Allegation of “Unwanted Touching” Sufficient to Plead Hostile Work Environment Sexual Harassment

In Kurlender v. Ironside Group, Inc., 2019 WL 1317405 (E.D.N.Y., 2019), the court fully adopted a Magistrate Judge’s Report & Recommendation, inter alia, denying defendant’s motion to dismiss plaintiff’s Amended Complaint’s allegation that he was subjected to hostile work environment sexual harassment.

The court summarized plaintiff’s allegations as follows:

Plaintiff alleges in the Amended Complaint that at a company-sponsored sales event, he “witnessed verbal sexual harassment and unwanted touching of an employee, … who he was sitting next to at the bar area by another male employee that worked for the [d]efendants. Plaintiff also experienced unwanted touching on his own person committed by the same male employee…. This form of unwanted touching of a sexual nature is serious….” (Am. Compl., at 12) (emphasis added). Plaintiff also alleges that he “complained about the unlawful nature of this incident of sexual harassment and unwanted touching within the hour it occurred to his supervisor and Regional Sales Manager for New York, Bryan Welch. Mr. Welch assured the plaintiff that he would let his manager as well as the CEO of the company … know about the incident so they could address it.”

It concluded “that plaintiff’s allegation that he experienced ‘unwanted touching’ by a male employee, which plaintiff characterizes as a sexual harassment incident, is sufficient to withstand a Rule 12(b)(6) motion as to plaintiff’s hostile work environment claim.”

Also from the decision:

Here, the Court concludes that at the motion to dismiss stage, plaintiff’s allegation of “unwanted touching,” is sufficient to state a plausible hostile work environment claim that survives the motion to dismiss. Though Ironside argues that plaintiff did not allege that the touching was “sexual in nature or in any way based on his gender” (Ironside Obj., at 14), the Court notes that plaintiff specifically alleges that “[t]his form of unwanted touching of a sexual nature is serious” (Am. Compl., at 12) (emphasis added). Plaintiff also alleges that the reason for his termination was because of “his outspoken and demonstrated opposition to witnessed and experienced sexual harassment….” (Am. Compl., at 14) (emphasis added). Additionally, the Court follows the Second Circuit’s guidance that “[i]n same-sex harassment cases … an inference that physical contact was because of the employee’s sex may be less evident.” Redd, 678 F.3d at 177. Further, Second Circuit authority instructs that at summary judgment, “[t]he question of whether considerations of the plaintiffs sex caused the conduct at issue often requires an assessment of individuals’ motivations and state of mind. Issues of causation, intent, and motivation are questions of fact.” Id. at 178. (emphasis in original) (internal quotation and citations omitted). Here, though the Court is analyzing a Rule 12(b)(6) motion rather than one for summary judgment, the Court finds the Second Circuit authority instructive. Because this case involves an allegation of same-sex unwanted touching (which plaintiff perceived as sexual harassment), for which the motivations, state of mind, and intent are as of yet unknown, the Court concludes that plaintiff has plausibly alleged a hostile work claim in violation of Title VII arising out of the unwanted touching incident.

As to whether the alleged hostile work environment could be imputed to the employer, the court concluded:

[A]ny argument that Ironside cannot be liable for the alleged hostile work environment because it did not know of the conduct, fails at the Rule 12(b)(6) stage given plaintiff’s unambiguous allegation that he told his regional manager about the unwanted touching immediately after it occurred, and the regional manager informed plaintiff that he would let his superiors know about the incident.

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