Sexual Harassment Claim, Based on “Broomstick” Incident, Survives Dismissal

In Bonterre v. City of New York et al, 18 Civ. 745, 2021 WL 4060358 (SDNY Sept. 7, 2021), the court, inter alia, denied defendants’ motion – under Federal Rule of Civil Procedure 12(c) – to dismiss plaintiff’s sexual harassment / hostile work environment claim.

The court explained:

In [the Second] Circuit, courts determining whether a single incident of sexually-motivated touching is sufficient to state a hostile work environment claim have focused on the degree to which the contact was intentional and/or physically intrusive. See Guzman v. Macy’s Retail Holdings, Inc., No. 09 Civ. 4472 (PGG), 2010 WL 1222044, at *5 (S.D.N.Y. Mar. 29, 2010) (motion to dismiss hostile work environment claim denied when plaintiff alleged that defendant “pressed—as opposed to brushed—his genitals against her” after she asked him to stop); see also Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 185 (E.D.N.Y. 2012) (distinguishing between “[i]ntentionally grabbing, squeezing, or otherwise feeling an intimate part of another’s body” and merely “brushing against it” for the purposes of a single actionable hostile work environment incident); cf. Redd v. N.Y. Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012) (“[D]irect contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”) (citation omitted). If the contact is intentional and sufficiently invasive or intrusive, a plaintiff may state a claim based on one incident of inappropriate contact.

Bonterre alleges that Moreno “deliberately shoved the handle of a broomstick deeply into Ms. Bonterre’s clothed buttocks while callously laughing.” Viewed in the light most favorable to Bonterre, this conduct is comparably severe to several other incidents for which motions to dismiss or for summary judgment on hostile work environment claims were denied, as it involves intentional contact with an intimate body part. In Guzman, the Court denied the defendant’s motion to dismiss when the defendant had allegedly “rubbed his genitals against [the plaintiff’s] body,” reasoning that the nature of such contact was “distinguishable from others in which the single incident of contact was incidental and fleeting.” Similarly, several courts in this Circuit have found incidents of intentionally squeezing a plaintiff’s breast or slapping their buttocks sufficient to state a claim for a hostile work environment if done with the requisite intent. See Reid, 876 F. Supp. 2d 176 at 185 (allegation that a defendant “grabbed and squeezed” one of Plaintiff’s breasts sufficient to deny motion to dismiss); see also Domingues v. Barton Chevrolet Cadillac, No. 18 Civ. 7772 (PMH), 2021 WL 637016, at *5 (S.D.N.Y. Feb. 17, 2021) (allegation that defendant grabbed plaintiff’s breast stated a hostile work environment claim); Wahlstrom v. Metro-N. Commuter R.R. Co., 89 F. Supp. 2d 506, 521 (S.D.N.Y. 2000) (allegations that defendant “wrapped his arms around [the plaintiff], grabbed her in a ‘bear hug,’ made a grunting sound, and slapped her left buttock three times” stated a hostile work environment claim because such contact was “neither harmless nor accidental.”). [Citations omitted.]

The court concluded that plaintiff’s “allegations that the broomstick was ‘shoved … deeply’ while Moreno was ‘callously laughing’ certainly raise a similar inference that the contact was intrusive, and was neither harmless nor accidental.”

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