Sexual Harassment (Hostile Work Environment) Claim Survives Summary Judgment; Court Differentiates Between Verbal and Physical Harassment: Part I

In Soto v. CDL (New York) L.L.C., 2020 WL 2133370 (S.D.N.Y. May 5, 2020) (J. Failla), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim. Here, plaintiff’s claim included physical and non-physical harassment.

In evaluating defendant’s motion, the court noted that

the Second Circuit has drawn a line between complaints of sexual assaults; other physical contact, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; and obscene language or gestures — which are actionable under Title VII — and the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers,” which is not.

The court summarized the verbal harassment as follows:

(i) on her first day, a Housekeeping Coordinator asked Plaintiff whether she would be returning to work the following day, given that Plaintiff’s predecessor — also a woman — had quit after her first day; (ii) Plaintiff’s co-workers frequently discussed sex in the workplace, including one instance where three employees were watching pornographic videos on their phones and discussing fellatio; and (iii) Santana repeatedly referred to an African American female employee as “BBD,” which stands for “Big Black Dick.”

Initially, the court declined to find that a reasonable juror would view any of the above as evidence of a hostile work environment. It explained:

As an initial matter, although the Coordinator’s statement may have been inappropriate or lacked social tact, it was far too innocuous to lead a reasonable juror to believe that it would have worsened the working conditions of a reasonable employee. See Schiano, 445 F.3d at 600. The sexual banter that Plaintiff has alleged occurred also cannot give rise to a hostile work environment claim, primarily because Plaintiff has failed to adduce any admissible evidence that the banter was directed at her. Santana’s nickname for the unidentified African American employee, crass as it may be, indisputably had nothing to do with Plaintiff or Plaintiff’s status as a woman. Similarly, although Plaintiff was present for the sexually explicit conversation involving Santiago, Frazier, and the unnamed houseman, there is little evidence that the conversation occurred because of or was directed at Plaintiff. At most, the record supports the fact that the three interlocuters were amused by Plaintiff’s discomfort with the content of the conversation. (Soto Aff. ¶ 7). However, a plaintiff’s incidental involvement in workplace sexual banter does not constitute a hostile work environment claim.

Turning to the physical harassment, however, the court reached a different conclusion:

The three incidents of physical harassment are a different story. Although Defendant makes a bold attempt to cast Plaintiff’s allegations in spare, neutral terms (see Def. Br. 16 (“[O]ne employee may have touched Ms. Soto’s side and another touched her face and a third allegedly inserted a straw into her shirt.”)), Defendant cannot disguise the severity of the incidents at issue. In particular, Plaintiff has characterized the incident with Mouane as Mouane grabbing her by the face “as if he was going to kiss me, and then shov[ing] my face away from him.” (Stanciu Decl., Ex. 18). Even more grotesquely, Plaintiff has claimed that the incident with Pegerro involved Pegerro inserting a straw into her cleavage and then “perform[ing] a stroking motion in and out of my breasts.” (Id.). Especially given Plaintiff’s description of the third incident, the Court believes that a reasonable jury could find that Plaintiff was subjected to conduct that was sufficiently severe as to be objectively hostile or abusive. See Redd, 678 F.3d at 180 (explaining that “[d]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment”). Indeed, the Court finds it notable that Defendant ignores the third incident during its effort to downplay Plaintiff’s allegations.

The court concluded that a reasonable jury could find that plaintiff was subjected to a hostile work environment.

It further concluded that plaintiff raised a triable issue as to whether the hostile work environment may be imputed to the defendant. (I will address that aspect of the court’s decision in a separate blog post.)