direct examiner of case

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SDSU HTM460 MOCK TRIAL TOURNAMENT

SPRING 2008

DIANE ALEXANDER vs. COOPER, COOK AND TROY

Original Case Author

Andrea E. White, Esq., South Carolina Mock Trial Program

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STATEMENT OF THE CASE Diane Alexander graduated from law school in May 1991 and began her employment as an attorney with the firm of Cooper, Cook and Troy (CC&T) on September 4, 1991. CC&T employs 50 attorneys, 12 of whom are women. The firm practices in the areas of insurance defense, corporate law, domestic law and employment law. Alexander was assigned to work in the employment law section, reporting to Steve Starks, who is the head of the employment law section. Starks is a senior associate who has been with CC&T for six years. All associates are supervised by Chris Troy, who is the managing partner. On March 2, 1992, after her first six months, Alexander received an "average" rating on her periodic six-month evaluation. In April 1992, Alexander complained to Troy that Starks frequently made obnoxious comments to her, some with sexual overtones. Alexander claimed this was upsetting to her and affected her work. Troy met with Starks to discuss Alexander. Alexander continued to report to Starks. On September 3, 1992, Alexander received a "below average" rating on her periodic six-month evaluation. On September 16, 1992, Alexander again complained to Troy about Starks' behavior toward her. Alexander specifically mentioned that she was offended because she thought that Sparks had taped some pictures from a Naughty Nighties catalog on the walls of the office break room. Alexander requested that Troy reprimand Starks. As a result, Troy again spoke with Starks. On October 23, 1992, Alexander discussed her complaints about Starks with Terry Chavez, the Human Resources Director for the firm. On November 13, 1992, Alexander filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming sexual harassment by CC&T. The EEOC investigated and found Alexander's claims of harassment inconclusive. On March 2, 1993, Alexander received a "poor" rating on her periodic six-month evaluation. On March 16, 1993, Troy informed Alexander that she was being transferred to the domestic law section of the firm. Alexander's salary was unchanged, but because of her transfer, she was required to work longer hours and to be "on-call" for domestic clients 24 hours a day. Alexander requested and received a "right to sue" letter from the EEOC on April 3, 1993, and brought this suit on April 15, 1993, claiming sexual harassment. CC&T is located in Rome, Turner County, New Mexico.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DIANE ALEXANDER ) ) vs. ) ) NO. NM-MT-94 ) COOPER, COOK AND TROY ) STIPULATIONS 1. Affidavits of all witnesses are sworn and notarized. 2.For purposes of this case, the EEOC records, Alexander's complete personnel file, and

Alexander's records of psychotherhapy are unavailable to either party. 3.The "Attendance Record Summary" and the "Evaluations Summary" are business records of

CC&T located in Alexander's personnel file. 4.Therapist expenses of $25,000 have been and will be incurred by Alexander. This stipulation

should not be construed as an admission of liability by CC&T. 5.Dr. Pat Isaacs is qualified as an expert with respect to harassment in the workplace. 6.The photographs included among the exhibits are authenticated photocopies of the pictures

Alexander claims Starks hung on the wall of the break room and are admissible. 7.The handwriting on the pictures has been analyzed by handwriting experts, and they have been

unable to determine conclusively that it is the handwriting of any employee of CC&T. 8.For purposes of this suit, Alexander has exhausted all administrative remedies. 9.The Civil Rights Act of 1991 does apply to this suit, and no arguments regarding its retroactivity

will be considered. However, neither party has requested a jury tril so this case will be tried before a judge without a jury.

10.All exhibits included in these case materials are authentic and are accurate in all respects; no

objections to the authenticity of the exhibits will be entertained. 11.All signatures on the witness affidavits and other documents are authentic. 12.Participants may rely on the information given in the foregoing Statement of the Case as true

and correct. 13.Regardless of the sex of the students playing the roles, the characters of Diane Alexander and

Steve Starks are female and male, respectively.

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WITNESSES

The following witnesses will be called by the parties.

For the Plaintiff

Diane Alexander, plaintiff

Lee Padilla

Dr. Pat Isaacs

For the Defense

Steve Starks

Chris Troy

Terry Chavez

Diane Alexander is a female, and Steve Starks is a male.

CLAIMS AND DEFENSES 1.Alexander claims that Starks' conduct created an intimidating, hostile and offensive

working environment constituting sexual harassment. This harassment adversely affected her ability to work and her health, resulting in a number of absences from work, a low performance rating and a demotion to the domestic law section of the firm. Alexander seeks to hold CC&T liable on the ground that the firm, through its managing partner, Chris Troy, either knew or should have known of the harassment and did not take adequate steps to stop it.

2.CC&T defends on the grounds that no sexual harassment took place, that Alexander

was overly sensitive to innocent comments and joking, and that any problems she encountered were due to her own personal problems. CC&T also contends that even if Starks' conduct did occur and did constitute sexual harassment, the harassment was remedied by the transfer of Alexander to another section, reporting to another senior associate.

3.Alexander is seeking medical expenses for psychotherapy, past, present, and future, in

the amount of $25,000, compensatory damages for pain, suffering and mental anguish in the amount of $25,000, punitive damages and attorneys' fees. Alexander also requests that the court order CC&T to apologize to her in writing and to cease and desist from further sexual harassment.

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EXCERPTS FROM DEPOSITION OF DIANE ALEXANDER 1.My name is Diane Alexander, and I am a single, 27-year old. I live at 1201 Green Street. I have

lived in Rome my whole life except for while I was in College. After graduating from Rome High School, I attended the University of New Mexico. I graduated from there in 1988 with a B.A. in English, and I entered UNM School of Law in the fall of 1988. During law school I was president of the Student Bar Association and editor of the Law Review. I received my J.D. from there in 1991, after graduating second in my class.

2.My friends are mostly women, but I do have one or two male friends. I don't have a boyfriend

right now, but I date periodically. My last boyfriend dumped me for another woman after we'd been dating for about two years. I guess you could say that I'm a little angry with all men right now. Most of my extra-curricular activities revolve around my membership in local professional associations such as the Rome Women's Bar Association and the Young Lawyers Division of the State Bar.

3.In July of 1991, I took the bar exam, and I started working at CC&T on September 4, 1991, as

an associate. When I first interviewed at CC&T, I was told that the firm employed 50 attorneys and that 12 were women. I realized that being one of only a few women in the firm would put a lot of pressure on me, but I knew I could handle it. I also realized there would much more pressure in private practice than in law school, but I thought the pressure would come from the work load, not from my supervisor.

4.Because of my interest in employment law, I had requested and received assignment to the

employment law section of the firm. All the attorneys in our department report to Steve Starks who is a senior associate. I was really excited; for me the employment law section was a prime assignment. But, I was also a little nervous; there were seven attorneys in the section, and I was the only woman. But I told myself, "C'mon Diane, this is the 90's; this is a professional company, and everyone will behave in a professional manner."

5.The trouble with Steve Starks started almost immediately. I don't know what his problem was --

maybe he resented my assignment to the employment law section right out of law school. My first day in the office, he looked me up and down and said, "Well, you weren't what I had in mind, but you'll have to do." I guess maybe he felt guilty about having said something so nasty to me on my first day of work because then Steve assigned himself to be my mentor.

6.Before I realized what Steve was like, I had made the mistake of going to one office function

with him. Steve and I had been working late at the office planning our schedule for the next day. Even though we weren't through, Steve suggested we go to the party and that we ride together. Afterwards, I invited him to stop for coffee. He said, "No thanks, I'm not interested in coffee," but something about the way he said it made me feel funny.

7.I had in mind just stopping at a resturant to finish our planning, but Steve obviously got the

wrong idea because shortly after that, he began making all sorts of obnoxious comments, often with sexual overtones. When I got to work in the mornings, Steve would greet me with comments like, "Diane, you fox, how are you doing?" When I was leaving at the end of the day, he would say things like, "Why are you leaving so soon -- have a hot date tonight?" It wasn't so much what Steve said, but how he said it. He used such a

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suggestive tone when he talked to me. I told him I didn't appreciate his humor and to knock it off, but that just egged him on.

