Sexual Harassment Claim Survives Summary Judgment; Conduct Was Sufficiently “Severe” Even if Not “Pervasive”

In Gray v. Koch Foods, Inc. et al, 2022 WL 141533 (M.D.Ala. Jan. 14, 2022), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964.

From the decision:

The facts at issue here do not present the classic case of a pattern or campaign of harassment. Instead, the facts focus largely on one off-site late-night incident along with a secondary confrontation at the workplace that involved less obvious sexual overtures. Therefore, the sole question is whether these acts are severe enough, without the added weight of repetition over time or cumulation with other acts of harassment, to stand alone as the basis for a harassment claim. Holding such acts not to be severe as a matter of law is another way of saying that no reasonable person could think them serious enough to alter the plaintiff’s work environment.

In assessing whether harassment is objectively severe or pervasive, courts typically look to: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct was physically threatening and humiliating or just a mere utterance; and (4) whether the conduct unreasonably interferes with the employee’s work performance. Instead of requiring proof of each factor individually, courts consider the totality of the circumstances. No single factor is required.

Importantly, this inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target … [t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.

Considering the objective factors in the totality of the circumstances, the Court concludes that this case presents a rare set of facts where a reasonable jury could find that the alleged harassment was sufficiently severe despite the absence of a pattern or campaign of harassing conduct. See Hostetler, 218 F.3d at 807 (finding harassment sufficiently severe when “two of three acts … involved unwelcome, forcible physical contact of a rather intimate nature.”).

Obviously, the first factor, frequency and pervasiveness, cuts against Gray. The alleged conduct was not pervasive but was rather two discrete events across the span of a week. … Though other courts have found that the continued presence of alleged assaulters, and certain facially neutral conduct, like the seemingly benign text messages between McDickinson and Gray, can be considered in determining if the harassment was pervasive enough to alter the terms of employment, the Court need not rely on this in light of the analysis of the remaining factors. See, e.g., Lapka v. Chertoff, 517 F.3d 974, 984 (7th Cir. 2008) (“The continued presence of a rapist in the victim’s workplace can render the workplace objectively hostile because the rapist’s presence exacerbates and reinforces the severe fear and anxiety suffered by the victim.”); Davis v. Hosp. Staffing Sols., LLC(DE), No. 1:16-CV-1630-CAP-CMS, 2016 WL 8902590, at *3 (N.D. Ga. Dec. 9, 2016), report and recommendation adopted sub nom. Davis v. Hosp. Staffing Sols., LLC (DE), No. 1:16-CV-1630-CAP, 2017 WL 2727859 (N.D. Ga. Jan. 19, 2017) (finding a viable hostile environment claim where an employer, upon having notice of an off-work-premises assault, allowed the accused harasser to sit next to the victim at work).

Even though the garage and office incidents are the only two instances of alleged overt harassment here, the next two factors, the severity of the conduct and whether it was physically threatening or humiliating, strongly weigh in Gray’s favor. The garage incident, viewed in the light most favorable to Gray, was extreme. It was not only physically threatening, but actually physical. Gray alleges she was sexually assaulted by two individuals—simultaneously—while in a confined space on an occasion she thought was for the purpose of discussing work and a promotion. Gray further alleges that the harassment not only continued, but escalated each time she declined McDickinson’s and Birchfield’s advancements.

The severity of the garage incident is heightened by the fact that the harassment was a coordinated, simultaneous assault by two HR managers. Indeed, the alleged physical assault was not just one authority figure sexually assaulting Gray, but two such persons assaulting Gray at the same time, followed immediately by an indecent exposure and exhibitionist sex act. While at a supervisor’s house, having been lured there under false pretenses, Gray was touched, “sandwiched” between two supervisors’ bodies as they sexually rubbed against her, kissed her, and forced her to witness a sex act—all uninvited and despite her repeated refusals. In short, if true, these two HR supervisors crossed almost every physical and emotional boundary to coerce their subordinate to have group sex with them. Such conduct is inherently severe, physically threatening, and humiliating.

The fourth and final factor, interference with work performance, also weighs in favor of Gray, although not heavily. While Gray did remain at Ala-Koch for five months following the garage incident, a jury could nevertheless find that the harassment interfered with her work performance. According to Gray’s testimony, she suffered stress to the point of seeking medical help for anxiety; she asked other employees not to leave her alone with McDickinson; she had to endure the presence of her alleged assaulters; she had to placate her alleged assaulters—individuals who had the power to discipline her; and she lost meaningful access to HR, the very department tasked with protecting Ala-Koch employees. See Olson v. Lowe’s Home Ctrs., Inc., 130 F. App’x 380, 388 (11th Cir. 2005) (finding sufficient evidence that harassment interfered with the plaintiff’s job where the plaintiff tried to avoid the harasser at work and plaintiff was unable to work at her previous level); Johnson, 234 F.3d at 509 (finding sufficient evidence that harassment interfered with plaintiff’s job performance solely because the plaintiff “could not get along with her on-the-air co-host” (the alleged harasser)). In addition, when Gray complained to Birchfield about perceived race discrimination by another employee, Gray was placed under the direct supervision of McDickinson, a final straw that ultimately led to her resignation several weeks later.

The court concluded that, upon weighing all four factors under the totality of the circumstances, a reasonable person could find the isolated harassment serious enough to alter plaintiff’s work environment.

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