Metropolitan News-Enterprise


Tuesday, September 7, 2010


Page 1


Court: No Presumption Men Welcome Sexual Advances


By STEVEN M. ELLIS, Staff Writer


A Nevada man’s concession that most reasonable men would have “welcomed” the sexual advances of his female coworker did not support a federal judge’s conclusion that he wasn’t sexually harassed, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Reasoning that Rudolpho Lamas’ allegations of six months of unwanted advances and indifference by management raised issues of fact, a three-judge panel said Nevada U.S. District Judge Kent J. Dawson erred in dismissing on summary judgment an Equal Employment Opportunity Commission suit against Lamas’ employer.

Lamas was recently widowed and working as a passenger service assistant for Prospect Airport Services Inc. in Las Vegas’ international airport in the fall of 2002 when, he claimed, his married coworker, Sylvia Munoz, initiated a series of sexual overtures that caused him psychological distress that affected his job performance and led to his firing.

Maintaining that he never invited the advances and consistently rejected them, and that his coworker’s conduct embarrassed him as a Christian, Lamas said that Munoz repeatedly propositioned him for sex and wrote him notes indicating that she dreamed of him in a bath and gave “good bath wash and body massage” and that she wanted him “sexually.” He also alleged that Munoz performed gestures simulating oral sex, gave him a photograph emphasizing her breasts in which she was possibly nude, and recruited coworkers to pressure him who later mocked him by suggesting he was homosexual.

Lamas said he reported Munoz’s behavior to his immediate supervisor, who took no action, and then took his concerns up the chain of management. Although Prospect’s manager at the airport informally warned Munoz that action would be taken if she did not stop, Lamas alleged that Munoz’s inappropriate behavior continued and that another manager later told him he should just “walk around singing to yourself…I’m too sexy for my shirt.”

Although Lamas said his previous job performance had led to his assignment to a concourse serving Southwest Airlines in order to head off the carrier’s threatened termination of a contract with Prospect, he was eventually fired amid complaints about his job performance and “negative attitude,” which Lamas attributed to the stress he suffered from Munoz’s behavior. Munoz, in contrast, was not disciplined, even though men had been fired under Prospect’s sexual harassment policy.

Lamas filed a complaint with the EEOC, which brought under suit Title VII of the 1964 Civil Rights Act, but Dawson granted summary judgment to Prospect. He concluded that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment objectively for a reasonable man.  

Dawson also emphasized that Lamas never filed a written complaint, even though the company’s policy did not require one, and that management had advised Munoz that her behavior was inappropriate.

But Judge Andrew J. Kleinfeld wrote on appeal:

“It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. Lamas suggested this might be true of other men….But that is a stereotype and welcomeness is inherently subjective.”

Noting that Lamas had sought medical help while working for Prospect to deal with the anxiety he suffered, and that Lamas repeatedly broke down crying in a deposition while recounting his experience, the judge said the evidence in the record created a genuine issue of material fact as to whether Munoz’s advances were welcome, and whether they impaired Lamas’ work.

Kleinfeld further concluded that a jury could reasonably find that Prospect knew about the harassment, and that the company’s response was inadequate.

Judges Milan D. Smith Jr. and Sandra S. Ikuta joined Kleinfeld in his opinion.

The case is Equal Employment Opportunity Commission v. Prospect Airport Services, Inc., 07-17221.


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