Sexual Harassment Hostile Work Environment Claim Survives Summary Judgment; Breast Touching & Comments Presented Triable Issues of Fact

In Domingues v. Barton Chevrolet Cadillac et al, 18-CV-07772, 2021 WL 637016 (S.D.N.Y. Feb. 17, 2021), the court, inter alia, denied defendant Barton Chevrolet’s motion for summary judgment on plaintiff’s sexual harassment/hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

The court held that the evidence – including a fellow employee’s (DiCrese) inappropriate comments about, and touching of, plaintiff’s breasts – was sufficient to reach a jury on the issue.

From the decision:

The May 12 Incident, paired with DiCrese’s comments to Plaintiff of a sexual nature, establish sufficient facts that a jury could reasonably conclude that Plaintiff’s work environment was objectively hostile. The essential factual allegations regarding the May 12 Incident are not in dispute. Plaintiff testified that DiCrese touched her breast on May 12, 2017 (56.1 Stmt. ¶ 12), and, according to Mayer’s testimony, when he confronted DiCrese about Plaintiff’s allegations, Dicrese admitted that she had, in fact, touched Plaintiff’s breast that day (id. ¶ 17). Defendants nonetheless argue that this “single instance of touching” was just “a joke” and therefore is insufficient to support a finding that Plaintiff’s work environment was tainted by severe or pervasive harassment so as to be actionable. (Defs. Br. at 15-16). The single case cited by Defendants in support of this argument, Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), is easily distinguishable. In Morgan, the plaintiff alleged that he was subject to a “racially hostile work environment” and the precise issue addressed by the Court was the scope of the “continuing violation doctrine”—i.e. whether it was appropriate to consider a plaintiff’s allegations of racial discrimination that occurred outside of Title VII’s statute of limitations in support of a hostile work environment claim. Id. at 104-05. The issue addressed in Morgan does not exist in this case. The Second Circuit, in opinions post-dating Morgan, has held repeatedly that evidence of “a single incident” of sexual harassment that is “extraordinarily severe” can establish an objectively hostile work environment. See e.g., Agosto v. New York City Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020) (quoting Desardouin, 708 F.3d at 105); Redd, 678 F.3d at 175-76 (“Isolated incidents usually will not suffice to establish a hostile work environment, although we have often noted that even a single episode of harassment can establish a hostile work environment if the incident is sufficiently severe.”); Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (“[A] single act can create a hostile work environment if it in fact ‘work[s] a transformation of the plaintiff’s workplace.’ ” (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002))); see also Oliver v. New York State Police, No. 15-CV-444, 2020 WL 1989180, at *30 (N.D.N.Y. Apr. 27, 2020) (“To survive summary judgment on a hostile work environment claim, a plaintiff ‘must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” (quoting Alfano, 294 F.3d at 374)). Thus, Morgan simply does not support Defendants’ proposition.

*5 The May 12 Incident is a single incident of harassment that qualifies as “extraordinarily severe.” Reid v. Ingerman Smith LLP, 876 F. Supp. 2d 176, 185 (E.D.N.Y. 2012) (single incident of supervisor “grabb[ing] and squeez[ing] one of [plaintiff’s] breasts” was conduct sufficiently “severe to constitute a hostile work environment”); see also Swiderski v. Urban Outfitters, Inc., No. 14-CV-6307, 2017 WL 6502221, at *5 (S.D.N.Y. Dec. 18, 2017) (single incident of customer reaching for plaintiff’s face, putting his thumbs in her mouth, licking her cheek, and attempting to grab her chest was “sufficiently severe by itself to create a hostile work environment”); cf. Redd, 678 F.3d at 180 (“Direct contact with an intimate body part constitutes one of the most severe forms of sexual harassment.”). Accordingly, the Court finds that Plaintiff has identified an extraordinarily severe single incident sufficient for a jury to find that an objectively hostile work environment existed.

Additionally, Plaintiff does more than identify a single extraordinarily severe incident of sexual harassment. Plaintiff testified that in addition to touching her breast on May 12, 2017, DiCrese stated “they can’t be real, they are too big for you, why do they bounce when you walk.” (56.1 Opp’n ¶ 12 (quoting Domingues Dep. at 37:15-17)). Plaintiff testified also that on a different date in May 2017, Milkovich witnessed a conversation in which DiCrese “was talking about [Plaintiff’s] breasts,” (id. ¶ 47 (quoting Domingues Dep. at 34:3-35:18)), and Plaintiff stated that “prior to May 12 on at least two occasions” Plaintiff informed Jessica that she had “told DiCrese to stop making comments about [her] breasts,” (id. (citing Doc. 45, “Domingues Aff.” ¶ 19)). According to Plaintiff’s testimony, in April and May of 2017, “every time [she] went to work” DiCrese would make sexual comments to Plaintiff about her breasts such as, “Why are they big? Why do they bounce when you walk? Your boobs are too big for you.” (Domingue Dep. at 44:22-45:2). In short, even if a jury concluded that the May 12 Incident in isolation was not “extraordinarily severe,” it could find that there was a series of incidents which created an objectively hostile work environment. See Harris, 510 U.S. at 23 (1993) (“[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances.”).

Furthermore, Plaintiff perceived the environment to be abusive and thus her work environment could likewise be found to be subjectively hostile. (Domingues Dep. at 45:9-10 (Plaintiff testified that DiCrese “humiliate[d]” her in front of her co-workers); id. at 45:15 (Plaintiff considered the May 12 Incident to be an “assault”); id. at 59:5-14 (Plaintiff stated that she “was having anxiety attacks [and] panic attacks … since [DiCrese] touched [her] breasts” in May 2017)). Thus, the subjective element of a hostile work environment claim is satisfied as well. See Harris, 510 U.S. at 22 (finding that Title VII requires only that “the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.” (citing Meritor, 477 U.S. at 67)).

Finally, the May 12 Incident and other statements of a sexual nature about Plaintiff’s breasts were undoubtedly because of Plaintiff’s sex.2 See, e.g., Meritor, 477 U.S. at 68-69; Kaytor, 609 F.3d at 547 (holding “to prevail on a claim of hostile work environment based on gender discrimination, the plaintiff must establish that the abuse was based on her gender…. The harassing conduct need not be motivated by sexual desire, however, so long as it was motivated by gender.” (internal citations and quotation marks omitted)). Accordingly, the Court finds that the evidence adduced establishes a triable issue for the jury as to whether Plaintiff’s work environment was hostile.

The court further held that the alleged hostile conduct could be imputed to the employer, noting, inter alia, that after plaintiff complained about the May 12 incident (and the harasser (DiCrese) admitted to engaging in the objectionable conduct), defendant failed to take sufficient remedial action. Notably, the court held that found that “because Plaintiff reported the sexual harassment to employees that had a duty to act, those employees’ knowledge of the harassment can be imputed to Barton Chevrolet.”

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