Hostile Work Environment Cases

PEÑA v INGHAM COUNTY ROAD COMMISSION Docket No. 231482. Submitted January 8, 2003, at Lansing. Decided February 11, 2003, at 9:00 A.M. Leave to appeal sought. Joseph G. Peña brought an action in the Ingham Circuit Court against the Ingham County Road Commission, his employer, alleging that workplace harassment based on his race or national, origin resulted in a hostile work environment and that he was subjected to adverse employment action as retaliation for filing a complaint under the Civil Rights Act, MCL 37.2101 et seq., about the harassment. The court, Carolyn Stell, J., denied the defendant’s motion for summary disposition and, following a jury trial, entered judgment on a jury verdict and award of present and future damages for the plaintiff. The defendant appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in precluding the defendant from introducing any evidence of abusive or vulgar language used by the plaintiff or any evidence of his confrontations with coworkers and with one member of the public. Evidence of use of vulgar and profane language in the workplace by a plaintiff claiming a hostile work environment can be relevant to determining the existence of a hostile work environment, depending on the type of language, its frequency, and the context in which it is stated. Here, however, the trial court correctly determined that it would be more prejudicial than probative to allow the defendant to present evidence of the plaintiff’s minimal use of profanities and two instances of heated interactions with coworkers and one member of the public because such evidence could have caused the jury to conclude that it was permissible to engage in illegal workplace harassment or discrimination. 2. The trial court erred in denying the defendant’s motion for summary disposition of the retaliation claim. A prima facie case of retaliation can be established with evidence that the plaintiff was engaged in protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action. An adverse employment action typically takes the form of an ultimate employment decision, such as termination of employment or demotion. Here, the plaintiffs allegations that he was investigated by the defendant for worker’s compensation fraud, that he was isolated at work, and that a supervisor ridiculed him for filing his lawsuit do not establish that the defendant took an adverse employment action in retaliation for the plaintiffs lawsuit. 3. The defendant, by not moving for remittitur or a new trial and by failing to object to the plaintiffs request for jury instructions on future damages, has failed to preserve for appellate review the claim that the award of future damages was excessive. There was sufficient evidence in the record to support the award of future damages. Affirmed in part, reversed in part, and remanded for entry of an order dismissing the retaliation claim. 1. Civil Rights — Civil Rights Act — Employment Discrimination — Harassment — Evidence. Evidence of harassing conduct by a plaintiff claiming a violation of his civil rights because of a hostile work environment, if such conduct is not similar to that complained of by the plaintiff, is irrelevant and not admissible in the plaintiffs action (MCL 37.2101 et seq.~). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Retaliation. A prima facie case of employer retaliation against an employee’s filing of a complaint under the Civil Rights Act is established with proof that the employee was engaged in protected activity, that this was known by the employer, that the employer took an employment action adverse to the employee, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701[a]). 3. Civil Rights — Civil Rights Act — Employment Discrimination — Retaliation — Adverse Employment Action. An adverse employment action taken by an employer in retaliation for an employee’s filing of a complaint under the Civil Rights Act typically takes the form of termination of employment or demotion (MCL 37.2701 [a]). Fett & Linderman, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Michael R. Kluck & Associates (by Michael R. Kluck) for the defendant. Before: Murray, P.J., and Sawyer and Fitzgerald, JJ. Murray, P.J. Defendant appeals of right from the final judgment entered in favor of plaintiff on his discrimination and retaliation claims brought under the Civil Rights Act (cra), MCL 37.2101 et seq. We affirm in part, reverse in part, and remand. I. material facts and proceedings Because of the limited nature of the issues properly presented on appeal, we provide the reader with only a brief summary of the material facts and proceedings that led to the jury verdict. Plaintiff commenced his employment with defendant in October 1987. Plaintiff continues to be employed by defendant and is currently a class-four highway worker. The amended complaint filed by plaintiff asserts that he was subjected to a hostile work environment on the basis of his race or national origin, to disparate treatment, and to retaliation. Specifically, plaintiff claimed that from the inception of his employment he has been on the receiving end of numerous derogatory and discriminatory remarks directed at his national origin, and that when he opposed this alleged harassment (including by the filing of this lawsuit), defendant took adverse employment action against him. Defendant sought pretrial dismissal of plaintiffs claims on the basis that a hostile work environment did not exist, and plaintiff had not suffered an adverse employment action. Defendant’s motion for summary disposition was denied by the trial court. At trial, plaintiff presented testimony regarding the repeated national-origin slurs that had been directed at him over the course' of his thirteen years of employment. Specifically, plaintiff and other employees testified that plaintiff was called a “wetback,” “spic,” “beaner,” “f — ing Mexican” and “pickle plucker” by coworkers and supervisors alike on an almost daily basis throughout the course of his employment. Defendant did not deny that these words were at times utilized by its workers. However, defendant presented testimony that this was simply good natured “shop talk,” that plaintiff had good working relations with the supervisors and coworkers he now complains of, and that at some point the slurs ended. The jury apparently accepted plaintiffs version of the facts, because it returned a verdict finding defendant liable for both a hostile work environment and for retaliating against plaintiff. The jury awarded $650,000 in “damages to date” while awarding him an additional $650,000 for “future damages.” The verdict form did not differentiate between the amount awarded for the harassment claim and the amount awarded for the retaliation claim. On appeal, defendant argues that the trial court committed three errors that require reversal, namely: (1) that it was denied a fair trial by the trial court’s decision to exclude from evidence plaintiff’s own workplace conduct; (2) that plaintiff’s retaliation claim should have been summarily dismissed because plaintiff had not suffered an adverse employment