8.Even though I made it clear that I wasn't interested in him, Steve kept trying to get me to attend

office social functions and join in office activities. I didn't want to do anything to encourage him, so socializing with Steve was not something I had any interest in. Anyway, since I didn't want to be around him in the office, I certainly wasn't going to go places where I had to spend time with him during my off hours.

9.In October of 1991, Steve told me he had been invited to a great party and asked me to go with

him. I couldn't believe he thought I would ever go on a date with him. To begin with, I wouldn't date anyone from work, but this guy I wouldn't go to a drinking fountain with. I told him in no uncertain terms, "No, thank you." Talk about not being able to take a hint -- he kept badgering me the rest of the week about what a great opportunity it would be, what an amazing time I would be missing and that I should loosen up. He even said he wanted to see what I looked like "without my suit on."

10.What was even worse was the way Steve would sometimes touch me when he talked to me.

He would put his hand on my shoulder or rub his hand across my back. It really made me uncomfortable, and the first few times it happened, I didn't know what to do or say. I was new at the firm, I wanted to keep my job, and he was in a position of authority over me. I mean, what do you do or say when your supervisor is behaving like an oversexed adolescent? I guess I shouldn't have been surprised; a couple of other attorneys had warned me that he had a reputation for hitting on all the women in the office. When I finally couldn't take it anymore and said, "Would you please keep your hands off me, " he stopped for a while. It was really strange - he acted surprised, as if he didn't realize that what he was doing was totally out of line!

11.Even though Steve stopped touching me, his verbal harassment didn't stop. I didn't know what

to do. I tried to perform well on the job; on my first evaluation, I received an "average" rating which I understood was typical for a new attorney, and I was given a salary increase. But things were getting difficult. I found it hard to concentrate on my work, and I was afraid of being alone with Steve for fear that he would make some sexual innuendo. I even dropped out of the mentor program.

12.When I got back from my vacation in March, the situation got even worse. Steve had a habit of changing his clothes in his office before he went jogging -- he never locked his door or put up a sign. One day I walked in on him when he was wearing only his underwear. Of course, he didn't mind at all, but I was mortified. He said, "Diane, I've been trying to get you to look over my briefs for months. We can arrange a private showing if you'd like." I couldn't believe that in addition to everything else, I also had to worry about walking in on my supervisor while he was nearly nude.

13.I didn't want to go to work the following morning -- the experience had embarrassed and

nauseated me -- I actually felt ill. I was afraid to stay out though because whenever I returned from being absent, Steve always let me know how displeased he was that he had to cover my cases for me.

14.I did go to work, however, and because I really believed I had no alternative, I went straight to

the managing partner, Chris Troy, to formally register my complaints about Steve. I specifically told Troy that Steve was harassing me. I recounted a few of the dozens of

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comments Steve had made to me. Troy said s/he would speak with Steve about it, but s/he also said that perhaps I was being overly sensitive. It seemed to me that Troy didn't think what Steve was doing was such a big deal. It was as though Troy thought Steve's behavior was just his attempt to be friendly and make me feel welcome in the office. S/He didn't really give me much support, and I didn't think s/he took my concerns seriously. After my conversation with Troy, nothing changed. Steve was still his old obnoxious self, harassing me constantly. He didn't seem to notice that I never joined in or made comments back to him. Maybe he couldn't believe that anyone could find him so totally resistible. He just kept on and on and on.

15.Although I really needed my job, I became increasingly nervous about going to the office. I felt

so powerless that my self-confidence took a serious nose-dive. I was anxious and on edge most of the time. Because my stomach was upset so often, I couldn't eat, and I lost weight. I couldn't sleep at night, so I was exhausted every morning. I had to force myself to go to the office. I even started worrying that I might be doing something to make Steve come on to me, so I stopped wearing make-up and curling my hair.

16.I really felt I had nothing to look forward to at work except more harassment from Steve. I tried

to avoid him by working at home and going to the office at the last possible moment in the morning and leaving as early in the day as I could. There were a number of days I was so disabled from stress that I had to call in sick. The only time I felt any relief at all was during August when Steve was gone on vacation.

17.Right after Steve got back, Troy gave me a "below average" on my second evaluation. I

thought it was outrageous that I was being harassed by my supervisor, I had reported it to the managing partner who did basically nothing to correct the situation, and I suffered a downgrade in my evaluation. I finally decided that I should go for counseling. I had never gone before, but a few of my friends are in therapy, and it really seems to help them. I began going to therapy twice a week. I also took a week of vacation in early September; I hoped it would help me regroup.

18.My first day back at work after vacation, Lee Padilla and I were in my office and a Naughty

Nighties catalog arrived with my mail. I was so embarrassed that something like that had come to me, particularly at the office. I remember telling Lee that I should stop ordering anything through the mail since one of the companies I placed orders with had obviously sold their mailing list to the Naughty Nighties company. Then Steve walked in and grabbed the catalog off my desk. With Lee standing right there Steve said, "Well, this is really a great catalog. Will we get to see you in one of these outfits at work, or would you model one for me privately?" I snatched the catalog away from him and threw it into my wastebasket. I was very offended by what he said; I even tried to explain to him why I found his comments so offensive, but it was no use.

19.The next day, some pictures from the catalog appeared on the wall in the break room. My

name, with a question mark next to it, was written on one of the pictures. I'm certain that Steve did this. I took the pictures down and, although I felt like ripping them to shreds, I put them in an evelope and took them home for safe-keeping.

20.On September 16, 1992, I went to Chris Troy for the second time. I complained again about

Steve's behavior toward me, and I specifically requested that s/he reprimand Steve. I also told Troy about the Naughty Nighties pictures; Troy said that it seemed like just a harmless

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joke, but that s/he would investigate the situation and speak with Steve. Since nothing had really changed after I complained to Troy about Steve the first time, and, in fact, things had gotten worse, I didn't have much confidence that Troy would really do anything to alleviate the situation.

21.I don't know if Troy ever talked to Steve, but Steve's behavior didn't indicate that he had been

reprimanded. We were working on a big case together, and I was sorting out witness statements. Steve came creeping up behind me and whispered in my ear, "Hey baby, I'd really like to review your files." He continued to make suggestive remarks and comments to me, so on October 23, 1992, I went to Terry Chavez, the CC&T Human Resources Director. I said an attorney in the office was harassing me with sexual comments and pictures and that I wanted to file a complaint of sexual harassment. S/he told me I would need to put my complaint in writing and informed me that I could also pursue a complaint with the EEOC. But s/he advised me to sleep on it first. I didn't need to sleep on anything -- I had seen the firm's sexual harassment policy, and I was simply attempting to follow it!

22.I decided not to put my complaint in writing -- I knew I couldn't depend on the firm to remedy

the situation, so instead on November 15, 1992, I contacted the EEOC and filed a complaint. I don't know why I felt I owed the firm anything after the way I had been treated, but I did tell Chavez and Troy that I had filed the EEOC complaint.

23.The EEOC investigated the situation. Besides speaking with Chris and Steve, the investigator,

Elaine Gusman, spoke with some of the women in the office. I specifically suggested she talk with Lee Padilla. The investigator told me she was not convinced that the assertions in my complaint amounted to sexual harassment. How she could think they were anything but sexual harassment is beyond me.

24.About that same time, I had another employee evaluation, and it was even worse than the one

before. I couldn't believe that Troy didn't see why my work performance was down and my absenteeism was up. The situation with Steve was affecting my entire life. I was seeing my therapist three times a week at that point.

25.A few weeks later, Chris Troy called me into her/his office and told me I would be transferred to

the domestic law section. When I asked why, s/he told me that my work in the employment law section had fallen off and that the firm needed additional assistance in the domestic law section. I asked Troy point-blank if the transfer was a result of my complaint against Steve. Troy was vague and didn't really answer my question, but s/he did say that it was unfortunate I had found it difficult to work with Steve.

