Sexual Harassment Hostile Work Environment Claim Plausibly Alleged; Evidence Included “Malicious Rumors”

In Martinez v. City of Union City, Union City Police Department et al, Civ. No. 21-11111, 2021 WL 5195708 (D.N.J. Nov. 8, 2021), the court, inter alia, held that plaintiff sufficiently alleged “hostile work environment” sexual harassment under Title VII of the Civil Rights Act of 1964.

The court outlined the legal requirements for this type of claim:

Title VII prohibits sexual harassment that is “sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). To succeed on a hostile work environment claim, the plaintiff must establish that “1) the employee suffered intentional discrimination because of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability.”5 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). The first four elements define hostile work environment liability, and the fifth element imposes that liability on the employer.

The court proceeded to apply the law to the facts – i.e., to apply each of the five identified elements:

First, Martinez plausibly alleges that “the alleged hostile acts were ‘sex-based’ or ‘gender-based.’ ” Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 576 (D.N.J. 2005) (quoting Durham Life Ins. Co. v. Evans, 166 F.3d 139, 148 (3d Cir. 1999)). “The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n. 3 (3d Cir.1990), superseded by statute on other grounds. “[T]he ordinary tribulations of the workplace,” however, “such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” cannot evidence a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).

In her complaint, Martinez alleges that numerous instances of other officers discussing and speculating on her sexual relationships with superior officers as a result of Matulewicz’s malicious rumors. Matulewicz went so far as to tell Martinez’s supervising officer that “he hoped she’s doing you real good,” and “he hoped she’s sucking you real good.” (Id. ¶ 28.) Although it is not alleged that Matulewicz expressed a gender-based motivation for making such statements, such a motivation may be inferred, in that the statements are sexually explicit and bear an obvious relation to gender. In the context of such sexually explicit remarks, it is also plausible that Matulewicz’s other alleged acts of harassment, such as inappropriately sending Martinez out on “report only” calls, radioing her into headquarters, or plotting ways to get her disciplined, were motivated by gender-based hostility. (Id. ¶ 38–46.)6 In addition, it is plausible that the statements about Martinez’s supposed sexual relationships were meant to imply that Martinez had gained stature in the department by means of sexual relationships with her supervisors rather than her own merit, which the Third Circuit has held can be a form of sexual harassment. Spain v. Gallegos, 26 F.3d 439, 448 (3d Cir. 1994) (concluding that a rumor that a woman gained influence over the head of the office because she was engaged in a sexual relationship with him was sufficient to allow a jury to conclude the woman suffered the harassment alleged because she was a woman); see also McDonnell v. Cisneros, 84 F.3d 256, 259–60 (7th Cir. 1996) (concluding that rumors of a woman’s “sleeping her way to the top” “could constitute a form of sexual harassment”); Parker v. Reema Consulting Servs., Inc., 915 F.3d 297, 303 (4th Cir.), cert. denied, 140 S. Ct. 115 (2019) (same).

Second, Martinez has plausibly alleged that the harassment was “severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive.” Wright v. Providence Care Ctr., LLC, 822 F. App’x 85, 96 (3d Cir. 2020) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The accused conduct must be “so severe or pervasive as to constitute an objective change in the conditions of employment.” Sanchez v. SunGard Availability Servs. LP, 362 F. App’x 283, 287 (3d Cir. 2010) (citing Faragher, 524 U.S. at 787). Courts assessing this prong must examine the totality of the circumstances, including but not limited to “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.” Nuness v. Simon & Schuster, Inc., 325 F. Supp. 3d 535, 546 (D.N.J. 2018) (quoting Mandel, 706 F.3d at 168).
Martinez has plausibly alleged that the harassment was severe and pervasive. She cites not only numerous sexually harassing comments by Matulewicz, but also rumors that allegedly spread throughout the department over the course of many months. Because the harassment allegedly affected Martinez’s reputation generally, the fact that Matulewicz was eventually transferred did not extinguish the negative effect on the conditions of Martinez’s employment. Martinez alleges that, in her interactions with fellow officers, she continually was faced with the question of whether they believed the sexual rumors about her, a situation both stressful and humiliating. Martinez also alleges several instances of stalking and intimidation from Matulewicz’s allies. Not all of Matulewicz’s alleged comments were made to Martinez’s face, but the fact that “a plaintiff learns second-hand of a … derogatory comment or joke by a fellow employee or supervisor also can impact the work environment.” Hargrave v. Cnty. of Atl., 262 F. Supp. 2d 393, 415 (D.N.J. 2003).