action; and (3) that the trial court should have set aside the future damages award because it was excessive in light of the evidence and was punitive in nature. For the forthcoming reasons, we agree with defendant that plaintiffs retaliation claim should have been summarily dismissed. Defendant’s remaining arguments, however, do not gamer our support. H. ANALYSIS A. THE TRIAL COURT’S EVIDENTIARY DECISION “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.” Barrett v Kirtland Community College, 245 Mich App 306, 325; 628 NW2d 63 (2001). Establishing an abuse of discretion is, however, quite difficult, for an abuse will only be found “when the decision is ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Because such an abuse will usually occur only in extreme cases, Barrett, supra at 325, it is only stating the obvious to say that an abuse of discretion will normally not be found when addressing a close evidentiary question. Hilgendorf v Saint John Hosp & Medical Ctr, 245 Mich App 670, 707 n 49; 630 NW2d 356 (2001), quoting People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995), quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982) (“ ‘ “The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion.” ’ ”). Before the originally scheduled trial date, plaintiff filed a motion in limine. By way of that motion, plaintiff sought to exclude evidence that he was short-tempered, and that he had conflicts with members of the public and with his coworkers. During oral argument on the motion, plaintiff indicated that through his motion in limine he was not seeking to preclude evidence that he utilized ethnic or racial slurs in the workplace. Instead, plaintiff argued that any evidence of coworker confrontations, or abusive and vulgar (but not discriminatory) language should be excluded. After hearing arguments, the trial court entered an order allowing defendant to introduce any evidence that plaintiff utilized racial or ethnic slurs, but precluding defendant from introducing any evidence of abusive or vulgar language utilized by plaintiff or any evidence of his coworker or citizen confrontations, unless plaintiff asserted at trial that he was unlawfully denied a promotion. Citing both state and federal law, defendant argues that the trial court should not have prevented it from showing to the jury that plaintiff utilized foul language and made threats of harm to coworkers and to one member of the public. In particular, defendant claims support for this proposition in Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), Henson v Dundee, 682 F2d 897 (CA 11, 1982), Scusa v Nestle USA Co Inc, 181 F3d 958 (CA 8, 1999), and Morgan v Hertz Corp, 542 F Supp 123 (WD Term, 1981). None of these cases, however, supports the specific argument made by defendant. Rather, they support the trial court’s decision. In Radtke, our Supreme Court held that in determining whether a work environment is illegally hostile, it must be gauged by a reasonable person’s standard viewing the “totality of circumstances.” Radtke, supra at 394. This does not mean, as defendant would have us hold, that everything affecting plaintiff’s employment is relevant and admissible in a harassment case. Rather, we have previously held that what is relevant is evidence that plaintiff himself engaged in the type of conduct similar to that at issue in the case. In Grow v W A Thomas Co, 236 Mich App 696, 706; 601 NW2d 426 (1999), we held in a sexual harassment case that evidence of the plaintiff’s own sexual conduct at work was relevant in determining whether the conduct complained of (also sexual in nature) was “unwelcome” or “hostile”: Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiff’s own conduct was therefore relevant to the question whether Arguette’s alleged acts were “unwelcome." See, e.g., Balletti v Sun-Sentinel Co, 909 F Supp 1539, 1547 (SD Fla, 1995) (“Where a plaintiff’s action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was ‘unwelcome’ or ‘hostile.’ ”) [.] However, plaintiffs participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were “unwelcome.” Accordingly, in a hostile work environment claim, a plaintiff’s engaging in conduct similar to that complained of is relevant to a proper determination whether the plaintiff was subjected to an unlawfully hostile work environment. Grow, supra. This same conclusion has been reached by the federal courts that have considered this issue under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Gross v Burggraf Constr Co, 53 F3d 1531, 1537-1538 (CA 10, 1995); Hocevar v Purdue Frederick Co, 223 F3d 721, 729-730 (CA 8, 2000); Burns v McGregor Electronic Industries, Inc, 989 F2d 959, 962-963 (CA 8, 1993); Barta v Honolulu, 169 FRD 132 (D Hawaii, 1996); Herchenroeder v Johns Hopkins Univ Applied Physics Laboratory, 171 FRD 179, 182 (D Md, 1997). The rationale of these cases is a logical one: if the plaintiff himself sees fit to utilize discriminatory language or commit discriminating acts in the workplace, the jury should be apprised of that fact to determine how that plaintiff would reasonably perceive his work environment when he is the recipient of the same or similar conduct. See Meritor Savings Bank, FSB v Vinson, 477 US 57, 69; 106 S Ct 2399; 91 L Ed 2d 49 (1986) (“While ‘voluntariness’ in the sense of consent is not a defense to such a claim, it does not follow that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant.”). The trial court adhered to this rule in deciding plaintiff’s motion in limine. As noted, the trial court ruled that defendant could present evidence that plaintiff engaged in the type of behavior at issue in this case. Thus, defendant was free to inform the jury that plaintiff utilized such terms as “wetback” and “Mexican” when referring to others in the workplace. Defendant asserts, however, that the trial court should have also allowed evidence of plaintiff calling one of his supervisors a “fat f — ,” and that plaintiff, on several occasions, exhibited an aggressive attitude with his coworkers and the public. We conclude that the trial court did not abuse its discretion in excluding such evidence as being more prejudicial than probative. MRE 403. Although it is true that the events in the workplace are to be reviewed under the “totality of the circumstances,” Radtke, supra, defendant has offered no case that holds that a jury must be allowed to consider a plaintiff’s aggressive demeanor or use of foul language at work when that aggressiveness does not include conduct similar to that at issue in the case, i.e., it does not include any indication that plaintiff, while at work, engaged in discriminatory conduct himself. In the cases dealing with vulgar and rude language utilized by a plaintiff bringing a hostile work environment action — most of which seem to fall in the category of sexual harassment — courts have concluded that the weight or admissibility of the statements depends on the circumstances of each particular case. Judge Posner, writing for the court in Galloway v Gen Motors Source Parts Operations, 78 F3d 1164, 1167 (CA 7, 1996), abrogated on other grounds, Nat'l Railroad Passenger