Sexual Harassment / Hostile Work Environment Claim Survives Summary Judgment; Evidence Included Touching of Intimate Body Parts

In Fish v. 1295 Aroxy Cleaners, No. 15-cv-102, 2017 WL 1496244 (N.D.N.Y. Apr. 26, 2017), a sexual harassment hostile work environment case, the court denied defendants’ motion for summary judgment.

Here are the facts, as summarized by the court:

According to [plaintiff] Fish, [plaintiff’s primary supervisor Hagop] Poladian began sexually harassing her at the end of August 2013. Dkt. No. 43-1 ¶ 5. Between August 30, 2013, and September 27, 2013—which was Fish’s last day working for ARoxy—Poladian sexually harassed and assaulted Fish on several occasions. Dkt. No. 44-2 at 2–3.2 The first incident took place when Poladian came to the Broad Street store on a day that Fish had a sore throat, and he asked to see her throat. Dkt. No. 43-5 at 35:6-35:20. Poladian then made a gesture with his hand and mouth imitating oral sex and commented that Fish “must have some experience with that.” Id. Later that day, Poladian offered Fish extra money to clean his house, and he suggested that they could have drinks and exchange massages. Id. at 36:9-36:20. Poladian made several other inappropriate sexual comments during September 2013. Dkt. No. 44-2 at 2. In addition to those comments, Fish claims that Poladian also sexually assaulted her on two occasions.

First, on September 9, 2016, Poladian brought Fish into the back room of the Broad Street store in order to review the store’s books and inventory. Dkt. No. 43-5 at 49:21-40:15. Poladian then asked Fish to give him a hug, and she agreed. Id. But when Fish heard Poladian sniffing her hair, she became uncomfortable and pulled away, at which point he reached out and grabbed her breasts with both hands. Id. Fish told Poladian to stop, left the back room, and returned to the front counter. Id. at 46:22-47:5. Second, on September 16, 2013, Poladian demanded that Fish join him in the back room of the Broad Street store to review the books and inventory. Id. at 54:9-55:13. After initially refusing, Fish eventually complied. Id. Once inside, Poladian reached out, pulled Fish toward him, and, when she turned her head away, licked her face while rubbing his groin against her body. Id. With some difficulty, Fish managed to pull away from Poladian, after which he quickly exited the store. Id.

On September 27, 2013, Poladian once again came to the Broad Street store and asked Fish to follow him into the back room to review the books and inventory. Id. at 71:20-72:16. When Fish refused, Poladian became upset, slamming books and throwing rags across the room. Id. Fish, concerned for her safety, left the store and called the police. Id. When the police arrived, Fish did not tell them about Poladian’s history of sexual harassment and assault; instead, she said that Poladian had accused her of stealing from the store. Dkt. No. 44-2 at 4. With the police present, Poladian fired Fish, who retrieved her personal belongings and left the store.

Judge D’Agostino held that, on the facts presented, defendants were not entitled to summary judgment. She explained: “Our law is clear … that even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment under Title VII.”

The court concluded:

In this case, Fish alleges that Poladian made unwanted physical contact with intimate parts of her body on multiple occasions, first by grabbing her breasts and second by licking her face and rubbing his groin against her body. Courts in this circuit have repeatedly held that the type of conduct alleged by Fish is sufficient to establish a hostile work environment claim. … Fish’s other allegations of sexual harassment only support the Court’s conclusion that there is an issue of material fact as to whether Poladian’s behavior created a hostile work environment. Therefore, Defendants’ motion for summary judgment is denied.

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