In Gazaway v. Rims USA LLC d/b/a RNR Tire Express, No. 1:21-cv-44, 2022 WL 17869144 (E.D.Tenn. Dec. 22, 2022), the court, inter alia, held that plaintiff presented sufficient facts such that a reasonable jury could conclude she was subjected to sexual harassment (of the “hostile work environment” type), as well as whether defendant may successfully establish its affirmative defense to employer liability.
As to the first issue, the court explained:
The parties first dispute whether Norton and Palmer’s alleged conduct was welcomed by Plaintiff. By definition, if the conduct is welcomed, it is not unlawful sexual harassment. Lauro v. Tomkats, Inc., 9 F. Supp. 2d 863, 872 (M.D. Tenn. June 18, 1998). Defendant submits statements from Plaintiff’s coworkers about her conduct at work, with the implication that Plaintiff’s own conduct meant that she welcomed Norton’s and Palmer’s alleged sexual conduct. But Plaintiff testified at her deposition that she did not welcome Norton’s and Palmer’s alleged sexual conduct. She testified that Palmer “would flirt with me and hit on me and tell me I looked pretty and my hair was pretty almost daily, but I would refuse his advances.” (Doc. 25-2 at 12.) Palmer “would come up behind me and rub my shoulders or like rub against the back of me some, just touch me and unwanting [sic]. I did not want him to touch me. He’s a very unhygienic man.” (Id. at 13.) Plaintiff testified regarding Norton’s Snapchat videos and messages, “I told him to stop many times and he would not.” (Id. at 25.) This is precisely the type of genuine dispute of material fact that must be submitted to the jury, not decided at the summary-judgment stage.
Next, after reviewing the evidence in the light most favorable to Plaintiff, the Court finds there is a genuine dispute of material fact as to whether Norton’s and Palmer’s conduct arose to the level of creating a hostile work environment prohibited by Title VII. Although it is true that Title VII does not serve as a general code of civility for the workplace, it does require courts to look at the “accumulated effect” of individual instances of sexual harassment to determine whether a hostile environment is created. Williams, 187 F.3d at 563. Plaintiff testified in her deposition that she had experienced approximately two years of sexual comments and physical touching from Norton and Palmer that she did not want to receive, as well as receiving explicit sexual content from Norton and Palmer that she did not want to receive. Plaintiff declared that throughout her employment, she “did not send nude or explicit photographs to any employee of Defendant” nor did she “solicit any nude or explicit photographs from any employee of Defendant.” (Doc. 25-6 at 3.) She also declared that since meeting Norton, she has “never sent nude or explicit photographs to him” and she “rejected Mr. Norton’s sexual advances both in person and via electronic communication.” (Id.) At the summary-judgment stage, the Court is limited to construing the record in the light most favorable to Plaintiff.
Over the course of approximately two years and five months, Plaintiff received from two of her supervisors three explicit nude photos or videos (including one of Norton receiving oral sex), “almost daily” comments about her appearance, at least six sexually aggressive remarks, one incident where a knife was held near her neck momentarily, and three instances where Norton thrust his hips at her. (Doc. 25-1 at 11–12; Doc. 25-8 at 2.) The Court of Appeals for the Sixth Circuit has stated that the “outer limits on what conduct a reasonable person could not believe creates a hostile work environment” is set out in Bowman, where three counts of physically invasive conduct—including a supervisor grabbing the plaintiff’s buttocks and saying she could do whatever she wanted with it—and repeated unwanted sexual advances did not constitute severe or pervasive harassment. Nathan v. Great Lakes Water Auth., 992 F.3d 557, 569 (6th Cir. 2021) (quoting Bowman, 220 F.3d at 458–59, 464). The instances Plaintiff alleged are enough to survive summary judgment. The December 18, 2019, encounter with Palmer was physical threatening, and Palmer had previously made physical contact with her by “slapping the back of [her] hair or swinging his fist at the back of [her] hair.” (Doc. 25-2 at 31.) The conduct Plaintiff allegedly experienced was physically invasive, and there were three nude messages sent. Therefore, this is unlike Nathan, where the plaintiff had experienced only verbal remarks and no physical contact from her alleged harassers. 992 F.3d at 569–70. And some of Norton’s and Palmer’s behavior toward Plaintiff occurred in front of other employees, such as Heaton or accounts manager Matthews (who was seated next to Plaintiff during the December 18, 2019, knife incident), so they arguably had a greater impact on Plaintiff. See id. (“[T]he lack of an audience for these personal remarks reduces their humiliating nature.”). Finally, there was “no conceivable work purpose” that could justify Norton’s and Palmer’s conduct. Id.
Moreover, it is reasonable to infer that the alleged harassment made it more difficult for Plaintiff to do her job. Plaintiff need not show that her tangible productivity declined, only that the harassment unreasonably interfered with her work performance. All of the harassment was perpetrated by Plaintiff’s supervisors, “which would likely change a reasonable person’s relationship with her supervisor and, therefore, her ability to approach her supervisor about work-related issues.” All of the verbal harassment and physical conduct occurred during work hours and in the office, so the timing and location of the harassment would have made it more difficult for a reasonable person in Plaintiff’s position to fulfill her job duties. Accordingly, the Court finds that Plaintiff has presented sufficient facts that a reasonable jury could conclude that she experienced a hostile work environment under the totality of the circumstances.
[Cleaned up.]
As to the second issue, the court rejected defendant’s analogy of plaintiff’s alleged conduct to that of the harasser in another case, noting that plaintiff’s maintaining, at her deposition, that all of the alleged harassers’ conduct and sexual advances were unwanted, and that she had not consented to their sexual conduct.