1Hawk brought suit in state court, and Land Air removed the

case to this court.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Linda Hawk

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

Opinion No. 2006 DNH 114

Land Air Express of

New England, Ltd.

O R D E R

Linda Hawk brought claims of sexual harassment and

retaliation, under both state and federal law, against her former

employer, Land Air Express of New England, Ltd.1 See 42 U.S.C. §

2000e-5(f)(“Title VII”); N.H. Rev. Stat. Ann. (“RSA”) 354-A. 

Land Air moves for summary judgment, contending that Hawk cannot

prove her claims. Hawk objects to summary judgment. 

Standard of Review

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

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2

the absence of a genuine issue of material fact in the record. 

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255. 

Background

Land Air is a small trucking company, based in Williston,

Vermont, that specializes in transporting less that full truck

loads of goods. David Dobrowski is the sales manager at Land

Air. Linda Hawk had twenty years of experience in sales in the

transportation industry when Dobrowski hired her in December of

2003 as a sales representative for Land Air. 

Hawk’s sales work for Land Air required her to meet with

client representatives and take them to lunch. Frank Skidmore,

who was a purchasing agent for FCI/Burndy, was a client

representative in Hawk’s territory. She contends that during her

meetings with Skidmore, he made inappropriate comments

culminating in one particularly offensive discussion. The first

remark Skidmore made was that he gave Hawk the account with

FCI/Burndy because he liked her legs. Hawk contends that she

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3

immediately told Dobrowski about Skidmore’s remark and that

Dobrowski told her to wear skirts when she met with Skidmore. 

Dobrowski denies that Hawk told him about Skidmore’s remark at

that time and denies that he told her to wear skirts.

According to Hawk, during their following meetings Skidmore

told her that he was “expecting to see some skin,” referring to

Hawk’s tan after a vacation, commented about scanty clothing worn

by two female tenants in a building he was overseeing, said that

he liked his doctor because she was female, and made remarks that

a previous sales representative at Land Air was “a wild cat.” 

During a meeting on May 20, 2004, Skidmore described to Hawk, in

graphic detail, his sexual exploits with a woman he met at a bar,

which included tying her sprawled across a bed while she was

nude. Skidmore bragged that he was still seeing the woman and

that he was buying her lingerie after the lunch meeting with

Hawk. 

Hawk and Dobrowski agree that they discussed work and

Skidmore’s behavior on June 7, 2004. Hawk contends that she

reported Skidmore’s remarks, including the May 20 incident, to

Dobrowski and that he told her she should meet with Skidmore less

often. Dobrowski contends that the June 7 meeting was to discuss

work issues, including Hawk’s sales shortcomings, and that Hawk

was upset that she had not received credit for certain sales. 

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4

Dobrowski further contends that Hawk recounted Skidmore’s remarks

only after their discussion about her work issues and after he

asked her how things were going with FCI/Burndy.

Hawk was out of work due to illness from June 10 to June 14. 

When she returned on June 14, Hawk told Dobrowski that she was

filing a sexual harassment complaint. Hawk filed the complaint

with Matthew Smith, Director of Human Resources, on June 15. 

Hawk contends that Dobrowski told her the next day, June 16, that

he was scheduling a six-month performance review of her work for

June 22, 2004. Dobrowski contends that he told Hawk about the

performance evaluation on June 7, which she denies.

John Hansell, Director of Loss Prevention, and Matthew Smith

attended the performance review on June 22 along with Hawk and

Dobrowski. At the meeting, Dobrowski gave Hawk a twelve-page

performance evaluation that he reviewed point by point with her

during the meeting. The evaluation form indicates that it

covered either a quarter or a year, although neither time period

was marked on Hawk’s form. In the evaluation, Dobrowski

criticized the number of new accounts Hawk had secured, her

efforts to develop new business from existing accounts, her

prospects for generating new accounts, her issues with the

pricing department and corporate management at Land Air, her time

management and organization, the lack of leads she sent to her

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2Although Dobrowski states in his affidavit that he set a

time for Hawk to “dramatically improve her performance” and that

he extended the time due to her illness, he does not reveal what

deadline he set for her.

5

peers, her attention to relationship building with customers, her

use of her own car instead of her company car, her attitude as a

team member, and her ability or willingness to learn. 

Hawk disputes the findings in the evaluation and Dobrowski’s

version of his expectations of her. In particular, she contends

Dobrowski had instructed her to concentrate on existing accounts

and not to generate new business because her territory had not

had a sales representative for a few months before she was hired. 

