In Herbowy-Hubalek v. Lithia of Yorkville-3, LLC et al, 6:21-CV-43 (FJS/MJK), 2024 WL 1329035 (N.D.N.Y. March 28, 2024), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
The court summarized the evidence supporting plaintiff’s hostile work environment claim as follows:
Pointing to her affidavit, Plaintiff alleges that, in the winter of 2019, Jason Jackson, who worked at Carbone Yorkville Honda, began to “come up behind” her, “appear to initially look at her computer monitor,” and then “lean over her, pressing himself into her body, and physically touch[ing] her when he did so.” See Plaintiff’s Statement at ¶ 21. Plaintiff “ ‘could tell he was looking down the neck opening of [her] shirt at [her] breasts[.]” See id. Mr. Jackson was not making eye contact, and he did not look at the computer screen. See id. Plaintiff also claims that Mr. Jackson put his hands on her shoulders and “rubbed her shoulders in a sexually charged manner.” See id. Mr. Jackson’s conduct made her “feel extremely uncomfortable, violated, humiliated, denigrated, and harassed.” See id. at ¶ 22. Plaintiff told Mr. Jackson she “was not interested in his advances and wanted them to stop,” but the behavior continued. See id. Plaintiff also alleges that, “[o]n one occasion, she went into Jackson’s office.” See id. at ¶ 23. Mr. Jackson “leaned back in his desk chair and grabbed his erect penis with his hand from outside his pants, so [she] could see the size of his penis clearly through his pants.” See id. Mr. Jackson “leered at” Plaintiff while he did this. See id. Mr. Jackson’s actions caused Plaintiff to “feel extremely violated and uncomfortable.” See id. Plaintiff further alleges that, “[o]n another occasions,” Mr. Jackson “slid his hand up” her “butt while she was walking up the stairs at the dealership wearing a skirt.” See id. at ¶ 25. Plaintiff further contends that she “believed” that coworkers Michelle Jackson, Diane Baum, and Lyndsay Lesniak “might have seen or heard [Mr. Jackson’s] sexual harassment.” See id. at ¶ 26. Finally, Plaintiff alleges that, “[a]fter April 2019,” Mr. Jackson “touched [her] left leg” while sitting next to her at her desk. See id. at ¶ 56. That conduct made Plaintiff “very uncomfortable,” and she “made it clear to Mr. Jackson that he should stop.” See id.
Defendants respond to these allegations by arguing that Plaintiff cites only to her own affidavit as evidence to support them and note that Plaintiff did not include any of these allegations in her written complaints of harassment and did not report them to the investigator on her harassment complaint. Plaintiff’s deposition, however, does contain allegations that Jason Jackson rubbed her shoulders, leaned back in his chair and grabbed his penis, and grabbed her butt. See Plaintiff’s Deposition at 202. Plaintiff also claimed that, “after [she] told” Mr. Jackson “not to do it, he rubbed against [her] leg. See id. at 203. Plaintiff also told Irene Cooney that Mr. Jackson “looked down [her] shirt. He looked down [her] shirt more than once.” See id. Thus, to the extent that Plaintiff’s claims about Mr. Jackson’s conduct can be considered evidence of sexual harassment as part of a hostile environment, evidence exists in the record beyond Plaintiff’s affidavit by which a reasonable jury could conclude that Mr. Jackson engaged in such conduct.
Applying the law, the court continued:
The conduct about which Plaintiff complains consists of incidents where Mr. Jackson touched Plaintiff on her rear end, rubbed her shoulders in a manner that Plaintiff perceived as sexual, touched himself inappropriately in Plaintiff’s presence, looked down Plaintiff’s shirt at her breasts, and touched Plaintiff’s leg in an inappropriate manner. Plaintiff does not offer an exact number of times such conduct occurred, but she does claim that Mr. Jackson looked down her shirt more than once. A plaintiff claiming a hostile work environment “must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citations omitted). “As a general rule, incidents must be more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.’ ” Id. at 374 (quoting Perry [v. Ethan Allen, Inc.], 115 F.3d [143,] 149 [(2d Cir. 1997)]). “Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness.” Id. (citations omitted). Still, “ ‘even a single incident of sexual assault sufficiently alters the conditions of the victim’s employment and clearly creates an abusive work environment[.]’ ” Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 437 (2d Cir. 1999) (citation omitted). At the same time, a court is “cautioned to consider the totality of the circumstances … and to evaluate the ‘quantity, frequency, and severity’ of the incidents[.]” Id. (citing [Schwapp, 118 F.3d at 111] (citing Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir. 1994))). The Court must consider the evidence “ ‘cumulatively,’ so that [the court] may ‘obtain a realistic view of the work environment.’ ” Id. (quoting [Vore, 32 F.3d at 1164] (quoting Doe v. R.R. Connelley & Sons Co., 42 F.3d 439, 444 (7th Cir. 1994))). The plaintiff must also show that she “ ‘subjectively perceive[d] that environment to be abusive.’ ” Agosto v. N.Y. City Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)).