Corp v Morgan, 536 US 101; 122 S Ct 2061; 153 L Ed 2d 106 (2002), held that the use of foul language by a plaintiff and its effect on the work environment at issue in the case depends in large measure on how and when the language is used. As a result, and depending on the circumstances of each case, sometimes the plaintiff’s use of foul language, when coupled with rather nonoffensive language used by the defendant, causes there to be no dispute about the lack of a hostile work environment, see Gleason v Messirow Financial Inc, 118 F3d 1134, 1146 (CA 7, 1997) (affirming summary judgment), and Hocevar v Purdue Fredrick Co, 223 F3d 721, 736-737 (CA 8, 2000) (also upholding summary judgment), while in other cases the evidence is of such a character that it should be submitted to the jury for resolution. Horney v Westfield Gage Co, 211 F Supp 2d 291, 308-310 (D Mass, 2002). What must be focused on, however, is a plaintiffs conduct at work, not conduct outside work. Burns v McGregor Electronic Industries, Inc, 989 F2d 959, 963 (CA 8, 1993). We agree with the foregoing decisions and conclude that evidence of a plaintiff’s use of vulgar and profane language (as opposed to discriminatory language dealt with earlier) in the workplace can be relevant to determining the existence of a hostile work environment if the circumstances so warrant, i.e., it would depend on the type of language, its frequency, and the context in which it is stated. Turning to the case at hand, although evidence that plaintiff called his supervisor a “fat f — ” presents a close question because his supervisor responded by calling plaintiff a derogatory and discriminatory name, we believe that under the facts of this particular case, the trial court set reasonable guidelines with regard to what was more prejudicial than probative, MRE 403. The trial court’s ruling allowed the jury to know plaintiff had used national-origin slurs in the workplace so it could determine if similar language was “unwelcome” or created a “hostile” discriminatory atmosphere, yet kept defendant from bringing forward a few incidents that perhaps showed that plaintiff occasionally used profanities. Evidence of plaintiff’s minimal use of profanities, and that he had a couple of heated interactions with coworkers and one with the public over thirteen years of employment, could have caused the jury to conclude that it was permissible to constantly utilize language prohibited by law in the workplace (discriminatory statements), as was shown to have occurred in this case, simply because plaintiff occasionally utilized profanities that, though inappropriate, are not necessarily illegal. The trial court decided such evidence was more prejudicial than probative, and although we may have ruled differently in the first instance, we cannot conclude that such a decision was an abuse of discretion. Hilgendorf, supra. B. PLAINTIFF’S RETALIATION CLAIM Defendant also asserts that the trial court should have dismissed plaintiffs retaliation claim because plaintiff failed to create a genuine issue of material fact with regard to whether he was subjected to an adverse employment action by the time the motion was heard by the trial court. On this point, we agree with defendant. In Kelly-Stehney & Assoc, Inc v MacDonald's Industrial Products, Inc, 254 Mich App 608, 611-612; 658 NW2d 494 (2003), we set forth the standard of review for our Court to apply when considering the propriety of the grant or denial of a motion for summary disposition under MCR 2.116(C)(10): A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Veenstra v Washtenaw Country Club, 466 Mich 155, 163; 645 NW2d 643 (2002). A motion for summary disposition should be granted when, except in regard to the amount of damages, there is no genuine issue in regard to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. MCR 2.116 (C)(10), (G)(4); Veenstra, supra at 164. hi deciding a motion brought under this subsection, the trial court must consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party. Veenstra, supra at 164. The moving party has the initial burden of supporting its position with documentary evidence, but once the moving party meets its burden, the burden shifts to the nonmoving party to establ

Joleen Morrison & another vs. Northern Essex Community College. No. 99-P-2024. Essex. February 14, 2002. - December 19, 2002. Present: Duffly, Dreben, & Trainor, JJ. Education, Public colleges and universities. Anti-Discrimination Law, Unfair educational practice, Sex. Practice, Civil, Statute of limitations. Limitations, Statute of. Words, “Deliberate indifference.” In a civil action brought by two female athletes, alleging that they were sexually harassed by their college basketball coach in violation of G. L. c. 151C, § 2(g), the trial court judge erred in dismissing the plaintiffs’ claims of quid pro quo harassment (namely, that submission to the coach’s advances was a condition of continued participation on a sports team) on the ground that they were barred by the statute of limitations, where the record demonstrated that the claims encompassed discrete conduct that occurred within the applicable three-year limitations period preceding the filing of the complaint. [792-795] In a civil action brought by two female athletes, alleging that they were sexually harassed by their college basketball coach, the trial court judge erred in dismissing, on statute of limitations grounds, the plaintiffs’ claims that the coach’s conduct gave rise to a hostile educational environment in violation of G. L. c. 151C, § 2(g), and § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000), where the record demonstrated that each plaintiff raised a genuine issue of material fact regarding whether there was at least one incident of harassment within the limitations period that was substantially related to earlier events, thus rendering the claims timely under the continuing violation doctrine. [795-798] In a civil action brought by two female athletes against their college, seeking damages for violations of § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000) (Title IX), arising out of the allegedly sexually harassing conduct of their basketball coach, a question of fact existed whether the college’s response to the plaintiffs’ complaints constituted “deliberate indifference” to discrimination, in violation of Title IX. [798-800] Civil action commenced in the Superior Court Department on October 9, 1996. The case was heard by Peter F. Brady, J., on a motion for summary judgment. Richard J. Fallon for the plaintiffs. Stephen Dick, Assistant Attorney General, for the defendant. Jahayara Santiago. Duffly, J. Two female athletes, claiming to have been harassed by their basketball coach, Marshall Hess, while they were students attending Northern Essex Community College (college), brought a complaint on October 9, 1996, for monetary damages in Superior Court asserting that the college violated G. L. c. 151C, §§ 1(e), 2(g), inserted by St. 1986, c. 588, §§ 4, 5, by committing an unfair educational practice, and § 901(a) of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a) (2000) (Title