26.I told Troy that I felt I was being demoted by being placed in the domestic law section; that's

always where they put you when they're trying to force you into quitting. It meant working longer hours and taking telephone calls from clients at all hours of the day and night. Everyone at the firm knows that I don't want to do domestic law and that I don't have any experience in that area. Troy said s/he moved me to the domestic law section to relieve some of the pressure I was experiencing and that it was not intended as a demotion or as an effort to force me to resign.

27.I was convinced that the transfer was a retaliatory action taken against me because of the

EEOC complaint. I told Lee Padilla that I didn't think I could take anymore and that I was going to resign. Lee said s/he knew of an opening in the D.A.'s office. On March 22,

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1993, I gave CC&T my two week's notice. I was hired and started at the D.A.'s office on April 5, 1993, and I have been working there since. I have had no problems with sexual harassment there.

VERIFICATION STATEMENT I do hereby certify that I have read all questions propounded to me and all answers given by me on September 14, 1993, taken before a certified court reporter and Notary Public and that there are no changes noted. DIANE ALEXANDER Andrea Enz, Notary Public State of New Mexico My Commission Expires: WITNESS ADDENDUM I have reviewed this statement, and I have nothing of significance to add. The material facts are true and correct. Signed, DIANE ALEXANDER SIGNED AND SWORN to before me at 8:00 a.m. on the day of this round of the 1994 New Mexico Mock Trial Competition. Signed, Andrea Enz, Notary Public State of New Mexico My Commission Expires:

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EXCERPTS FROM DEPOSITION OF LEE PADILLA 1.My name is Lee Padilla, and I am 30 years old. My father was a Baptist minister, so I was

raised in a fairly conservative home. I have an undergraduate degree in Religious Studies from Oral Roberts University, and I graduated from Tulane Law School in 1988. I became employed as an associate attorney in the corporate law section of CC&T immediately after graduation.

2.I have known Steve Starks since I joined the firm, and basically, we get along okay. We have

had lunch two or three times over the years, and I have gotten together with Steve after work occasionally. I really don't spend a lot of time with him, primarily because I don't find his particular brand of humor amusing. I don't see him much in the office because we work in different sections, but I have observed his behavior towards the women in our office, both support staff and attorneys, and although I wouldn't necessarily call it obscene, it was often in what I consider to be extremely poor taste. Steve would tell you that I'm just a bad loser; when we were both up for promotion to senior associate, he made it, and I didn't.

3.I know Chris Troy, the managing partner at CC&T, thinks Steve has a great sense of humor.

S/He encourages Steve, who is an amateur actor, and his buddies to perform skits or songs at certain firm celebrations. I've noticed Troy is always amused at the sexual innuendos and suggestive lyrics. Since CC&T is the only firm where I've ever worked, I don't know what it's like in other law offices, but I do know that it seems to get a little out of hand around here and no one really notices it. Personally, I believe that Steve could do anything he wanted; after all, he's the firm's shining star.

4.I also know Diane Alexander. She seems to be a competent attorney who takes her work very

seriously. I think she may have been a little overwhelmed to be working in a firm where most of the attorneys are male, but she has a very professional attitude and seems to handle herself well.

5.When Diane first joined the firm in August 1991, she said she thought she would enjoy working

with Steve and that she hoped to learn a lot from him. In September, Diane and Steve rode together to a firm party after working late. At the party, they sat together and seemed to have a good time. She also left with him. Since she seemed to enjoy herself that evening, I wondered why Diane didn't go to any office functions after that.

6.I have seen Steve Starks say and do things in the office that really upset Diane. They weren't

the kinds of things that I would file a complaint over, but I think it's completely reasonable that Diane did. We're all different, and I think if a supervisor knows that something he is doing is upsetting a subordinate, he should stop it. Steve would often tease Diane by making comments to her, because for some reason, it seemed to upset him that she never wanted to go to any office parties. One day, while Diane and I were having lunch, Steve walked by and said to me, "Getting enough, Lee?" It was just the sort of thing Steve said to people regularly. I thought it was inappropriate, and Diane really didn't like it.

7.Sometime in the first part of 1992, I noticed that Diane seemed to feel really uncomfortable

around Steve. She tried to avoid him as much as possible; it got to the

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point where she barely spoke to him, and she seemed to be really on edge in his presence. 8.I also noticed that Diane's attendance at the office became very sporadic. She was in and out,

coming late and leaving early. I never really knew if I would see her or not. I noticed she lost weight and seemed tired all the time. I thought she might be ill, but I didn't feel I knew her well enough to ask her about it. I believe that co-workers should be just that. I think its important to maintain a certain level of professionalism in an office environment, and, while I would have been happy to help with whatever was bothering Diane, I didn't think it was my place to question her.

9.I became particularly concerned about Diane after the Naughty Nighties catalog episode. I was

in her office one morning when the catalog came in her mail. She was embarrassed and mentioned something about catalog companies selling their customer lists. Steve walked into her office and took the catalog out of her in-basket. He then said something like, "Hey, Diane, are we going to see you in one of these outfits sometime?" He also said something about her modeling one of the outfits for him. He was pointing to a woman in a negligee. That was just the sort of thing he knew would upset Diane; she looked like she was going to cry. She grabbed the catalog out of his hand and threw it in the garbage can.

10.The next day, I was in the break room when I saw some of the pictures out of the catalog taped

on the wall. One of them had Diane's name on it and a question mark written on it. I'm not sure how the pictures got there, but Diane was convinced that Steve did it, and I wouldn't put it past him.

11.When the EEOC investigator came to interview me, I told her that I was no expert in sexual

harassment, but that I had seen the way Steve acted towards Diane and heard some of the comments he made. I also told her that I thought Steve's behavior was disrespectful and out-of-line in the workplace.

12.After the EEOC report came back as inconclusive, Diane was quite upset. I think she thought

that was her last hope of getting Steve to stop making her life miserable. 13.In early March, Diane had her third employee evaluation. She told me she received a "poor"

rating and that she was being transferred to the domestic law section. She was furious because she was sure the transfer was a retaliatory move by the firm to "punish" her for having filed the EEOC complaint. She said she thought that CC&T was trying to get her to quit. Her salary was not cut, but she was going to have to start working longer hours than she did in the employment law section and be available for phone calls from clients 24 hours a day.

14.I didn't want to take sides in the matter. I liked Diane, but I also wanted to keep my job. It was

obvious that she was miserable at CC&T. When she talked about resigning, I mentioned to her that I knew someone in the D.A.'s office who might be able to help her get a job there. I suggested Diane see him to apply for a position. Diane left CC&T in early April and has been working at the D.A.'s office since then. I've only talked to her two or three times, but she seems much happier and more relaxed in her new job.

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VERIFICATION STATEMENT I do hereby certify that I have read all questions propounded to me and all answers given by me on September 16, 1993, taken before a certified court reporter and Notary Public and that there are no changes noted. LEE PADILLA Andrea Enz, Notary Public State of New Mexico My Commission Expires: WITNESS ADDENDUM I have reviewed this statement, and I have nothing of significance to add. The material facts are true and correct. Signed, LEE PADILLA SIGNED AND SWORN to before me at 8:00 a.m. on the day of this round of the 1994 New Mexico Mock Trial Competition. Signed, Andrea Enz, Notary Public State of New Mexico My Commission Expires:

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EXCERPTS OF DEPOSITION OF PAT ISAACS, Ph.D. 1.My name is Pat Isaacs. I am Executive Director of the Workplace Research Center in

Washington, D.C. I have an M.B.A. (Master of Business Administration) in Industrial Psychology and a Ph.D. in psychology from Georgetown University, where I teach courses in industrial psychology about men and women working together.

2.I am a specialist on the subject of harassment in the workplace, having studied and written

extensively in this area. I have written one book, Romance and Coercive Behaviors in the Office, published in 1987. I speak at conferences, consult, and direct the research center. I have served as an expert witness on the topic of harassment in the workplace in over 50 trials. I charge a fee of $1700 for testifying at a trial. I have been hired by the plaintiff to testify here today.

