In Norris v. Frito-Lay, Inc., CIVIL ACTION No. 24-4023-KHV, 2025 WL 1423583 (D.Kan. May 16, 2025), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim, asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Here, plaintiff has presented evidence that (1) on May 22, 2022, Jones asked if she was married, whether she had kids, where she was from, where she had previously worked, the craziest place where she had ever had sex, her favorite sex position, whether she was bisexual and whether she gave private dances or worked parties; (2) later that same day, Jones walked to plaintiff’s side of the trailer and placed his hand on her mid-thigh, moving it all the way up to her “backside;” (3) when Jones returned to work, plaintiff saw him in the hallway, where he looked at her, smiled and laughed; (4) after plaintiff saw Jones in the hallway, she took a few days off work; and (5) plaintiff felt scared and uncomfortable.
1. Pervasiveness
On this record, a reasonable jury could not find that plaintiff suffered pervasive harassment. The Court evaluates pervasiveness by comparing the number of offending incidents to the length of time over which the incidents occurred. See Morris v. City of Colorado Springs, 666 F.3d 654, 665, 669 (10th Cir. 2012) (viewing isolated incidents in context of otherwise uneventful tenure). Plaintiff has presented evidence that on one occasion over the four months of her employment, Jones asked her inappropriate questions and placed his hand on her mid-thigh, moving it up to her backside. On another occasion, following her complaint, plaintiff saw Jones in the hallway, where he smiled and laughed at her. Giving plaintiff the benefit of all reasonable inferences, Jones could be seen as mocking or leering at plaintiff. Even considering both incidents, however, a reasonable jury would not find that plaintiff suffered pervasive harassment. See Brown v. LaFerry’s LP Gas Co., 708 F. App’x 518, 522–23 (10th Cir. 2017) (three incidents over six months not pervasive); Dunegan v. City of Council Grove, Kan. Water Dep’t, 77 F. Supp. 2d 1192, 1198 (D. Kan. 1999) (two incidents occurring nine months apart not pervasive) (citing Gipson v. KAS Snacktime Co., 171 F.3d 574, 579 (8th Cir.1999) (two incidents over two months not pervasive)). Plaintiff has presented evidence of discrete incidents, which as a matter of law, cannot be viewed as pervasive.
2. Severity
As to severity, on the other hand, a reasonable jury could find that plaintiff suffered severe harassment. Plaintiff can rely on severity to overcome summary judgment in “particularly threatening or humiliating circumstances.” Throupe, 988 F.3d at 1255. Such circumstances exist here. In conjunction with an inappropriate, invasive and humiliating line of questioning, Jones placed his hand on plaintiff’s mid-thigh, moving it all the way up to her “backside.” While physical conduct does not automatically produce liability under Title VII, it can constitute severe harassment in egregious cases which are sexual in nature. See Campbell v. Kan. State Univ., 780 F. Supp. 755, 762 (D. Kan. 1991) (slapping plaintiff’s butt “patently abusive”); cf. Jones v. Wichita State Univ., 528 F. Supp. 2d 1222, 1240 (D. Kan. 2007) (fondling or groping hand not sufficiently severe). On this record, plaintiff has created a genuine issue of material fact whether Jones’s conduct was sufficiently severe to create an objectively hostile work environment. Under pre-Muldrow law, the Court therefore overrules defendant’s motion for summary judgment on this issue.
The court further held that plaintiff demonstrated a genuine issue of material fact whether she suffered some harm to the terms or conditions of her employment, by presenting evidence that the the alleged harassment “impacted her job schedule and performance, caused her to avoid one-on-one contact with a fellow employee and made her feel scared and uncomfortable in her workplace.”