IX), by perpetuating a hostile educational environment arising from sexual harassment. A Superior Court judge entered summary judgment for the college, concluding that the action was barred by the applicable statute of limitations, which he determined to be three years. The plaintiffs appeal from the judgment dismissing their claims. LEGAL FRAMEWORK Under G. L. c. 151C, § 2(g), it is an unfair educational practice “[t]o sexually harass students in any program or course of study in any educational institution.” Section 1(e) of c. 151C defines sexual harassment as encompassing the following: “any sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature when: — (i) submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s education by creating an intimidating, hostile, humiliating or sexually offensive educational environment.” Violations of c. 151C are actionable in Superior Court. G. L. c. 214, § 1C., Title IX provides in relevant part that “no person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a) (2000). Sexual harassment can constitute sex discrimination under Title IX. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75 (1992). Title IX is enforceable, in State or Federal court, through an implied right of action for monetary damages. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). FACTS We describe relevant facts contained in the summary judgment record in the light most favorable to the nonmoving party. Graham v. Quincy Food Serv. Employees Assn. & Hosp. Library & Pub. Employees Union, 407 Mass. 601, 603 (1990). 1. Notice of incidents in the 1980’s. As early as the 1979-1980 academic year, administrators at the college, including its president, John Dimitry, were informed that the school’s athletic director and coach, Marshall Hess, gave liquor to underage students and asked female students for sexual favors. A 1984 complaint about Hess prompted the college to formulate policies and procedures to deal with sexual harassment on the college campus. A committee, the “Sexual Harassment Resource Group,” was established, and a faculty member, Paula Strangle, was named its contact person. Despite a series of claims that Hess had sexually harassed female athletes, no official action was taken by college administrators until 1987, when Strangle investigated a female athlete’s complaint against Hess and reported the results to Dimitry and other college administrators. In response, the college conducted a further investigation that uncovered the same or similar accusations about Hess as that reported by Strangle. Those allegations included the following: female athletes had been made to feel beholden to Hess for getting them scholarships or playing time; Hess had, during walks or lunches with female students, encouraged them to confide in him about intimate details of their lives, their relationships with boyfriends, and whether or not they had had abortions; he made liquor available to female students, some under the legal age for drinking alcohol; he pulled down their shorts, patted bottoms, and undid bra straps; he walked in on female students in the bathroom in his house; he had them drink liquor out of his mouth; he kissed them; he engaged in sexual intercourse with female students during the frequent trips he organized; and he discussed his vasectomy and made “dirty vasectomy jokes.” Women athletes left the team, stopped attending classes, or withdrew from the college in order to avoid continued contact with Hess. Some former students agreed that they would testify about their experiences with Hess. Others declined to testify or provide the names of students who had confided that they had been sexually intimate with Hess, stating either that they believed the relationships to have been consensual or that they were intimidated — Hess had threatened to reveal pictures in which female students appeared naked, apparently taken while they were drunk. The report resulted in an agreement between Hess and the college that was signed by Hess on March 29, 1988, and by Dimitry on April 8, 1988. The agreement stipulated that Hess could “not act as coach for any female athletic teams at the College for the remainder of his employment at the College.” Hess did not coach any female athletic team for the next two and one-half years. In the fall of 1991, the agreement was modified twice: first, to allow Hess to participate in field trips involving female students; and second, following the unexpected resignation of a coach, to permit Hess to function as head coach of the women’s basketball team “for the balance of the 1991/ 1992 season only.” Although no further modifications were made to the agreement, Hess continued to coach women’s basketball until he was suspended in August, 1994, following the investigation of complaints by the plaintiffs and a third student that he had sexually harassed them. 2. Conduct directed at the plaintiffs, a. Morrison. Morrison was nineteen years old when she first attended the college in the fall of 1992 and tried out for the women’s basketball team. Hess coached the team, and she saw him daily at the gym in connection with her work-study assignment for Hess and on walks they took together. Conversations with Hess were replete with sexual innuendo: he asked Morrison for details about her sex life, a miscarriage, and whether she had had orgasms. Hess would ignore or make fun of Morrison if she failed to respond to his comments. Hess owned a condominium near the college that he rented to the assistant basketball coach, Donna Johnson, who allowed team members to use her home to relax or have lunch. Sometimes Hess would be there. In February, 1993, Morrison agreed to have lunch with Hess at Johnson’s home but, upon arriving, was surprised to find that no one else was there. Morrison massaged Hess’s back and legs when he asked her to (he often asked her for massages) but stopped when he asked her to rub his buttocks. Saying it was her turn, Hess untucked Morrison’s shirt, undid her bra, and began to massage her back. He then reached around and grabbed her breasts and began to massage them. At the same time, someone drove up, and Hess told Morrison to go to the bathroom and put her bra on. Hess then came to the bathroom door, asked if she had gotten her bra back on, and said, “They seem really big, maybe next time I can see them.” Morrison tried to avoid Hess after that. When he saw her, he made jokes about her breasts. He also told her that, if she had not had an orgasm yet, he would give her one. The comments made her feel “dirty, like it was [her] fault.” In May, 1993, Hess bet Morrison that she could not “go all summer without getting it .... I bet you lunch when you get back you probably got laid in Dallas.” During the first weeks of the 1993 fall semester, Hess asked Morrison if he had won the bet and if Morrison was buying him lunch. A week or two later, during the first or second week of October, 1993, Hess and Morrison had a second conversation during which he asked when she was buying him lunch because he knew that he had won the bet. Thereafter, Morrison avoided conversation with Hess, but