3.My responsibilities at the Workplace Research Center include supervising and training our staff

of three psychologists and ten graduate students, and overseeing and advising the graduate students and staff on research projects. I manage the administrative matters of the center, including our support staff of four people.

4.My research involves people with business-related stress problems, many of which include

sexual harassment and discrimination toward women in the workplace. I have extensively studied women who have been harassed in the workplace, many of whom suffer emotional distress as a result. I also have studied men who engage in harassment of women and who have difficulty controlling their emotional feelings in the workplace.

5.Harassment takes many forms, from mild verbal banter to threats of or even violence itself.

There are two general types of sexual harassment. The most obvious is known as "quid pro quo" harassment, where the victim is requested or required to do a sexual favor as a condition of employment or in exchange for an employment benefit. If the victim does not comply, she or he may suffer tangible adverse employment consequences, such as not getting a job, losing her or his job, or having her or his salary decreased.

6.The second type sexual harassament is known as the "hostile environment." This is a situation

where the victim is subjected to unwelcome sexual conduct in one or more forms. The harassment may be verbal or nonverbal, such as touching. In order for the unwanted conduct to rise to the level of sexual harassment, it must create an abusive work environment. In my opinion, occasional comments of a sexual nature which offend a person are not harassment, although there are experts whose opinions differ as to that.

7.Studies of businesses in Turner County have shown that 42% of female employees polled say

they have been victims of sexual harassment in their workplace. My own research has shown that harassment in the workplace takes place in over 80% of the businesses I studied.

8.Victims of workplace sexual harassment suffer from a number of both emotional and physical

stress-related symptoms. Emotionally, these can include low self-esteem, a feeling of powerlessness, fear, anger, nervousness, anxiety, decreased job satisfaction, diminished ambition and depression. Physically, these stress-related symptoms can

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appear as headaches, nausea, weight change and backaches. Often, the victim's sleep habits are disrupted.

9.Men often see their comments to women in the workplace as being friendly or funny, but most

women do not view it the same way. In addition, studies have shown that while men see sexual overtures from women as flattering, women tend to view sexual overtures from men as insulting. This case brings out the problems that women have in the workplace, particularly in male-dominated careers.

10.In my opinion, sexual harassment should be viewed from the "reasonable victim's" point of

view. The"reasonable man's" point of view is linked too closely with a workplace insensitive to women. For this reason, the "reasonable man's" point of view fails to identify subtle forms of harassment. For too long, women have suffered from the behavior accepted for the workplace, which is based on the male's notion of what it should be.

11.The "reasonable victim's" standard can better address the significant impediment women face

in the workplace. When harassment is viewed from this perspective, the emotional weaknesses and sensitivities of the victim are considered. This point of view takes into account the wide divergence of what women view as acceptable behavior, and asks the judge and jury to imagine themselves as the victim. This concept has been gaining recognition in legal circles. Several law review articles have been written supporting it.

12.I have studied this case, reviewed the depositions of the witnesses and conducted two three-

hour interviews with Diane Alexander on August 25 and 26, 1993. In those interviews, Diane described to me her family history, her work environment, the actions of her co- workers and senior attorney, and her resulting feelings. In my opinion, Diane Alexander is the victim of what is referred to as "hostile environment" sexual harassment.

13.Diane has suffered severe emotional distress as a result. Her low productivity and poor

performance on the job was a result of the hostile environment she experienced. The emotional distress Diane has suffered was caused by the actions of Steve Starks. Her condition worsened when neither the managing partner nor the Human Resources Director took any action to remedy the situation.

14.Diane Alexander was constantly confronted in her workplace with conduct that constitutes

"hostile environment" sexual harassment. In my opinion, an excellent example is the episode with the Naughty Nighties catalog. This deeply embarrassed and upset Diane. The models in this catalog are clothed in provocative fashions. It is my opinion that most women would find these pictures offensive when displayed in the workplace. They portray women as objects, not as professionals. Diane was confronted with men comparing her to the pictures, and was humiliated and distressed by this. The display of women as centerfolds or pin-ups in the workplace is demeaning and contributes to the uphill struggle women face everyday. In order for women to be taken seriously in the workplace, these pictures should be strictly forbidden by all businesses.

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VERIFICATION STATEMENT I do hereby certify that I have read all questions propounded to me and all answers given by me on November 4, 1993, taken before a certified court reporter and Notary Public and that there are no changes noted. PAT ISAACS Andrea Enz, Notary Public State of New Mexico My Commission Expires: WITNESS ADDENDUM I have reviewed this statement, and I have nothing of significance to add. The material facts are true and correct. Signed, PAT ISAACS SIGNED AND SWORN to before me at 8:00 a.m. on the day of this round of the 1994 New Mexico Mock Trial Competition. Signed, Andrea Enz, Notary Public State of New Mexico My Commission Expires:

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EXCERPTS FROM DEPOSITION OF STEVE STARKS 1.My name is Steve Starks. I live at 3211 Saluda Street in Rome. I have lived here for my whole

life, except for a few years that I spent in New York. I am 37 years old and single. I am a senior associate at CC&T in charge of the employment law section. I have been with the firm since I graduated from law school in 1987.

2.Prior to law school at the Mercer University, I did some graduate school work in drama at

Wofford College and worked as an actor and waiter for about three years after college in New York City. I still do some acting with small groups at local colleges. I find my dramatic training has helped my trial work.

3.I am not "seeing" anyone in particular at this time. I've dated women from the office in the past;

they were not always attorneys. I have been involved in one "relationship" with a female attorney from the office. That ended about two years ago.

4.Diane Alexander has been a burden to me almost from the day she was placed in my section.

She has no sense of humor or office camaraderie. She never worked with me or any of the other attorneys in the section the way we all normally work together. Diane wasn't interested in participating in any of the team work of the section. For example, we all cover for each other and have an informal mentor program that pairs experienced attorneys with new attorneys. I assigned myself as her mentor when she first started, but after only a couple of months she told me she did not want to participate in the mentor program any longer.

5.The employment law section is a small, closely-knit group, or at least it was before Diane

arrived. During her time with the section, there were only seven employment law attorneys, including myself, and part of my job was to make sure we all pulled together. She was the first female attorney we have had in the section, and I did everything I could to make her feel welcome and help her fit in. She never did, though. She seemed to withdraw more and more as time went on.

6.Diane also did not develop well as an attorney. While she was with the employment law

section, she tried only one case, in October 1992. She did an acceptable job with that one, although it was not complicated. I worked with her on the preparation for trial, but the pressure seemed almost too much for her. In other aspects of her performance, clients seemed to like her, but her case work was somewhat disorganized, and she seemed distracted at times. I hesitated to give her too much responsibility too quickly for fear that she might buckle under the pressure and screw something up.

7.I normally have been able to move new associates along much more quickly than I could with

Diane, but it is difficult to train a new attorney who doesn't want to work closely with her more experienced colleagues. She never offered to assist any of the other attorneys, and if I ever asked her for help, she found some excuse not to do so or she would complain. I rarely ever leave the office before 7:00 p.m. Diane would leave with the support staff at 4:45 p.m. every day. Once, when I offered to help her on the weekend with a case, an offer I frequently make to other attorneys, Diane responded that she did not work overtime. Diane was also absent from work a great deal. Whenever she was out, I had to handle her workload as well as my own.

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8.This job is high pressured, particularly in our section, and all of our attorneys work fairly hard. We kid around with each other to release energy, and the attorneys in our section often socialize after work once or twice a week. Diane never wanted to take part in any of that. She never went to lunch with any of the attorneys in our section either.

9.When Diane first started to work, we rode together to a firm party. I only asked her for a ride

because we were both at the office working late. I certainly didn't consider it a date, but I don't know what Diane thought. After the party, she asked me over to her place for a cup of coffee, but I told her I needed to get back to the office. I was not interested in dating her. I did ask her to a party that a friend of mine was giving a few weeks later. I only asked her because I was trying to get along better with her. In fact, a woman that I was interested in was at the party.

10.After work, I usually run a couple of miles near our office with two other guys from the office.

