In Strobel v. Westfield State University, No. 3:21-cv-30074-KAR, 2022 WL 3214965 (D.Mass. August 9, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
In sum, plaintiff, who was employed by defendant as a maintainer, alleged that a female co-worker grabbed plaintiff’s buttocks “in a sexual manner” on two separate occasions, approximately eleven days apart.
In determining that plaintiff sufficiently alleged that the objectionable conduct was “severe or pervasive,” the court explained:
Defendant asserts that the two incidents about which Plaintiff complains were not so severe or pervasive as to alter the conditions of Plaintiff’s employment (Dkt. No. 8 at 7). Title VII is violated “[w]hen the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Harris, 510 U.S. at 21 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986) (internal brackets and quotation marks omitted)). There is no “mathematically precise test” that is employed to determine whether a workplace is hostile or abusive, see Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir. 2013), but the following factors are considered: the frequency and severity of the discriminatory conduct; whether it was physically threatening or humiliating, or merely an offensive utterance; and “whether it unreasonably interfere[d] with an employee’s work performance.” Harris, 510 U.S. at 23. A plaintiff need only show that the alleged discriminatory conduct was severe or that it was pervasive. See Roy v. Correct Care Sols., LLC, 914 F.3d 52, 64 (1st Cir. 2019) (citing Burns v. Johnson, 829 F.3d 1, 18 (1st Cir. 2016)).
“A ‘single act of harassment may, if egregious enough, suffice to evince a hostile work environment.’ ” Gerald, 707 F.3d at 18 (quoting Noviello v. City of Boston, 398 F.3d 76, 84 (1st Cir. 2005)). Plaintiff’s allegation that a fellow employee grabbed her buttocks, an intimate part of her body, “in a sexual manner” twice within less than two weeks can reasonably be viewed as severe sexual harassment (Dkt. No. 1 ¶¶ 5, 6). Id. See also Berry v. Chicago Transit Auth., 618 F.3d 688, 692 (7th Cir. 2010) (“a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with an intimate part of the body are among the most severe types of sexual harassment”) (citations omitted); Acevedo-Torres v. Municipality of Arecibo, 857 F. Supp. 2d 231, 235 (D.P.R. 2012) (the court denied a motion to dismiss where the plaintiff alleged that a co-worker “showed up at her assigned post, whipped out his penis, asked if he could masturbate in front of her and asked whether she thought his penis was big”). Plaintiff knew that the co-worker who grabbed her buttocks had previously grabbed another employee’s breasts (Dkt. No. 1 ¶ 8). “Plaintiff’s awareness that [the co-worker] had performed similar lewd conduct … is relevant to Plaintiff’s reasonable perception of a hostile work environment.” Acevedo-Torres, 857 F. Supp. 2d at 235.
As to the subjective component of the inquiry, according to Plaintiff, she promptly complained about the misconduct, and, as Defendant apparently ignored her complaint, lived with constant fear when she was at work that the incident would be repeated (Compl. ¶ 11). Her distress caused her to become moody and withdrawn, and the changes in her personality took a toll on her family relationships and her health.
The allegations in the complaint are similar to those in other cases in which the courts have found the allegations of harassment sufficient to survive motions to dismiss or for summary judgment.
The court further distinguished a case upon which defendant relied, Ponte v. Steelcase Inc., 741 F.3d 310 (1st Cir. 2014), which involved two incidents of “shoulder touching.” That was, according to this court, different, since “unlike a shoulder, the buttocks are considered an intimate part of the body” and, therefore, “a reasonable factfinder could conclude that the two times the alleged harasser grabbed Plaintiff’s buttocks without being invited to do so amounted to a severe infringement on her bodily integrity.”