish causes of action based upon constructive discharge due to hostile environment sexual harassment, and negligence in regard to the employer's supervision of the supervisor." (case citation) Since otherwise, Title VII of the Civil Rights Act of 1964 prohibited employment discrimination based on race, color, religion, sex and sexual harassment. The defendant abiding by the law should have not allowed its employee, (Shirley Damrow) to feud with her place of employment over daily harassment she was subjected to. When Jones rejected Smith's advances, she too was harassed. In Meritor Savings Bank v. Vinson ET AL
., 477 U.S. 57 (1986), the appellant filed an action under Title VII of the Civil Rights Act of 1964 claiming she was sexually harassed when she denied sexual advances. This resulted with a the company terminating her employment. "A female bank employee was allegedly subjected to sexual harassment by her male supervisor, including public fondling, and sexual demands, to which she allegedly submitted out of dear that she would otherwise lose her job." (case citation) Inappropriate acts such as driving Jones to a motel and physically touching her on several occasions were things she endured at the workplace. The ultimatum of promotion was promised if she was to participate in his sexual activities. Since my client denied such the sexual acts, the defendant jeopardizes her career by harassing her. In Harris v. Forklift Systems, INC
., 976 F.2D 733 (1993), The court granted certiorari to review whether a manager's conduct seriously affected the appellant's psychological well being or led her to suffer injury. The court held that as long as the environment would reasonably be perceived and was perceived as hostile or abusive, there was no need for it to also be psychologically injurious. The court found that psychological harm could be taken in account, but was not required by the statute. Even though it was not required, Jones' psychological harm can be taken in account. Because Jones was subjected to harassment, it led her to suffer such injuries. Jones alleges that after the motel incident in October 2008, she went on sick leave because she was traumatized by Smith's sexual harassment. In February 2009, my client also went to the Provost, Jay Q ("Q") because she was looking for help to get treatment for the emotional distress she was suffering with. Sadly, she was unable to get help from the Provost and (the case before the appeal) and us if we don't account Nita University as liable. If the university realized the level of severity Beyoncé Jones went through and how it psychologically injured her,
the defendant's acts would be perceived as an abusive workplace.
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B. Supervisors lacked knowledge of derogatory conduct existing in form of harassment is inexcusable. In Damrow v, Holbrook-Patterson, INC
., 951 F. 2D 348. (1991), In view of her complaining of the conduct to the employer's personnel administrative , it was reasonable to infer by the supervisor's derogatory course of conduct in front of the employee's co-workers that the employer knew, or had reason to know of the supervisor's behavior. Holbrook knew or should have known of Sharpley's conduct,
liability would attach to the defendant company. This determination requires an examination of such factors as when the act took place, where it took place, and whether it was foreseeable. When my client Jones transferred to Ditty as her supervisor, she later learned that Ditty reported to Smith. When Smith began to make unwelcome comments to her, Smith would make these comments in front of Ditty. My client is sure of Ditty her supervisor knowing of such conduct. Jones also alleges that she overheard both Smith and Ditty make comments regarding her personal appearance. It was until Jones claimed she was continuously being sexually harassed in the workplace to the Provost is when the the knowledge of this hostile environment was known. Ditty as a supervisor being that he was where the act took place making it foreseeable, should have not lacked this knowledge. The fact that he did not report or do anything about it once such acts established the qualities of a sexual harassment claim, should not be excused. Companies are liable if supervisors create hostile work environments for other employees. Therefore, by a supervisor ignoring my client's allegations of sexual harassment that he witnessed
himself, this makes the defendant party liable.
In Ellerth v. Burlington Industries, INC
., 165 F. 3D 31 (1998), the vice president's conduct, as described by the worker, had been severe and persuasive enough to create a hostile work environment. The company had not known and should have known about this. On appeal, an employee who refuses the unwelcome and threatening equal advances of a supervisor yet suffers no adverse and tangible job consequences, can recover against an employer without showing that the employer is negligent or otherwise at fault for the supervisor's actions; thus in order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority. When the following is not known by the supervisors and practiced, the now hostile environment is occurring. It also shows that the employer failed to correspond his/her obligation of reasonable care to avoid sexual harassment thus, making them liable. C. The University is held liable because of hostile work environment created by a supervisor.
