In Jesenia Villalobos v. Merrill Lynch, No. CV-24-02139-PHX-JJT, 2024 WL 4566852 (D.Ariz. Oct. 24, 2024), the court dismissed plaintiff’s hostile work environment claim asserted under Title VII of the Civil Rights Act 1964.
After summarizing the black-letter law, the court applied it to the facts:
In this case, the conduct complained of by Plaintiff was neither pervasive nor severe.
Jonathon [plaintiff’s coworker] allegedly propositioned Plaintiff four times in eight days, which is quite frequent, but Plaintiff does not allege that he spoke to her either before or after that eight-day period. Notably, the last interaction between Jonathon and Plaintiff occurred on May 14, but Plaintiff did not file her complaint until July 9. Based upon the face of the pleading, it appears that Jonathon developed a romantic interest in Plaintiff, pursued that interest for eight days, and then gave up. Although the conduct suffered by Plaintiff could be considered pervasive if viewed through an artificially narrow window, the conduct was not pervasive when viewed in the context of Plaintiff’s overall employment relationship, which is the appropriate frame of reference for a claim of hostile work environment. However, even if the Court were to assume arguendo that the complained-of conduct was pervasive, it was so lacking in severity that under no circumstances could it satisfy the Ninth Circuit’s sliding scale.
The “standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Plaintiff alleges that Jonathon told her she was pretty twice, asked for her number twice, asked if she was married once, and approached her desk once. If the Court were to conclude that those allegations state a prima facie claim of harassment, the Court would in effect proscribe a person from asking a coworker on a date. The Court does not express an opinion regarding whether a general prohibition on romantic expression in the workplace would be a good or a bad idea, but it is clearly not the law. There is no way to credit Plaintiff’s claim without transmuting Title VII into a code of general civility.
The upshot of that conclusion is that Plaintiff has failed to show that there was any underlying harassment that Defendant bore a legal obligation to address. The Ninth Circuit has “recognized that an employer’s response to a third party’s unwelcome sexual advances toward an employee can independently create a hostile work environment.” Fried, 18 F.4th at 650 (emphasis in original). However, in Fried and all the cases cited therein, there was some sexual impropriety that undergirded the courts’ analyses of the sufficiency of the employers’ responses. In Fried, a third-party customer asked the plaintiff if he “wanted to have sex and rub the customer’s penis” and stated that “it is wonderful to have sex with another man.” Id. at 646 (cleaned up). In Brooks v. City of San Mateo, 229 F.3d 917, 921–22 (9th Cir. 2000), a serial sexual harasser in the workplace “placed his hand on [the plaintiff’s] stomach and commented on its softness and sexiness” and then “forced his hand underneath her sweater and bra to fondle her bare breast.” In Little v. Windermere Relocation, Inc., 301 F.3d 958, 964 (9th Cir. 2002), the plaintiff was “raped” three times by a third-party business associate. In Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1067 (10th Cir. 1998), two third-party customers told the Plaintiff that “[they] would like to get in her pants,” grabbed her hair several times, grabbed her breast, and placed their mouths on her breast.
The Court concludes from these cases that, before an employer can be found liable for failing to appropriately respond to an employee’s or a third party’s sexual harassment, there first must be an occurrence of sexual harassment. In this case, Jonathon’s advances were so lacking in severity that the Court is unsure what response Plaintiff expected or the law demanded. Of course, an employer must handle all allegations of sexual harassment with respect. Receipt of a meritless complaint does not constitute a license to demean or abuse the complainant. A hostile response to even a meritless complaint could itself create a hostile work environment. Here, however, there is no allegation that Defendant responded inappropriately.
Accordingly, the court concluded that “[b]ecause Plaintiff has not demonstrated that there was any sexual impropriety in the first place, Defendant cannot be liable for failing to take the necessary corrective action under Title VII. Plaintiff’s claim is therefore subject to dismissal.”