Employment Law Daily Single same-sex incident of verbal threat, physical contact enough to survive dismissal
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Tuesday, March 6, 2018

Single same-sex incident of verbal threat, physical contact enough to survive dismissal

By Nadine E. Roddy, J.D.

Allegations that a corrections officer’s supervisor massaged his shoulders and made sexually explicit and aggressive comments were sufficient to plead same-sex hostile work environment (HWE) sexual harassment and survive a motion to dismiss, a federal district court in New York held in the officer’s Section 1983 suit against the supervisor. Although single-incident HWE suits must meet a high threshold of severity or pervasiveness, the threatening verbal conduct coupled with unwanted physical contact alleged in this case was sufficiently severe, said the court. The supervisor was not entitled to qualified immunity (Perry v. Slensby, February 28, 2018, Roman, N.).

Phone call. The county corrections officer’s 42 U.S.C. § 1983 complaint against his supervisor alleged that once, when the employee was at home recovering from knee surgery, his supervisor telephoned to check on him, but the employee did not answer because he was using the bathroom. When the employee returned the call, the supervisor asked in crude language whether the employee had been masturbating. The employee responded, “Excuse me?” and the supervisor replied before hanging up, “I am just doing a home check, you are good.”

Sexually threatening massage. Approximately two years later, the supervisor allegedly approached the employee during a night shift while the employee was seated in the jail booking room, began massaging the employee’s shoulders, and said, “If I was a female, I would f— the s— out of you, and I would get a strap on and go for broke up your ass.” The employee pushed back his chair and looked at the supervisor in shock, and the supervisor walked away. During the following week, again in the jail booking area at night, the supervisor placed his hand on the employee, asking whether he was all right. The employee said he was fine and told the supervisor not to touch him again. The employee did not file suit until over two years had passed, and his supervisor moved to dismiss.

Statute of limitations. The statute of limitations for actions under Section 1983 is that applicable to personal injury actions in the state in which the federal court sits. New York’s three-year limitation period for personal injury claims applied. Because the telephone call incident had occurred more than three years before the employee filed suit, any claims arising from that incident ordinarily would be time-barred. However, federal courts apply a “continuing violation doctrine,” which holds that when a plaintiff has been subjected to a “continuous practice and policy of discrimination,” the commencement of the limitation period may be delayed until the last discriminatory act takes place. But in this case, the two instances of alleged misconduct over a period of four years did not support an inference of a specific discriminatory policy or practice, nor were they sufficiently continuous to constitute a continuing violation. Thus, the telephone call incident was outside the limitation period and could not be considered.

The jail booking room incident. The court then addressed the supervisor’s argument that his alleged conduct did not amount to a constitutional violation because (1) it was not sufficiently severe or pervasive, and (2) it was not motivated by the employee’s sex. Although the conduct alleged could not be deemed pervasive, it was nevertheless sufficiently severe to survive a motion to dismiss. Single-incident harassment cases typically involve an allegation of rape or other sexual assault, but several courts have recognized that a single verbal or visual incident can be sufficiently severe to justify a finding of a hostile work environment. Here the court found the supervisor’s words in the jail booking room were sexually explicit and aggressive, and, coupled with his unwanted touching of the employee’s body in an intimate manner, could be construed as physically threatening. Thus, the employee’s work environment could be considered objectively hostile.

Sexual desire. Further, the complaint sufficiently alleged that the supervisor’s conduct had been motivated by the employee’s gender. In a same-sex harassment case in which the challenged conduct involves explicit or implicit proposals of sexual activity, if the plaintiff produces credible evidence that the harasser is homosexual, then it may be inferred that the proposals were motivated by sexual desire and thus constitute harassment based on sex. A plaintiff may make the requisite showing with evidence that the harasser was “sexually interested” in him. Here, the supervisor expressed sexual interest in the employee in explicit and detailed terms that a reasonable person could find went beyond casual obscenity that might be expected between male co-workers and that suggested the supervisor’s conduct was motivated by sexual desire. The accompanying unwanted shoulder massage reinforced that suggestion.

Qualified immunity. Nor was the supervisor entitled to qualified immunity from suit, as an employee’s right to be free from sexual harassment in the workplace was well-settled at the time. It was clear that unwanted physical contact and explicit sexual propositions could constitute a violation of that right, and that even a single gross incident of harassment could create a hostile work environment.

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