when she ran into him, he would ask “when was lunch.” Hess’s comments made Morrison feel threatened, confused, and pressured. Morrison did not play basketball during the 1993-1994 season. An excellent softball player, she joined the softball team for the 1994 spring season. Her softball coach was Johnson (who rented Hess’s condominium). Whenever Hess appeared at a softball game, Johnson pulled Morrison from the game for no apparent reason. During one home game, Morrison was playing in the outfield in the second or third inning when Hess appeared. Morrison saw him speak to Johnson, who then pulled Morrison out of the rest of the game. Sometime in early 1994, Morrison spoke to the college sexual harassment counselor about what had occurred, and thereafter, in February, 1994, she complained to Stephen Fabrucci, the associate dean. She left the college in May, 1994, before completing her degree. Hess’s conduct adversely affected Morrison’s relationships with other people, particularly male authority figures. She felt ashamed and depressed, and as a result, engaged in treatment with a counselor. On October 9, 1996, Morrison and Santiago filed their complaint. b. Santiago. Santiago arrived at the college in the spring of 1992, but was ineligible to play basketball until the fall. After joining the women’s basketball team in the fall of 1992, Hess took Santiago on walks, asking that she tell no one because of what people might say. The conversations grew increasingly personal: he asked questions about her sex life and made fun of her when she referred to sex as “it.” Uncomfortable, Santiago began to avoid Hess. Hess was persistent in asking Santiago to find time to go on walks with him. He also told her that he had asked Johnson to invite her to go drinking with them since he couldn’t invite her himself because she was only nineteen. He said that he was not trying to “hit on her” and that if he wanted to “fuck” anyone on the team “it would be [another student].” In late November, 1992, Hess confronted Santiago and asked if she was trying to avoid him. She agreed to have lunch with him and, at Hess’s invitation, got into his van. During the drive Hess turned the conversation to movie sex scenes, asked if she had ever had an orgasm, and laughed when Santiago, embarrassed, looked out the window. Hess stopped and bought sandwiches and beer, then continued on, eventually stopping at a condominium complex that Santiago did not recognize. She asked what they were doing there, and Hess said that it was someplace to eat, and that it belonged to him and his wife. Santiago felt frightened but tried to reassure herself. Once inside, she sat on the couch while Hess sat on a bed in the room. They drank beer, and he brought out a bottle of champagne. Hess, now lying on the bed, said, “I want a massage but don’t worry, we don’t have to do it. I just want it in your underwear.” When Santiago said she did not give massages, Hess told her about another student who had regretted having rejected him. Santiago responded that it “must have been a long time ago,” and Hess became insulted, saying she was rejecting him because he was fat. Worried that he might rape or harm her, Santiago was relieved when Hess agreed to take her back to the college. Thereafter, whenever Hess saw Santiago he alluded to the condominium incident — he would look at her and wink or smirk as he made comments about his weight or efforts to lose weight, or while patting his stomach. Hess began to ridicule her publicly and made comments about her being “lower class.” During the next basketball season, Hess benched Santiago, a team captain, for increasingly longer periods and often yelled at her. On February 5, 1994, he called her to the middle of the gym floor during pregame warm-up. In front of both teams, he told her that he knew she was not getting playing time, that it was his decision, and that, if she did not like it, she could turn in her uniform. He repeated this twice, until she left the gym and quit the team. Later in February, Santiago complained to Fabrucci that Hess had sexually harassed her. Thereafter, when she encountered Hess alone, he would walk close to her and snicker in a way she experienced as intimidating. He continued making nearly daily suggestive references to his weight until Santiago transferred from the college in May, 1994. As a result of her encounters with Hess, Santiago felt depressed and helpless, blamed herself, and sought counseling. Her relationships with other people were affected, and she experienced flashbacks that left her feeling sad, disgusted, and emotional. In August, 1994, six months after the plaintiffs complained, the college took steps to suspend Hess. As we have indicated, the plaintiffs filed their complaint in Superior Court on October 9, 1996. DISCUSSION 1. Statute of limitations. Whether a sexual harassment claim brought under G. L. c. 151C or Title IX is barred by the statute of limitations depends on the claim and on the nature of the viola-tive conduct — that is, whether the conduct consisted of a “discrete act” or was a “continuing violation.” We address the plaintiffs’ alternative arguments: that the acts complained of amounted to serial continuing violations, all of which are actionable because the last occurred within the statute of limitations; or, if we conclude that there was no continuing violation, that there was independently actionable conduct that fell within the three-year limitations period. See note 4, supra. Statute of limitations principles in an employment discrimination context, recently articulated by the United States Supreme Court in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (discussing Title VII), and previously adopted by the Supreme Judicial Court in Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001) (discussing G. L. c. 15IB), are analogous to claims of sexual harassment in an educational setting. See Legoff v. Trustees of Brown Univ., 23 F. Supp. 2d 120, 126 (1998) (“In interpreting Title IX, courts apply the legal principles elaborated under Title VII”). These two cases indicate that the Massachusetts and Federal courts interpret continuing violations of the serial kind in the same manner. a. Discrete acts: General Laws c. 151C. The plaintiffs’ claims of “quid pro quo” harassment, see Beaupre v. Smith & Assocs., 50 Mass. App. Ct. 480, 488 (2000); G. L. c. 151C, § l(e)(i), encompass discrete conduct within the limitations period that establishes a violation under the definition of sexual harassment set forth in c. 151C, § l(e)(i), namely, that submission to Hess’s advances was a condition of continued participation on a college sports team. Cf. Beaupre v. Smith & Assocs., supra at 481 n.4, 488. The violation occurred when it became apparent that submission was the “quid pro quo” of continued participation on a sports team. In the light most favorable to the plaintiffs, that occurred when Hess, responding to the rejection of his advances, caused his assistant coach to pull Morrison from softball games early in the spring of 1994 and forced Santiago’s resignation from the basketball team in February, 1994. Cf. