In Oman v. State of Hawai’i Department of Education, No. 21-00462 MWJS-WRP, 2024 WL 3090229 (D.Hawai’i June 21, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claim of sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
In sum, plaintiff, a public middle school counselor (Oman) alleged that she was subject to sexual harassment by the school’s principal (Dillon). Plaintiff alleges that Dillon made inappropriate comments and masturbated in her presence.
From the decision:
Begin with Title VII, which prohibits sexual harassment that creates a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986). To establish a prima facie case of a hostile work environment, a plaintiff must show that “(1) she was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)).
Although the DOE implicitly concedes that Dillon’s conduct was unwelcome, it argues that the conduct was not sexual in nature. According to the DOE, Dillon was merely making an “adjustment” by “tugging at the thigh area of his pants, without touching the groin area.” ECF No. 71-5, at PageID.313-14. But Oman alleges otherwise, describing in some detail how Dillon touched and moved his genitals. She backs up these allegations with her deposition testimony, which directly contradicts the DOE’s assertion that Dillon never touched his groin area. Accordingly, Oman has identified a dispute of material fact. And while a jury may well find that Oman’s testimony lacks credibility, as the DOE suggests, the Court may not resolve questions of credibility at the summary judgment stage. T.W. Elec. Serv., 809 F.2d at 630.3
The DOE separately contends that the alleged conduct was insufficiently severe or pervasive, such that it did not alter Oman’s working environment. In assessing whether an environment is hostile, a court must consider “all the circumstances,” including the conduct’s frequency, severity, and nature. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001). Importantly, “[t]he required severity for harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 649 (9th Cir. 2021) (internal quotation marks omitted). And the workplace must be both subjectively and objectively hostile; that is, it must be hostile not only in the eyes of the plaintiff, but also in the eyes of a reasonable person with the same characteristics as the plaintiff. Craig, 496 F.3d at 1055; Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir. 2005) (noting that, when the plaintiff is female, “[w]e assess whether the workplace was objectively hostile from the perspective of a reasonable woman”).
*5 As an initial matter, the evidence suggests that Oman subjectively perceived her work environment as hostile. In her deposition, Oman stated that she “was living in constant fear” because of Dillon’s conduct. ECF No. 80-2, at PageID.500 (Oman Dep. 67:7-67:8). She “tried to get to [her] office without him seeing [her],” and once there, she would hide and not “talk to anybody.” Id. (67:16-67:18). She claims that “[i]t was hard to do [her] job, because [she] didn’t want to go out of [her] office.” Id. (67:18-67:19). She was “not sleeping, just panic[king], on edge, hypervigilant, dread[ing] going to work.” Id. at PageID.501 (68:1-68:2). For Oman, these encounters “shifted” her relationship with her boss and, consequently, her work. Id. at PageID.481 (48:24).
Whether the environment was objectively hostile is a closer call. Some scenarios are so patently offensive that they are clearly severe or pervasive. Consider Little v. Windermere Relocation, Inc., in which the Ninth Circuit found a work environment “irrevocably alter[ed]” when an employee was raped three times in a single night by a business associate and had her pay cut after reporting it. 301 F.3d 958, 967-68 (9th Cir. 2002). Or take Meritor Savings Bank, in which the Supreme Court held that allegations of demands for sexual intercourse, unwelcome touching, and forcible rape, 477 U.S. at 60, were “plainly sufficient to state a claim for ‘hostile environment’ sexual harassment,” id. at 67.
These cases, however, are the extreme. Lesser conduct can also be actionable. For example, a series of “[w]ell-intentioned compliments” from coworkers—including a three-page “love letter” confessing to having “enjoyed you so much over these past few months”—can give rise to Title VII liability. Ellison v. Brady, 924 F.2d 872, 874, 880 (9th Cir. 1991). So too can the persistent playing of misogynistic and sexually graphic music in a workplace. Sharp v. S&S Activewear LLC, 69 F.4th 974, 979-81 (9th Cir. 2023).
Of course, some allegations fall short of the severe or pervasive requirement. No claim for a hostile work environment could proceed where the plaintiff complained of an offensive word in a memorandum, a reference to “hoochi mammas” over a school loudspeaker, and a comment that students needed to “cover up their business.” Campbell v. Haw. Dep’t of Educ., 892 F.3d 1005, 1019-20 (9th Cir. 2018). And a few crude jokes, ridicule for mispronouncing a word, and a gesture that “mock[ed] the appearance of Asians” were not sufficiently hostile so as to alter the plaintiff’s employment conditions. Manatt v. Bank of Am., NA, 339 F.3d 792, 798-99 (9th Cir. 2003).
