In Sparks v. Duane Devecka, 2:19-cv-1286, 2023 WL 4533680 (W.D.Pa. July 13, 2023) (J. Ranjan), the court denied defendant’s motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964.
In this case, plaintiff alleged that she worked for the defendant for a very brief time – one week – but that “that short time was marred by persistent inappropriate conduct, including unwanted touching, flirting, and sexual comments” which “culminated in an incident during which Ms. Sparks claims Mr. Devecka assaulted her as she was exiting the restroom” in which “he forcefully squeezed and shook her by her buttocks and, in doing so, groped her anus and vagina.”
The court easily determined that plaintiff raised genuine issues of material fact as to whether this alleged conduct met Title VII’s “severe or pervasive” standard.
From the decision:
Crediting Ms. Sparks’s version of events, just as the use of an odious slur in the workplace is degrading and humiliating in the extreme, direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment. Indeed, courts have found similar incidents to the one described by Ms. Sparks to be severe enough to create an issue of fact for a hostile work environment claim. See, e.g., Winkler v. Progressive Bus. Publications, 200 F. Supp. 3d 514, 519 (E.D. Pa. 2016) (“[T]he single incident in question was far more than a mere offensive utterance: [defendant] placed his hand inside [plaintiff’s] bra while telling her she should probably have to dance for the single dollar bills he placed there.”); Riley, 2021 WL 4597066, at *7 (finding harassment severe where defendant “groped Plaintiff’s breasts and buttocks in addition to wrapping his arm around her neck, pulled her to him, and sucking, kissing, and licking her neck. He also pushed her against a wall and attempted to kiss her on the lips.”); Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 185 (E.D.N.Y. 2012) (single incident of supervisor “grabb[ing] and squeez[ing] one of [plaintiff’s] breasts” was conduct sufficiently “severe to constitute a hostile work environment”); Swiderski v. Urban Outfitters, Inc., No. 14-6307, 2017 WL 6502221, at *5 (S.D.N.Y. Dec. 18, 2017) (single incident of customer reaching for plaintiff’s face, putting his thumbs in her mouth, licking her cheek, and attempting to grab her chest was “sufficiently severe by itself to create a hostile work environment.”). The Court therefore finds that the alleged assault makes the harassment severe enough to allow her claim to move forward.
Two other factors bolster this conclusion. First, “the severity of sexual misconduct is compounded when the perpetrator is in a supervisory position over the plaintiff.” Mr. Devecka wasn’t just Ms. Sparks’s supervisor; he owned the entire business. There was no greater authority at her workplace to turn to when this incident happened. A jury could easily find this harassing behavior by the owner of the business, who “had significant authority over [the employee] on a day-to-day basis and the ability to influence the rest of the employee’s career[,] to be objectively more severe than the same behavior by a fellow employee.” EEOC v. Dairbrook Med. Clinic, 609 F.3d 320, 329 (4th Cir. 2010).
Second, the assault occurred in the context of Mr. Devecka making other inappropriate physical contact with Ms. Sparks and subjecting her to unwanted flirtation and sexual comments during her brief employment. For example, over the course of her single week at Speedy Kleene, Mr. Devecka allegedly:
• Called Ms. Sparks pet names like “sweetie” and “babe” and told her that she had a “tight ass”;
• Patted, touched, or spanked her bottom, once or twice per shift;
• Told her she was “too pretty” for her boyfriend; and
• Acted “envious and annoyed” that she was in a relationship with someone else.
The assault occurring after Ms. Sparks suffered this other harassing behavior only added to her humiliation and embarrassment, which in turn makes the incident even more severe.
[Cleaned up; citations and internal quotation marks omitted.]
Next, the court held that the alleged conduct was “pervasive.” As to that point, the court explained that “the harassment need only either be severe or pervasive, not necessarily both, to create an actionable hostile work environment” and that the plaintiff here “endured some form of harassing behavior during every shift of her short tenure working for Mr. Devecka,” leading the court to conclude that it “cannot conceive of more ‘pervasive’ harassment than that.”