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’. . .[Ojnly incidents that took place within the timely filing period are actionable.” Id. at 114. These acts (when Morrison was precluded from participating fully on the softball team and Santiago was forced to resign from the basketball team) constituted discrete, independently actionable violations of c. 151C, § l(e)(i), and the limitations period began to run from the date of each act (with respect to Morrison’s claim, in the spring of 1994, and with respect to Santiago’s claim, in February, 1994). See, e.g., Davis v. Sears, Roebuck & Co., 708 F.2d 862, 865 (1st Cir. 1983) (limitations period begins to run on date of notice of discriminatory dismissal); Davis v. Lucent Technologies, Inc., 251 F.3d 227, 231 (1st Cir. 2001) (MCAD complaint should have been filed within six months of date of termination to be timely). Because both events took place within the three-year period preceding the filing of the complaint on October 9, 1996, each plaintiff’s claim of quid pro quo harassment was timely filed. b. Continuing violations (serial): General Laws c. 151C. The facts we have described establish continuing violations that support the plaintiffs’ hostile educational environment claims, viable under G. L. c. 151C, § 1 (e)(ii), as well as Title IX. Hostile educational environment claims generally involve continuing violations that “are different in kind from discrete acts. Their very nature involves repeated conduct. . . . The ‘unlawful [educational] practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” National R.R. Passenger Corp. v. Morgan, 536 U.S. at 115. With respect to the hostile educatio

Tri-County Youth Programs, Inc. vs. Acting Deputy Director of the Division of Employment and Training & another. No. 99-P-625. Hampden. November 13, 2000. April 9, 2002. Present: Brown, Greenberg, & Celinas, JJ. Administrative Law, Judicial review, Agency’s interpretation of statute, Substantial evidence, Standard of proof. Employment Security, Eligibility for benefits, Burden of proof, Findings. Discussion of the standards of review applicable to findings and decisions of the board of review of the division of employment and training as established in G. L. c. 151 A, § 42, the employment security statute. [407-408] This court concluded that the findings of the board of review of the division of employment and training were neither inconsistent with the board’s conclusion that a female employee in a residence for emotionally troubled adolescents had been subject to sexual harassment, creating a hostile, humiliating, or sexually offensive work environment, nor unsupported by substantial evidence. [408-410] In a proceeding before the board of review of the division of employment and training, a female employee in a residence for emotionally troubled adolescents, who was assigned to work in the same residential facility that housed an adolescent who had previously sexually assaulted her, sustained her burden of proof under G. L. c. 151A, § 25(e), by showing that she left work with good cause attributable to her employer (i.e., sexual harassment), and was not required, in such circumstances, to demonstrate that she took reasonable steps to preserve her employment. [410-412] There was no merit to an employer’s argument that it was not only a foreseeable risk but clearly a reasonable probability that a female employee hired to work with emotionally troubled adolescents would be sexually assaulted by one of the adolescents and that the employee’s assuming the risk of sexual assault diminished the ability of the board of review of the division of employment and training to deal with the employee’s contention that she terminated her employment voluntarily, but for good cause, due to sexual harassment and the resultant creation of an intimidating, humiliating, and sexually offensive work environment within the meaning of G. L. c. 151 A, § 25(e), when she was assigned to work in the same residential facility that housed an adolescent who had previously sexually assaulted her. [412-415] Civil action commenced in the Springfield Division of the District Court Department on June 22, 1998. The case was heard by Dennis J. Brennan, J. Robert L. Quinan, Jr., Assistant Attorney General, for Acting Deputy Director of the Division of Employment & Training. Albert R. Mason (Kathleen A. Moore-Kocot with him) for the plaintiff. Denise Y. Lawrie. Celinas, J. Tri-County Youth Programs, Inc. (Tri-County), appeals from a decision of the District Court affirming the decision of the board of review of the division of employment and training (board) to grant unemployment benefits to Denise Y. Lawrie (Lawrie). The board, in overturning a decision of the review examiner, concluded that Lawrie terminated her employment at Tri-County voluntarily, but for good cause, “due to sexual harassment and the resultant creation of an intimidating, humiliating and sexually offensive work environment,” within the meaning of G. L. c. 151 A, § 25(e). We affirm. Facts. We offer a brief summary of the facts, based upon the undisputed findings of the review examiner, adopted in full by the board, supplementing from that source where context requires. Lawrie was hired iii 1996 as a shift manager in a residence for emotionally troubled adolescents operated by TriCounty in Northampton. On November 22, 1997, in connection with her duties, Lawrie took two Tri-County clients on a shopping trip. While driving a company van, Lawrie was sexually assaulted by one of the clients, a fourteen year old male. Lawrie promptly reported the assault to her superiors. Without objection, but with no assistance from Tri-County, Lawrie reported the assault to police and pressed charges. Lawrie’s assailant was arrested and placed into the custody of the Department of Youth Services (DYS). On December 4, 1997, Lawrie’s supervisor informed her that her assailant would probably be returned to Lawrie’s work site, with a “stay-away” order in place. On December 10, 1997, Lawrie’s assailant admitted delinquency to sexual assault, was adjudicated delinquent, and was placed on two years’ probation. The court also ordered the juvenile to stay away from Lawrie and to have no contact with her. Later that day, with the assent of Tri-County, DYS returned the juvenile to the same residential facility where Lawrie worked. After discussion with her superiors, Lawrie resigned her position, effective January 7, 1998, giving as the reason her dissatisfaction with her employer’s handling of the sexual assault incident. On December 15, 1997, at a meeting with her supervisor, Lawrie was informed that Tri-County had decided to make her resignation effective immediately. Lawrie made application for unemployment benefits, which were granted. TriCounty appealed, and a review examiner denied the benefits; Lawrie applied to the board» for a review of the examiner’s decision. The board, concluding that the examiner’s decision was based on an error of law, modified the examiner’s decision and awarded Lawrie benefits for the week ending December 27, 1997, and for subsequent weeks. Tri-County then petitioned the District Court to vacate the board’s decision. From a judgment affirming the board’s decision, Tri-County appeals to this court. Standards of review. The standards of review applicable to findings and decisions of the board are established in the employment security statute, G. L. c. 151 A, § 42; pursuant to the statute, the State Administrative Procedure Act, G. L. c. 30A, § 14, controls. Where our review is governed by the Act, we are required to give “due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it.” G. L. c. 30A, § 14(7), as amended by St. 1973, c. 1114, § 3. See Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. 