In Bookhart, Tyrell v. Tri-County Opportunities Industrialization Centers, Inc., No. 1:25-cv-00334, 2025 WL 1439574 (M.D.Pa. May 19, 2025), the court denied defendant’s motion to dismiss plaintiff’s complaint alleging hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964.
From the decision:
As an initial matter, the Court finds that Plaintiff has plausibly alleged the first element of a hostile work environment claim—that the alleged conduct occurred because of his sex. Defendant argues that Plaintiff’s complaint fails in this regard because “[n]o where in Plaintiff’s [c]omplaint does he reference his gender or sex being a factor to any of the comments Johnson said to him.” (Doc. No. 7 at 11.) However, it is well-established that comments to an individual about his or her body plausibly allege discrimination based on sex. See Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 214 (3d Cir. 2017) (concluding that defendant’s comments about plaintiff’s body supported claim that harassment occurred because of sex); Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3d Cir. 1990) (stating that “[t]he intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course”); Carrillo v. Empire Hotel Servs. LLC, No. 2:22-cv-03273, 2023 WL 3993767, at *3 (D.N.J. June 14, 2023) (finding that comments by defendant to plaintiff regarding body or appearance that are sexual in nature satisfy the “because of his/her sex” element of a hostile work environment claim).2 The Court turns to Defendant’s challenge as to whether Plaintiff’s complaint plausibly alleges conduct that is “severe or pervasive,” the second element of a hostile work environment claim.
Sexual harassment constitutes severe or pervasive behavior when it “alter[s] the conditions of [the victim’s] employment and create[s] an abusive working environment.” See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (citation omitted). The “severe or pervasive” language “means that severity and pervasiveness are alternative possibilities: some harassment may be severe enough to contaminate an environment even if not pervasive; other, less objectionable conduct will contaminate the workplace only if it is pervasive.” See Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (internal quotation marks and citation omitted). “District courts are reluctant to dismiss hostile work environment claims at the motion to dismiss stage under consideration of this element, because the determination of what constitutes severe or pervasive does not lend itself to a mathematically precise test, but instead requires that a court look to the totality of the circumstances.” D.F. and W.F. v. CMBK Resort Operations, LLC, No. 3:23-cv-00517, 2024 WL 3605940, at *4 (M.D. Pa. July 31, 2024) (internal quotation marks and citation omitted); see Fedder v. Bloomsburg University of Pennsylvania, No. 4:23-cv-01678, 2024 WL 580552, at *3 (M.D. Pa. Feb. 13, 2024) (noting reluctance of district courts in this Circuit to dismiss complaints at the 12(b)(6) stage where the primary challenge to a hostile work environment claim is whether the relevant conduct is severe or pervasive).
Defendant summarizes Plaintiff’s allegations as consisting of the following—“over a period of approximately two and a half months, his supervisor referred to him as ‘eye candy’ on two occasions, stated that he looked ‘good’ or ‘nice’ ‘repeatedly’, and once commented on how he looked in certain pants”—and argues that “[t]hese isolated and arguably complimentary remarks, occurring intermittently over the course of several weeks, do not rise to the level of severe or pervasive conduct necessary to support a hostile work environment claim.” (Doc. No. 7 at 12.)
In response, Plaintiff maintains that Johnson’s conduct was both severe and pervasive. Plaintiff notes that his complaint pleads that Johnson “began making almost daily sexually suggestive and lewd comments about [Plaintiff’s] physical appearance and attire” beginning in February of 2024. (Doc. No. 9-1 at 19 (quoting Doc. No. 1 ¶ 23)). Plaintiff also asserts that his complaint pleads that Johnson’s comments about Plaintiff looking “good” and “nice” were made “repeatedly” and in a “lascivious fashion.” (Id. (quoting Doc. No. 1 ¶ 24)). Plaintiff maintains that the humiliating nature of Johnson’s “eye candy” comments is evidenced in his pleading by the “I hope HR’s not around” reaction of a colleague to the statements and Downing’s apology to Plaintiff for Johnson’s conduct. (Id. at 20 (citing Doc. No. 1 ¶¶ 28–29)). Plaintiff argues that the allegations of his complaint support a conclusion that Johnson’s behavior altered his work environment “to the point where he declined to attend a prestigious work event at the White House and turned down a promotion to Co-Director of Re-Entry in an attempt to physically distance himself from Johnson.” (Id. at 19–20 (citing Doc. No. 1 ¶¶ 31–32)).
Upon careful consideration of the allegations of Plaintiff’s complaint, the parties’ briefs, and relevant authority, the Court concludes that Plaintiff’s complaint plausibly alleges pervasive conduct by Johnson. The complaint alleges “eye candy” comments made by Johnson about Plaintiff in the presence of colleagues, Johnson’s repeated, almost daily, remarks about Plaintiff’s physique and attire occurring for at least a period of a month prior to Defendant’s offer of a promotion to Plaintiff, and Plaintiff’s refusal to attend a prestigious work event and to accept a promotion because of that conduct. “Whether these allegations are true and whether they amount to ‘pervasiveness’ are questions to be answered after discovery ….” Castleberry, 863 F.3d at 266; see Fedder, 2024 WL 580552, at *3 (acknowledging district court reluctance to dismiss a complaint pursuant to a Rule 12(b)(6) challenge to the severe or pervasive element and denying motion to dismiss). The Court turns to Defendant’s challenge to the sufficiency of Plaintiff’s allegations as to the third and fourth elements of a hostile work environment claim—whether Plaintiff plausibly alleges conduct that “detrimentally affected” him and that would “detrimentally affect” a reasonable person in Plaintiff’s position.
The court further found unavailing defendant’s argument that plaintiff “does not allege that the conduct interfered with his work performance or otherwise disrupted his ability to function in the workplace” because “during the relevant time period, he was offered a promotion and received the Employee of the Month award”, citing plaintiff’s allegations that he was uncomfortable with, and protested, the objectionable conduct.