In Carbone v. Tri-Town Construction LLC, 2024 WL 3377740 (M.D.Fla. July 11, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
From the decision:;
The Court denies Tri-Town Construction’s motion to dismiss Counts 3 and 6: claims for sexual harassment under Title VII and the FCRA. To support these claims, Carbone alleges that a coworker named “Senior” grabbed her genitalia while saying a Polish term for vagina, “chipka,” without her consent. Carbone also alleges that after giving notice of the incident to Tri-Town Construction, no investigation was initiated, and no remedial actions were taken.
To establish a hostile-environment sexual harassment claim Carbone must allege:
(1) that he or she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment must have been based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999). Tri-Town Construction argues that element four is not met because the harassment was a “single, isolated event, not conduct ‘sufficiently severe or pervasive to alter the terms or conditions of her employment.’ ” For the harassment to be sufficiently severe or pervasive, (1) the employee must “subjectively perceive” the harassment as such, and (2) the environment must be objectively hostile or abusive from the perception of a reasonable person. Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999). Considerations to determine whether the situation was objectively severe or pervasive include: “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.”
Carbone alleges sufficient facts to show she subjectively perceived the touching as severe or pervasive, as she was shocked, confused, and distressed following the incident and immediately reported the incident to Tri-Town Construction, leading to her resignation only six days after the incident. Instead, Tri-Town Construction seems to argue that the alleged harassment was not objectively severe or pervasive enough to survive the pleading stage because it was a single isolated incident, citing to Arafat v. Sch. Bd. of Broward Cnty., 549 F. App’x 872 (11th Cir. 2013). However, unlike the facts here, the single incident of touching one’s shoulders in Arafat was “unaccompanied by sexual suggestiveness or aggression.” Arafat, 549 F. App’x at 874. The Eleventh Circuit reasoned that “fleeting contact, unaccompanied by sexual suggestiveness or aggression, is insufficient[.]” Id.
Tri-Town cites to other cases where the conduct was not severe or pervasive enough, all of which are distinguishable. Guthrie v. Waffle House, Inc., 460 F. App’x 803, 804–08 (11th Cir. 2012) (affirming that conduct was “rude and boorish” but fell short of being severe or pervasive enough when alleged harasser grabbed the plaintiff’s buttocks, made lewd comments, and put his arms around plaintiff’s shoulders, but plaintiff voluntarily hugged and kissed the alleged harasser and left and returned to her job during the alleged harassment); Leeth v. Tyson Foods, Inc., 449 F. App’x 849, 853 (11th Cir. 2011) (affirming the alleged harassment was not sufficiently severe or pervasive enough when the alleged harasser tried to pull the plaintiff onto his lap, tried to touch her hand, made inappropriate comments, visited plaintiff’s house uninvited, and followed her around the workplace—yet plaintiff told her supervisor that the conduct was just “kind of hitting a nerve”); Henderson v. Waffle House, Inc., 238 F. App’x 499, 502, 503 (11th Cir. 2007) (affirming the conduct was not sufficiently severe or pervasive when the alleged harasser made inappropriate comments and pulled the plaintiff’s hair).
Importantly, the conduct must be severe or pervasive, and frequency of the conduct is just one factor courts look to when determining whether the conduct was objectively severe or pervasive. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir. 2010) (“Either severity or pervasiveness is sufficient to establish a violation of Title VII.”); see Copeland v. Georgia Dep’t of Corr., 97 F.4th 766, 776 (11th Cir. 2024) (“And infrequent but severe instances of harassment may support a claim.”). At minimum, Carbone’s allegations are enough to survive a motion to dismiss, as a reasonable jury could find the conduct was sufficiently severe or pervasive because of the physically threatening nature of the incident. Riddle v. Butterfield, No. 8:22-CV-2803-KKM-CPT, 2023 WL 4598164, at *3 (M.D. Fla. July 18, 2023) (denying motion to dismiss and finding plaintiff sufficiently alleged severe and pervasive conduct when the alleged harasser tried to pull up plaintiff’s skirt and touched his genitals to plaintiff’s buttocks).
[Citations omitted.]
Based on the foregoing, the court declined to dismiss plaintiff’s sexual harassment claims.