In Roberts v. Glenn Industrial Group, Inc. et al, 3:17CV745-GCM2021, WL 4928462 (W.D.N.C. Oct. 21, 2021), the court held that triable issues of fact regarding plaintiff’s hostile work environment sexual harassment claim, asserted under Title VII of the Civil Rights Act of 1964, warranted denial of defendants’ motion for summary judgment.
From the decision:
Viewed in the light most favorable to Plaintiff, the Court finds that Plaintiff’s evidence that some of his co-workers “perceived him to be gay” and that he was “repeatedly subjected to taunts and harassment which called into question [his] sexual preference and sexual orientation” is enough to create a genuine issue of material fact that he was harassed based upon his sex.
The next question is whether the harassment was sufficiently severe or pervasive to alter the Plaintiff’s conditions of employment and create an abusive work environment. The Plaintiff must be able to demonstrate that the workplace was both subjectively and objectively hostile. This proof is based on the totality of the circumstances, and courts look at factors such as the frequency of the conduct, the severity of the conduct, whether it is “physically threatening or humiliating” as opposed to a mere offensive utterance, and “whether it unreasonably interferes with an employee’s work performance.”
Plaintiff has described the harassment as “repeated[ ]” and “constant.” He states that it occurred “both at the worksite and at the hotels where we stayed,” and that he was “embarrassed and humiliated” by the harassment and also “intimidated” when it came from Rhyner. He claims that the conduct made him “extremely uncomfortable and concerned for my personal safety and well-being.” In addition to the verbal harassment, Plaintiff claims that he was physically assaulted by Rhyner on multiple occasions, including an instance where Rhyner slapped off Plaintiff’s safety glasses, pushed him, and put him into a chokehold and “tried to choke [him] out.” In its previous Order, this Court discounted Plaintiff’s evidence of physical assaults because they were not of a sexual nature. However, the Fourth Circuit pointed out that the fact that the assaults were not of a sexual nature does not preclude them from being considered as evidence in support of Plaintiff’s claim of a hostile environment based on sex. See Roberts, 998 F.3d at 121; Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999) (non-sexual physical assault on a co-worker considered as part of a broader pattern of behavior hostile towards women). The Court finds that when examining the totality of the circumstances, Plaintiff has demonstrated sufficient evidence to show that the harassment was severe or pervasive enough to alter his conditions of employment and create an abusive work environment in violation of Title VII.
Next, the court turned to the issue of whether the harassment was imputable to the defendant. There was no dispute that plaintiff’s supervisor did not make the decision to terminate the plaintiff, nor that plaintiff did not complain to the person to whom the employee handbook instructed.
However, plaintiff did present evidence that he complained about the harassment to others, and that despite his complaints, no action was taken to address the harassment, and that one person to whom he complained told plaintiff to “suck it up.” “Coupled with an arguably ambiguous anti-harassment policy, this is sufficient to create a genuine issue of material fact as to whether the harassment can be imputable to” his employer.