In Bearer v. Teva Pharmaceuticals USA, Inc. et al, 19-5415, 2021 WL 4145053 (E.D.Pa. Sept. 8, 2021), the court, inter alia, denied defendant’s motion for summary judgment on her hostile work environment / sexual harassment claim arising from defendant’s President and CEO slapped plaintiff’s buttocks.
The court distinguished this case from one in which the Court noted that the plaintiff there “testified that she and the particular superior officer who was responsible for much of the harassment ‘were friends’ and would often dine and vacation together with each other’s respective families.”
The court explained:
Here, to the contrary, one of Teva’s highest level executives, a man whom Bearer barely knew in a professional capacity, let alone in a personal capacity, inappropriately and offensively touched an intimate area of her body, without any indication whatsoever that any such conduct was invited, and in doing so committed a sexual battery against her. Vergara v. Keyes, 2020 WL 7778080, at *1 (D.N.J. Dec. 30, 2020) (“sexual battery” where defendants “forcefully slapped [plaintiff’s] buttocks”). He did so, brazenly, in the plain view of one of Bearer’s subordinates. Undoubtedly, such conduct is “physically threatening [and] humiliating.” Faragher, 524 U.S. at 787–88. Further, Koremans’s conduct was compounded the very next day when he winked at Bearer, in what she reasonably interpreted as a sexual advance or proposition. To make matters worse, approximately two months later, Bearer learned that Koremans would attend a presentation she was giving, despite her request that he not be.
Sexual battery is one of the most serious forms of workplace sexual harassment to which one could be subjected. We acknowledge that Teva has referenced three district court opinions that it contends involve comparable or more serious conduct that was held not to be “severe or pervasive.” However, we observe that one of these cases involves conduct that appears to be less severe than that presently before us, Larochelle v. Wilmac Corp., 210 F. Supp. 3d 658, 684 (E.D. Pa. 2016), and that the other two were decided more than two decades ago. Saidu–Kamara v. Parkway Corp., 155 F.Supp.2d 436, 439–40 (E.D. Pa. 2001); Bauder v. Wackenhut Corp., 2000 WL 340191 at *4 (E.D. Pa. Mar. 23, 2000). Further, to the extent that there are other district court opinions that would support holding that a sexual battery at the hands of one of the most powerful men within Teva’s corporate umbrella, with whom Bearer had no personal relationship, and that occurred directly in front of one of her subordinates, is not “severe,” we believe that the context of this case warrants a different outcome.
The court concluded that “[v]iewing the evidence in the light most favorable to Bearer, we conclude that a reasonable jury could find that this conduct is sufficiently ‘severe’ to sustain a hostile work environment claim, and that she is therefore entitled to have a jury make that determination” and that, therefore, summary judgment is denied as to her hostile work environment claim.