In Burke v. Jose Luis Villa, Sadrac Louis, Bonefish Grill et al, No. 19-CV-2957, 2021 WL 5591711 (E.D.N.Y. Nov. 30, 2021), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s same-sex sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
As to whether the harassment was “severe or pervasive”, the court explained:
To evaluate a hostile work environment claim, the court considers the “totality of the circumstances, … including the frequency and severity of the conduct, whether it was physically or verbally threatening, and whether it unreasonably affected the employee’s job performance.” Springs, 2019 WL 1429567, at *10. “The kinds of workplace conduct that may be actionable under Title VII … include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Redd, 678 F.3d at 175.
The record leaves little doubt that a rational juror could find Villa’s conduct not only severe, but pervasive. Burke alleges that Villa repeatedly touched, grabbed, or pinched his buttocks,7 see id. at 177 (“Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”); Villa rubbed his waist, back, shoulders, and arms; and Villa made sexually suggestive comments and advances, including requests that Burke go home with him.
A rational juror could also find that Burke subjectively perceived this environment as hostile. He alleges that Villa continued this conduct, despite many, vocal objections; he complained about Villa’s conduct to managers and coworkers; and, disengaged with his job because of Villa’s conduct, he began to miss work. Thus, summary judgment is denied on this ground.
The court also held that there existed a triable issue of fact as to whether Villa’s conduct was motivated by plaintiff’s sex. As to that point, the court explained:
The Supreme Court has outlined three ways in which a plaintiff can show that same-sex harassment could constitute discrimination based on sex, including that “the harasser is homosexual (and, therefore, presumably motivated by sexual desire).” Barrows, 512 F. App’x at 117 (citing Oncale, 523 U.S. at 79-81). But the Court did not provide these examples as “an exhaustive list.” Springs, 2019 WL 1429567, at *12; see Barrows, 512 F. App’x at 117 (“The Court outlined three examples of evidence ….”) (emphasis added). Where credible evidence of the words and actions of a same-sex harasser suggest sexual desire, a rational juror can find that the harasser’s conduct was based on sex, irrespective of whether the plaintiff provides evidence of the harasser’s homosexuality. See Deprey v. FedEx Freight, Inc., No. 18-cv-102 (MPS), 2020 WL 1702335, at *4-5 (D. Conn. Apr. 8, 2020) (holding that “a jury could reasonably infer from [the same-sex harassers’] conduct that they were motivated by [plaintiff’s] sex” because “factfinders are ‘entitled to draw inferences as to intent and motivation from conduct as well as words’ ”) (quoting Redd, 678 F.3d at 181)); Perry, 2018 WL 1136922, at *9 (finding that “sexual desire may also be shown by other factors such as the nature and content of the conduct itself”).
Viewing this record (without tone or expression) in the light most favorable to Burke, a rational juror could find that Villa’s conduct was motivated by sexual desire. Burke alleges that Villa frequently touched his buttocks; that he would grab Burke around the waist “like a couple,” until he shook him off; that he massaged Burke’s back and shoulders in a sexual manner; and that he would ask Burke to come home with him “to have some fun.” This conduct is plainly sexual in nature. See Tepperwien, 606 F. Supp. 2d at 439 (explaining that, where defendant allegedly “grabbed [p]laintiff’s buttocks” and made sexually explicit comments to him, “[a] reasonable jury could find” the conduct “to be more than just mere offensive utterances”). And Defendants’ response—that Villa could not have engaged in sexually-motivated conduct toward Burke, because he is in a heterosexual marriage and has children—is without merit.
A plaintiff can also establish that members of one sex are exposed to disadvantageous conditions of employment to which members of the other sex are not, by showing “direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.” Barrows, 512 F. App’x at 117 (citing Oncale, 523 U.S. at 79-81). Here, the record shows that Villa allegedly touched or grabbed the buttocks of only male employees, not female employees. (See Defs.’ 56.1 Reply ¶ 43.) Thus, a rational juror could find that “men were exposed to a disadvantageous term or condition of employment to which women were not.” See Barrows, 512 F. App’x at 117-18 (finding that a reasonable jury could find that the supervisor-harasser treated women better than men because he “directed vulgar comments toward many of his male coworkers and struck the genitals of numerous male employees, but female employees … were apparently not subjected to the same treatment”); see also Deprey, 2020 WL 1702335, at *5 (“[W]hile there is no direct evidence that the harassers treated women more favorably than they treated men, there is also no evidence that they treated female employees the same way they treated [plaintiff]—which is enough to warrant an inference of sex-based harassment.”).
Defendants counter by characterizing Villa’s conduct as “male-on-male horseplay” and proffering that Villa targeted Burke because he could not speak Spanish. (Mot. at 15-16; Reply at 4.) And a juror may well agree and find Villa’s conduct offensive but neither discriminatory nor motivated by sexual desire. But “the line between teasing or hazing and sexual harassment is not always simple to discern,” and it is not the court’s place “to supplant the factfinder’s role and make such determinations.”
Finally, the court held that there was a basis for imputing the alleged harassment of plaintiff’s co-worker to the corporate defendants – specifically, that defendants’ response to plaintiff’s complaints was inadequate, amounting to negligence).