The Court must assess where Oman’s allegations reside along this spectrum of conduct. As alleged by Oman, Dillon’s conduct “falls somewhere between mere isolated incidents or offhand comments, which do not amount to a Title VII claim, and serious and pervasive harassment, that clearly comes within Title VII.” Craig, 496 F.3d at 1056 (citations omitted).
Many of Oman’s allegations—that Dillon was watching her, that he tried to converse with her, and that he asked to meet with her—are not sufficiently severe or pervasive to give rise to a Title VII claim. A reasonable woman would understand that a principal of a school has a duty to meet with staff, to know their general whereabouts, and to be visible on campus. See ECF No. 71-3, at PageID.293 (Dillon Decl. ¶ 9). These allegations, standing alone, do not demonstrate severe or pervasive conduct that could alter the conditions of Oman’s employment.
Oman’s assertion that Dillon brought up “his four-year old daughter’s panties out of the blue,” ECF No. 80-2, at PageID.467 (Oman Dep. 34:1-34:2), is certainly troubling. But Oman does not provide more context for this remark, and a bizarre, stray comment does not alone demonstrate workplace hostility.
*6 The conduct that Oman focuses on—and that is the real heart of the dispute—is the alleged masturbation. She claims that there were four separate incidents, and Oman describes two of them in detail. In her deposition, Oman recounted how Dillon entered her office, “block[ed] the door,” and “started moving his hands right along the side of his genitals.” Id. at PageID.482 (48:14-48:19). Dillon “just kept doing it” in “slow motion.” Id. (48:20-48:21).
Another time, Oman was visiting Dillon’s office with a student. She remembers trying to leave his office, but Dillon “called [her] back in,” saying that he needed to “talk to [her] about something.” Id. at PageID.479 (46:13-46:15). He “just reached down, and grabbed ahold of his genitals, and started moving them up and down.” Id. at PageID.479-80 (46:25-47:1). Oman “froze,” in disbelief that “it was happening.” Id. at PageID.480 (47:7).
In light of these allegations, the Court concludes that a reasonable observer could find a supervisor’s repeated masturbation creates a hostile work environment. The alleged conduct does appear to be infrequent; because Oman has not alleged when these encounters began, it is possible that these four incidents were spread out over two-and-a-half years, from Dillon’s arrival in January 2017 until the final incident in the fall of 2019. But a reasonable observer could conclude that the conduct was severe. Masturbating in front of a colleague in the workplace is wildly inappropriate. According to Oman, on two of the occasions, Dillon stepped into her office, closed the door, and blocked her exit. A reasonable woman in Oman’s position could feel that this conduct was intimidating, threatening, and humiliating—some sort of crude advance intended to pressure her into sexual favors.
And recall that Dillon was not just a coworker; he was the principal of the school and Oman’s supervisor. That power dynamic exacerbates the potential harm, making Dillon’s “actions emotionally and psychologically threatening.” Craig, 496 F.3d at 1056. A reasonable woman could determine that Dillon’s behavior irrevocably distorted the professional relationship between Dillon and Oman. See Brooks v. City of San Mateo, 229 F.3d 917, 927 & n.9 (9th Cir. 2000) (recognizing that, compared to a coworker’s conduct, a supervisor’s actions are more likely to alter the terms of employment and create a hostile work environment “[b]ecause the employer cloaks the supervisor with authority”).
It is true, as the DOE points out, that Dillon did not undress himself. Although outright nudity would make this a clearer case, Oman specifically alleges that Dillon grabbed and stroked his genitals over his pants. A natural inference, if Oman’s testimony is credited, is that Dillon was engaging in sexual self-gratification in front of a subordinate. A reasonable woman could find that conduct to be so inappropriate that it alters the conditions of employment. Oman has therefore established a genuine dispute of fact as to whether her workplace was objectively hostile.
Although employers may raise an affirmative defense to liability under Title VII, the DOE has not successfully done so at this summary judgment stage. Generally, an employer is vicariously liable when a supervisor’s conduct creates a hostile environment for an employee. Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). The employer may, however, assert an affirmative defense if (1) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (2) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities.” Id. Here, the DOE does not satisfy the first prong of this test, as the evidence at this summary judgment stage indicates that the DOE took no action on Oman’s first complaint at all. That cannot be said to be a “prompt[ ]” correction of Dillon’s behavior.
Based on the foregoing, the court concluded that ,viewing the facts and drawing all reasonable inferences in the non-movant’s favor, Oman has tendered sufficient evidence to preclude summary judgement on her hostile work environment sexual harassment claim under Title VII.