We change into our running clothes in the office. That's because the bathroom is all the way at the end of the hall, and there is not anywhere else to get dressed. In early April 1992, while I was changing into my running suit in my office, Diane walked in. I had only my underwear on. She didn't knock before she entered. I guess I surprised her. She made a big deal about it. I tried to let her know it wasn't a big deal and that neither of us was to blame. I tried to play it down -- I recall making some joke about my "briefs" -- so she would not feel guilty, but she was upset.

11.Diane also became very agitated when I picked up a Naughty Nighties catalog from her desk

and looked at it. This happened in September 1992. I had been out of the office on vacation most of August, and Diane had just returned from her vacation, but the time off hadn't improved her mood a bit. I guess she was embarrassed that I had seen it, but when I tried to make light of it, she grabbed it out of my hands and threw it in the trash. I don't remember exactly what I said, but I think I joked about her modeling the clothing. A few days later, some pictures from the catalog ended up in the break room. Diane accused me of putting them there, but I didn't, although I really can't see why it is such a big deal to her.

12.Diane went to the managing partner, Chris Troy, and complained about the pictures. Troy

came and talked with me, and I told her/him I didn't do it. Troy asked that I do what I could to defuse the situation. I told her/him that I was going to be working with Diane over the next month in preparation for her first full trial, and that I would bend over backwards to keep from doing or saying anything which might be misinterpreted.

13.The trial preparation went fine at least as far as I knew at the time. During the preparation I

certainly never addressed Diane as "baby" or whispered in her ear. I thought that was the end of the matter and was shocked when, a couple of months later, Elaine Gusman from the EEOC came to CC&T to investigate Diane's complaint against me for sexual harassment. I talked freely and completely honestly with her, and she properly decided there were insufficient grounds for the complaint.

14.The conversation I had with Chris Troy in September 1992 was the first indication I had that

Diane thought I was harassing her. I know now that she had complained to Troy several months before, and I remember her/him talking to me about Diane's adjustment to the job. I had no idea, however, that Diane had told Troy I was harassing her. Troy and I talked

18

on numerous occasions about Diane, because I was her direct supervisor, and Troy did her employee evaluations. Those conversations, until the one in September 1992, had always concerned Diane's work performance.

15.Looking back on it now, I assume Diane also thought I was harassing her when, during her

early days at CC&T, she asked me never to touch her. I'm a "touchy" sort of guy with both men and women; I do things like put my hand on, or my arm around, someone's shoulder when we talk. I certainly didn't mean to offend Diane, and after she asked me not to, I did not touch her again. As for the other comments Diane said I made, I can't remember. I make a lot of jokes, and that's all they are. I joke with everyone.

16.I believe Diane is just overly sensitive. Some of the guys and I may have teased her a bit, I

guess, partly because she was so uptight. We tried to get her to lighten up. Some of the joking and teasing may have been slightly sexual, but that goes on not only in all law offices but, I would imagine, in just about all workplaces. With more women becoming lawyers, we are bound to see some friction between the sexes in the office. We have always had several female staff people in our section, however, and as far as I know, none of them has ever been offended by the conduct of any of the attorneys. After all, as head of the section it is my responsibility to ensure that no sexual harassment takes place, and as an employment lawyer, I am well acquainted with what sort of behavior constitutes sexual harassment. I know that I never sexually harassed Diane, nor to my knowledge, did any of the other attorneys in the section.

17.I think Diane is pursuing this complaint because she is jealous of me and because I was not

interested in dating her. I think she really wanted to be in the employment law section, although she was not a very good lawyer and couldn't handle the pressure. She wouldn't cooperate or listen to anyone, even the senior attorneys in the office. I also think she felt rejected when I didn't go to her house after the party.

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VERIFICATION STATEMENT I do hereby certify that I have read all questions propounded to me and all answers given by me on September 29, 1993, taken before a certified court reporter and Notary Public and that there are no changes noted. STEVE STARKS Andrea Enz, Notary Public State of New Mexico My Commission Expires: WITNESS ADDENDUM I have reviewed this statement, and I have nothing of significance to add. The material facts are true and correct. Signed, STEVE STARKS SIGNED AND SWORN to before me at 8:00 a.m. on the day of this round of the 1994 New Mexico Mock Trial Competition. Signed, Andrea Enz, Notary Public State of New Mexico My Commission Expires:

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EXCERPTS FROM DEPOSITION OF CHRIS TROY 1.My name is Chris Troy. I am the managing partner of CC&T. I live in Rome at 403 Elm

Avenue. I am married and have two children. I have been with the firm for fourteen years and have been the managing partner for five years.

2.My responsibilities as managing partner include the ultimate responsibility for all 50 of the firm's

attorneys and, in particular, supervising the 30 associates. I meet with the attorneys to discuss how the firm should handle assignments and to distribute cases. I observe the attorneys in the office and in the courtroom and evaluate them every six months.

3.For the most part, the attorneys in the firm get along very well with each other. They help each

other out and socialize with one another on occasion. We have had a few office romances during my time with the firm. There are not that many female attorneys in the firm.

4.Diane Alexander came to me twice and stated that she had some concerns about working with

her senior associate, Steve Starks. The first time was in April 1992 and was the first indication I had that she was having trouble getting along with Steve. That surprised me because Steve is one of the most popular attorneys in the office, and he has always gotten along well with everyone.

5.Diane was not very specific about her concerns, although she did mention that she had been

offended by some of Steve's remarks which she thought were sexual. I don't recall any specific instances she mentioned, but, knowing Steve, I was sure he meant no harm and was no doubt just joking around. I thought that Diane might be overreacting to the stress of being a new attorney and venting her frustrations on Steve. I told her I would talk to him and suggested that she give the situation a chance.

6.I spoke to Steve after Diane came to me. I wanted to see if I could get a better picture of what

might be going on between them. Their offices are on a different floor from my office, but I often run into them in the halls and see them in our staff meetings. I had never noticed any problems.

7.I told Steve that Diane was upset and asked if he might know why. He confirmed my initial

reactions, saying he thought Diane was just not comfortable with her job yet. He said she appeared to be having trouble adjusting to the pressure and seemed uptight about the prospect of going into the courtroom for trial. Steve said that he was trying to be friendly to and supportive of Diane, but that she was not receptive. I told Steve to take it easy on Diane and give her a chance to adjust. After all, not everyone is as outgoing and self confident as he.

8.It did not occur to me at that time to move Diane to another section. I knew she preferred

employment law, and I thought that it would be best for her to continue working with Steve, as he is an excellent attorney and particularly good at training new associates. Most new attorneys would welcome the opportunity to work with him as their senior associate.

9.Steve Starks has worked on many large cases for the firm and has handled those cases

marvelously. He is a very successful trial attorney. Perhaps he may get away with being a little silly around the office on occasion, but Steve does a fine job for the firm. Steve

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wins almost all of his trials and needs to release some of the tension that comes with being a high-powered attorney. Steve and Diane are two very different people.

10.Steve has a great sense of humor. He and a few of the other guys in the firm are frustrated

actors and are known to do impressions of others, perform comedy routines during the lunch hour, and even write little songs or skits for people whenever someone retires or leaves the firm. Sure, they get a little racy sometimes, but I certainly wouldn't describe them as "obscene" or even "off color." "Suggestive," perhaps, but it is all intended in innocent fun, and I have never heard anyone else complain about Steve or his joking around other than Diane.

11.Diane came back to me in September 1992 and said Steve had hung pictures from a Naughty

Nighties catalog on a wall in the break room. Diane was very upset and said she was fed up and would not tolerate that kind of behavior from Steve any longer. Diane said she wanted to file a complaint, and she wanted me to reprimand Steve. Frankly, I thought they were both being childish. I really didn't want to spend my time breaking up school yard brawls. I told Diane I would speak to Steve again. Diane said it wouldn't do any good and that she was going to file a complaint. I told her that was her right under the firm's sexual harassment policy and that she should speak with the Human Resources Director, Terry Chavez, who handles such complaints.