She also contends that her record was better than Dobrowski

represented it to be and that most of Dobrowski’s criticisms were

inaccurate and petty. She also believed then and continues to

believe that Land Air was trying to manufacture reasons to fire

her. At the meeting on June 22, Dobrowski set a deadline for

Hawk to “dramatically improve her performance.”2 Dobrowski Aff. ¶

17.

Land Air gave Hawk a week off from work after the

performance evaluation, due to her illness, and removed her from

the FCI/Burndy account to prevent further contact with Skidmore. 

On July 14, 2004, two weeks after Hawk returned to work, Smith

sent her a memo stating that FCI/Burndy had told him weeks

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6

previously that they could not investigate her complaint about

Skidmore because she had asked not to be identified. Dobrowski

fired Hawk on July 16, 2004.

Discussion

Hawk brings claims of sexual harassment and retaliation

under Title VII and RSA 354-A. She contends that Skidmore’s

remarks to her combined with Dobrowski’s response constitute

actionable sexual harassment. She also contends that Land Air’s

decision to terminate her employment was in retaliation for her

sexual harassment complaint. Land Air moves for summary judgment

on the grounds that Skidmore’s remarks to Hawk were not

sufficiently severe and pervasive to be actionable, that it took

reasonable remedial action, and that Hawk was terminated because

of her substandard performance and not in retaliation for her

sexual harassment complaint.

A. Sexual Harassment

Under Title VII, a plaintiff must prove that the sexual

harassment she experienced “was sufficiently severe or pervasive

so as to alter the conditions of [her] employment and create an

abusive work environment.” Valentin-Almeyda v. Mun. of

Aguadilla, 447 F.3d 85, 94 (1st Cir. 2006). To be actionable

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3Despite the use of “severe or pervasive” in the federal

standard and “severe and pervasive” in the state standard, the

court will rely on federal case law, as did the New Hampshire

Supreme Court in Madeja, for both Hawk’s Title VII and RSA 354-A

claims. See Madeja, 149 N.H. at 378.

7

under RSA 354-A, sexual harassment must be “sufficiently severe

and pervasive to alter the terms and conditions of [the

employee’s] employment.”3 Madeja v. MPB Corp., 149 N.H. 371, 380

(2003). A hostile work environment is assessed by considering

“the totality of the circumstances, including ‘the frequency of

the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.’” Valentin-Almeyda, 447 F.3d at 94

(quoting Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). The

parties agree that harassment by a third party who is not an

employee of the plaintiff’s employer may result in an actionable

hostile work environment. See 29 C.F.R. § 1604.11(e); Turnbull

v. Topeka St. Hosp., 255 F.3d 1238, 1244 (10th Cir. 2001);

Erickson v. Wisc. Dep’t of Corrs., 358 F. Supp. 2d 709, 726 (W.D.

Wis. 2005); see also N.H. Admin. Rules, Hum 403.02. 

Hawk concedes that Skidmore’s remarks until the May 20

incident, where he described his encounter with a woman he had

picked up at a bar, were not particularly severe and were not

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8

pervasive. She primarily relies on the May 20 incident to meet

the hostile work environment standard, along with her contention

that Dobrowski failed to respond appropriately to her first

complaint and to her complaint about the May 20 incident. Land

Air argues that all of the remarks taken together do not

constitute sexual harassment.

Until the incident on May 20, Skidmore’s remarks were

relatively trivial in the context of sexual harassment cases. 

Although the May 20 incident injected a new level of crudity,

Skidmore’s conduct was limited to five lunch meetings over the

course of about five months. In that context, Skidmore’s conduct

does not appear to be sufficiently severe or pervasive to

constitute actionable sexual harassment. See Pomales v.

Celulares Telefonica, Inc., 447 F.3d 79, 84 (1st Cir. 2006)

(concluding that single incident where supervisor responded to

employee’s invitation to accompany her on sales call by grabbing

his crotch and saying “it would be great to come with you” was

not sufficient and citing cases holding that five sexual advances

by a supervisor, two weeks of unwanted physical contact, and a

battery and two offensive remarks over six months were all

insufficient to be actionable). 

Even if Skidmore’s remarks and Dobrowski’s reaction were

deemed to be sufficient to support Hawk’s claim, however, Land

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Air could avoid liability by showing that “it took reasonable

care to promptly correct the situation.” Fontanez-Nunez v.

Janssen Ortho LLC, 447 F.3d. 50, 56 (1st Cir. 2006); see also

N.H. Dep’t of Corrs. v. Butland, 147 N.H. 676, 680 (2002). 

