In EEOC v. SDI of Mineola, LLC d/b/a Sonic Drive In, No. 6:21-CV-00226-JCB-KNM, 2022 WL 4127167 (E.D.Tex. Aug. 17, 2022), the court, inter alia, recommended the denial of defendants’ motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
The court explained:
The EEOC has adduced sufficient summary judgment evidence to state a prima facie claim for hostile work environment sexual harassment involving a supervisory employee.9 Claimants, as females, are members of a protected class based on gender. Likewise, the EEOC has alleged and supported with deposition testimony that LJ’s conduct was unwelcome.10 Defendants do not contest either of the foregoing, but assert that LJ’s conduct was not based on sex. Defendants further contend that claimants have essentially testified that LJ’s conduct was merely offensive, not physically threatening or humiliating, and that it did not rise to the required level of severity or pervasiveness to create a hostile work environment.
“The critical issue in determining whether workplace activities constitute harassment based on sex is ‘whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ ” Reine v. Honeywell Int’l Inc., 362 F. App’x 395 (5th Cir. 2010), cert denied, (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, (1998)). As discussed in detail below, the EEOC has provided examples of LJ’s sexual conduct, directed toward each claimant, and evidence that his sexually harassing behavior was not likewise directed toward men. For example, while LJ would bang on the bathroom door while the male cooks were inside, it was not likewise accompanied by the sexual moaning or “let me in” comments.11 Further, Defendants did not identify a male employee that LJ also “brushed up against.”12 Accordingly, the record evidence does not demonstrate that LJ was an “equal opportunity” harasser, and a fact issue remains as t ex.
The court proceeded to bullet-point the evidence proffered by the various victims – including but not limited to the alleged harasser making sexual jokes, asking for dates (and noting that after the date, he and the victim could give each other massages), making jokes about his penis, breathing down one victim’s neck, and grabbing of one victim’s vagina, and forcibly kissing one victim – which a jury could reasonably determine met the “severe or pervasive” standard.