12.I spoke to Steve that same day. I didn't see any of the pictures Diane talked about. Steve told

me he didn't hang the pictures up anyway. I told him that Diane was pretty upset, that I was afraid he was heading for trouble if he didn't watch his step, and that I didn't want the firm to get a black eye over this. He said he and Diane were going to be preparing for a trial together and that he would be very careful. I trusted that he would. I heard nothing further until Diane came back to me on the 16th of November 1992 and informed me she had bypassed the office procedure for filing harassment complaints and filed a charge of sexual harassment with the EEOC.

13.I have evaluated Diane three times since she has been with the firm. Each time, I went over

her case files in detail with Steve, her direct supervisor, and discussed with him his observations of her work. I also talked briefly with the other attorneys in the employment law section and on two occasions observed her in brief, but relatively satisfactory, motion hearing appearances in court. I was not able, however, to observe any of her first full trial in October 1992, although Steve and I discussed her performance at length. I also talked with Diane directly prior to completing each evaluation.

14.Diane received an "average" on her first evaluation, which is typical at CC&T for new

attorneys, but a "below average" on her second evaluation. I was concerned about what seemed to be a lack of focus on her work; her apparent inability to deal with the stress of practice; and, her failure to progress faster as a trial attorney.

15.Diane's performance continued to drop off after her second evaluation. I had several

complaints from other senior attorneys about her disorganization and her leaving work early. I know that Diane has had a number of absences, which placed a burden on the other attorneys in the office, particularly Steve. Steve has not complained to me, however. I felt I had no alternative but to give her a "poor" on her third evaluation in March 1993. I can say emphatically that my evaluation of Diane had absolutely nothing to do with her filing the EEOC complaint. It was entirely based upon objective evidence of her work

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performance as an attorney. 16.In light of the problems with Diane's declining performance in the employment law section, I

decided it would best serve the firm to transfer her to the domestic law section. It was not a demotion; it was a transfer within the office. Her pay was not affected. The transfer was not a result of Diane's problems with Steve; it was a result of her own performance and my determination as to the area in which she could best serve the firm.

17.I also believed that the transfer would best serve Diane. The lawyers in the domestic law

section do work longer hours than the attorneys in the employment law section and are required to be available for phone calls from clients 24 hours a day. It was my judgment, however, that in light of Diane's absences and her unwillingness to put in long hours, the transfer was the best chance of getting her more committed to kind of workload that all attorneys at CC&T are expected to carry.

18.Diane would also have had more opportunities to be in court in the domestic law section. In

addition, the legal work itself is less complex and the attorneys in the section generally more laid back and less hard-driving than the employment law attorneys. All in all, I thought the transfer would increase her workload while at the same time reduce her stress level -- which is exactly what I believed she needed if she were going to make it as a CC&T attorney. There are also many more female attorneys in the domestic law section, which I thought would help. The transfer was not permanent. Had she stayed with the firm and done well in the domestic law section, at some point she might have been moved back into employment law, an area which I realize that Diane prefers.

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VERIFICATION STATEMENT I do hereby certify that I have read all questions propounded to me and all answers given by me on October 12, 1993, taken before a certified court reporter and Notary Public and that there are no changes noted. CHRIS TROY Andrea Enz, Notary Public State of New Mexico My Commission Expires: WITNESS ADDENDUM I have reviewed this statement, and I have nothing of significance to add. The material facts are true and correct. Signed, CHRIS TROY SIGNED AND SWORN to before me at 8:00 a.m. on the day of this round of the 1994 New Mexico Mock Trial Competition. Signed, Andrea Enz, Notary Public State of New Mexico My Commission Expires:

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EXCERPTS FROM DEPOSITION OF TERRY CHAVEZ 1.My name is Terry Chavez, and I live at 1201-C Paces Run Apartment in Rome. I am the

Human Resources Director of CC&T and also serve as the office manager. I received a bachelor's degree in business administration, with a major in personnel management, from the University of New Mexico and have worked in the personnel field for several years. I have been with CC&T for the past three years. I am responsible for personnel matters regarding both attorneys and support staff. My office keeps the records of attendance, sick days and vacation days, as well as employment applications, insurance forms and other personnel documents.

2.The firm's primary procedure for all employee complaints, including those of sexual harassment,

is to attempt to handle these matters informally. Employees are encouraged to discuss any problems they encounter immediately and openly with their direct supervisors. If the employee and supervisor are unable to resolve the problem at that level, the employee should either take the matter up with a senior supervisor, if there is one, or come to see me.

3.When an employee brings a problem to me, I continue to seek an amicable and informal

solution by talking it through with the parties involved, sometimes separately and sometimes together, until a satisfactory situation has been achieved. Although there are 50 lawyers in the firm, CC&T is still small enough, and all lawyers and support staff have close enough contact, that it is important that dispute resolution not leave a residue of bad feelings or hostility. Thus, we try to avoid if at all possible a formal grievance-type investigation and hearing procedure, although that is available as a last resort.

4.When I first came to CC&T, the firm had no written policy on sexual harassment, and I

suggested to management that one be adopted immediately. In the fall of 1990, I submitted a draft policy which, with minor changes, was adopted and distributed to all employees. I believe strongly that the work environment should be absolutely free from sexual intimidation and oppression. I was proud of CC&T for taking a strong stand on the issue.

5.Sexual harassment problems are initially dealt with like other employee complaints; that is, we

first attempt to resolve them informally. Allegations of sexual harassment are so potentially inflammatory and disruptive of the work environment, and they so often involve one person's word against another's, that amicable resolution is even more important than for other employee complaints. Further, even a groundless complaint can result in significant costs to the employer if the employee decides to press it through the Equal Opportunity Commission or in court, so it is essential that the problem be resolved early and to everyone's satisfaction.

6.If the situation is not resolved informally, however, the complainant has other options. She or he

may file a written complaint with my office, and I inform the complainant that the EEOC may also be contacted.

7.If a written complaint is filed with my office, I investigate the situation and interview both the

complainant and the alleged harasser. I also interview other people in the office. I then prepare a report determining whether the charge is well-founded. If a positive

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determination is made, disciplinary action is taken. Disciplinary action may consist of either verbal or written warnings. Offenders may also be placed on probation or suspended. They may also be asked to resign, or their employment may be terminated. Diane Alexander did not follow this procedure. Ms. Alexander filed her complaint directly with the EEOC.

8.The EEOC's procedure is similar to ours. When they are notified of a complaint, they

investigate the situation thoroughly. Sometimes they schedule an on-site review of the situation. If the EEOC finds that harassment exists, it recommends remedies and attempts to negotiate a settlement. If the parties cannot settle the matter, the EEOC will issue a right-to-sue letter, should the complainant request one.

9.I did meet with Diane Alexander a few times. I know everyone in the office. Diane seems like a

nice enough person, very businesslike and serious. She was, however, frequently absent. Sometimes she was only out for one day, sometimes for a few days. I would say Diane was absent more often than most, if not all, of the other attorneys in the office. I have also heard other attorneys in the office complain about Diane's work.

10.Diane's attendance record reflects that she was out sick quite a bit. If she was out on those

days for another reason, it certainly is not reflected in her personnel file. She could have gone on short term disability if she had a doctor's note saying she had physical ailments resulting from stress and needed to rest. She did not, however, speak with me about this option. The attorneys in our office are allowed ten sick days a year and five personal or religious observances days. They also get two weeks vacation. My records reflect that Diane was out of the office 17 times between March 1992 and September 1992.

11.Many of our employees, particularly the attorneys, work even when they don't feel well

because they have too much to do to stay home. They don't want to burden the other attorneys with having to handle their caseloads for them.

12.Diane came into my office on October 23, 1992, and said she wanted to file a sexual

harassment complaint. She mentioned something about sexual coments and pictures in the break room. I told her that all she needed to do was to provide me with a memorandum detailing the incident or incidents which she felt constituted the harassment and that I would investigate. I also told her that she could go to the EEOC. I reminded her, however, that sexual harassment was a very serious charge, and told her I hoped whatever was going on could be settled by a discussion. I suggested she sleep on it.

