Title VII Hostile Work Environment Sexual Harassment Claim Survives Summary Judgment; Evidence Included Singing “Inappropriate Songs” and “Humping”

In Haughton v. Ja-Co Foods, Inc. d/b/a Sonic Drive-Ins, No. 1:20-CV-241-SA-DAS, 2022 WL 1498107 (N.D. Miss. May 11, 2022), the court held that plaintiff presented sufficient evidence to survive summary judgment on plaintiff’s hostile work sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

Generally, in order to make out an actionable hostile work environment claim, the plaintiff must demonstrate that the conduct was objectively severe or pervasive, subjectively perceived as such, because of sex, and that there is a basis for imputing the challenged conduct to the defendant/employer.

In evaluating whether the conduct at issue was “objectively” hostile, the court noted the overarching “black-letter” law:

The totality of the employment circumstances determines whether an environment is objectively hostile. Although no single factor is determinative, pertinent considerations are (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.

It proceeded to evaluate these factors in light of the facts, which it summarized as follows:

[F]or the sake of clarity, the Court will reiterate the alleged conduct at issue. Haughton alleges the following: (1) that Ellis would sing inappropriate songs to her; (2) that he called her “baby” twice; (3) that he inappropriately touched her hand in a suggestive way “at least three” times when passing food to her; and (4) that he “humped” her for approximately three seconds when she bent over to pull up a garbage bag that had fallen down into a garbage can.

As to the “inappropriate songs,” the court noted plaintiff’s deposition that the alleged harasser sang/said, e.g. “back that A up” (which plaintiff understood to mean “back that ass up”), “drop it like it’s hot”, “do something strange for a little piece of change,” and called her “baby.”

The court continued:

When considering the frequency of the allegedly wrongful conduct, the Court takes note that Haughton was only employed with Sonic for around a month and a half—specifically, she was hired on or about November 12, 2019, and the trash can incident (which provides the bookend for the allegedly sexually harassing conduct) occurred on December 22, 2019. Thus, while in the abstract there was not a huge number of allegedly wrongful acts, when considered in light of this brief time period, the number of alleged acts weighs slightly in Haughton’s favor.

The Court turns next to the severity of the alleged conduct. See, e.g., West, 960 F.3d at 742. As noted above, the Court must remain cognizant of the extensive precedent directing district courts to “ensure that Title VII does not become a ‘general civility code.’ ” Id. (quoting Faragher, 524 U.S. at 788) (additional citation omitted). The Court first begins with Ellis’ alleged singing of songs toward her. The Court acknowledges that the language allegedly used by Ellis was inappropriate, as it was undoubtedly foul and suggestive. However, the Court also notes that this happened on a limited number of occasions and does not seem to be extremely severe, especially in light of the applicable standard. See, e.g., id. at 741-42 (quoting Faragher, 524 U.S. at 788, 118 S. Ct. 2275 (“Properly applied, the standards for judging hostility will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”) (additional citation and quotation marks omitted). As to Ellis calling her “baby” twice, the Court likewise finds that this conduct in isolation is not sufficiently severe for the same reasons.

However, the Court sees differently the alleged trash can incident. Unlike the singing of inappropriate songs or the calling of an unwanted name, a supervisor “humping” an employee while she was engaging in the performance of her job duties rises above “the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Id. (citations and quotation marks omitted). This allegation is much more serious than insensitive comments as it involves undesired and uninvited physical contact initiated by another employee with supervisory authority over Haughton. Thus, while some of the alleged conduct may not in isolation rise to the requisite severity threshold, the trash can incident constitutes a serious, severe allegation. As a result, this factor weighs in Haughton’s favor.

The next factor concerns whether the conduct is “physically threatening or humiliating, or a mere offensive utterance.” West, 960 F.3d at 742. As to the singing of songs and Ellis calling her “baby” twice, the Court finds that the conduct is more properly characterized as offensive utterances, as opposed to being physically threatening or humiliating. Viewing the evidence in the light most favorable to Haughton, Ellis touching her hand on “at least three” occasions certainly approaches the line of becoming physically threatening. As to the trash can incident, Haughton asserts that “[i]t bears repeating that what Ellis did to [her] was not ‘teasing.’ It was not an offhand comment or an off-color joke. It was sexual harassment and assault.” [41] at p. 14. The Court agrees with Haughton’s contention on this point. A rational trier of fact could find being “humped” by a supervisor for a period of about three seconds—allegedly in front of another employee—to be physically threatening and certainly humiliating.6 This factor therefore weighs in Haughton’s favor.

[Cleaned up.]

After reviewing pertinent Fifth Circuit and Supreme Court case law, the court concluded that plaintiff presented sufficient evidence to survive summary judgment as to the issue of objective hostility.

It further held that plaintiff presented sufficient evidence to overcome summary judgment on whether the conduct was “subjectively” hostile or offensive. On this point, defendant argued that plaintiff “published multiple erotic novels depicting very graphic sexual encounters” which “include graphic sexual encounters between the characters” and, therefore “suggest that she is not subjectively offended by very overt sexual acts.” Plaintiff countered that “the novels are fiction and the fact she wrote them does not mean she cannot be subjectively offended by the subject conduct.” At this stage, the court held, there were un-resolvable factual questions.

Finally, the court held that plaintiff presented sufficient evidence to impute liability to defendant, noting a question of fact as to whether the alleged harasser was plaintiff’s “supervisor” for purposes of Title VII.

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