Hostile Work Environment Sexual Harassment Claim Survives Summary Judgment Against PA Tavern

In Carey v. Chadds Ford Tavern, 20-4236, 2021 WL 5448960 (E.D. Pa Nov. 22, 2021), the court denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964 and state law.

In concluding that the alleged conduct was “severe or pervasive”, the court explained:

Ms. Carey testified that Mr. Ferro made inappropriate sexual comments to her on at least four occasions, including asking whether Ms. Carey would perform oral sex on him at least three times, and thrust his genitals in her face. The Tavern argues that Ms. Carey’s deposition testimony “[s]tanding alone in the face of the contrary evidence cited by the Defendant [is] patently inconsistent and contradictory testimony [that] does not establish genuine issues of material fact.” Doc. No. 24, at 2. However, “there is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion.” Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir. 1990). Even if Ms. Carey did not have corroborating evidence (which she does), a plaintiffs deposition testimony may suffice to create genuine dispute about material issue. Where an issue turns largely on the credibility of the competing testimony, it is inappropriate to decide on a motion for summary judgment. Anderson, 477 U.S. at 255 (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge [when] ruling on a motion for summary judgment….”).

The Tavern next argues that, even if Mr. Ferro engaged in the conduct alleged, this conduct would not be severe or pervasive enough to establish a violation of Title VII or the PHRA. Doc. No. 18, at 34. The Tavern maintains that “[n]o jury could reasonably find that the conduct as described by Plaintiff in her deposition testimony met the severe or pervasive standard required to support Plaintiff’s claim.” Doc. No. 24, at 4–5. Specifically, the Tavern emphasizes that Ms. Carey said she was used to “kitchen talk” and that comments made about other employees did not really bother her to affect the terms or conditions of her employment. Id. at 5. However, Ms. Carey maintains that Mr. Ferro’s activity toward her became “more serious, more sexual” after her first month of employment. Id. at 5 n.4.

The Tavern argues that “Plaintiff was fairly clear that the only comments that concerned her were the times Ferro discussed her in a sexual way (4 times) and when he talked about her blowing him on three occasions.” Id. at 6 n.8. But this insensitive (at best) argument misses the point: the kinds of workplace conduct that are actionable under Title VII include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Meritor Sav. Bank, 477 U.S. at 65 (quoting 29 CFR § 1604.11 (a) (1985)). While “simple teasing, offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment,” Ms. Carey has introduced evidence of recurring unwanted sexual advances that go far beyond innocuous teasing. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks omitted).

The notion that the sort of comments recounted in this case were nothing more than “kitchen talk” suggests a “kitchen” from which no one would want their food or drink. According to Ms. Carey’s testimony, Mr. Ferro asked Ms. Carey to engage in oral sex with him on at least three different occasions; Mr. Ferro moved his crotch toward her face while she was bent over and then whispered in her ear; Mr. Ferro made sexually inappropriate comments during four of the five times they were alone in the same room together, including asking Ms. Carey about her sexual relations with her boyfriend, who also worked at the Tavern; and Mr. Ferro’s sister, Ms. Maher, allegedly “insisted on viewing” Ms. Carey’s genitals during a drug test.

Undeterred, the Tavern points to Moody v. Atl. City Bd. of Educ., 870 F.3d 206 (3d Cir. 2017), to argue that Mr. Ferro’s conduct was not so bad. In Moody, the plaintiff’s custodial foreman made sexual comments, physically touched her, called her into his office where he was seated naked, and continued to make advances until the plaintiff, feeling coerced, engaged in intercourse with him. Id. at 211. The Tavern emphasizes that Ms. Carey does not allege that Mr. Ferro was naked when he allegedly put his crotch in her face. Doc. No. 24, at 4 n.3. The Tavern practically suggests that Ms. Carey should be grateful for small favors. The defense argument sets a bar for the severity of sexual harassment far higher than the one the Supreme Court has set. See Meritor Sav. Bank, 477 U.S. at 65 (noting that “verbal or physical conduct of a sexual nature” may constitute sexual harassment).

[Citations omitted.]

The court also ruled that an EEOC charge filed by another employee similarly alleging sexual harassment by the same person (so-called “me too” evidence) was admissible, and not barred by Federal Rule of Evidence 404(a)(1). In so holding, the court noted that “the EEOC charge filed by [the other employee] is relevant because she makes sexual harassment allegations against Mr. Ferro covering roughly the same time period.”

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