University Wins Battenfield Case

Although a jury found that harmful physical contact occurred, no money was awarded last week to a former Extension School student and employee who sued an adviser and the University for sexual harassment.

M. Delise Battenfield, a former student and administrative assistant in the Extension School's master's program alleged that Donald Ostrowski, who coordinated students' research, sexually harassed her three times in 1988 and once in 1991.

Battenfield also charged that the University was negligent in responding to several complaints she lodged.

Speaking on behalf of his client, Battenfield attorney Peter W. Adler said she is considering an appeal.

The two-week trial was bifurcated, meaning that Judge Martha Sossman ruled on the sexual harassment charges, while a jury rendered a verdict on the assault and battery charges.

Sossman ruled that the University did not violate Massachusetts General Law Chapter 151b by not launching an investigation of Battenfield's complaint of sexual harassment. She also found no negligent infliction of emotional distress on Ostrowski's part.

The jury ruled that Ostrowski "intentionally cause[d] a harmful or offensive physical contact with" Battenfield. But the jury also established that the physical contact did not "proximately cause injury to" the plaintiff.

The jury furthermore determined that Ostrowski neither" intend[ed] to inflict emotional distress on" Battenfield nor "kn[e]w or should have known that emotional distress was the likely result of his conduct."

The jury lso ruled in favor of Ostrowski on a claim for loss of consortium brought by Norris Dickard, Battenfield's husband. Dickard claimed he suffered a loss of pleasure in his relationship with Battenfield as a result of Ostrowski's behavior.

Battenfield's suit made several charges against Ostrowski and the University.

She charged that Ostrowski more than once propositioned her in the fall of 1988 and kissed her against her will on two separate occasions.

In a meeting on May 14, 1991, Extension School staff members were asked to evaluate Battenfield's job performance.

During this meeting, Battenfield charged, Ostrowski said: "When I first started working here, I soon found out that I couldn't get anything more than a yawn from Delise; and then after a while, I figured out that I could get what I wanted from [another employee]."

Battenfield said she told John Adams, the Extension School ombudsperson charged with handling personnel problems about the incident. Extension School Dean Michael Shinagel also knew about the charges and refused to investigate, Battenfield charged.

Battenfield soon become too sick to work and May 20, 1991, was her last day on the job.

A University Health Services doctor's notes dated May 29 show that Battenfields' condition was not temporary.

"Patient looks very anxious," the notes say."She is still very upset with her Dean at work andthe situations which have led to [high] stress andabdominal symptoms, etc."

The charges stemming from the 1988 incidentwere thrown out in August 1993 following a motionby University Attorney Allan A. Ryan Jr.

Judge Thayer Fremont-Smith ruled thatBattenfield could not recover damages from thealleged sexual harassment that occurred in1988--including Ostrowski's uninvitedkisses--because a suit must be filed within sixmonths of the alleged incidents.

Battenfield testified last month, according toAlder, that she did not want to create trouble forOstrowski. A transcript of the trial was notavailable.

University Off the Hook

The University argued that Harvard fulfilledwhatever obligation it had to conduct aninvestigation.

After the May 14 meeting, Shinagel referredBattenfield to Adams, who testified that he askedto put the request in writing.

Ryan listed several reasons for this request ina post-trial memorandum.

Among them were the fact that the allegationsof kissing related to something that had happenednearly three years earlier and that Adams wasunsure about whether the matter was within hisjurisdiction.

Adams testified that he expected Battenfield toprovide a statement and that she never protestedthis request.

But Battenfield provided no written complaint.

"The conclusion is inescapable," Ryan wrote,"for whatever reason, Battenfield did not do whatshe was told would be reasonable necessary topursue an investigation, nor did she ever suggestthat she do something different. Harvard was in noposition whatever to confront Ostrowski with anaccusation."

"The failure was Battenfield's, not Harvard's "Ryan concluded.

The University also argued that there was, infact, no sexual harassment on May 14, 1991.

Ostrowski's comment, Ryan argued, was not asexual advance, request for sexual favors or otherverbal or physical conduct of a sexual nature.

"Battenfield can not make it something it isnot simply be putting a private, personal spin onit," Ryan wrote.

Ryan also argued that the remark did not havethe purpose of interfering with Battenfield's workperformance by creating a hostile or intimidatingwork environment.