Dobrowski responded to Hawk’s complaint on June 7 by telling her

not to call on Skidmore as frequently as she had, which might

have been a somewhat lackluster response. It is undisputed,

however, that about a week after she reported Skidmore’s remarks,

including the May 20 incident, to Dobrowski and as soon as Land

Air received Hawk’s complaint, she was removed from the

FCI/Burndy account and never again had contact with Skidmore. 

Under these circumstances, Land Air is entitled to summary

judgment on Hawk’s sexual harassment claim.

B. Retaliation

Hawk contends that the performance review done on June 22

and her subsequent termination, ostensibly on the ground that her

sales performance was substandard, was actually in retaliation

for her sexual harassment complaint. Land Air insists that Hawk

was not performing at an acceptable level and that she was

terminated because of her performance. 

An employer may be liable under Title VII if it terminates

an employee because she “‘opposed’ an unlawful employment

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10

practice under Title VII or ‘made a charge . . . or participated

in any manner in an investigation, proceeding, or hearing’ under

Title VII.” Valentin-Almeyda, 447 F.3d at 94 (quoting 42 U.S.C.

2000e-3(a)). “A retaliation claim requires a showing that (1)

the plaintiff engaged in protected conduct; (2) she was subjected

to an adverse employment action; and (3) there was a causal

connection between the first and second elements.” Id. (citing

Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.2005)); see

also Madeja, 149 N.H. at 378-79 (using Title VII standard for

retaliation claim under RSA 354-A). Hawk believed that Land Air

was trying to manufacture reasons to fire her. 

In the context of an employer’s motion for summary judgment,

if an employee makes a prima facie case of retaliation, the

employer must “articulate some legitimate, nondiscriminatory

reason for the employee’s termination.” Azimi v. Jordan’s Meats,

Inc., 456 F.3d 228, 242 (1st Cir. 2006) (internal quotation marks

omitted). If that showing is made by the employer, the plaintiff

must establish that at least a genuine issue of material fact

exists as to whether the employer’s stated reason for terminating

her was a pretext for retaliation. Id. Here, only Land Air’s

reason for terminating Hawk is disputed.

Land Air insists that Hawk was terminated because of her

poor performance as demonstrated by the evaluation presented to

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4The time periods provided in the Handbook are consistent

with the evaluation form that indicates an evaluation is to be

done after one quarter of work and then after one year.

11

her on June 22, 2004. Hawk believes that Land Air manufactured

reasons to fire her and that the June 22 performance evaluation

was a pretext to cover the real reason, which was that she had

filed a sexual harassment complaint. Hawk points out that Land

Air’s Employee Handbook provides for performance reviews of a new

hire after ninety days of work, which would be a quarter, and

after a year.4 She asserts that her evaluation, done after six

months, was contrary to Land Air procedures. She also notes that

Hansell testified at his deposition that he had only attended one

other performance evaluation in his seven years with Land Air,

during which time about 300 employees had been terminated. The

one other evaluation Hansell attended was for another employee

who made a sexual harassment complaint. That employee was also

terminated. 

Land Air and Hawk hotly dispute what Dobrowski told Hawk he

expected when she was hired, whether standards were set for her

performance, and whether she met the standards that were set. 

Although Hawk agrees that in the end she did not meet Dobrowski’s

expectations, she contends that he did not articulate those

expectations until the end of her employment. The material

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factual disputes prevent Land Air from establishing a legitimate

reason for its decision to fire Hawk for purposes of summary

judgment. 

In addition, the timing of the performance evaluation, the

sexual harassment complaint, and the decision to terminate Hawk

is suspect. See Noviello, 398 F.3d at 86 (“[T]iming is often

strongly suggestive of retaliation.”). The performance

evaluation was scheduled about two weeks after Hawk complained to

Dobrowski about the May 20 incident and a week after she filed

her sexual harassment complaint. The decision to terminate Hawk

came only a month after she filed her sexual harassment

complaint. Further, the short time Land Air gave Hawk to

“dramatically improve” her performance, which was about two

weeks, suggests that it did not realistically expect her to meet

Dobrowski’s requirements. Therefore, summary judgment is denied

on the retaliation claim.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 11) is granted as to the

plaintiff’s sexual harassment claim and denied as to her

retaliation claim. 

Now that the motion for summary judgment is resolved, the

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court expects the parties to use their best efforts to reach a

settlement before trial, which is now scheduled for October 17,

2006.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 2, 2006

cc: Thomas M. Closson, Esquire

David W. McGrath, Esquire

John C. Sikorski, Esquire 

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