In Jackson v. Whelan Event Staffing Services, Inc. et al, Civil Action No. 24-cv-00072-LKG, 2024 WL 3487888 (D.Md. July 19, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
After summarizing the black-letter law, the court applied it to the facts, as follows:
In this case, a careful reading of the complaint makes clear that Plaintiff has not sufficiently alleged facts to show that the unwelcome conduct alleged in the complaint was severe or pervasive. In the complaint, Plaintiff alleges two incidents of workplace sexual harassment that occurred prior to the termination of her employment. First, Plaintiff alleges that, on or about November 26, 2022, she was awakened by her supervisor, “Shawn,” “massaging her lower back” and that she attempted to “maneuver her body to get ‘Shawn’ to stop touching her,” but Shawn used his knee to maintain contact and continued massaging Plaintiff for approximately 15 to 20 minutes. ECF No. 3 at ¶¶ 13, 18-19, 21. Second, Plaintiff alleges that, on June 24, 2023, she received a text message from another supervisor, “Oscar,” which contained a picture of Oscar’s penis. Id. at ¶¶ 32, 34.
The Court agrees with Whelan that, while troubling, these two incidents are not sufficient to show that the alleged unwelcome conduct was sufficiently severe or pervasive to alter the conditions of Plaintiff’s employment and to create an abusive atmosphere. The factual allegations in the complaint makes clear that the two incidents of sexual harassment at issue in this case occurred approximately seven months apart. ECF No. 5-1 at 2. The complaint also makes clear that these two incidents involve different supervisors and different conduct. ECF No. 3 at ¶¶ 15, 33. Given this, the complaint shows that these two incidents of sexual harassment were isolated and unrelated.
While an isolated incident of sexual harassment can be actionable if it is extremely serious, the complaint is devoid of facts to show that the two incidents of alleged sexual harassment in this case were serious and altered the conditions of Plaintiff’s employment and created an abusive atmosphere. Boyer–Liberto, 786 F.3d at 277. While Plaintiff argues that the sexual harassment involving her supervisors was “extremely serious,” she acknowledges that Whelan granted her request to be seated on a different bus after she reported the conduct of her supervisor “Shawn.” ECF No. 8-1 at 7-8; ECF No. 3 at ¶¶ 24-25. Plaintiff also does not allege that she experienced any other unwelcome conduct involving these two supervisors or others at the workplace. ECF No. 3 at ¶ 29.
Plaintiff does allege that she ultimately decided not to return to work, after learning that she would be assigned to work with these supervisors during a Beyonce concert. ECF No. 3 at ¶¶ 38-40. But she does not allege any facts to show why the two isolated incidents of sexual harassment cited in the complaint were so severe and pervasive as to alter the conditions of her employment and create an abusive workplace.
Accordingly, the court concluded that the complaint lacks facts to show that Plaintiff’s work environment was objectively hostile or abusive when “judged from the perspective of a reasonable person in [her] position.”