In Zuber v. Republic First Bancorp Inc., No. 23-991, 2024 WL 5147018 (E.D.Pa. Dec. 17, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
As to whether the alleged harassment was sufficiently “severe or pervasive”, the court explained:
Conduct need only be severe or pervasive to create a hostile work environment. See Castleberry v. STI Group, 863 F.3d 259, 264 (3d Cir. 2017). A single incident can be severe enough to make out a hostile work environment claim, provided the incident is “extreme to amount to a change in the terms and conditions of employment.” Id. In Castleberry, a single use of the n-word was severe enough to make out a hostile work environment claim. Id.
In the sexual harassment context, the Third Circuit has concluded that a supervisor’s conduct of repeatedly propositioning plaintiff, grabbing her, exposing himself to her, and attempting to take off her shirt were sufficiently severe or pervasive. Moody v. Atlantic City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017). The Third Circuit clarified “that touching, threats, propositions of sex, or requests for dates, are [not] necessary to demonstrate a hostile work environment; other verbal comments can suffice where they are sufficiently severe or pervasive.” Nitkin v. Main Line Health, 67 F.4th 565, 572 n.4 (3d Cir. 2023).
Courts have also found that three comments made to solicit sexual interaction paired with a separate instance of being asked on a date and as a single incident of a co-worker reaching under plaintiff’s shirt and putting money in her bra were sufficient to establish a hostile work environment claim. See Grooms v. City of Phila., WL 4698856 at *6 (E.D. Pa. Sep. 28, 2018) (Padova); Winkler v. Progressive Bus. Publ’n, 200 F.Supp.3d 514, 519 (E.D. Pa. 2016) (Dalzell).
Defendant argues that Zuber’s hostile work environment claim fails because she only alleges a single instance of unwelcome conduct – the February 11, 2022, incident where Hall asked her to have sex at work, after she had previously said that she did not want to have sex at work. Def.’s MSJ at 4-6. Even if Defendant’s contention that Hall’s conduct was limited to the February 11, 2022, incident is credited, Zuber may still be able to establish a hostile work environment claim. If Zuber can show that her termination was retaliation for reporting to Leitz and Zangrilli that she did not want to have sex with Hall at work again, then this single incident may be severe enough to create a hostile work environment claim.
However, viewing the facts in the light most favorable to Zuber, Hall’s conduct went far beyond an isolated incident. Hall repeatedly propositioned Zuber, Zuber felt compelled to have sex with Hall at work given his status at the Bank, Hall continued to proposition Zuber after she asked him to stop, and the two engaged in a heated verbal argument at work, with Zuber repeatedly screaming that she did not want to have sex with Hall. Pl.’s Additional Facts ¶ 60, Pl.’s Resp. to Def.’s Facts ¶ 30. According to Zuber, while she may have liked the attention, she agreed to have sex with Hall because he was her supervisor and promised to help her become a manager if she had sex with him.
As for imputing liability to the defendant, the court also held that there was a genuine dispute as to whether Hall was empowered to make tangible employment decisions regarding the plaintiff, indicating that he was the plaintiff’s “supervisor.”