In Burrell v. Star Nursery INC., 170 F. 3d. 951 (1999), the court's previous decision has been appealed. The appellant's termination was the result of the sexual harassment by the store manager who had supervisory authority over her. Therefore, the defendant could be held liable for hostile work environment. Beyoncé
Jones work environment created by Mr. Smith was extremely hostile regarding the facts of the case making the university liable. D. Job was affected due to the refusal of sexual advances
In Williams v. Saxbe, 413 F. Supp. 654, (1976), after the plaintiff the refused sexual advances from her male supervisor she alleged that she was discharged from her job for filing the complaint. Having reviewed the record, the court found the actions constituted sex discrimination within the meaning of the statute, denied the employer’s motions to dismiss and for summary judgment and granted judgment in favor of the employee. My client was afraid to enter into the workplace from October 2008 to February 2009, during which time she took sick leave because she feared Smith’s unrelenting sexual harassment. This greatly affected her work and jeopardized her job because she was told that she must return to work, she either had to quit or return back to the environment which she felt uncomfortable in. The behavior or Ms. Jones was one very similar to that of many other sexually harassed victims, they feel as though they are extremely ashamed of their experiences and hide for several months at a time until they feel brave enough to talk about their experiences. Smith also told Jones, “You would be in a much better place if you let me have you”. This statement infers that if she complied with his requests she could possibly be better off in the work place, which then means that she has been passed up for promotions because she will not comply.
E. No Matter the Actions of the Plaintiff, if the Attention was unwanted then there is a claim for sexual harassment.
In Meritor Savings Bank v. Vinson, 477 U.S. 57, (1986), the court found that any relationship between respondent and her supervisor was voluntary and unrelated to her work. The appellate court then reversed the judgment of the district court and remanded the case, on a finding that the district court failed to determine if there was a hostile work environment. On, certiorari, the court held that if the attentions of respondent’s supervisor were unwelcome, then the respondent had a claim for sexual harassment on the basis of a hostile work environment, even if any sexual acts were voluntary. If anything did occur between Ms. Jones and Mr. Smith and then Ms. Jones then felt any of the attention was unwanted then there is a claim for sexual harassment. Even if there was a relationship between the two of them like
their co-workers claimed, at anytime if Ms. Jones decided that she no longer wanted attention from Smith he was in the wrong.
F. Illegal to require an employee to take polygraph by employer
In Long Beach City Employees Association v. City of Long Beach
41 Cal. 3d 937, (1986) the city employees association sued on behalf of a group of public employees
who asserted that orders by respondents, city and others to submit to polygraph examination, in order to get to the bottom of certain thefts at the place of
employment, violated their rights of privacy and equal protection. The court concluded that the orders to the employees to submit to polygraph examinations as a condition of their employment intruded upon the employees’ constitutionally protected zone of individual privacy and also violated their right to equal protection under the law. The workers at Nita University have the possibility of having their rights infringed upon because it is illegal to require an employee to take a polygraph
exam. The University requires Jones to take a polygraph test to test her honesty in the claim, which would consequently affect her job at the university, which is a condition of her employment. The original polygraph exam should be excluded in the University’s decision or the second examination given by a third party should be considered since the polygraph administered by the school was illegal. G. The Use of Multiple Polygraph Examinations is Useful
In State of Ohio v. Sharma, 143 Ohio Misc. 2d 27, (2007), the defendant sought the admission of three polygraph test results. The court found that the tests and their interpretation related to matters beyond a layperson’s knowledge. An evidentiary hearing was held to evaluate the reliability of the tests, and all three polygraphists to
the polygraphs and that defendant was not deceptive. Nita University should consider the second polygraph examinations because multiple polygraphs guarantee a more accurate result. In addition, the polygraph exam that Jones supplied to the University was administered by a neutral third party and it contradicts the results from the exam administered by the school.
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SUMMARY OF ARGUMENT
The lower court was erred in ruling that the University was not liable in the sexual harassment of Ms. Jones because the relationship between Ms. Jones and Mr. Smith was consensual. The relationship was in fact not consensual; on several occasions Ms. Jones refused sexual advances from Mr. Smith and was even deceived by Mr. Smith to think they were attending a work related conference together but in fact was taken to a motel and asked for sex. She then took an extended sick leave because she felt too uncomfortable to continue to work with Mr. Smith.
The lower court was erred in ruling that the University should not have considered the 2nd polygraph test taken by Ms. Jones. The University administered the first polygraph test to Ms. Jones, which gives the results the possibility to be untrue. Once the second polygraph test showed that she was telling the truth there should have been a third test given by a neutral party that would have allowed the possibility for the case to be re-evaluated by the University.
CONCLUSION
For the reasons set forth, Appellants respectfully request that the judgment of the United States District Court for the District of Columbia be overturned.
Respectfully submitted,
Richel Duncan
Attorney for Appellant