13.I heard nothing further from Diane for several weeks, until she came into my office and

informed me that she had filed a complaint with the EEOC and that they would be in touch with me. I was surprised to find that it was Steve Starks who was named on the information I received from the EEOC. He is such a nice guy and so funny too. Everybody in the office likes him. He has quite a reputation as a trial attorney, and I don't think he's been out sick since he has been with our firm.

14.The EEOC sent Elaine Gusman to our office to investigate the complaint. She interviewed

Diane Alexander, Steve Starks, Chris Troy, me, and other female attorneys in the office. I don't know if she talked with Lee Padilla. The other female attorneys told the investigator that, while Steve made funny comments and joked a lot, they never felt sexually harassed by him. Ms. Gusman determined that there was no sexual harassment. I reviewed the

26

report and concluded that, although Steve might have been obnoxious from time to time, he did not sexually harass anyone.

15.Steve's behavior in the office is really just the kind of innocent fun and teasing that goes on in

the office all the time. While the firm will not tolerate sexual harassment, we certainly don't expect people to leave their senses of humor in their cars when they come to work in the morning.

16.I am aware of a few other harassment allegations in the office, but none involve Steve Starks.

There have probably been two or three complaints since I have been the Director of Human Resources. All, until Diane's, were resolved informally.

17.I know that on one occasion, Steve and Diane rode together to a firm party. After the party,

they left together. I was in the parking lot getting into my car at the same time as them. I heard Diane say something to Steve like, "Do you want to have a cup of coffee before you go home?" I couldn't hear what Steve said.

18.Diane has mentioned to me that she is upset about being reassigned to the domestic law

section. There are 12 attorneys working in that section. There are more female attorneys in the domestic law section than in any other section. She will have more opportunities to do trial work, although she will also be required to work longer hours.

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VERIFICATION STATEMENT I do hereby certify that I have read all questions propounded to me and all answers given by me on October 21, 1993, taken before a certified court reporter and Notary Public and that there are no changes noted. TERRY CHAVEZ Andrea Enz, Notary Public State of New Mexico My Commission Expires: WITNESS ADDENDUM I have reviewed this statement, and I have nothing of significance to add. The material facts are true and correct. Signed, TERRY CHAVEZ SIGNED AND SWORN to before me at 8:00 a.m. on the day of this round of the 1994 New Mexico Mock Trial Competition. Signed, Andrea Enz, Notary Public State of New Mexico My Commission Expires:

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EXHIBIT #

N A U G H T Y N I G H T I E S

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EXHIBIT #

N A U G H T Y N I G H T I E S

30

EXHIBIT #

Cooper, Cook and Troy - Sexual Harassment Policy

Sexual harassment is illegal and expressly prohibited. Cooper, Cook and

Troy (the Firm) will not tolerate sexual harassment in any form. This policy will be actively

enforced by the Firm management.

The Firm is committed to creating and maintaining a community in which all employees can

work together in a humane atmosphere free from all forms of disrespectful conduct, harassment,

exploitation, or intimidation, including sexual. It is the intention of the Firm to take whatever action

may be needed to prevent, correct, and if necessary, to discipline behavior which violates this

policy.

Sexual harassment is defined, according to EEOC Guidelines, as follows: unwelcome

sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature,

when:

1.submission to such conduct is made either explicitly or implicitly a term or condition of an

individual's employment or advancement;

2.submission to or rejection of such conduct by an individual is used as the basis for employment

decisions affecting such individual; or,

3.such conduct has the purpose or effect of unreasonably interfering with an individual's work

performance or creating an intimidating, hostile, or offensive working environment.

An employee who believes that she/he has been the victim of sexual harassment (or who has

observed what may be harassment) should contact her/his supervisor and/or the Firm's Human

Resources Director immediately, so that a prompt investigation can be made.

Any employee who violates this policy will be subject to appropriate disciplinary action, up

to and including dismissal from the Firm.

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EXHIBIT #

Cooper, Cook and Troy - Attendance Record Summary

Employee Name: Diane Alexander Social Security Number: 525-

64-8592

Start Date: 09/04/91 Termination Date:

Period: 09/04/91 - 02/28/92 Section: Employment Law Total Absences: 6

SICK VACATION PERSONAL STD UNPAID OTHER

10/30/91 12/26/91 01/24/92

10/31/91 12/27/91

01/17/92

Period: 03/01/92 - 08/30/92 Section: Employment Law Total Absences: 17

SICK VACATION PERSONAL STD UNPAID OTHER

04/13/92 03/09/92 05/08/92 05/14/92

04/21/92 03/10/92 05/12/92 06/18/92

04/22/92 03/11/92 05/13/92 07/16/92

04/28/92 03/12/92 07/10/92 07/17/92

03/13/92

Period: 09/01/92 - 02/26/93 Section: Employment Law Total Absences: 24

SICK VACATION PERSONAL STD UNPAID OTHER

09/04/92 09/07/92 11/13/92 12/16/92

09/29/92 09/08/92 12/10/92 12/18/92

10/09/92 09/09/92 01/05/93

11/10/92 09/10/92 01/06/93

11/12/92 09/11/92 01/07/93

11/25/92 12/28/92 01/19/93

11/27/92 12/29/92 01/20/93

12/30/92

Period: 03/01/93 - 08/31/93* Section: Employment Law Total Absences: 04

Domestic Law

SICK VACATION PERSONAL STD UNPAID OTHER

03/11/93 03/01/93 03/08/93

03/17/93

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* Period through 04/02/93 STD = Short Term Disability Other = Bereavement, Religious

EXHIBIT #

Cooper, Cook and Troy - Evaluations Summary

Employee Name: Diane Alexander

Social Security Number: 525-64-8592

Section: Employment Law

Possible Ratings: Excellent; Above Average; Average; Below Average; or Poor

PERIOD RATING COMMENTS

09/91 - 02/92

Average

Satisfactory progress in all areas. Salary increase

recommended.

03/92 - 08/92

Below Average

Progress, particularly in trial work, behind schedule.

Some disorganization apparent, needs closer

supervision. Maintain current salary level.

09/92 - 02/93

Poor

Absenteeism high. Insufficient number of hours

worked. No improvment noted from 09/03/92

evaluation. Recommend section transfer to domestic

law. Maintain current salary level.

03/93 - 08/93

Not Rated

Explanation of Ratings

Excellent: Superior work product

Above Average: High quality work product, needs little supervision

Average: Work product is standard: average

Below Average: Needs improvement and supervision

Poor: Work product below average, needs constant supervision

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EXHIBIT # Excerpts from Pat Isaacs, Ph.D., Romance and Coercive Behaviors in the Office (New York: Walden Books, 1987) 175-80

"There is much behavior, both physical and verbal, of a mildly sexual nature in most workplaces which some might find offensive, but which in actuality is nothing more than the kind of innocent horseplay and teasing that goes on between men and women everywhere. Human beings are, in fact, sexual creatures. . . . "The relatively recent entry of women in more substantial numbers into many formerly 'male' occupations has, of course, exacerbated the problem. The behaviors typically found in those environments tend to undergo modification, but not dramatic and sudden reversal, when a female presence is introduced; and, the modifications tend to become greater when the number of females in the environment is proportionally larger. Nevertheless, what often happens is that the pre-existing male/male sexual bantering is simply transformed into the variety of male/female sexual interplay so common outside the workplace. Women who enter the work environment expecting it to be suddenly free of this dynamic will necessarily be disillusioned and often will take extreme offense at comments or actions which, if encountered elsewhere, they would at worst dismiss as merely tasteless. . . . "While eliminating true sexual harassment in the workplace is an absolutely vital national goal, however, complaints about this sort of common and relatively innocent behavior trivialize it. Not only would it be completely impossible to erase all traces of sex from the workplace; even if we succeeded, we would end up with a work environment that would be so sterile and depersonalized that it would be unbearable to spend any significant degree of time there. "Our goal instead should be to humanize the workplace, and that means recognizing that men and women are different and that they are attracted to each other. Puritan overreactions to these basic facts sets us all back in the attempt to create a work environment where we can be ourselves and respect each other's differences."

