On Point - A New Take On Legal News

Staring at Woman's Breasts Not Harassment, Jury Says

The former administrator of Grafton, Mass., did not sexually harass his secretary by staring at her breasts, a jury has ruled, apparently agreeing with the defense that his eye movements were “normal mannerisms” caused by a medical condition.

Russell Connor saw an opthalmologist after Nancy Billings complained about his staring -– which had made her so uncomfortable she held a piece of paper in front of her chest while walking through the office. The doctor diagnosed him with “alternating intermittent exotropia,” a condition that causes the eyes to wander and not maintain focus.

Reversing the summary dismissal of Billings' discrimination case, the 1st U.S. Circuit Court of Appeals said it could not “reasonably accept” that “a man's repeated staring at a woman's breasts is to be ordinarily understood as anything other than sexual.”

“[T]he defendants' innocent explanation for Connor's behavior is certainly not the only reasonable view of the evidence,” it ruled in a February 2008 decision.

But the exotropia diagnosis was convincing enough for a federal jury in Worcester to return a defense verdict last week, concluding a six-year litigation that cost the Town of Grafton about $400,000.

“No evidence has been presented that Mr. Connor's alleged conduct was sexual in nature or anything other than his normal mannerisms relative to his difficulty with eye contact,” the town argued in a court brief. “The observations and testimony of virtually all the witnesses called by the plaintiff ..., as well as Mr. Connor, all support the undisputed fact that Mr. Connor's eye movements were involuntary and without intent or focus.”

The jury also rejected Billings' claim that the town retaliated against her because she filed a complaint against Connor, transferring her to a secretarial job in the recreation department. “This sends the wrong message to employees of Grafton, and to women,” her attorney told the Worcester Telegram & Gazette.

Billings alleged that soon after she began working for Connor in September 1999, she noticed he was looking at her chest during their conversations. He would “make eye contact, and then his eyes would shift down to [her] chest,” she testified. “It was always the same.”

During one workday, Connor stared at Billings so much that she went home to change out of the sweater she was wearing before returning to the office. She alleged at least three dozen staring incidents over the three-year period she worked for Connor.

U.S. District Judge F. Dennis Saylor summarily dismissed the case in July 2006. But the 1st Circuit found he had put “undue weight on the fact -- undisputed though it was -- that Connor's alleged behavior did not include touching, sexual advances, or 'overtly sexual comments to or about her.'”

"[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex,” the court said, quoting Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998).

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By Matthew Heller
11/6/08

Oklahoma to Pay $340,000 to Penis Pump Judge's Staff

Donald Thompson

The misconduct of former Creek County District Judge Donald Thompson, who masturbated with a penis pump while presiding over trials, has ended up costing Oklahoma taxpayers $340,000 in settlements of lawsuits filed by two of his employees.

Zelma Hindman, who was Thompson's secretary, and Lisa Foster, his court reporter, sued the state for hostile work environment discrimination and retaliation. They each got settlements of $170,000 because Thompson fired them for testifying before the Council on Judicial Complaints.

Foster alleged among other things that her termination violated her free-speech rights. The settlement of her case immediately followed a judge's decision last month denying a motion for summary judgment in which Thompson argued her testimony did not involve a matter of public concern.

The ruling by U.S. District Judge Terence Kern includes this priceless quote:

If Plaintiff’s testimony of Defendant Thompson’s outrageous behavior on the bench -- including the fact that Defendant Thompson used a penis pump, shaved his scrotum, and urinated in a trash can –- does not amount to speech that “disclose[s] wrongdoing ... or other malfeasance on the part of [a] governmental official in the conduct of [his] official duties,” then it is difficult to imagine speech that would fall into this category.

On the hostile work environment claims, Kern found that both Hindman and Foster were “unable to demonstrate that Thompson’s allegedly harassing behavior ... was due to [their] gender.”

Thompson was convicted of four felony indecent exposure charges and, after serving 20 months in prison, recently lost his license to practice law.

By Matthew Heller
11/6/08