In Payne v. JetBlue Airways Corp., Steven Tenorio, 2024 WL 3360381 (E.D.N.Y. July 9, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act off 1964.
In sum, plaintiff (an inflight crewmember for defendant airline) alleges that while at a layover, another crewmember (defendant Tenorio) sexually assaulted her, and that he “hugged her in an elevator at the hotel where the crew was staying, violently pulled her off the elevator, and tried to drag her to his hotel room.”
“Under Title VII, [a] hostile work environment claim requires a showing (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer.”
While defendants did not dispute that the first element was satisfied, they contend that the second element was not, on the ground that JetBlue cannot be held liable for Tenorio’s alleged harassment.
Specifically, defendants argue that JetBlue
took immediate, good-faith remedial action by promptly separating Plaintiff and Tenorio and ensuring they did not work together by monitoring their flights during the company’s investigation; commencing a thorough, multi-faceted investigation into Plaintiff’s allegations; issuing written discipline to Tenorio and coaching him regarding the limited misconduct the company was able to substantiate; providing Tenorio with information about the company’s personnel scheduling system that permitted him to avoid working with Plaintiff (which he then used); and then continuing to monitor their flights to ensure they did not work together.
They further contend that “JetBlue’s remedial actions were clearly effective because Plaintiff never experienced further harassment from Tenorio, and only saw him one other time.”
The court disagreed, explaining:
Plaintiff, on the other hand, contends that Defendants performed an inadequate investigation and failed to take effective remedial action, in part because Paulino told Plaintiff that it was up to her to avoid working with Tenorio going forward, and JetBlue only issued Tenorio a written warning.
Defendants are correct that JetBlue was not idle after receiving Plaintiff’s complaint. It promptly took Plaintiff off her scheduled flight home and made other travel arrangements for her to ensure that Plaintiff and Tenorio did not work together the day after the alleged harassment. It immediately began an investigation during which Paulino interviewed every witness with knowledge of the event, reviewed documentary evidence, attempted to retrieve surveillance footage of the incident from the hotel, and contacted San Francisco law enforcement. After the investigation, JetBlue concluded that it could only substantiate that Tenorio had pushed or pulled Plaintiff off the hotel elevator, and based on that conclusion, issued an Initial Guidance against Tenorio.
Nevertheless, a reasonable jury could conclude that JetBlue failed to take appropriate remedial action. A jury could, for example, find it unreasonable that JetBlue did not take additional steps to permanently ensure that Plaintiff and Tenorio would not work together after the incident. Based on the evidence in the record, it is not clear whether JetBlue monitored Plaintiff’s and Tenorio’s schedules — and if so, for how long — after the investigation terminated. Defendants argue that they did monitor their schedules, but Paulino told Plaintiff on April 23, 2019, that JetBlue could not “guarantee that [she] would never see [Tenorio] again,” and that it would be up to Plaintiff to “try to avoid” Tenorio using the so-called avoid list. Paulino Call Tr. at 5. And while Isaac sent an email on May 6, 2019, requesting that certain JetBlue employees indefinitely monitor Tenorio and Plaintiff’s “pairings to ensure they are not paired together,” Isaac Emails at 2, JetBlue’s corporate representative stated during her deposition that she was not aware of how long JetBlue continued to monitor their pairings after this request was made, 30(b)(6) Tr. at 35.
Viewing these facts in the light most favorable to Plaintiff, there is a genuine dispute as to whether JetBlue did ensure that Plaintiff and Tenorio were not paired together for the duration of the time that they both continued to work at JetBlue. Put differently, a jury could conclude that JetBlue did not monitor their pairings between when the investigation concluded in mid-April and when Isaac sent the email on May 6, and that the monitoring ceased at some point thereafter, and could further conclude that this was unreasonable under the circumstances. …
It is true, as Defendants argue, that Plaintiff did not experience additional incidents of sexual harassment after reporting the February incident to JetBlue, and that the cessation of sexual harassment can be strong evidence that an employer’s response was effective. See, e.g., Wahlstrom v. Metro-N. Commuter R. Co., 89 F. Supp. 2d 506, 526 (S.D.N.Y. 2000). But considering the facts in the light most favorable to Plaintiff, there is evidence that it was because Plaintiff took steps to avoid Tenorio — specifically, that she avoided working on the same flights as Tenorio — that she did not experience further harassment. Plaintiff has also asserted that by placing the burden on her to ensure that she was not placed on flights with Tenorio, she missed out on prime opportunities to work preferred flights and routes because she waited to bid on them until she could determine whether Tenorio had already done so. Therefore, that Tenorio’s conduct ceased after JetBlue’s investigation is only one factor a jury could consider, and from the totality of the circumstances, it could reasonably find that JetBlue’s response was inadequate.
Accordingly, denial of defendants’ motion for summary judgment on plaintiff’s Title VII claim was warranted.