Memorandum of Decision Re: Sexual Harassment

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In re DONALD E. BROWN and FRANCES                                                                                            No. 97-12524 DEE FILGAS,            Debtor. ___________________________/ DENISE M. MUSTAIN,            Plaintiff,         v.                                                                                                                                               A.P. No. 97-1238 DONALD E. BROWN and FRANCES DEE FILGAS,            Defendants. ______________________________/
Memorandum of Decision
     Debtor Frances Dee Filgas is a medical doctor. During the time relevant to this adversary proceeding, she operated a small private practice with offices in Ukiah and Healdsburg. Her husband, debtor Donald E. Brown, acted as her office manager.      Plaintiff Denise Mustain is a nurse who was employed by Filgas from February, 1993, to June, 1994. She commenced this adversary proceeding to establish a nondischargeable debt on account of several alleged intentional torts. At the conclusion of her evidence, the court dismissed all of her claims except one for sexual harassment. Such a claim, if established, is excepted from discharge pursuant to section 523(a)(6) of the Bankruptcy Code. In re Gee, 173 B.R. 189 (9th Cir.1994).      Mustain's claims are based on the alleged conduct of Brown. She testified that on three occasions he made suggestive comments to her. She also alleged that at work he sometimes brushed against her or touched her, although she did consent to neck massages from him on occasion. She also cites as an incident of harassment an occasion when, at a party, she agreed to a public massage wearing only a sheet and Brown positioned himself to get a good view. Brown denied all improper conduct.      The court begins by noting absolutely no credible evidence of any sort of quid pro quo harassment, which requires a showing of benefits conditioned on sexual favors. Nichols v. Frank, 42 F.2d 503, 509 (9th Cir.1994). Mustain argued that she was fired for not submitting to Brown, but the evidence was clear, even from her own case, that she was terminated because of the debtors' financial troubles. Mustain also alleged some sort of "quid pro quo policy regarding sexual favors for their son Chad" with whom Mustain had a consensual relationship. This latter allegation was completely meritless.      There being no quid pro quo demands, Mustain can prevail only if she establishes that Brown's conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986). In evaluating the alleged misconduct, the court must consider the frequency and severity of the conduct, whether it was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with the employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 126 L.Ed.2d 295, 114 S.Ct. 367, 371. The test for offensive behavior is an objective one. Oncale v. Sundowner Offshore Services, Inc., -- U.S. --, 140 L.Ed.2d 201, 118 S.Ct. 998, 1002.      The court has difficulty finding that Brown's alleged conduct, even if proved, constitutes actionable misconduct; it certainly is at the lower end of the scale. It was neither severe nor threatening, nor did it rise to the level where Mustain could not do her work. The court does not see how the public massage incident can constitute harassment at all, in that it did not occur at work and was a situation Mustain created entirely on her own. The incidents Mustain says she endured were far less severe that those alleged by the plaintiff in Weiss v. Coca-Cola Bottling Co. of Chicago, 990 F.2d 333 (7th Cir.1993)[plaintiff's supervisor asked her out on dates, placed his hand on her shoulder several times, placed "I love you" signs in her work area, and attempted to kiss her on one or more occasions] or Saxton v. American Tel. & Tel. Co., 10 F.3d 526 (7th Cir.1993)[repeated touching above the knee, kissing, even after plaintiff asked him to stop]. In both of those cases, the court found no actionable misconduct as a matter of law.      Even if incidents alleged by Mustain are actionable as a matter of law, her credibility was seriously challenged by the testimony of two young women called as witnesses by the debtors. These women were co-workers of Mustain. They testified that Brown always behaved in a proper manner and that when Mustain was laid off she contacted them and asked them to state things that they did not believe were true. These women have not worked for the debtors for several years, nor had any contact with them since they left their employment. If there is any reason why these witnesses should not be believed, it did not come out in the course of cross-examination.      In light of all of the above, and especially the conflicting testimony of the witnesses, the court is unable to determine that the facts are as represented by Mustain. Since she bears the burden of proving her case by a preponderance of the evidence, the court is compelled to a decision in favor of the debtors.      For the foregoing reasons, Mustain shall take nothing by her complaint which shall be dismissed with prejudice. The debtors shall recover their costs of suit.      This memorandum constitutes the court's findings and conclusions pursuant to FRCP 52(a) and FRBP 7052. Counsel for the debtors shall submit an appropriate form of judgment forthwith.
Dated: June 18, 1998                                                                                  _______________________                                                                                                                     Alan Jaroslovsky                                                                                                                      U.S. Bankruptcy