In Lockett v. USIC Locating Services, LLC, No. 25-CV-2130-TC, 2026 WL 2184963 (D. Kan. July 29, 2026), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s sex based hostile work environment claim under Title VII of the Civil Rights Act of 1964.
From the decision:
Title VII “does not establish a general civility code for the workplace and [ ] a plaintiff may not predicate a hostile work environment claim on the run-of-the-mill boorish, juvenile, or annoying behavior that is not uncommon in American workplaces.” Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 (10th Cir. 2015). As such, a plaintiff must “present evidence that creates a genuine dispute of ma-terial fact as to whether the workplace is permeated with discrimina-tory intimidation, ridicule, and insult[ ] that is sufficiently severe or per-vasive to alter the conditions of the victim’s employment.” Id. Perva-siveness and severity are independent and equal grounds to support a claim of a hostile work environment. Id. The inquiry is “particularly unsuited for summary judgment because it is inherently fact-found by nature.” Id. (quotation marks omitted).
There exists a dispute of fact as to pervasiveness. Contra Doc. 50 at 21. That is enough to proceed to trial. See Ford, 45 F.4th at 1230–31. The evidence is sufficient such that a jury should have “the opportunity to evaluate the evidence, demeanor, and candor of witnesses and make the ultimate determination.” Lounds, 812 F.3d at 1227. Schroeter, who was Lockett’s first supervisor, started behaving inappropriately toward her as soon as she started working at USIC. Doc. 51 at 12 ¶ 54. Schro-eter hit on Lockett “every day,” and admitted to Lockett that he had told a contractor that he let the then-pregnant Lockett sleep at work because he had “fucked her good last night.” Doc. 51-4 at 11; Doc. 51 at 12 ¶ 57. Rafols’s conduct started once Lockett returned from ma-ternity leave in January 2023. Rafols persistently made sexual com-ments and asked whether Lockett had an OnlyFans account. Doc. 51 at 13 ¶ 64, 15 ¶ 74. There is evidence, if believed by a jury, suggesting that these comments caused Lockett to stop attending lunch and office meetings. Id. at 16 ¶¶ 78, 79; see Sharpe-Miller v. Walmart, Inc., __ F.4th __, No. 24-2055, 2026 WL 2015375, at *13 (10th Cir. July 13, 2026) (reversing summary judgment and noting that “[i]nterference with work performance can be a relevant factor in assessing whether con-duct qualifies as a hostile work environment”). Finally, once Lockett met Lyons in November 2023, Lyons questioned how someone with Lockett’s eyelashes and nails could work as a locator and commented that he did not want her to work in the office for fear that she would file a sexual harassment lawsuit. Doc. 51 at 14 ¶¶ 66–69. Considering the “longstanding view that a hostile work environment claim is par-ticularly unsuited for summary judgment disposition,” there is a genu-ine dispute of material fact as to whether the work environment at USIC was permeated with conduct that was sufficiently pervasive to alter the terms and conditions of Lockett’s employment. Lounds, 812 F.3d at 1232 (reversing summary judgment where the district court failed to perceive a genuine dispute regarding pervasiveness).
USIC’s counterarguments fail. It argues that the conduct at issue was not pervasive because it was only a few “one-off events.” Doc. 50 at 23. But the Tenth Circuit has “underscored that the word ‘pervasive’ is not simply a counting measure and requires a broader contextual analysis that carefully considers each instance as a component of the overall workplace milieu.” Lounds, 812 F.3d at 1223. “Much like ‘a play cannot be understood on the basis of some of its scenes but only on its entire performance,’ which is the sum total of those scenes, ‘a dis-crimination analysis must concentrate not on individual incidents, but on the overall scenario,’ which is informed by the sum total of those incidents.” Id. at 1223–24 (quoting Penry v. Fed. Home Loan Bank of To-peka, 155 F.3d 1257, 1262 (10th Cir. 1998)).
The court concluded by noting that the “dispositive question” is “whether there is sufficient evidence of pervasiveness such that the jury—not an unelected federal judge— should make the call,” and given that Schroeter’s behavior occurred daily and lasted for the entirety of his tenure as Lockett’s supervisor, and that Rafols’s behavior began as soon as he became Lockett’s supervisor, and it occurred so frequently that it created an environment that caused Lockett to miss meetings, “[c]onsidering the record in the light most favorable to Lockett, a jury could find that Lockett faced pervasive discrimination that altered the conditions of her employment.”