Hostile Work Environment Sexual Harassment Claim Survives Summary Judgment; Evidence Included Attempted Kiss and Strip Club Visits

In a recent decision, captioned Cannon v. Communication Components, Inc. et al, No. 2:20-cv-01626 (WJM), 2022 WL 4300247 (D.N.J. Sept. 19, 2022), the court, inter alia, denied defendants’ motion for summary judgment as to plaintiff’s claim of hostile work environment sexual harassment asserted under the Washington Law of Discrimination (WLAD).

From the decision:

Upon reviewing the record, the Court finds that there are genuine issues of material fact precluding summary judgment on the hostile work environment claim. For example, Plaintiff insists that Nathan attempted to kiss her twice. Although Nathan denies that such conduct ever occurred, Plaintiff’s deposition testimony sets forth specific facts pertaining to the alleged kissing and is sufficient to defeat summary judgment. Moreover, contrary to Defendants’ assertion that two attempts to kiss Plaintiff are too few to have created a hostile work environment, whether harassment is sufficiently severe or pervasive is a question of fact for the jury to decide. Defendants’ reliance on Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2020) to argue otherwise is unavailing. In Brooks, the Ninth Circuit expressly stated that it was not deciding whether a single instance of sexual harassment can ever be sufficient to establish a hostile work environment under Title VII. Rather, the court found that the single instance of nonviolent sexual assault was not pervasive and did not alter the terms and conditions of the plaintiff’s employment because the employer immediately and completely removed the harasser from the workplace ensuring that the harassment was never repeated and entirely isolated. Here, in contrast, Nathan was never removed from CCI and is accused of attempting to kiss Plaintiff a second time.

Next, although Defendants emphasize that Plaintiff admitted never reporting any of the purported harassment or discriminatory conduct to human resources or any other CCI department, where an owner, manager, partner or corporate officer personally participates in the harassment, their actions can automatically be imputed to the employer. In this case, Nathan is CCI’s co-owner and is alleged to have personally participated in the harassment. Further, Nathan’s rank as President and Chief Technology Officer is high enough that his actions may automatically be imputed to the company.

In addition to the kissing allegation, Plaintiff testified that Cerulli took his clients to strip clubs and that his discussion of strip clubs made her uncomfortable. A reasonable jury could credit Plaintiff’s testimony over Cerulli’s explanation that Plaintiff simply overheard a single conversation he had with another male salesperson in or about January or February 2018. At that time, Cerulli was already Plaintiff’s supervisor.

[Cleaned up.]

The court concluded that, “making all reasonable inferences in the nonmoving party’s favor, Defendants have not met their burden to show that the only reasonable verdict is in their favor,” particularly noting that “[t]he attempted kissing and discussion of strip clubs taken together present disputed material facts upon which a jury could find that Defendants created a hostile work environment under” the pertinent law.

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