593, 595 (1974). We review the record “to determine whether the board applied correct legal principles in reaching its decision.” Guarino v. Director of the Div. of Employment Sec., 393 Mass. 89, 92 (1984). We look “to discover whether [the decision] contains sufficient findings to demonstrate that correct legal principles were applied, and [we] must review the record to determine whether those findings are supported by substantial evidence.” Ibid., citing Lycurgus v. Director of the Div. of Employment Sec., 391 Mass. 623, 626-627 (1984). “[I]f an agency’s finding of fact is supported by ‘such evidence as a reasonable mind might accept as adequate to support a conclusion,’ it will not be disturbed by a reviewing court.” Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. at 595, quoting from G. L. c. 30A, § 1(6), as inserted by St. 1954, c. 681, § 1. As to interpretation of statutes governing the agency, we defer to the agency’s interpretation and application of the statute within which it operates. See Hotchkiss v. State Racing Commn., 45 Mass. App. Ct. 684, 691-692 (1998). Where the agency’s rules are concerned, the agency’s interpretation is entitled to great weight, unless those interpretations are “arbitrary, unreasonable or inconsistent with the plain terms of the rule itself.” Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478 (1976). However, pure questions of law are “subject to de nova judicial review.” Raytheon Co. v. Director of the Div. of Employment Sec., 364 Mass. at 595. See G. L. c. 30A, § 14(7)(c). Sufficiency of the evidence. Tri-County does not dispute that the findings of fact adopted by the board are supported by substantial evidence. Rather, it argues that the board (in adopting without change the findings of the examiner, but reaching the opposite conclusion from those findings) did not have sufficient evidence with which to conclude Lawrie had resigned due to sexual harassment under G. L. c. 151 A, § 25(e), and therefore she had not satisfied the burden of showing that she left with good cause attributable to the employer. Applying the standards set forth in Guarino v. Director of the Div. of Employment Sec., 393 Mass. at 92, discussed earlier, we conclude that the board’s findings were neither inconsistent with the board’s conclusion that Lawrie had been subject to sexual harassment, creating a hostile, humiliating, or sexually offensive work environment, nor unsupported by substantial evidence. More specifically, the conclusion that Lawrie left due to sexual harassment, and the examiner’s (and the board’s) finding that she “left her job because of dissatisfaction with the employer’s handling of [the] sexual assault incident,” are not inconsistent. The board specifically found that Lawrie had been sexually assaulted by her employer’s client, and that this client had been criminally prosecuted and ordered to stay away from Lawrie. From these specific material subsidiary findings, the board could draw the reasonable inference that Lawrie was subject to an “intimidating, hostile, humiliating and sexually offensive work environment” when her assailant returned to the same facility where she worked and that Tri-County made “no . . . effort” to stop the creation of such an environment. In so doing, Tri-County ran afoul of G. L. c. 151 A, § 25(e), fourth and fifth pars, (see note 2, supra). This conclusion accords with the finding that Lawrie left her employment because she was dissatisfied with the way her employer handled the sexual assault, and it supports the further determination that her resignation was involuntary, with good cause attributable to Tri-County. The board’s conclusion in this regard was also consistent with the finding that Lawrie would not have had “any problems in performing her job duties” even if her assailant was returned to the facility wherein she worked. It is not inconsistent for an employee to be able to perform job duties but still be working within a hostile, humiliating, and sexually offensive environment. Further, Tri-County’s argument, that Lawrie failed to raise the sexual harassment issue with the initial examiner, or with the board, is contradicted by the record. Lawrie’s application for further review and her counsel’s oral argument to the examiner, that Tri-County’s stance in taking back the offending client without “anything in the works” for a transfer for Lawrie, were sufficient, in our view, to raise the issue that TriCounty had created a work environment that was sexually hostile. Burden of proof. We reject Tri-County’s argument that Lawrie failed to sustain her burden of proof. Generally, it is the employee’s burden, under G. L. c. 151A, § 25(e) (see note 2, supra), to show that the employee left work involuntarily with good cause attributable to the employer, and that “he or she took reasonable steps to preserve his or her employment . . . , unless the circumstances indicate that such efforts would be futile or result in retaliation.” 430 Code Mass. Regs. § 4.04(5)(c)(3)(b) (1997). In cases involving allegations of sexual harassment, however, the claimant need not show that she took all or even “reasonable steps” to preserve her employment. The requirement is expressly excluded by G. L. c. 151 A, § 25(e), fourth par. (see note 2, supra), and 430 Code Mass. Regs. § 4.04(5)(c)(3) (see note 3, supra). Contrast Guarino v. Director of Div. of Employment Security, 393 Mass. at 93-94 (in case of harassment due to union activities, claimant for unemployment benefits must make reasonable attempts to correct that situation). Hence, while the board explained that “the findings suggest [Lawrie] may not have taken all necessary measures to preserve her employment prior to resigning,” under the statute and regulation Lawrie was not required to show that she had taken such measures. It appears Lawrie would have sustained her burden even under the more stringent requirement. As noted, in its decision, the board concluded that Tri-County was aware of the existence of the harassment, and that, given the seriousness of the offense, it should have taken affirmative steps to transfer Lawrie permanently to another job site, but no such effort was made. The board further concluded that, given the extent of its “control over the non-employee’s [client’s] conduct,” see 430 Code Mass. Regs. § 4.04(5)(c)(l)(b) (note 3, supra), Tri-County was unreasonable in expecting Lawrie to work in the same residential facility that housed the person who assaulted her. Implicit