In evaluating this evidence, the Court first concludes that a reasonable jury could find that Plaintiff, who alleges that Mr. Jackson’s conduct offended her and that she told him to stop, subjectively perceived Mr. Jackson’s conduct to be abusive. In terms of whether a reasonable person would come to a similar conclusion, Plaintiff argues that Mr. Jackson’s conduct, taken as a whole, is sufficient for a jury to conclude that an abusive environment existed. The Court agrees. The record here, viewed in the light most favorable to Plaintiff, contains evidence from which a reasonable jury could conclude that Mr. Jackson repeatedly engaged in conduct that was sexual in nature and which involved invasions of Plaintiff’s personal space in a fashion that a reasonable person would find offensive. Mr. Jackson’s conduct was not merely workplace teasing, but sexually charged conduct that included touching his own genitals and staring at Plaintiff’s breasts. Moreover, Plaintiff claims that Mr. Jackson touched her butt and her leg in an unwanted manner without permission, which could be considered an assault. Under these circumstances, the Court finds that reasonable jury could find that sexual harassment occurred. See, e.g., Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 179 (2d Cir. 2012) (finding that “[t]he repeated touching of intimate parts of an unconsenting employee’s body is by its nature severely intrusive and cannot properly be characterized as abuse that is ‘minor.’ This is not a manner in which [people] ‘routinely interact’; … and it is not conduct that is normal for the workplace.” (internal citation omitted)).
Plaintiff also alleges sexual harassment from Matt Hensel, the Used Car Manager at the Honda Dealership. Plaintiff claims that Mr. Hensel “touch[ed] his genital area frequently while he walked by her desk.” See Dkt. No. 35-3 at ¶ 27 (citing Hubalek Aff. ¶¶ 47, 49). She claims this conduct began “in March or April 2019.” See id. “On or around May 22, 2019, …Mr. Hensel … dropped a check onto the floor and grabbed his genital area” when Plaintiff “bent over to pick up the check.” See id. at ¶ 57 (citing Hubalek Aff. ¶ 55). Plaintiff alleges that “Mr. Hensel pulled on his penis while [her] face was just inches away.” See id. at ¶ 109. Plaintiff reported to an investigator that Mr. Hensel had been “simulating oral sex[.]” See id. Plaintiff felt “degraded and like I was giving him a ‘blow job.’ ” See id. Although this type of incident happened only once, Plaintiff contends that she told the investigator that “there were numerous other instances where” Mr. Hensel “was constantly grabbing and pulling his penis and genitals” when he walked by her desk. See id.
Defendants respond that Plaintiff testified at her deposition that the first time she saw Mr. Hensel touching his genitals was when he allegedly touched his penis after Plaintiff bent down to pick up a dropped check. See Defendants’ Response at ¶ 27. At her deposition, Plaintiff testified about the incident. See Plaintiff’s Deposition at 208-18. She testified that she “went and … handed Matt [Hensel] a check that he had requested, and the check fell to the floor, so I bent over to pick up the check and Matt grabbed is penis and pulled it as I was coming up and made me feel like I was giving him a blow job.” See id. at 208. Plaintiff explained that she “bent over, picked up the check. As [she] came up, his hands were on his penis[.]” See id. at 211. She later explained that Mr. Hensel “grabbed his penis as I was coming up and my face was coming up.” See id at 213. Although Mr. Hensel did not touch Plaintiff’s face, his genitals were “probably six inches” from her face. See id. at 216. Defendants’ counsel asked Plaintiff if “[o]n any prior occasions had [she] seen Matt Hensel adjust his genitalia in his pants?” See id. at 213. “Before he did this to me?” Plaintiff asked. See id. Counsel responded, “[o]n any prior occasion, yes?” Plaintiff explained, “[p]rior. No.” See id. Plaintiff also testified, however, that “[w]henever he would come upstairs, he would make it obvious to rub his penis while walking by my desk. All of the incidents happened up near by desk.” See id. at 217. Mr. Hensel would “[t]ake his hand, put it between his legs, and rub down on his penis.” See id. Plaintiff could not remember how often Mr. Hensel engaged in such conduct, or how many times he did so but believed that Mr. Hensel aimed the conduct at her. See id. She also testified that “the incidents where he would rub his genitals ear [her] desk” occurred “after” the incident with the check. See id. at 224-25.
The parties appear not to dispute that a reasonable jury could hear the evidence in question and conclude that Mr. Hensel touched his genitals near Plaintiff’s face when she bent over to pick up a check on May 22, 2019. Evidence also exists from which a reasonable jury could find that Mr. Hensel touched his penis in Plaintiff’s presence on other occasions after this incident. To the extent that Plaintiff’s affidavit indicates that Mr. Hensel began this practice of touching his penis in Plaintiff’s presence before the May 22, 2019 incident, however, her deposition testimony clearly contradicts that claim. As the affidavit is the only source for Plaintiff’s claim that Mr. Hensel’s frequent and repeated conduct touching his penis in Plaintiff’s presence occurred prior to the May 22, 2019 incident, the Court will not credit that claim.
The Court finds this evidence sufficient for a reasonable jury to conclude that sexual harassment occurred. Plaintiff has presented evidence that she subjectively perceived Mr. Hensel’s conduct to be sexual in nature, aimed at her, and highly offensive. The evidence also indicates that a reasonable juror could conclude that on May 22, 2019, Mr. Hensel stood next to Plaintiff when she bent down to pick up a check. When Plaintiff stood up, she found Mr. Hensel holding his penis through his pants six inches from her face, simulating Plaintiff giving him a blow job. Although not necessarily an assault – no allegations of touching or attempted touching exist – a jury could nonetheless find that conduct sexually charged, offensive, and an invasion of Plaintiff’s personal space in a highly degrading manner. A reasonable jury could also find that Mr. Hensel followed up that initial conduct by repeatedly walking by Plaintiff’s desk, holding his penis in a manner that seemed to recall the incident with the check and in a way that bore sexual implications.
The court concluded that, upon considering the “totality of the circumstances,” a reasonable jury could conclude that the alleged conduct was sufficiently “severe or pervasive” to alter plaintiff’s working conditions.