Sexual Harassment Claim Survives Summary Judgment; Conduct Was “Severe or Pervasive” and Defendant Was Not Entitled to Faragher/Ellerth Defense

In Wallace v. Performance Contractors, Incorporated, 2023 WL 21856 (5th Cir. Jan. 3, 2023), the court reversed the lower court’s order dismissing plaintiff’s hostile work environment sexual harassment claim.

As to whether the alleged conduct was severe or pervasive, the court explained:

We agree with the district court that a reasonable jury could find that this harassment was severe or pervasive. A hostile work environment exists when a workplace is “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive work environment.” Johnson, 7 F.4th at 399 (quotation omitted). Harassment is “severe or pervasive enough” when (1) a reasonable person in the plaintiff’s position would find it hostile or abusive, and (2) the plaintiff subjectively perceived the harassment as abusive. Id. at 400. The objective element is determined based on all the facts and considers factors (each independently non-dispositive) such as: “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.” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

The district court summed up the key facts leading to its severe-or-pervasive conclusion: (1) Terro’s sending a picture of his genitalia, asking for a picture of her breasts, and asking to touch her breasts; (2) Casey’s referring to “t*** and an a**,” and his statement that he could use a “bucket of b***jobs”; and (3) Laprairie’s saying that Wallace was in her “sexual prime” and his nonconsensual massaging of her. Performance’s response relies mostly on the fact that everyone thought the comments were a joke, or that Wallace was otherwise undisturbed by the comments. Performance also says that, with Terro’s nude picture, Wallace never provided phone records or produced the picture, and that Wallace later invited Terro to her husband’s birthday party.

Nonetheless, based on the totality of the evidence, a reasonable jury could find that this conduct was objectively hostile. Johnson, 7 F.4th at 400. Casey’s comments about Wallace’s “t***” and “a**” allegedly happened at least weekly; Terro asked to grab her breasts on several occasions; Laprairie’s sexual comment and massaging of her, though they only happened on one occasion, were physical and explicitly sexual. See id. And Wallace provided evidence that would establish that she subjectively considered the harassment hostile and abusive: she complained about the harassment, reported it to her supervisors, and suffered psychological harm as a result.

Based on this, the Fifth Circuit determined that the district court correctly concluded that plaintiff established a prima facie hostile work environment claim.

Continuing with its analysis, however, the court held that the district court erred by granting summary judgment to the defendant on the “Faragher/Ellerth” affirmative defense.

That defense requires the employer to demonstrate two elements: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (2) the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.

The district court held that the defendant satisfied the first prong because it “had in place anti-harassment/discrimination policies and practices, which were communicated to Wallace at hiring.”

The court explained why defendant failed to satisfy the first element:

Here, Wallace testified that she tried several times to contact HR to no avail. As is discussed above, Wallace was also repeatedly subject to harassment by Terro and Casey. Terro purportedly sent a text message picture of his genitals to Wallace, and she informed another female employee about this. Terro further allegedly asked to inappropriately touch Wallace on several occasions, and, after Wallace told Tapley about this, he attempted to contact HR but never received a response to his outreach. In addition, Casey repeatedly made a variety of pejorative comments to Wallace in front of other employees. Wallace argues that Performance’s HR policy notes that anyone who witnesses sexual harassment should report it to HR, and the fact that no one ever did implies that employees did not know about or understand the nature of sexual harassment. See Pullen v. Caddo Par. Sch. Bd., 830 F.3d 205, 213 (5th Cir. 2016) (holding that the first Ellerth/Faragher element was not satisfied as a matter of law when evidence indicated that employees “were given no training or information about the sexual-harassment policy”). This, along with her supervisors’ pervasive harassment despite the anti-harassment policy, further casts doubt on the district court’s conclusion on this prong. Simply put, this evidence indicates that Performance had a policy in theory but not one in practice.

Based on this, the court concluded that “there is a material fact issue about whether Performance effectively implemented its anti-harassment policy,” such that summary judgment was not appropriate on plaintiff’s sexual harassment claim.

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