Second Circuit Allows Sexual Harassment Claim, Based on Touching of Breasts, To Continue

On May 4th, the Second Circuit Court of Appeals reinstated plaintiff Fedie Redd’s sexual harassment / hostile work environment claim against the New York State Division of Parole based on her allegations that a female supervisor, Sarah Washington, inappropriately touched her breasts.  The case is Redd v. New York State Division of Parole, 678 F.3d 166 (2d Cir. 2012).

The trial court had granted the defendant summary judgment, finding that the plaintiff failed to show that the conduct was “objectively hostile and abusive enough to constitute an ‘intolerable alteration’ of her working conditions sufficient to substantially interfere with her ability to perform her job” and that the supervisor’s “alleged acts consisted of relatively minor, incidental physical contact” which “may have been purely accidental”, were arguably not “physically threatening or humiliating”, and “were episodic, rather than continuous or concerted”.

The Second Circuit disagreed.  Emphasizing that the trier of fact must evaluate the totality of the circumstances when evaluating a sexual harassment claim, the Court (per Judge Kearse) held that the summary judgment record clearly indicated that defendant was not entitled to judgment as a matter of law:

According to Redd’s sworn statements, Washington touched Redd’s breasts on three occasions. Redd characterized Washington’s touches in a variety of ways. In the first incident, which occurred in Washington’s office, Washington “brushed” against Redd’s breasts, but did so in a way that was sufficiently substantial to unnerve Redd and cause her to “spill[] water . . . all over the transfer list” she was reviewing.  In the second incident, Washington “came up” to Redd in a hallway and “touched” and “rubbed up against” Redd’s breasts.  In these incidents, Washington “felt [Redd’s] breasts.” In the third incident, Washington came over to Redd who was sitting at a computer in a secretarial area and “reached over and touched” Redd’s breasts.  There is nothing conclusory about these accusations.  Redd inferred that Washington’s touching, feeling, and rubbing up against Redd’s breasts were “homosexual advances”. We see no principled reason why a jury, considering the evidence of repeated touching of such gender-specific body parts, would not be permitted to draw the same inference.

Moreover, while Washington denied that she harassed Redd or touched her inappropriately, the jury was not “required to believe those denials” and thus the “district court, in determining whether the Division was entitled to judgment as a matter of law, was required to disregard them”.

The complained-of conduct was also unwelcome, in that Redd “backed away from Washington to refuse her advances” and feared and tried to avoid Washington.


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