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LEGAL AUTHORITIES Statutory Law The following are excerpts from statutory law concerning the legal issues raised in this mock trial case. Only a portion of the law is cited. The entirety of the acts cited may be studied in preparation for the mock trial and cited in the course of the trial. Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. It is "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin."

The Civil Rights Act of 1991, Pub. L. No. 102-166, Section 102 (1991). Compensatory and punitive damages may be recovered by victims of employment discrimination based on sex. Any party to a discrimination action may demand a jury trial when compensatory or punitive damages are sought. Case Law The following are excerpts from case law concerning the legal issues raised in this mock trial case. This is only a portion of the opinions in each cited case. The entire case (including majority, concurring, and dissenting opinions) may be read in preparation for the mock trial and cited in the course of the trial. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) "[T]he language of Title VII is not limited to 'economic' or 'tangible' discrimination. The phrase 'terms, conditions, or privileges of employment' evinces a congressional intent 'to strike at the entire spectrum of disparate treatment of men and women' in employment. . . . "[The EEOC] Guidelines, 'while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.' The EEOC Guidelines fully support the view that harassment leading to noneconomic injury can violate Title VII. In defining 'sexual harassment,' the Guidelines first describe the kinds of workplace conduct that may be actionable under Title VII. These include 'unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.'. . . [T]he Guidelines provide that such sexual misconduct constitutes prohibited 'sexual harassment,' whether or not it is directly linked to the grant or denial of an economic quid pro quo, where 'such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating,

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hostile, or offensive working environment.'. . . "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule, and insult. . . . Since the Guidelines were issued, courts have uniformly held, and we agree, that a plaintiff may establish a violation of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment. . . . "Of course, . . . not all workplace conduct that may be described as 'harassment' affects a 'term, condition, or privilege' of employment within Title VII. . . . For sexual harassment to be actionable, it must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.'. . "[T]he fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. The gravamen of any sexual harassment claim is that the alleged sexual advances were 'unwelcome.'. . . The correct inquiry is whether respondent by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation . . . was voluntary." (Although the Court did not rule on the issue of the precise circumstances under which an employer is liable for harassment by a supervisor, it observed that employer liability is not automatic in a hostile environment case, and that the employer's knowledge of harassment and the adequacy of its sexual harassment grievance procedure are relevant to, though not necessarily dispositive of, the issue of employer liability.) Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) "Sexual harassment, like racial harassment, is now universally recognized as employment discrimination within the meaning of Title VII. . . . "Although sexual harassment may take a variety of forms, courts have consistently recognized two distinct categories of sexual harassment claims: quid pro quo sexual harassment, and hostile work environment sexual harassment. Quid pro quo harassment occurs when submission to sexual conduct is made a condition of concrete employment benefits. Alternatively, hostile work environment harassment arises when sexual conduct 'has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'. . .Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. . . . "[O]ne of the critical inquiries in a hostile environment claim must be the environment. Evidence of a general work atmosphere therefore - as well as evidence of specific hostility directed toward the plaintiff - is an important factor in evaluating the claim." Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982)

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"Under certain circumstances the creation of an offensive or hostile work environment due to sexual harassment can violate Title VII irrespective of whether the complainant suffers tangible job detriment. . . . [In] a Title VII claim against an employer for a hostile work environment, . . . the plaintiff must allege and prove a number of elements in order to establish her claim. These elements include the following: (1) The employee belongs to a protected group. . . . (2) The employee was subject to unwelcome sexual harassment. . . . (3) The harassment complained of was based upon sex. . . . (4)The harassment complained of affected a 'term, condition, or privilege' of employment. . . . (5)Respondeat superior. . . . [S]he must show that the employer knew or should have known of the

harassment in question and failed to take prompt remedial action." Katz v. Dole, 709 F.2d 251 (4th Cir. 1983) "'[A]n employer policy or acquiescence in a practice' of sexual harassment can constitute a violation of Title VII. When such harassment pervades the workplace, or is condoned or carried out by supervisory personnel, it becomes an illegal and discriminatory condition of employment that poisons the work environment. . . . First, the plaintiff must make a prima facie showing that sexually harassing actions took place, and if this is done, the employer may rebut the showing either directly, by proving that the events did not take place, or indirectly, by showing that they were isolated or genuinely trivial. Second, the plaintiff must show that the employer knew or should have known of the harassment, and took no effectual action to correct the situation." Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986) "Unlike quid pro quo sexual harassment which may evolve from a single incident, sexually hostile or intimidating environments are characterized by multiple and varied combinations and frequencies of offensive exposures. . . . To accord appropriate protection to both plaintiffs and defendants in a hostile and/or abusive work environment sexual harassment case, the trier of fact . . . must adopt the perspective of a reasonable person's reaction to a similar environment under essentially like or similar circumstances. Thus, in the absence of conduct which would interfere with that hypothetical reasonable individual's work performance and affect seriously the psychological well-being of that reasonable person under like circumstances, a plaintiff may not prevail on asserted charges of sexual harassment anchored in an alleged hostile and/or abusive work environment regardless of whether the plaintiff was actually offended by the defendant's conduct. . . . "Accordingly, a proper assessment or evaluation of an employment environment that gives rise to a sexual harassment claim would invite consideration of such objective and subjective factors as the nature of the alleged harassment, the background and experience of the plaintiff, her coworkers, and supervisors, the totality of the physical environment of the plaintiff's work area, the lexicon of obscenity that pervaded the environment of the workplace both before and after the plaintiff's introduction into its environs, coupled with the reasonable expectation of the plaintiff upon voluntarily entering that environment. . . . "'Indeed, it cannot seriously be disputed that in some work environments, humor and language

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are rough hewn and vulgar. Sexual jokes, sexual conversations and girlie magazines may abound. Title VII was not meant to - or can - change this. . . . Title VII was [not] designed to bring about a magical transformation in the social mores of American workers.'. . . "In the case at bar, the record effectively disclosed that [the] obscenities, although annoying, were not so startling as to have affected seriously the psyches of the plaintiff or other female employees. The evidence did not demonstrate that this single employee's vulgarity substantially affected the totality of the workplace. The sexually oriented poster displays had a de minimis effect on the plaintiff's work environment when considered in the context of a society that condones and publicly features and commercially exploits open displays of written and pictorial erotica at the newsstands, on prime-time television, at the cinema, and in other public places. In sum, [the] vulgar language, coupled with the sexually oriented posters, did not result in a working environment that could be considered intimidating, hostile, or offensive . . ." Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) "[A] hostile environment exists when an employee can show (1) that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. . . . Conduct which unreasonably interferes with work performance can alter a condition of employment and create an abusive working environment. . . . "It is the harasser's conduct which must be pervasive or severe, not the alteration in the conditions of employment. Surely, employees need not endure sexual harassment until their psychological well-being is seriously affected to the extent that they suffer anxiety and debilitation. Although an isolated epithet by itself fails to support a cause of action for a hostile environment, Title VII's protection of employees from sexual discrimination comes into play long before the point where victims of sexual harassment require psychiatric assistance. . . . "[W]e believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. . . . [W]e hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. . . . We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. . . . We note that the reasonable victim standard we adopt today classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment. . . . "The EEOC Guidelines recommend that an employer's remedy should be 'immediate and appropriate.' Employers have a duty to 'express strong disapproval' of sexual harassment, and to 'develop appropriate sanctions.' The EEOC explains that an employer's action is appropriate where it 'fully remedies the conduct without adversely affecting the terms or conditions of the charging party's employment in some manner (for example, by requiring the charging party to work . . . in a less desirable

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location).'. . . [R]emedies should be 'reasonably calculated to end the harassment.' An employer's remedy should persuade individual harassers to discontinue unlawful conduct. We do not think that all harassment warrants dismissal; rather, remedies should be 'assessed proportionately to the seriousness of the offense.'. . . We wholeheartedly agree with the EEOC that a victim of sexual harassment should not have to work in a less desirable location as a result of an employer's remedy for sexual harassment."