Forced Penis Touch, Among Other Allegations, Sufficient to Plausibly Allege Hostile Work Environment Sexual Harassment

In Olsen v. Suffolk County et al, 15-CV-4064, 2016 WL 5395846 (E.D.N.Y. Sept. 27, 2016), the court held, among other things, that plaintiff plausibly alleged hostile work environment sexual harassment.

The court summarized plaintiff’s allegations, in part, as follows:

On or about May 26, 2014, Plaintiff was eating dinner with coworkers outside the precinct and Everett Wehr[], a police officer in the Sixth Precinct’s crime control section and union delegate, began massaging her neck and back and pressed his genitals against Plaintiff’s back. Plaintiff told him to stop and stated “is this supposed to be a massage? I can feel your genitals.” Plaintiff had “some contact” with Officer Wehr based on her interactions with Gary Thompson[], a police officer and union delegate for Plaintiff’s subordinates. On or about June 9, 2014, Officer Wehr was transferred to the Police Department headquarters building. On or about June 23, 2014, at 6:00 p.m., Officer Wehr appeared in Plaintiff’s office doorway and indicated that he was cleaning out his desk. When Plaintiff looked up from her desk, Wehr exposed himself and put his erect penis over [Plaintiff’s] shoulder at mouth level [and] was holding his penis and pointing it at her.

After summarizing the relevant law, the court explained that plaintiff plausibly pleaded a hostile work environment claim against Suffolk County under Title VII and the NYS Human Rights Law:

The Court finds that Plaintiff has plausibly pleaded a hostile work environment claim. First, Defendants’ argument that Officer Wehr’s actions were not based on gender is quickly disposed of. The overtly sexual nature of Officer Wehr’s conduct leaves no question that such action took place because of Plaintiff’s gender. …

Second, Plaintiff’s allegation that Officer Wehr forced Plaintiff to touch his penis is sufficiently severe to plead a change in the terms and conditions of employment. [D]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment, and similar allegations have sufficed to survive motions to dismiss and motions for summary judgment. … Moreover, Officer Wehr’s conduct is compounded by the allegation that he pressed his genitals against Plaintiff’s back on a separate occasion.

The court also, among other things, dismissed plaintiff’s “deliberate indifference” claim, but permitted her claim that there was an adequate investigation to continue.

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