The Primerus Paradigm - Fall 2012 Page 21

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environment and retaliation claims
where "it was only after the relationship
ended that Richardson began to harass
[the plaintiff],"

concluding that "[t]his

fact alone supports a jury's inference
that he harassed her because she
refused to continue to have a casual
sexual relationship with him. As such...
there was sufficient evidence to support
the jury's finding of sexual harassment."
In still another case,

the court

observed that after the breakup of
their affair, "[i]f Bacon's harassment of
[the plaintiff]... was motivated by her
refusal to have a sexual relationship
with him, as Plaintiff asserts, he does
not get a "free pass" for such conduct
simply because he once had a romantic
relationship with her."

We can learn from these cases that
despite the absence of a "bright line"
test in these failed romance cases,
"there is a point where inappropriate
behavior crosses the line into Title VII
harassment

-- and most courts leave

that determination to the jury.
As the court stated in Oakstone
v. Postmaster,

"[t]here is sufficient

evidence to generate a factual issue,

requiring jury resolution, as to whether
Ms. Philbrook's retribution crossed
the line into Title VII harassment. Ms.
Philbrook chose to use as her weapon
a false allegation of male on female
physical abuse and there is sufficient
evidence... from which a jury could
conclude that her choice of weapon was
an act of gender-based harassment."

Bad post-breakup behavior in the
workplace carries a heavy price, and
it would be better for the disappointed
supervisor simply to say goodbye,
let it go and maintain a professional
relationship.

1 42 U.S.C.A. §2000e, et seq.
2 Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct.

2399 (1986); EEOC Guidelines on Discrimination
Because of Sex, 29 C.F.R. §1604.11(a).

3 29 C.F.R. §§1604.11(a)(2) and (3).
4 Succar v. Dade County Sch. Bd., 229 F.3d 1343 (S.D.

Fla. 1999); see also, McCollum v. Bolger, 794 F.2d 602,
610 (11th Cir. 1986) ("[p]ersonal animosity is not the
equivalent of sex discrimination and is not proscribed
by Title VII").

5 Id. at 1345. The circuit court affirmed. Succar v. Dade

County Sch. Bd., 229 F.3d 1343 (11th Cir. 2000) (per
curiam).

6 251 F.2d 1143, 1157 (S.D.N.Y. 2003), quoting with

approval Babcock v. Frank, 729 F.Supp. 279, 288
(S.D.N.Y. 1990).

7 In Perez v. MCI World Com Communications, 154

F.Supp.2d 932, 940 (N.D.Tex. 2001), for example, the
court characterized Succar as a "renegade" opinion;
Forrest v. Brinker Inter-national Payroll Company,
LP, 511 F.3d 225 (1st Cir. 2007) (the court explicitly
expressed its doubts as to the correctness of Succar).

8 Green v. Administrators of the Tulane Educational

Fund, 284 F.3d 642, 657 (5th Cir. 2002); see also
Shrader v. E.G. & G. Inc., 953 F.Supp. 1160.1167
(D.Colo. 1997).

9 Id. at 657; see also Chamblee v. Harris & Harris,

Inc., 154 F.Supp.2d 670, 672-74 (S.D.N.Y. 2001)
( (permitting an employee who had a previous sexual
relationship with her supervisor to proceed to trial
on her hostile work environment claim based on the
supervisor's behavior toward her after she refused to
continue the relationship).

10 Baker v. International Longshoremen's Association,

Local 1423, (Slip Copy), 2009 WL 368650 (S.D.Ga.
2009).

11 Id.
12 Lipphardt v. Durango Steakhouse of Brandon, Inc.,

267 F.3d 1183, 1188 (11th Cir. 2001). Where the
conduct does not constitute harassment by virtue of a
hostile work environment or quid pro quo harassment,
a number of courts do not find post-breakup
discrimination or poor behavior illegal. See, e.g.,
Mauro v. Orville, 259 A.D.2d 89, 697 N.Y.S.2d 704,
707 (3d Dept. 1999) ("Although surely antithetical
to good business practices, discrimination against
an employee on the basis of a failed voluntary sexual
relationship does not of itself constitute discrimination
because of sex) (internal citations omitted); Zutrau v.
ICE Systems, Inc., 33 Misc.2d 1215(A), 941 N.Y.S.2d
542 (Table), 2011 WL 5137152 (N.Y. Sup.) (Sup.Ct.
Suffolk Co. 2011) (court summarily dismissed claim
for sex discrimination under New York's Human Rights
Law where the plaintiff did not allege that a continued
sexual relationship was a condition of continued
employment, or that she refused to submit to her
boss's requests for sexual favors or sexual demands;
she asserted that she was discharged because she
terminated the affair and rebuffed the boss's attempts to
rekindle the relationship).

13 332 F.Supp.2d 261 (D.Maine 2004).
14 Id. at 271.