In Davis v. Dawgs of St. John, Inc., d/b/a Sundog Café et al, Case No. 3:20-cv-0112, 2022 WL 17735829 (D.Virgin Islands Dec. 16, 2022), the court, inter alia, denied defendants’ motion for judgment on the pleadings as to plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Even though Plaintiff fails to document each incident of the alleged harassment, Plaintiff specifically describes one comment directed at her by Defendant Michael Barry, when he allegedly told another employee that he “liked the way Plaintiff’s shorts looked on her butt,” and the other employee’s response (Compl. at ¶ 33) that could constitute sexual harassment. Plaintiff also alleges several messages sent by Defendant Michael Barry and other employees in the “Sun Dog Staff Chat” that are sexual in nature. Compl. at ¶¶ 34-35. Further, Plaintiff alleges that “[d]uring her work shifts, [she] also was subjected to overhearing sexually explicit language and witnessing vulgar and sexually offensive actions by managers and employees of [Sun Dog].” Id. at ¶ 38. Finally, Plaintiff alleges that the Sun Dog “workplace became sexually and psychologically intolerable for Plaintiff” and that the “environment adversely affected Plaintiff’s wellness and caused Plaintiff significant distress.” Id. at ¶¶ 42 and 81.
It is true that “[n]ot every sexual comment, action or joke creates a hostile work environment.” Brown-Baumbach v. B&B Auto, Inc., 437 F. App’x 129, 133 (3d Cir. 2011) (quoted in Martone v. Jet Aviation Flight Servs., Case No. 2:19-cv-21011, 2021 U.S. Dist. LEXIS 79318, at *23 (D.N.J. Apr. 26, 2021)). It is also true that “[c]ourts apply the totality of the circumstances test, which involves analyzing ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Martone, 2021 U.S. Dist. LEXIS 79318, at*23 (citing Mandel, 706 F.3d at 168; Hetzel v. Mabus, Civ. A. No. 157271, 2016 U.S. Dist. LEXIS 102212, 2016 WL 4157311, at *3 (D.N.J. Aug. 4, 2016)). Moreover, because “determining whether harassing conduct is sufficiently severe or pervasive is a highly fact-intensive inquiry, … courts have continually ‘shown a reluctance to dismiss a complaint at the [motion to dismiss] stage when the primary challenge to the hostile work environment claim is whether or not the conduct in question is severe and/or pervasive.’ ” Ingram v. Vanguard Grp, Inc., Civil Action No. 14-3674, 2015 U.S. Dist. LEXIS 93016, at *53-54 (E.D. Pa. July 17, 2015) (citations omitted) (quoted in Moore v. Lower Frederick Twp., Civil Action No. 20-5920, 2022 U.S. Dist. LEXIS 38302, at *29-30 (E.D. Pa. Mar. 4, 2022)).
The court thus concluded that “[a]t this juncture, viewing the allegations in the complaint in a light most favorable to Plaintiff, and taken collectively, the Court finds that Plaintiff has alleged enough facts to state a plausible claim for hostile work environment under Title VII.”