In Welch v. Bill Cram, Inc. et al, 2017 WL 3676040 (W.D.N.Y. Aug. 25, 2017), the court denied defendants’ motion for summary judgment on plaintiff’s claims of quid pro quo sexual harassment, hostile work environment sexual harassment, and retaliation (but granted it with respect to his gender discrimination/disparate treatment claim.
With respect to plaintiff’s quid pro quo sexual harassment claim, the court explained:
The Court finds that Plaintiff has stated a prima face case of quid pro quo sexual harassment. Plaintiff testified at his deposition to a number of instances of unwelcome physical contact of a sexual nature by his direct supervisor, Rush. Plaintiff also testified that his supervisor, Rush, explicitly made comments to Plaintiff conditioning his continued employment on Plaintiff’s submission to the unwelcome sexual advances. In particular, Plaintiff testified that Rush groped his buttocks multiple times every day, rubbed his genitals against Plaintiff’s buttocks and back, and rubbed his shoulders in a sexual way on several occasions. When Plaintiff told Rush to stop engaging in these types of behaviors, Rush replied that if Plaintiff complained about them, Rush would have him fired. “[O]nce an employer conditions any terms of employment upon the employee’s submitting to unwelcome sexual advances, a quid pro quo claim is made out, regardless of whether the employee (a) rejects the advances and suffers the consequences, or (b) submits to the advances in order to avoid those consequences.”
As to plaintiff’s hostile work environment claim, the court noted that “[g]iven the extremely short period of time in question and the quantity of comments, touching, and other conduct alleged, the Court finds that Plaintiff has created a genuine issue of material fact as to whether he faced a hostile work environment.”
In addition, the entity defendant could not avail itself of the Faragher/Ellerth affirmative defense, because it “did not ‘take reasonable care … to correct promptly’ the harassing behavior by Rush about which Plaintiff complained” but rather “terminated Plaintiff the day after he voiced his concerns.”