Sexual Harassment Plausibly Alleged; Allegations Included Co-Worker’s Touching and Sexual (and Non-Sexual) Comments

In Arbouin v. Bob’s Discount Furniture, LLC et al, 20-CV-1893, 2021 WL 4458932 (E.D.N.Y. Sept. 29, 2021), the court, inter alia, adopted a Magistrate Judge’s Report & Recommendation that defendants’ motion to dismiss plaintiff’s hostile work environment sexual harassment claim be denied.

From the decision:

Defendants argue that the R&R errs in finding that the totality of circumstances alleged are sufficient to state a plausible hostile work environment claim because Plaintiff alleges only that “a non-supervisory co-worker (Brigham) made five total comments to her, one sexual and four non-sexual, and grabbed her buttocks on one occasion.” (ECF No. 28 at 14.) “Facially sex-neutral incidents may be included [ ] among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (citations, alterations and internal quotations omitted). Judge Locke properly considered both the sexually overt and facially sex-neutral incidents alleged in the Amended Complaint, and the Court agrees that the totality of the circumstances alleged state a plausible sex-based hostile work environment claim.

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