In Clayton v. Dreamstyle Remodeling of Colorado, LLC, 20–cv–02096, 2022 WL 910957 (D.Colo. March 28, 2022), the court, inter alia, held that plaintiff’s hostile work environment sexual harassment claim, asserted under Title VII of the Civil Rights Act of 1964, survived summary judgment.
From the decision:
To defeat a motion for summary judgment, the plaintiff alleging a sexually hostile work environment must “show that a rational jury could find that the workplace is permeated with discriminatory intimidation, ridicule, and insult.” Delsa, 976 F.3d at 1176 (citation omitted). This requires a showing of more than “a few isolated incidents.” Id. (quoting Morris, 666 F.3d at 666). That being said, “the severity and pervasiveness evaluation [of a hostile work environment claim] is particularly unsuited for summary judgment because it is quintessentially a question of fact.”
In support of her hostile work environment claim, Clayton references: (1) the incident where Watkins showed four female trainees, including herself, “sexually suggestive” photographs on his work computer, which depicted scantily-clad young women; (2) incidents where a provocatively-dressed female employee would sit atop Watkins’ work desk; (3) the “spank your butt” comment; (4) the “start bribing [your husband] with sex” comment; (5) the May 2019 phone call; (6) Watkins’ remark about a “crazy” female customer who had accused him of inappropriate physical contact; and (7) Watkins’ remark about giving gifts to a different female customer.
While a close call, the Court finds that the evidence adduced by Clayton regarding these incidents, when viewed in its totality and in the light most favorable to Clayton, is enough to create a genuine issue of material fact as to whether Clayton was subjected to pervasive, if not severe, sexual harassment. Indeed, a rational juror could conclude from the factual record that, during her brief tenure with Dreamstyle, Clayton experienced more than a few “isolated incidents” of workplace inappropriate conduct. Specifically, and most salient to the Court’s decision, Plaintiff has proffered evidence of at least seven discrete incidents of alleged sexual harassment occurring over the span of only five months of employment. See EEOC v. PVNF, LLC, 487 F.3d 790, 799 (10th Cir. 2007) (finding sexually harassing conduct to be sufficiently pervasive such that a jury should decide the issue, where “the bulk” of the objectionable conduct occurred during a four month period, which the court characterized as “a relatively short period of time”); Smith v. Century Concrete, Inc., No. 05-2105-JAR, 2006 WL 1877013, at *5 (D. Kan. July 6, 2006) (“While a few weeks is a short period of time, three inappropriate comments over this short span of time could amount to pervasive harassment in the eyes of a reasonable jury.”); Cadena v. Pacesetter Corp., 18 F. Supp. 2d 1220, 1228 (D. Kan. 1998) (holding that “a number of sexually suggestive and or sexually demeaning remarks, at least two of which were repeated on numerous occasions over a period which spanned only two to three months” was sufficiently pervasive to establish a hostile work environment). Notably, every instance of objectionable conduct involved the same male supervisor. And, the vast majority of the incidents concerned sexualized comments or behavior, a portion of which was directed at Plaintiff personally. One such sexualized comment—viz., that Clayton should “bribe [her] husband with sex”—was made during a sales meeting, in front of Clayton’s colleagues. See Smith v. Nw. Fin. Acceptance, Inc., 129 F.3d 1408, 1414 (10th Cir. 1997) (finding disputed material fact issues precluding summary judgment on a sexually hostile work environment claim, where a male supervisor made sexually disparaging remarks to the female plaintiff in “a relatively small, open space” office, within ear shot of the plaintiff’s colleagues, and concluding that “[t]his public setting only increased the humiliation, and, therefore, the severity of the discriminatory conduct”). Further, there is credible evidence showing that other female employees were made uncomfortable by some of the same incidents about which Plaintiff now complains. See, e.g., Vinet Dep. [#41-3] at 36-43; Ontiveros Dep. [#41-5] at 16-18; Wilhelmi Aff. [#41-1] ¶ 13 & Dep. Ex. 20 [#41-19], Dep. Ex. 31 [#41-21]. Finally, as to the May 2019 phone call, during which Watkins asked Clayton “personal” questions and made her feel “uncomfortable,” there is no evidence that Watkins made a pass at Clayton during the call, or otherwise engaged in any sexual innuendo. However, the Court recognizes the obvious impropriety of a ninety-minute weekend phone call, during which a male supervisor, under the guise of seeking a restaurant recommendation, asks his female employee prying questions about her age, race, and family background. There is no evidence suggesting that Clayton welcomed or condoned Watkins’ conduct, at all. Indeed, the record is replete with evidence suggesting that Clayton and other female employees were uncomfortable even being in Watkins’ presence. See, e.g., Clayton Dep. [#41-2] at 99, 107; Vinet Dep. [#41-3] at 36-43; Ontiveros Dep. [#41-5] at 16-18; Wilhelmi Aff. Dep. Ex. 31 [#41-21].
Given the fairly steady barrage of gender-specific, sexually-charged conduct that Plaintiff is alleged to have been subjected to over a relatively short period of time, a rational factfinder could conclude that the gender-based harassment was so pervasive, such that Plaintiff’s workplace was “permeated with discriminatory intimidation, ridicule, and insult.” Delsa, 976 F.3d at 1176; see, e.g., Gordon v. CompResults, LLC, No. 11-2547, 2013 WL 656886, at *11 (D. Kan. Feb. 22, 2013) (finding disputed issues of material fact which precluded summary judgment on a sexually hostile work environment claim, where there was evidence that, over the course of two years, the plaintiff’s supervisor “displayed provocative photographs of women on his computer,” “had physical romantic interactions in the office” with another female employee, made jokes on several occasions “about employees or clients belonging to an advocacy group for pedophiles,” and made “profane jokes” at a business meeting regarding “women’s hormones”). Therefore, Defendants are not entitled to summary judgment based on the “severity or pervasiveness” element of Plaintiff’s Title VII hostile work environment claim.
[Cleaned up.]
The court proceeded to consider, and reject, defendant’s argument that it was not liable for the sexual harassment upon application of the so-called “Faragher/Ellerth” affirmative defense, since there was “a disputed fact issue as to whether Dreamstyle took reasonable care to correct claims of sexual harassment of which it was aware.”