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March 13, 2012
Sexual Harassment: Did She Ever Make a Complaint?

A New York employee worked for a Roman Catholic diocese. She claimed she was unhappy and stopped going to work. Then she sued the diocese for sexual harassment, a hostile work environment, and retaliation for her complaints. Judges wrestled with all her charges.

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What happened. "Diaz" worked for some 2 1/2 years at the Diocese of Rochester, where she coordinated a Hispanic migrant ministry. She worked at a property that didn't belong to the diocese, but to a Brockport church. And, she worked—significantly, either for or with—a local parish priest, "Smith." But her immediate boss was the director of parish support ministries, "Jones." Like Diaz, Jones was employed by the diocese.

Diaz later claimed she wasn't sure who her boss was, that she had asked Jones, and that he had answered that her bosses were the two church priests and himself. Diaz also alleged that Smith had repeatedly touched her inappropriately and made many sexual comments. After failing to report to work, she sued. A federal district judge heard all her testimony, including material from depositions taken on several occasions, some at the request of the diocese during the discovery period. But he found it difficult to tell what to believe, because Diaz's story changed frequently.

Had she complained to the diocese about Smith's conduct? That depended on when she was asked, and the diocese had no record of any complaints. The one undisputed complaint Diaz filed with the court and the Equal Employment Opportunity Commission: She told Jones just before she quit that Smith was "making her life miserable." But he didn't take think that referred to sexual harassment.

A federal district judge found her testimony confusing and contradictory, so he ruled in favor of the diocese. Diaz appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges faced two questions: Had Smith been Diaz's co-worker or her boss? She didn't seem to know. And, had Diaz complained of harassment to anyone at the diocese? Her testimony had varied on that score. Taking care to note that it's an extraordinary case that presents such contradictory testimony, judges concluded that no reasonable jury could decide what had happened. Rojas v. Roman Catholic Diocese of Rochester, U.S. Court of Appeals for the 2nd Circuit, No. 100-4132-cv (2011).

Point to remember: Judges were particularly critical of Diaz's attorney for making no attempt to straighten out her diverging testimony. He told judges he wanted the jury to decide which of her stories to believe. They thought a jury would find none of them plausible, because they were all different.

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