“Sausage Text Message” Among Evidence Leading to Sexual Harassment Claim Surviving Summary Judgment

In Misas & McIntosh v. North Shore-Long Island Jewish Health System & Julio Cardoza, No. 14CV08787ALCDCF, 2017 WL 1535112 (S.D.N.Y. Apr. 27, 2017), the court (inter alia) denied defendants’ motion for summary judgment on plaintiffs’ sexual harassment (hostile work environment) claims.

From the decision:

Contrary to Defendants’ argument, a rational trier of fact could easily conclude that the timely incident described for the EEOC—Cardoza’s text message to Misas on November 7, 2012 telling her that she needed an “italian Spanish [sic] sausage all the way” to make her feel better—was neither an earnest dietary suggestion nor welcomed banter between the two. See Klein Aff., Ex. C at 1. Drawing all reasonable inferences in McIntosh’s favor, it would be eminently reasonable for a jury to determine that Cardoza’s reference to an “italian Spanish sausage” was sexual innuendo made to McIntosh on the basis of her sex. A juror also could reasonably conclude that the comment was uninvited, notwithstanding McIntosh’s earlier text message stating that she needed to eat a papaya—which, she notes, is “known to boost the immune system”—because she was feeling unwell. McIntosh Aff. ¶ 9.3 *6

Because a rational trier of fact could conclude that the “sausage” text message is actionable sexual harassment, the conduct McIntosh describes occurring outside of the statute of limitations may be considered part of her claim if it was part of a continuing violation. For all of the reasons just discussed with respect to Misas, the Court finds that McIntosh has described sufficiently related conduct occurring both during and after the 300-day window. Similarly, for the reasons discussed above, the Court also cannot say that, as a matter of law, no reasonable jury could conclude that McIntosh was subject to a hostile work environment on the basis of this conduct. Like Misas, in her affidavit, McIntosh describes a variety of conduct by Edwards and Cardoza. See McIntosh Aff. ¶¶ 3, 5-10. She explains that, “[d]uring the time that Cardoza was [her] supervisor,” he “consistently engaged in inappropriate sexual behavior,” including making “inappropriate jokes and comments of a sexual nature … practically daily.” Id. at ¶¶ 5-6. Cardoza also alluded to McIntosh and Misas being prostitutes and sent McIntosh inappropriate text messages in addition to the “sausage” text message already discussed.

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