By Ruth Marcus
The division between the two sides was underscored Friday when the Jones team outlined its argument against Clinton's bid to have the lawsuit dismissed before trial. While it is normal for parties in civil lawsuits to disagree about both the facts and the law, the gap between the Clinton and Jones teams as the May 27 trial date approaches is particularly stark.
Jones claims Clinton, then governor of Arkansas, had her brought to his room by a state trooper, made a crude sexual advance and threatened her to keep quiet about the episode. Clinton, while acknowledging he and Jones may have met, says he doesn't remember the encounter and denies any improper behavior.
U.S. District Judge Susan Webber Wright, in a ruling last August, rejected an earlier effort by the Clinton team to have the case dismissed on the ground that Jones's claims, even assuming they were entirely true, were not sufficient to make a legal case.
As she considers the president's final bid to have the lawsuit thrown out before trial, Wright can take into account the facts that both sides have developed so far. But she is bound to look at the evidence in the light most favorable to Jones and can dismiss the case only if there is no way Jones could win at trial.
Jones's lawsuit is more complicated than the run-of-the mill sexual harassment claim. She waited too long to bring her claim under the normal law prohibiting job discrimination and, by extension, sexual harassment on the job.
As a result, the lawsuit is based on a federal civil rights law that prohibits someone acting "under color of state law" in this case, Clinton as the then-governor of Arkansas from depriving another person of his or her civil rights in this case, Jones's right not to be discriminated against on the basis of her sex.
Courts have previously allowed sexual harassment claims to go forward under this law, known as Section 1983 and, as Wright explained in her earlier opinion, generally apply the normal requirements for proof in sexual harassment cases.
Jones is alleging two types of sexual harassment. She claims quid pro quo harassment; in other words, she contends her refusal to submit to Clinton's alleged advances caused her harm on the job. She also claims a "hostile work environment," arguing that Clinton's alleged behavior "was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."
In her August ruling, Wright said Jones had alleged enough facts to go forward on both the quid pro quo and hostile work environment theories, though she expressed some doubt about the strength of both claims.
In addition, Jones claims that Clinton and former Arkansas state trooper Danny Ferguson conspired to violate her civil rights. And, she asserts, Clinton's behavior was so "odious, perverse and outrageous" that it amounted to intentional infliction of emotional distress, a claim under Arkansas state law.
In seeking to have the case dismissed, Clinton's lawyers contend that Jones's claim fails on the issue of quid pro quo harassment because she did not show any "tangible job detriment," let alone one caused by her rejection of Clinton's alleged advances.
On the question of hostile work environment, the lawyers assert that the single incident about which Jones complains does not constitute "severe or pervasive abusive conduct," and that later encounters between Jones and Clinton or Ferguson "were innocuous and not offensive in any way."
They argue that Jones's conspiracy claim fails if the underlying sexual harassment claim is dismissed. And they say the claim of intentional infliction of emotional distress under Arkansas law should be thrown out because the alleged conduct was "brief and isolated," and Jones did not show any "objective symptoms of the requisite severe distress."
Jones's lawyers, in papers they filed Friday, adopted an entirely different view of the law and the facts and added some new factual assertions to buttress their claim. They included a declaration by a counselor who examined Jones last month and found that her encounter with Clinton and "ensuing events" had left her suffering from the symptoms of post-traumatic stress disorder, including "extreme anxiety, intrusive thoughts and memories, and consequent sexual aversion."
The Jones lawyers argue that Jones did not have to meet the standards of a normal sexual harassment case because her claim is not simply that she was sexually harassed but that Clinton's conduct amounted to sexual assault which alone would constitute a violation of her civil rights.
Furthermore, they contend, even if Jones were only claiming that she was sexually harassed, she does not have to prove "tangible job detriment," either under Section 1983 or under Title VII, the regular job bias law that covers sexual harassment. And they assert that in any event Jones has shown such harm for example, by having her job responsibilities diminished and by being discouraged from applying for more attractive jobs.
On the question of hostile work environment, the Jones team cites Wright's earlier ruling that assuming Jones's allegations are true "the totality of the actions alleged in this case are such that they can be said to have altered the conditions of plaintiff's employment and created an abusive work environment."
Jones's lawyers say there is ample evidence that Clinton and Ferguson conspired to deprive Jones of her civil rights. As to the state law claim, the Jones lawyers assert that "the emotional trauma and mental anguish endured by [Jones] . . . are of the type and are so severe that no reasonable person could be expected to endure them. At the very least, a reasonable jury could so find, and a material fact issue has been raised."
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