Third, Martinez has plausibly alleged that she was detrimentally affected by the discrimination. This requirement is a subjective one, and “a relatively low hurdle to clear.” Grazioli, 409 F. Supp. 2d at 578 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)); Spain v. Gallegos, 26 F.3d at 449. The plaintiff “must only establish that she subjectively perceived her work environment to be hostile or abusive, and not that she suffered ‘concrete psychological harm.’ ” Grazioli, 409 F. Supp. 2d at 578 (quoting Harris, 510 U.S. at 22). Here, Martinez plausibly alleges that she felt anxiety, humiliation and stress because of the sexual harassment, which is a sufficient and plausible allegation.

Fourth, Martinez has plausibly alleged that the harassment would affect a reasonable person in her circumstances. This test, an objective one, requires the court to “look at all the circumstances,” which may “include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 280 (3d Cir. 2001) (quoting Harris, 510 U.S. at 23). Martinez’s allegations easily meet this objective standard. Assuming as I must that the events occurred as she describes them, there is no indication that Martinez overreacted or was unreasonably sensitive. Rather she responded reasonably and took sensible, if unsuccessful, steps to report and stop the harassment. Matulewicz’s comments were undeniably inappropriate for any workplace and his harassment served to isolate Martinez and make her a target for the other officers in the department. The harassment allegedly took place over the course of months, and cannot be characterized as “random [and] fleeting,” as defendants assert. (Mot. at 12.) Nor can individual comments be brushed aside as “teasing,” given the pervasive, repeated, and in some cases vile nature of the harassment. (Id. at 11) Moreover, Matulewicz outranked and had authority over Martinez. Although he was not her direct supervisor, he had the power to affect Martinez’s working environment. Overall, Martinez has plausibly alleged that the harassment she experienced altered her conditions of work and would have altered the conditions of work of a reasonable person in her position.

Finally, Martinez has plausibly pled facts that would support vicarious liability for the City, her employer. “The basis of an employer’s liability for a hostile work environment claim depends on whether the harasser is the victim’s supervisor or coworker.” Mandel, 706 F.3d at 169 (citing Huston, 568 F.3d at 104 (3d Cir. 2009)). An employer is vicariously liable to a victimized employee “for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.” Hitchens v. Montgomery Cty., 278 F. App’x 233, 235–36 (3d Cir. 2008) (quoting Faragher, 524 U.S. at 807). If, on the other hand, “the person charged with creating the hostile environment is the plaintiff’s co-worker, and not a supervisor, liability exists [only] where the [employer] knew or should have known of the harassment and failed to take prompt remedial action.” Hitchens, 278 F. App’x at 236 (quoting Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999)) (internal quotation marks omitted).

Here, although Matulewicz was not Martinez’s direct superior officer, he still occupied “supervisor” status. As a higher-ranking officer and desk supervisor, he had authority over her. For example, it is alleged that he had the power to, and did, send her out on “report only” calls in violation of COVID-19 safety policies, and that he ordered her back to headquarters. Because Matulewicz was a supervisor in relation to Martinez, the City is plausibly alleged to be subject to vicarious liability.

[Citations and internal quotation marks omitted; cleaned up.]

Based on this, the court held that plaintiff established a prima facie case of hostile work environment sexual harassment, and therefore denied the City’s motion to dismiss that claim.

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