An employee who had to share a small office with a supervisor who allegedly refused to respect her personal space could later sue the supervisor for creating a hostile work environment, the 1st U.S. Circuit Court of Appeals has ruled.

The defendant supervisor was awarded summary judgment in U.S. District Court based on a finding that the comments made by him, coupled with the plaintiff employee’s “general sense of unease,” did not amount to a hostile environment.

But the 1st Circuit vacated that judgment on the ground that a jury could reasonably conclude that the defendant’s conduct was so objectively offensive that a reasonable person would find it to be hostile or abusive.

“For three months, until [the plaintiff] removed herself to a different office, [the defendant] shared her workspace for multiple hours every day, stared at her in a sexual way, came so close to her that she could feel his breath, pulled his chair next to her so that their legs touched, laughed at her discomfort, blocked her escape from the cramped office with a closed door, and on one occasion called her ‘Babe,’” Judge Kermit V. Lipez said for the 1st Circuit majority.

“[A]lthough some lack of privacy and personal space was inherent in the odd circumstance of having both [the defendant] and [the plaintiff] working in a small office, the facts and attendant circumstances suggest that [the defendant] went out of his way to violate [the plaintiff]’s privacy and the integrity of her personal space,” Lipez added.

In a separate opinion, however, Judge Bruce M. Selya expressed doubt over the correctness of the majority’s ruling.

“As the majority opinion leaves it, any employee who is compelled to share a small office with a disliked co-worker will be able to mount a claim for sexual harassment without much, if anything, in the way of evidence,” he said.

The 42-page decision is Vera v. McHugh.

Vilma M. Dapena-Rodríguez of Puerto Rico represented the plaintiff. She was opposed by Rebecca E. Ausprung of Virginia.

Stormy time together

The plaintiff, Rosa Linda Vera, began working for the U.S. Army as a civilian administrative assistant in April 2002. In October 2004, defendant Raul Rodriguez became the plaintiff’s direct supervisor.

Because he was not officially assigned an office of his own when he assumed his new position, the defendant worked out of the plaintiff’s office, which had a computer with an Internet connection.

During the time that she and the defendant were using the same office, the plaintiff described herself as experiencing “a constant invading [of] my space.” She described how the defendant would sit staring at her while they were in the office with the door closed and would block the door when she tried to leave.

The plaintiff said the defendant would look at her in a sexual way and then “smirk and laugh” because he knew it bothered her. At times, he allegedly moved his chair so close that their legs would touch, or he would stand close behind her so that she could feel his breath.

The plaintiff also claimed that the defendant made objectionable comments to her. On one occasion, the plaintiff alleged, he referred to her as “Baby,” while on another he told her on a stormy day that her “hair looked like the weather,” a comment she found to be derogatory and offensive to her “as a woman.”

The shared-office arrangement ended sometime in late February or early March 2005 when the plaintiff began to work out of an empty office in order to avoid the defendant. She was later moved to yet another workspace as part of a large office reorganization coordinated by him.

Objective test

Viewing the evidence in the light most favorable to the plaintiff, the majority found that a jury could reasonably conclude that the defendant was purposefully exploiting the smallness of the office that he shared with the plaintiff to sexually harass her.

“The conduct Vera alleges involves many, if not all, of the factors we use to guide us in determining whether a claim such as hers may survive summary judgment,” Lipez said. The alleged conduct by the defendant was described by the plaintiff as constant, the judge noted.

“Although Rodriguez did not overtly threaten Vera, the allegation that he blocked her from leaving the office on at least one occasion suggests a physically threatening environment,” Lipez said. “When Rodriguez looked at her ‘up and down’ in a sexual way, she felt extremely uncomfortable, an understandable reaction to sharing an office with a supervisor who finds his subordinate’s discomfort amusing and intentionally causes that discomfort by placing his body inappropriately close to hers in the small office. Finally, there is testimonial and documentary evidence that Rodriguez’s conduct caused Vera to suffer psychologically.”

Thus, “a jury could find that the intensity and frequency of the contact between Vera and Rodriguez altered the conditions of her employment despite the relatively short duration of their office-sharing,” Lipez wrote. “Likewise, it would be reasonable for the jury to conclude, based on Vera’s account of Rodriguez’s conduct, that his conduct was so objectively offensive that a reasonable person would find it to be hostile or abusive.”

‘Words of caution’

In a separate opinion, Selya contended that the majority’s decision went “well beyond the outermost frontier adumbrated in any of our earlier sexual harassment precedents” and that its precedential value should be viewed with some skepticism.

“Second — and more importantly — the majority discerns a trialworthy issue where the only conduct attributable to Rodriguez — occasional glances at, and inconsequential remarks to, a fellow employee, the closing of an office door in a crowded workplace, the kind of incidental contact that is unavoidable in cramped quarters — does not seem to support the inference that the majority draws from it,” Selya continued.

“Although the majority pays lip service to the case law that impresses a standard of objective reasonableness on such claims, … it effectively subordinates this objective to the tug of the plaintiff’s subjective feelings,” he said. “That distortion starts us down a slippery slope toward the imposition of some sort of general civility code in the workplace. That destination ought not to be on our itinerary.”