In Willis v. Cty. of Onondaga, No. 14-cv-1306, 2016 WL 7116126 (N.D.N.Y. Dec. 6, 2016), the court dismissed plaintiff’s sexual harassment, racial harassment, retaliation, and other claims asserted under Title VII of the Civil Rights Act of 1964. Here I’ll discuss the court’s evaluation of plaintiff’s Title VII sexual harassment claim.
Plaintiff, an African-American heterosexual male, was employed as a deputy sheriff for the Onondaga County Sheriff’s Office Custody Department. Here I’ll discuss the court’s evaluation of his sexual harassment claim.
Plaintiff alleged, among other things, that a sergeant “swip[ed] his hand up [plaintiff’s] butt”, grabbed plaintiff’s buttocks, and put his hands on plaintiff’s shoulders, a deputy punched him in the right thigh, and that plaintiff witnessed the deputy reached underneath another man’s buttocks from behind and grabbed the other man’s penis.
The court assumed that plaintiff (barely) presented enough evidence that the alleged misconduct was “because of” plaintiff’s sex, severe, and pervasive.
As to the first point, the court explained:
[T]he first issue that the Court must address is whether the above-listed alleged conduct was “because of [Plaintiff’s] sex” under Title VII. The fact that the alleged conduct occurred among males and was heterosexual in nature is not determinative. … [H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex…. A same-sex harassment plaintiff may …, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.[] Rather, the issue is whether the alleged conduct was “because of [Plaintiff’s] sex” under Title VII. The Court can find little, if any, sex-based motivation with regard to the photograph and thigh-punching incident. However, … some of the other alleged conduct involved direct contact with intimate body parts. Moreover, the Court notes that the alleged direct contact occurred between males, and that there appears to be a dearth of record evidence that females received similar physical treatment (e.g., involving the grabbing of their genitalia) by males. Under the circumstances, for the sake of brevity, the Court will assume that admissible record evidence exists (albeit barely) from which a rational fact-finder could conclude that this conduct was “because of [Plaintiff’s] sex” under Title VII.
Plaintiff’s claim faltered at the last inquiry, namely, “whether admissible record evidence exists from which a rational fact-finder could conclude that a specific policy or practice caused the alleged sexual discrimination, sufficient to impute the conduct to Defendant.”
From the decision:
[T]he Court answers this question in the negative for the reasons stated by Defendant in its memoranda of law (including the fact that Defendant had policies prohibiting sexual harassment, reasonable avenues for complaining of such harassment, and a record of investigating and addressing such complaints, commensurate with the evidence discovered). …
Beginning with the first and second forms of alleged misconduct, while these forms of misconduct were committed by a supervisor, they do not evidence a policy or practice of Defendant causing the alleged sexual discrimination because (setting aside Defendant’s written policy prohibiting such misconduct) Plaintiff’s complaint about the misconduct resulted in a rather thorough investigation by Defendant[.] … The mere fact that Plaintiff disagrees with the conclusions drawn by Sgt. Marshall and Lt. Raus does not mean that Defendant had a policy or practice that caused the alleged misconduct. …
Turning to the seventh form of alleged misconduct, Plaintiff witnessed this form of misconduct being committed during the time in question by a fellow deputy (not a supervisor); furthermore, no admissible record evidence exists that Plaintiff complained to Defendant about witnessing this alleged misconduct during the time in question. In his deposition, Plaintiff testified that he reported Deputy A’s giving the “polish handshake” to Plaintiff in 2008 or 2009, not that he reported witnessing (and feeling victimized by) Deputy A’s giving the “polish handshake” to other deputies subsequently, specifically, between August 2013 and May 2015. …
[M]ore importantly, the reports filed by Plaintiff do not complain about witnessing this alleged misconduct between others. … If Defendant was not notified that Plaintiff was feeling victimized by witnessing this alleged misconduct between others, it is difficult to conclude that Defendant is responsible for failing to appropriately respond to the feeling of victimization. Under the circumstances, the Court finds that, based on the current record, no rational fact-finder could conclude that Defendant had a specific policy or practice that caused the alleged sexual discrimination.
The court therefore dismissed plaintiff’s Title VII sexual harassment claim.