Graffiti Penis Sexual Harassment Claim Survives Summary Judgment

In Kasparek v. New York State, Department of Corrections and Community Supervision, 16-CV-671-LJV-MWP, 2022 WL 682633 (WDNY March 8, 2022), the court, inter alia, adopted a Report and Recommendation to deny defendants’ motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.

In its analysis, the court first tackled the issue of whether the alleged harassment was “because of” the pertinent protected characteristic(s) (here, sex).

In holding that it was, the court explained:

As a threshold issue, this Court must consider whether the alleged harassment was based on a protected characteristic—here, sex. DOCCS argues that Judge Payson erred by largely declining to consider its argument that there was no evidence that the conduct Kasperek complained of was, in fact, sex discrimination, as opposed to merely some interpersonal conflict. This Court disagrees.

In support of its position, DOCCS maintains that other graffiti depicting penises was similarly found in work areas shared by male and female employees with no reference to Kasperek. But the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved. That is, it may be the case that a co-worker or supervisor treats both men and women badly, but women worse.

As Judge Payson correctly concluded, the conduct here raises a triable issue as to whether Kasperek was targeted because of her sex rather than simply because of an interpersonal workplace conflict. While DOCCS refers to penis graffiti existing in common areas, Kasperek was specifically targeted: images of penises were drawn and left on her classroom door, and she received two harassing phone calls on her classroom’s extension. And there can be no question that the images and words used to target Kasperek—penises, “cunt,” and “bitch”—are inherently sexual and that the words are demeaning.

Indeed, the third graffiti incident included an image of a penis ejaculating onto Kasperek’s name. Docket Item 56-4 at 35. It is hard to imagine—and it certainly would be inappropriate for the Court to conclude as a matter of law—that this inherently sexualized drawing was solely the result of an interpersonal conflict and not Kasperek’s sex.

DOCCS also argues that causation is further lacking here because there is no evidence tying the January 7, 2015, phone calls to the sporadic appearance of graffiti. But even if the phone calls and graffiti were unrelated—itself a factual issue—a jury could conclude that the phone calls constituted sex-based harassment. Kasperek received two phone calls on her classroom’s extension in which an anonymous person—presumably a coworker who called from a facility phone during work hours—called her two gender-based slurs, “bitch” and “cunt.” And a court in this district has found that “cunt” and “fucking bitch” are obviously gender-based derogatory taunts.

[Cleaned up.]

Accordingly, the court held that there was sufficient evidence in the record for a jury to find that the harassment plaintiff experienced was based on her sex.

Next, turning to the merits, the court held that there were genuine issues o material fact as to whether the alleged harassment was “severe or pervasive”:

This Court also agrees with Judge Payson that Kasperek has raised a triable issue of fact as to whether the harassment was sufficiently severe or pervasive to alter the conditions of Kasperek’s employment and create an abusive working environment.

Even where some aspects of a plaintiff’s claim are “no more than innocuous badinage of the type to be expected between coworkers of different sexes, a hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct. Kasperek says that as a result of the harassment, she lost her students’ respect; she was treated as an object of sexual attention; and coworkers joked about the images. The Court agrees with Judge Payson’s conclusion that despite cases finding infrequent graffiti to be insufficient to create a hostile work environment, the harassment here crossed the line because it had tangible adverse effects on Kasperek’s working conditions and relationships within the Gowanda prison.

DOCCS argues that “[t]his finding ignores [Kasperek’s] own admissions about the lack of any substantial effect the graffiti had on her day to day work and/or the ability to do her job.” Docket Item 72 at 7. But a plaintiff need not be unable to perform her job to raise a viable a hostile work environment claim. While one factor courts consider is interference with work performance, “no single factor is required.” Dawson, 373 F.3d at 272 (citation and internal quotation marks omitted). And “[t]he fact that a plaintiff continued to work under difficult conditions is to her credit, not the harasser’s….The critical inquiry ‘is not whether work has been impaired, but whether working conditions have been discriminatorily altered.’ ” EEOC v. Fairbrook Med. Clinic, 609 F.3d 320, 330 (4th Cir. 2010) (quoting EEOC v. R&R Ventures, 244 F.3d 334, 340 (4th Cir. 2001)).

Judge Payson also correctly considered the particular nature of Kasperek’s workplace and position as critical factors in determining whether Kasperek’s working conditions were sufficiently altered to support her hostile work environment claim. As Judge Payson noted, Kasperek was a female teacher at an all-male correctional facility who was wholly reliant on the largely male security staff for her personal safety. And Judge Payson correctly concluded that in that context, a jury might well conclude that the drawings, combined with the jokes Kasperek’s coworkers made about them, undermined Kasperek’s sense of personal safety and ‘her capacity to command respect in an environment where trust among coworkers and respect is of utmost importance.

The fact that someone sexually objectified Kasperek by posting graffiti that included two highly-sexualized comments about her in an inmate bathroom lends even more support to that conclusion. While DOCCS insists that Kasperek’s safety-related complaints are meritless, assessing whether the conduct at issue here sufficiently altered Kasperek’s work environment is a task for a jury, not DOCCS or even this Court. And a reasonable juror might well find that the cumulative effect of the postings significantly compromised Kasperek’s work environment, including her safety.

