In U.S. Equal Employment Opportunity Commission v. Golden Entertainment, Inc., No. 20-cv-02811, 2023 WL 4134696 (D.Md. June 22, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
As to the issue of whether the alleged conduct was sufficiently “severe or pervasive,” the court explained:
Defendant argues that the EEOC cannot show that the sexual harassment alleged in this case was so severe or pervasive as to alter the conditions of Ms. Payton’s employment, because the EEOC fails to present evidence to show that Mr. Olinger’s conduct constitutes “actionable” sexual harassment, given that Ms. Payton and Mr. Olinger “only worked a total of ten shifts together” between June 11, 2017, and the date on which Ms. Payton reported his alleged sexual harassment. ECF 38-1 at 17. Defendant is correct in observing that the evidence shows that Ms. Payton and Mr. Olinger worked together for a period of four months and that they worked together during 10 shifts at OTR during this time period. J.R. at 1073-79. But, the Court agrees with the EEOC that the question of whether a reasonable person would have been objectively offended by Mr. Olinger’s alleged conduct during this time period, which the EEOC maintains involved repeatedly rubbing his genitals against Ms. Payton’s buttocks, coupled with repeated comments about and the groping of her buttocks, should be resolved by the finder of fact because it may be reasonably resolved in favor of either party to this action.
In this regard, the EEOC persuasively argues that a jury could reasonably conclude that a reasonable person could find Mr. Olinger’s alleged conduct to be so severe or pervasive as to create a hostile work environment, because this Court has previously held that an objectively hostile work environment is created when an employee gropes a coworker’s buttocks and when a male harasser presses his genitals into a female employee. See Jones v. Fam. Health Ctrs. of Balt., Inc., 135 F.Supp.3d 372, 379 (D. Md. 2015) (denying summary judgment where harasser bumped into the plaintiff causing his genitals to rub against her); Paroli v. DaVita Rx, LLC, 962 F.Supp.2d 825, 831 (D. Md. 2013) (denying summary judgment where harasser positioned himself behind the plaintiff while she was backing out of a room so that her buttocks bumped against his crotch); Williams v. Silver Spring Volunteer Fire Dept., 86 F.Supp.3d 398, 413 (D. Md. 2015) (denying summary judgment where the harasser touched his genitals against the plaintiff’s lap). Notably, in this case, Defendant concedes that Ms. Payton reported to its human resources department that Mr. Olinger repeatedly bumped into her hips and buttocks while they were working together. ECF No. 38-1 at 16-17.
Ms. Payton also testified during her deposition that Mr. Olinger would whisper in her ear about things that he would like to do to her buttocks, and that Mr. Olinger would also grope her buttocks and touch her hips at the workplace. J.R. at 691-92; 1236. Ms. Payton further testified that, on two occasions, Mr. Olinger came behind her while she was pouring beer from a tap, reached around her, and pressed himself against her buttocks, so that she could feel his genitals pressing into her. Id. at 731-32; 734; 939. There is also evidence before the Court to corroborate Ms. Payton’s testimony, because on one occasion, Mr. Olinger’s conduct was witnessed by another co-worker at Rocky Gap, Jana Cannon. Id. at 1167-68.
Given this evidence, when the facts of this case are construed in the light most favorable to Plaintiff, Defendant has not met its burden to show the undisputed material facts show that Mr. Olinger’s alleged sexual harassment was not so severe or pervasive as to create a hostile work environment at Rocky Gap. See Fed. R. Civ. P. 56(c); Catawba Indian Tribe of S.C. v. State of S.C., 978 F.2d 1334, 1339 (4th Cir. 1992). And so, for this reason, the Court DENIES Defendant’s motion for summary judgment on this issue.
The court also held that the defendant was not entitled to summary judgment on the issue of whether the allegedly harassing conduct may be imputed to the defendant, noting that the evidence “raises questions about the sufficiency and merits of Defendant’s investigation into Ms. Payton’s sexual harassment claims.”