Hostile Work Environment Claim Sufficiently Alleged; Claims Include Inappropriate Touching and Viewing Pornography

In Maines et al v. Last Chance Funding, Inc. d/b/a The LCF Group et al, 2018 WL 4558408 (E.D.N.Y. Sept. 21, 2018), the court, inter alia, held that one plaintiff (Alexandre) sufficiently stated a claim for hostile work environment based on gender in a proposed amended complaint.[1]The court also held that this particular plaintiff also sufficiently alleged a hostile work environment based on race, but here I will focus on the court’s assessment of her gender-based hostile work environment claim.

From the decision:

Alexandre’s gender discrimination claim is rooted in a number of incidents where a male LCF employee, dubbed “Joe,” entered her office and rubbed her back and shoulders without her consent. Id. ¶¶ 53–54, 57. According to the PSAC, when Alexandre brought the complaint to Parker’s attention, he responded with skepticism and ultimately failed to discipline “Joe,” despite promises to the contrary. Id. ¶ 58, 62–63. The PSAC also alleges that LCF failed to discipline Joe for other incidents of harassment, as well as for openly viewing pornography in the workplace. Id. ¶¶ 59–61.

These allegations resemble those in E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497 (E.D.N.Y. 2014), in which Judge Brodie found that “a rational juror reviewing the totality of the circumstances could find these incidents sufficiently hostile to be actionable” based on allegations that an employee “touched [the complainant’s] shoulder two to three times during the relevant period.” Id. at 517. While she recognized the “the actions complained of by … present[ed] a close call,” the conclusion that the conditions of the complainant’s work environment were altered was bolstered by allegations of sexual harassment to other women in the office. Id.

Similarly, the PSAC claims not only that a male employee inappropriately touched Alexandre without her consent on multiple occasions, but also that he harassed other women and openly viewed pornography in the office place. Moreover, LCF failed to discipline Joe for this behavior, despite multiple complaints from female employees. These allegations, viewed in their totality, adequately allege a hostile work environment claim. See Messer v. Fahnestock & Co., No. 03-cv-4989, 2008 WL 4934608, at *15 (E.D.N.Y. Nov. 18, 2008) (denying summary judgment on sexual harassment claim where plaintiff alleged that her harasser “massaged her shoulders without permission, told her on one occasion that she ‘loo[ked] very sexy’ ” and commented on her appearance and personal life despite indications from plaintiff that his comments and attention were unwelcomed); Stathatos v. Gala Resources, LLC, No. 06-cv-13138, 2010 WL 2024967, at *5–6 (S.D.N.Y. May 21, 2010) (summary judgment denied where plaintiffs claimed that harasser touched their shoulders and arms, and were exposed to sexually explicit conversations and photographs, and to sexist jokes). The cases cited by the Defendants to the contrary do not persuade the Court otherwise, because they involved motions for summary judgment. See Mendez-Nouel v. Gucci Am., Inc., No. 10-cv-3388, 2012 WL 5451189, at *11 (S.D.N.Y. Nov. 8, 2012) (reaching conclusion “[o]n review of the record as a whole”); Pena-Barrero v. City of New York, No. 14-cv-9550, 2017 WL 1194477, at *17 (S.D.N.Y. Mar. 30, 2017) (explaining that plaintiff “has not put forward evidence that would … create a genuine dispute of material fact”).

The court, therefore, granted plaintiff’s motion to amend in order to add plaintiff’s gender-based hostile work environment claim.

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1. The court also held that this particular plaintiff also sufficiently alleged a hostile work environment based on race, but here I will focus on the court’s assessment of her gender-based hostile work environment claim.