here is the board’s determination that nothing in the facts found by the examiner required that Tri-County accept the return of the client, or that he be housed in the same unit where Lawrie worked. To the extent that it could have refused the client’s return, or have housed him in a different facility, TriCounty had control over the client’s conduct. Tri-County further contends in this context that the board erred because it did not consider the fact that, when the client returned, he was subject to a court order to stay away from Lawrie. This argument is unavailing; in coming to its decision the board adopted the examiner’s findings of fact, which contained several references to the client’s return subject to a stay away order. Merentially, all facts found by the examiner and adopted by the board were considered by it in reaching its decision. We see nothing here that would cause us to conclude that the board acted in a manner that was arbitrary or capricious. While recognizing that the factual findings reflected some possible effort on TriCounty’s part to offer Lawrie a transfer to a location where clients were female, we could not conclude that, on the record before it, the board’s determination — that Tri-County’s efforts in this regard were insufficient — was arbitrary or capricious. Risk inherent in employment. We address Tri-County’s further argument that we are under obligation to consider “the absolute fact that [Lawrie] was hired to work with youths at risk, kids [who] were emotionally disturbed, victims of severe physical and sexual abuse and adolescent sex offenders,” and that the conduct she experienced was not only a foreseeable risk of the job, but “clearly a reasonable probability given the client population served.” Tri-County’s argument suggests that Lawrie’s assuming the risk of sexual assault mitigated the effect of 430 Code Mass. Regs. § 4.04(5)(c)(l)(b) and § 4.04(5)(d) (see note 3, supra), diminishing the board’s ability to apply these regulations to her situation. Tri-County never advanced this argument before either the board or the District Court, and “a party is not entitled to raise an argument on appeal that was not raised before the administrative agency.” Boston Neighborhood-Taxi Assn. v. Department of Pub. Utils., 410 Mass. 686, 693 (1991). We consider the issue, however, as it may recur and has broader policy implications. See Attorney Gen. v. Brown, 400 Mass. 826, 828 & n.4 (1987); Commonwealth v. Oakes, 407 Mass. 92, 94 n.4 (1990); Catlin v. Board of Registration of Architects, 414 Mass. 1, 7 n.7 (1992); Foley v. Commonwealth, 429 Mass. 496, 497-498 (1999). Tri-County’s argument must fail, as it leads to the untenable conclusion that possible criminal sexual assault is the price that an employee must pay to maintain employment, and that, if the employee is unprepared to accept the “reasonable probability” of such occurrences on the job, then leaving after such an incident means leaving without good cause. The section of the employment security law dealing with sexual harassment, G. L. c. 151 A, § 25(e), fourth par. (see note 2, supra), suggests no such limitation on an employee’s eligibility for benefits when the employee leaves for reasons of sexual harassment. Further, 430 Code Mass. Regs. § 4.04(5)(a)(2)(a) (see note 3, supra), by explicit language, defines sexual harassment in part as being subject to sexual conduct as “a term or condition of employment.” While an employee may accept employment knowing of the possibility of the risk of sexual assault, leaving employment because of sexual assault cannot be made a basis for denial of benefits under the employment security act, if the employer does not take appropriate measures to ameliorate the situation. As the board determined, the possibility of sexual assault in the workplace places a heavy burden on the employer to take steps to create a situation favorable to the employee, and in the absence of such effort benefits will be payable. In the face of the statutory language and the thrust of the regulations, we cannot say that the board’s determination in this regard was arbitrary, capricious, or unreasonable. We note as well that the Legislature has, as a matter of social policy, abandoned the concept of assumption of the risk in negligence cases. Thus, if Lawrie had decided, upon contracting for employment, to retain the right to bring an action against the employer based on common law principles, rather than to accept coverage under the Worker’s Compensation Act, G. L. c. 152, § 66, would “proscribe[ ] voluntary or contractual assumption of the risk as a defense” in any suit brought by her as “an employee in connection with a work-related injury.” Gonsalves v. Commonwealth, 27 Mass. App. Ct. 606, 609 (1989). See Brown v. Leighton, 385 Mass. 757, 760 (1982). More generally, in 1973, the Legislature amended the comparative negligence statute, G. L. c. 231, § 85, as appearing in St. 1973, c. 1123, abolishing assumption of the risk as a defense in negligence actions. See Forte v. Muzi Motors, Inc., 5 Mass. App. Ct. 700, 704 n.7 (1977). For those public employees especially susceptible to assaults, such as police, correction officers, or employees of State mental hospitals, there is a special statutory provision to compensate them for suffering such assaults in addition to their receipt of workers’ compensation. See G. L. c. 30, § 58; Chambers v. Lemuel Shattuck Hosp., 41 Mass. App. Ct. 211, 211-212 (1996); Moog v. Commonwealth, 42 Mass. App. Ct. 925, 925-926 (1997). While these employees could be said to “assume the risk” of working in such less-then-desirable conditions day after day, by explicit reference to such risks in their contracts of employment, they do not, by statute, assume the risk in the sense that they receive no compensation for foreseeable injury in the line of duty. Further, the public sector employer could still be held liable for failing to do all that is possible to make the working conditions as safe as possible against sexual assaults in accordance with G. L. c. 151 A, § 25(e). Those employed in the private sector, although fulfilling duties similar in nature to some described above, are not entitled to the additional compensation provided by G. L. c. 30, § 58. It does not follow, however, that they should suffer the risk of loss of unemployment benefits occasioned by the type of employment they accept. From the record, Tri-County’s argument in this regard faces an additional acclivity. Tri-County has in place a detailed protocol for the “Risk Management and Treatment of Adolescent Sex Offenders,” precisely to exert appropriate control over the behavior of clients like the assailant. This protocol states, “We believe the specialized assessment and treatment performed by those who are trained in working with adolescent sex offenders is 0¿c] the first step to be taken if sexual assault and its consequences are to be addressed properly. We assume a responsibility to protect the safety and well-being of other clients, many of whom are victims, and Tri-County staff from the possibility of victimization of those who have been identified as sexu