Finally, the attorney wrote that Battenfield'sillness could not be attributed to what happenedon May 14 or in the days afterwards. He cited herown admission that she had been under considerablestress for the first five months of 1991.

"it's is obvious that the physical andemotional problems she suffered in the spring andsummer of 1991-- including marital stress--hadbegun prior to May 14 and were not caused byanything that happened then or thereafter,"Rayan's memorandum says.

Appeal

Adler said yesterday that his client wasconsidering an appeal.

He said he felt Battenfield was hurt by thebifurcation of the trial. This, he said, limitedthe evidence he could provide to the jury.

"We feel if the jury had had the whole picture,they would have found an injury, and would havebeen more likely to award damages," Adler said.

In particular, Adler said he wanted the jury tohear the testimony of Janis Lawrence, a formerOstrowski advisee. Lawrence testified thatOstrowski made an unwanted advance toward her inWashington in late 1990 after she had finished herthesis.

Adler also said he believes Harvard had a dutyto investigate.

"Harvard's personnel manual clearly indicatesthat if there is a clam of sexual harassment, aworker can tell any superior and they willinvestigate thoroughly and quickly, Alder said."Harvard definitely didn't do that.

"Patient looks very anxious," the notes say."She is still very upset with her Dean at work andthe situations which have led to [high] stress andabdominal symptoms, etc."

The charges stemming from the 1988 incidentwere thrown out in August 1993 following a motionby University Attorney Allan A. Ryan Jr.

Judge Thayer Fremont-Smith ruled thatBattenfield could not recover damages from thealleged sexual harassment that occurred in1988--including Ostrowski's uninvitedkisses--because a suit must be filed within sixmonths of the alleged incidents.

Battenfield testified last month, according toAlder, that she did not want to create trouble forOstrowski. A transcript of the trial was notavailable.

University Off the Hook

The University argued that Harvard fulfilledwhatever obligation it had to conduct aninvestigation.

After the May 14 meeting, Shinagel referredBattenfield to Adams, who testified that he askedto put the request in writing.

Ryan listed several reasons for this request ina post-trial memorandum.

Among them were the fact that the allegationsof kissing related to something that had happenednearly three years earlier and that Adams wasunsure about whether the matter was within hisjurisdiction.

Adams testified that he expected Battenfield toprovide a statement and that she never protestedthis request.

But Battenfield provided no written complaint.

"The conclusion is inescapable," Ryan wrote,"for whatever reason, Battenfield did not do whatshe was told would be reasonable necessary topursue an investigation, nor did she ever suggestthat she do something different. Harvard was in noposition whatever to confront Ostrowski with anaccusation."

"The failure was Battenfield's, not Harvard's "Ryan concluded.

The University also argued that there was, infact, no sexual harassment on May 14, 1991.

Ostrowski's comment, Ryan argued, was not asexual advance, request for sexual favors or otherverbal or physical conduct of a sexual nature.

"Battenfield can not make it something it isnot simply be putting a private, personal spin onit," Ryan wrote.

Ryan also argued that the remark did not havethe purpose of interfering with Battenfield's workperformance by creating a hostile or intimidatingwork environment.

Finally, the attorney wrote that Battenfield'sillness could not be attributed to what happenedon May 14 or in the days afterwards. He cited herown admission that she had been under considerablestress for the first five months of 1991.

"it's is obvious that the physical andemotional problems she suffered in the spring andsummer of 1991-- including marital stress--hadbegun prior to May 14 and were not caused byanything that happened then or thereafter,"Rayan's memorandum says.

Appeal

Adler said yesterday that his client wasconsidering an appeal.

He said he felt Battenfield was hurt by thebifurcation of the trial. This, he said, limitedthe evidence he could provide to the jury.

"We feel if the jury had had the whole picture,they would have found an injury, and would havebeen more likely to award damages," Adler said.

In particular, Adler said he wanted the jury tohear the testimony of Janis Lawrence, a formerOstrowski advisee. Lawrence testified thatOstrowski made an unwanted advance toward her inWashington in late 1990 after she had finished herthesis.

Adler also said he believes Harvard had a dutyto investigate.

"Harvard's personnel manual clearly indicatesthat if there is a clam of sexual harassment, aworker can tell any superior and they willinvestigate thoroughly and quickly, Alder said."Harvard definitely didn't do that.