Sexual Harassment (Hostile Work Environment) Claim Survives Summary Judgment; Evidence Included Sexual Comments and References to Sexual Acts, Sexual Relationship

In Prophete-Camille v. Stericycle, Inc., No. 14-CV-7268(JS)(AKT), 2017 WL 570769 (E.D.N.Y. Feb. 13, 2017), the court denied defendant’s motion for summary judgment on plaintiff’s sexual harassment/hostile work environment claim.

With respect to the issue of whether the workplace was sufficiently “hostile”, the court explained:

The Court finds that Plaintiff has raised issues of fact on her hostile work environment claim. Plaintiff worked with [Alex] Navarro during approximately three months during 2012, and approximately two months in 2013. As set forth above, Plaintiff alleges that in 2012, Navarro asked her out, said she looked like his ex-girlfriend, offered to let her leave early but receive a full day’s pay if she went out with him, said he wanted to have sex with her, offered to take Plaintiff to his house in North Carolina, and told her that she could perform oral sex on him. Additionally, Plaintiff avers that Navarro frequently called Plaintiff to see where she was, and on one occasion, Navarro waited for her outside of the bathroom door. Plaintiff alleges that when she returned to work from her leave of absence in 2013, Navarro told her she had a “nice butt” every time he saw her. Plaintiff also avers that during this time, Navarro told her “[y]ou have to move faster, you’re going to get fired. You’re going to regret your life.” Additionally, Plaintiff alleges that on a couple of occasions, Navarro referred to her arm and stated “when you get a big arm like that, no man is going to want you, so you don’t have no choice, you’re going to sleep with me.” While Defendant argues that Navarro’s remarks were isolated, periodic, episodic, and in some cases, completely innocuous, the Court disagrees. Over a total of approximately five months, Navarro made a number of overtly sexual comments that included express references to sexual acts and/or a sexual relationship. The Court is not persuaded by the fact that Navarro allegedly did not harass Plaintiff during her eleven-month leave of absence, and finds that his frequent sexual comments during the time that he and Plaintiff were working together could rise to the level of a hostile work environment.

The court next considered, and rejected, defendant’s reliance on the so-called “Faragher/Ellerth” affirmative defense.

Under that defense, an employer can escape liability by establishing two elements: “(1) it exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventative or corrective opportunities that the employer provided.”

It was undisputed that defendant maintained an anti-sexual harassment policy with a complaint procedure, and that plaintiff received a copy of it.

While this is “an important consideration in determining whether [it] has exercised reasonable care to prevent and correct any discriminatory harassment,” that alone is not enough: “[E]vidence of what an employer does when faced with an actual complaint is another important factor in determining whether a defendant can satisfy the first prong of its affirmative defense[.]”

Here, “Plaintiff testified that during that 2012 meeting, she stated that Navarro asked her out, offered to take her to his house in North Carolina, and detailed ‘all the things that [Navarro] wanted to do, that [she] looked like his ex-girlfriend, he loved girls, he don’t have a wife, that he will take [her] out.’”

The court concluded: “Assuming the truth of Plaintiff’s allegations that she complained about sexual harassment at the 2012 meeting and complained to Hart every day that she worked during 2013, it is undisputed that Defendant did not investigate or take action with respect to her complaints and the Court finds that Plaintiff has raised issues of fact as to whether her failure to pursu[e] other avenues was reasonable.”

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