Hostile Work Environment Sexual Harassment Claim Survives Summary Judgment; Evidence Included Staring, Inappropriate Name-Calling, & Unsolicited Touching

In Kirkland v. Speedway LLC, No. 15-cv-1184, 2017 WL 2198963 (N.D.N.Y. May 18, 2017) (J. Scullin), the U.S. District Court for the Northern District of New York denied defendant’s motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment under the NYS Human Rights Law.

From the decision:

Plaintiff proffers the following evidence to establish that the conduct about which she complains was objectively and subjectively pervasive or severe.5 Plaintiff testified that, on the first shift that she worked with Mr. Leeks, he told a co-worker that they were dating and at least once called her “hun.” See Dkt. No. 38-4, Pl’s Depo. at 156, 161. Plaintiff also testified that Mr. Leeks was “creepy” and that he was constantly staring at her and making her feel uncomfortable. See id. at 162-64.

On the second shift, Plaintiff alleges that Mr. Leeks constantly said to her, “How you doing, baby girl? How are you, hun? Can I give you a ride, baby girl? Hun, what’s the matter? You doing okay, Hun? Baby girl, what’s the matter?” See id. at 168. Furthermore, Plaintiff testified that Mr. Leeks inappropriately touched her hand twice. See id. at 176. Moreover, she stated that Mr. Leeks bumped into her on purpose. See id. at 180. Finally, she asserted that Mr. Leeks again stared at her constantly. See id. at 181 (stating that it he looked like “a monster from the closet”).

On the third shift, Plaintiff testified that Mr. Leeks constantly called her “baby girl.” See Pl’s Depo. at 186. Further, she stated that Mr. Leeks placed both hands on her shoulders and that she froze in fear and told him not to do that. See id. at 200. In addition, she stated that he was constantly staring at her. See id. at 203. Moreover, she testified that, when she tried to hand Mr. Leeks money, he grabbed her hand. See id. at 204. Finally, she testified that he bumped into her again in the same manner as the previous shift. See id. at 205.

*9 On December 14, 2014, Mr. Leeks approached Plaintiff while she was working at her full-time job at Rite-Aid. Plaintiff testified that Mr. Leeks asked her to cook for him, asked her to move away with him to Florida, rubbed her arm, and made her feel “completely terrified.” See Pl’s Depo. at 216. Eventually Plaintiff ran away from Mr. Leeks and complained to her Rite-Aid manager that she was “creeped out.” …

[T]he persistent and the continuous nature of Plaintiff’s allegations that Mr. Leeks was always staring and calling her “hun” and “baby girl” could reasonably be considered “ ‘so pervasive as to alter the working conditions of a reasonable employee.’ ” Terry, 336 F.3d at 149. Furthermore, viewing the evidence in light most favorable to Plaintiff, her complaints reveal that Mr. Leeks’ conduct was “physically threatening” not merely “offensive.” See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The threatening nature of Mr. Leeks’ conduct materialized in Plaintiff’s complaints that she had nightmares and was afraid of him.

After distinguishing the cases cited by defendant, the court noted that “during each shift that Plaintiff worked with Mr. Leeks, she endured constant staring and inappropriate name-calling, multiple occasions of unsolicited touching, and was confronted outside of work with the same sexually intimidating behavior.”

It concluded that “viewing the evidence in the light most favorable to the non-moving party, the Court finds that Plaintiff has offered sufficient evidence to permit a fact-finder to conclude that she suffered from a hostile work environment predicated on her sex.”

As to whether the conduct could be imputed to defendant, the court found that there were triable issues of fact as to whether defendant ” condoned such an environment by failing to investigate Plaintiff’s complaints reasonably.”

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