1The court granted summary judgment in Land Air’s favor on

Hawk’s sexual harassment claim based on determinations, as a

matter of law, that the conduct of which she complained was not

sufficiently severe or pervasive to support a Title VII hostile

work environment claim and that the company took reasonable

measures to correct the situation after Hawk’s complaint in June

of 2005. 

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Linda Hawk

v. Civil No. 05-cv-283-JD

Land Air Express of

New England, LTD

O R D E R

Land Air Express of New England, LTD, moves in limine for a

jury instruction on the disposition of Linda Hawk’s sexual

harassment claim. In this case, Hawk brought claims of sexual

harassment and retaliation under state and federal law, 42 U.S.C.

§ 2000e-5(f) (“Title VII”), and N.H. Rev. Stat. Ann. ch. 354-A. 

The court previously granted summary judgment in favor of Land

Air on the sexual harassment claim and denied summary judgment on

the retaliation claim.1 Therefore, the case is proceeding to

trial on the retaliation claim only.

In support of her retaliation claim, Hawk alleges that Land

Air terminated her employment because she complained to her
2

supervisor and the Human Resources Department about the conduct

of the representative of one of its customers, which conduct Hawk

believed was sexual harassment. A retaliation claim does not

depend on the success of an underlying discrimination claim. 

Feliciano-Hill v. Principi, 439 F.3d 18, 26 (1st Cir. 2006). 

Hawk can succeed on her retaliation claim, despite the lack of

success on her sexual harassment claim, as long as she shows that

she “reasonably believed” that the conduct of which she

complained was sexual harassment. Rodriguez-Hernandez v.

Miranda-Velez, 132 F.3d 848, 855 (1st Cir. 1998). 

Land Air asks that the jury be instructed that “the

plaintiff’s factual allegations were insufficient as a matter of

law to support her sexual harassment claim and that Land Air took

reasonable care to promptly correct the situation.” Motion at 1.

Land Air asserts that without an instruction that Hawk was

unsuccessful on her sexual harassment claim, the jury is likely

to conclude that she established that claim, which would be

unfairly prejudicial to Land Air. Because a plaintiff need not

succeed on a sexual harassment claim to maintain her retaliation

claim, the disposition of the sexual harassment claim in Land

Air’s favor is not directly relevant to the retaliation claim and

the basis of Land Air’s claim of unfair prejudice is not readily

apparent from its motion.
3

The issue was discussed at the final pretrial conference,

however, where counsel for Land Air argued that an instruction on

the disposition of Hawk’s sexual harassment claim was relevant to

undermine her credibility with respect to her claim that the

company ignored her reports of sexual harassment. Land Air’s

counsel stated that he intended to present evidence at trial of

Hawk’s allegations that the company ignored her complaints of

sexual harassment which, he contends, are contradicted by the

court’s disposition of the sexual harassment claim. Counsel for

Hawk objected to the requested instruction. 

Land Air has not persuaded the court that the summary

judgment ruling on Hawk’s sexual harassment claim is relevant to

her retaliation claim or to her credibility. Proper evidence of

Hawk’s allegations and Land Air’s response can be offered at

trial, and the jury will assess and weigh the evidence and make

credibility determinations. To introduce evidence of the court’s

ruling, as a matter of law, on Hawk’s sexual harassment claim

would short circuit the role of the jury in finding facts and

determining credibility. Further, such evidence would raise a

substantial risk that the jury would misperceive the significant

differences between a legally actionable claim and Hawk’s

reasonable belief that sexual harassment had occurred. The

additional time that would be required to give clarifying
4

instructions and the danger of jury confusion outweigh any

probative value of informing the jury as to the court’s

disposition of the sexual harassment claim. See Fed. R. Civ. P.

403. 

Nevertheless, as the court indicated at the final pretrial

conference, depending on the evidence at trial, the court may

find it necessary to instruct the jury that Hawk is not bringing

a sexual harassment claim in this case and that the jury is not

to consider such a claim.

Conclusion

For the foregoing reasons, the defendant’s motion in limine

(document no. 34) is denied without prejudice to move during

trial for an appropriate instruction with respect to the sexual

harassment claim.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

November 1, 2006

cc: David W. McGrath, Esquire

Daniel P. Schwarz, Esquire

John C. Sikorski, Esquire