Customer-Based Sexual Harassment / Hostile Work Environment Claim Survives Summary Judgment Against Harrah’s

In Sansone v. Jazz Casino Company, LLC D/B/A Harrah’s Casino, No. 20-30640, 2021 WL 3919249 (5th Cir. Sept. 1, 2021), the U.S. Court of Appeals for the Fifth Circuit reversed the dismissal of plaintiff’s hostile work environment / sexual harassment claim.

Plaintiff – a baccarat dealer – alleged, among other things, that she was harassed by a customer of defendant’s. After citing the “black letter” law (elements) of a hostile work environment claim, the court proceeded to apply it to the facts.

As to whether plaintiff endured actionable harassment, the court explained:

In terms of both seriousness and frequency, the harassment experienced by Sansone is analogous to the plaintiff in Farpella-Crosby, where we held a hostile work environment was present. See Farpella-Crosby v. Horizon Health Care, 97 F.3d 803, 806 (5th Cir. 1996). There, a supervisor made comments two to three times per week attributing an employee’s large number of children to a proclivity for sexual activity. See id. at 805. The supervisor also joked at an office baby shower about the employee’s refusal to use condoms, and on one occasion, entered a room and complained of a “smell of fish.” Id. Lastly, the supervisor directly inquired about the employee’s sex life, frequently asking where her and a coworker had been the night before and whether they had “got any.” Id.

The unidentified Harrah’s customer frequently asked Sansone about her sex life and expressed his desire to sleep with her. He commented on her breasts and physical appearance and directed sexual gestures towards her. Id. His comments were made in the presence of others and occurred at least two times a week for a significant period of time. Id. This contrasts with instances where we have held a smaller stint within a lengthy period of employment was not sufficiently pervasive to support a hostile work environment claim. See Peterson v. Linear Controls, Inc., 757 F.Appx. 370, 374 (5th Cir. 2019) (no hostile work environment where the plaintiff worked for defendant for six years, but allegations concerned only one ten-day period). Drawing all inferences in favor of Sansone, as the district court was required to do at this stage, the fourth element of a prima facie hostile work environment claim was met.

Next, the court turned to the element of the claim that “her employer knew or should have known of the harassment and failed to take prompt remedial action.”

As to this element, the court explained:

[T]his Court has long recognized that in order to demonstrate an employer has failed to take prompt remedial action, the employee must first show that she took “advantage of [the] corrective opportunities provided by the employer.” May v. FedEx Freight E., Inc., 374 F. App’x 510, 512 (5th Cir. 2010) (citing Harvill, 433 F.3d at 437). Relatedly, employers may raise an affirmative defense to a hostile work environment claim when (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided to avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).

Significant factual disputes remain regarding whether Sansone’s initial verbal complaints to her floor supervisors should have triggered a response from Harrah’s. At this stage, these unanswered questions preclude a summary judgment finding that Harrah’s took prompt remedial action, and likewise, prohibit the successful raising of an affirmative defense.

According to Sansone, she was trained to report problems to her floor supervisors who would then move any complaints up the chain of command. She claims she followed this prescribed procedure multiple times throughout the relevant three-month period, but her concerns were never addressed. Instead, she was instructed to “ignore him” and “let it go,” with the additional response that “this comes with the business.” Id. It remains unclear whether the term “harassment” was used in these verbal complaints, as one supervisor stated she only described the customer’s behavior as aggravating. Harrah’s position is that Sansone failed to take advantage of its Anti-Harassment Policy because she did not file a complaint with Human Resources or upper-level management. Once this did take place on December 22, Harrah’s acted immediately to address the problem, sending Sansone home and attempting to identify the customer when he reappeared at the casino days later.

Viewing the evidence in the light most favorable to Sansone, she complained about the harassment to her supervisors as early as September, but these supervisors failed to take any action. Nothing was done to identify the customer or remedy the situation until a formal complaint was filed months after Sansone’s initial complaints. The remaining factual disputes on whether Sansone properly activated the chain of command and whether Harrah’s responded appropriately require us to REVERSE and REMAND this claim for further proceedings.

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