In Pimental v. Atrium Hospitality LP, No. 3:19-CV-1284 (OAW), 2022 WL 4104012 (D.Conn. Sept. 7, 2022), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim.
From the decision:
Atrium has moved for summary judgment on the grounds that Chef Pimentel’s hostile work environment claim is neither objectively severe nor pervasive. Because Atrium is entitled to the Faragher/Ellerth defense with respect to Mr. Sadutto’s conduct, the court will only address whether Mr. Schwartz’s misconduct satisfies the “severe or pervasive” standard for hostile work environment claims.
Chef Pimentel testified that his direct supervisor, Mr. Schwartz, repeatedly touched him in inappropriate ways. At his deposition, Chef Pimentel stated that Mr. Schwartz would pinch his nipples, Pimentel Dep., 187:8–13, and on one occasion, inappropriately squeezed his nipples at a media event, rubbed Plaintiff’s stomach, and said “let’s carve this little piggy” before Chef had to carve a roast pig at the media event. Id. at 203:3–25.Atrium argues that the social context of the misconduct must be considered because the conduct at issue involves “inappropriate jokes … directly related to the circumstances of a commercial kitchen[.]” The court recognizes the general principle that sexual harassment in one context may not be considered as such in another context. See Oncale, 523 U.S. at 81 (distinguishing between a football coach smacking a player on the buttock on his way to the field versus smacking his secretary back at the office). However, the mere fact that certain behavior may be attributed to the social norms of working in a commercial kitchen does not foreclose the possibility that the same behavior also may constitute severe or pervasive harassment. The Second Circuit has recognized that “[t]he repeated touching of intimate parts of an unconsenting employee’s body is by its nature severely intrusive and cannot properly be characterized as abuse that is ‘minor.’ ” Redd, 678 F.3d at 179. Chef Pimentel testified that Mr. Schwartz repeatedly pinched his nipples and touched his buttocks—both of which are intimate parts of the body. Pimentel Dep., 203:18–24. Moreover, while Atrium characterizes Mr. Schwartz’s behavior as limited to the “little piggy” incident”, Chef Pimentel testified of Mr. Schwartz that, “[f]rom the very beginning he was very frisky.” Id. at 203:23–24.
While “simple teasing or roughhousing among members of the same sex” may not constitute discriminatory conditions of employment, Oncale, 523 U.S. at 82, common sense dictates that squeezing a person’s nipples at a large media event – even if intended to be a joke – is sufficient conduct for a reasonable person in the plaintiff’s position to find hostile or abusive. Indeed, “[w]hen entering a workplace, reasonable people expect to have their autonomy circumscribed in a number of ways; but giving up control over who can touch their bod[ies] is usually not one of them.” Redd v. N.Y. State Div. of Parole, 678 at 179 (quoting Patton v. Keystone RV Co., 455 F.3d 812, 816 (7th Cir. 2006)). Courts in this circuit have likewise denied summary judgment where the conduct involved similar unconsented, intimate touching. See e.g., Burke v. Villa, No. 19-CV-2957 (NGG) (RER), 2021 U.S. Dist. LEXIS 229273, at *17 (E.D.N.Y. Nov. 30, 2021) (rejecting the argument that pinching buttocks could be considered “common horseplay … in the cramped confines of a busy kitchen”); Salen v. Blackburn Bldg. Servs., LLC, No. 3:14-cv-01361-VAB, 2017 U.S. Dist. LEXIS 2051, at *23 (D. Conn. Jan. 6, 2017) (recognizing that brief touching of penis followed by teasing is more than “ordinary socializing in the workplace” or “male-on-male horseplay”); Ayers v. Conn. Judicial Branch, No. 3:99cv935(AHN), 2002 U.S. Dist. LEXIS 26108, at *7 (D. Conn. Mar. 28, 2002) (holding that a single incident of striking plaintiff on her buttocks could be sufficient to support a finding of a hostile work environment).
A reasonable jury could find that the conduct experienced by Chef Pimentel—including repeated pinching of the buttocks and squeezing of the nipples—contributed to an objectively hostile or abusive work environment.
As to whether the alleged conduct was “because of sex”, the court explained, inter alia, that a jury could find that the conduct was gender-based, noting that “[t]he nature of the repeated touching of intimate body parts is enough to suggest that there is at least a triable issue of fact as to the motivations held by Mr. Schwartz, especially without an admission to the contrary (that Plaintiff did not find the conduct to be of a sexual nature, or to target him because of his sex or his gender).”