DOCCS also argues that the phone calls Kasperek received, which might or might not be interpreted as physical threats, are not sufficiently severe to preclude summary judgment. In contrast to the cases cited by Judge Payson, DOCCS says, no such shocking, extreme, and pervasive conduct by an identified supervisor is alleged or present in this case. But the fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases. Although the messages in this case may not have been as extreme as those in the cases cited in the R&R, because of the fact-specific and circumstance-driven nature of hostile environment claims, courts must be mindful that the appalling conduct alleged in prior cases should not be taken to mark the boundary of what is actionable.

Ultimately, a reasonable jury well might conclude that the graffiti and phone calls were related to each other and that even if they were not, the cumulative effect of the calls and the images created a hostile work environment. And regardless, a reasonable jury well might conclude that those calls—or the graffiti—independently created a hostile work environment.

Therefore, this Court agrees with Judge Payson that there are factual issues about whether the conduct to which Kasperek was subjected was objectively severe or pervasive enough to constitute a hostile work environment.

[Cleaned up.]

Finally, the court held that there were issues of fact as to whether the allegedly wrongful conduct may be imputed to (and therefore hold liable) the defendant.

The court explained:

Finally, DOCCS objects to Judge Payson’s conclusion that the conduct here could be imputed to it. Docket Item 72 at 16-27. Specifically, DOCCS asserts that its responses to the graffiti and phone calls were prompt and reasonable, that every drawing was removed the same day, and that it executed a progressive and appropriate response strategy. Id. at 19, 26-27. For that reason, DOCCS argues that Judge Payson erred in finding that it could be liable for the continued harassment. Again, this Court agrees with Judge Payson.

DOCCS specifically contends that its response to the graffiti was sufficient and cites a case from the Eastern District of New York in arguing that “when graffiti is reported to the employer and the employer promptly removes the offending language, the employer has taken appropriate remedial action.” Id. at 20 (quoting Williams v. County of Nassau, 2019 WL 2270518, at *7 (E.D.N.Y. May 28, 2019), aff’d, 806 F. App’x 75 (2d Cir. 2020)). But the facts in Williams—which involved etchings of the letters “KKK” and a half-finished swastika, see id. at *2—are easily distinguishable from the facts here. In Williams, the employer had taken additional steps, such as issuing an order warning of immediate discipline for anyone found to have created discriminatory markings. Id. at *7.8 Here, by contrast, it was only after the fourth instance of graffiti that DOCCS began to take any sort of preventative measure by issuing a memorandum, Docket Item 56-2 at ¶ 102; it was only after the fifth incident that DOCCS implemented an action plan, id. at ¶¶ 117, 118. Under those circumstances, a jury is in the best position to decide whether there was a “practical [ ]possibility of preventing any workplace graffiti,” Docket Item 72 at 20, that targeted Kasperek. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (“[I]f harassment continues after complaints are made, reasonable jurors may disagree about whether an employer’s response was adequate.”).

Likewise, there is a question of fact about whether DOCCS’s responses to the phone calls were sufficient. Even crediting DOCCS’s assertions that the phone calls could have been placed by many employees and that it had Kasperek’s extension forwarded to another employee to “ensure she did not receive any more harassing calls,” Docket Item 72 at 25-26, this Court cannot conclude that DOCCS’s response to that potential physical threat was adequate as a matter of law. As Judge Payson concluded, the promptness of DOCCS’s response may well have been inadequate: “more than two months after the phone calls were made, [the investigator] wrote an email indicating that he had three possible suspects, whom he intended to interview ‘by the end of [the following] week.’…[But] his next update did not take place until May 20, 2015, more than four months after the incident, at which point he indicated that his pool of potential suspects had enlarged ‘substantially.’ ” Docket Item 68 at 26 (citations omitted). Whether DOCCS’s responses were “in proportion to the level of seriousness,” Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013), or “sufficiently calculated to end the harassment,” Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 250 (2d Cir. 1995), is a question best left to the jury, see Whidbee, 223 F.3d at 72-73.

By its very nature, the question of whether a response to harassment was “sufficient” is nearly impossible to gauge as a matter of law. Only when the answer to that question is easy or obvious should a court grant summary judgment on that issue. See Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998) (“Whether the company’s response was reasonable has to be assessed from the totality of circumstances. Factors to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the nature of the employer’s response in light of the employer’s resources, and the nature of the work environment.”); Drouillard v. Sprint/United Mgmt. Co., 375 F. Supp. 3d 245, 267 (E.D.N.Y. 2019) (“In the context of summary judgment, ‘[i]f the evidence creates an issue of fact as to whether an employer’s action is effectively remedial and prompt, summary judgment is inappropriate.’ ” (quoting Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998)). And the answer here is anything but that.

[Cleaned up.]

While plaintiff’s hostile work environment sexual harassment claim survived summary judgment, her retaliation claim was dismissed.

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