Why it matters

A single instance of unwanted touching was sufficient to support a hostile work environment claim, according to a decision from a Maryland federal court judge. Tiffany Jones alleged that the CFO of Family Health Centers of Baltimore harassed her on multiple occasions by blocking her path in the hallway, making questionable comments, and hanging around her workroom. She also claimed that one day he came up from behind her, grabbed her waist, and pushed his genitals against her buttocks. She reported the incident and did not return to work. The employer moved for summary judgment when Jones filed a Title VII lawsuit, but the judge denied the motion. Relying on a recent Fourth Circuit Court of Appeals decision where the court found the isolated use of an offensive racial epithet can render a workplace hostile, the judge said a single instance of unwanted sexual contact was similarly sufficient to keep Jones' case alive. Further, because the employer failed to provide evidence that it distributed its anti-harassment policy, the court declined to credit theFaragher-Ellerth affirmative defense for the employer.

Detailed discussion

A temporary medical records scanner at Family Health Centers of Baltimore, Tiffany Jones filed suit against her former employer alleging sexual harassment in violation of Title VII as well as negligent hiring, training, and retention under Maryland state law. She also named the chief financial officer (CFO) of the employer as a defendant and alleged intentional infliction of emotional distress and battery against both him and Family Health.

Jones claimed the CFO, Ricardo Dajani, harassed her on multiple occasions. At a staff meeting, he made a comment to the effect he "wouldn't mind … taking [her] somewhere or taking [her] away or something like that," she said, while another time he blocked her path in the hallway and then refused to let her by. From that point forward, Jones said she asked one of her coworkers to accompany her on trips to the bathroom.

The CFO also lurked around Jones' workroom, she alleged, making her uncomfortable until she asked for permission to close and lock the door. The final incident occurred in April 2011. Jones claimed that she left her workroom and upon her return, Dajani came up behind her, put his hand on her waist, and she felt his genitals on her buttocks.

Upset, Jones left work. She reported the incident to her supervisor but never filed a report with upper management even though she was asked for meetings. Family Health attempted an initial inquiry into the incident but Dajani averred he did not discriminate or harass the plaintiff.

Jones filed suit and Family Health moved for summary judgment. Although U.S. District Court Judge James K. Bredar granted the motion on the counts for negligent hiring, training, and retention, as well as intentional infliction of emotional distress and battery against the employer, he allowed the plaintiff's Title VII claim and battery claim against Dajani to move forward.

Considering the hostile work environment claims, the court said Jones' allegations based on the hallway incident, an unwelcome comment, and lurking around her workroom fell short of the severe or pervasive standard but the doorway incident was "a different matter."

"These are serious charges of uninvited sexual contact—and the record is troublingly devoid of evidence tending to disprove them," the court wrote. "There is no third-party eyewitness testimony, and while Dajani conclusively asserted in an interrogatory that he 'did not discriminate or harass the Plaintiff,' he provided no details about what actually transpired between them."

Judge Bredar noted a recent decision from the Fourth Circuit Court of Appeals, Boyer-Liberto v. Fontainebleau Corp. In that case, a panel of the Fourth Circuit held that an isolated incident of harassment can amount to discriminatory changes in the terms and conditions of employment if the incident is "extremely serious."

"The Court is aware that some older cases suggest isolated instances of unwelcome physical contact may be insufficient to satisfy the severe/pervasive prong of a harassment claim," the court said. "But in its recent Boyer-Liberto opinion, the Fourth Circuit altered the landscape of hostile work environment litigation. Boyer-Liberto held that a reasonable jury could find a supervisor's two uses of an odious slur ('porch monkey'), directed toward the plaintiff during a single workplace conflict, severe enough to engender a hostile work environment. If isolated uses of an offensive epithet can render a workplace hostile, the Court concludes that unwanted sexual contact can as well. Mindful that '[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions,' the Court cannot at this stage rule out the possibility that Dajani's conduct created a hostile work environment for Plaintiff."

A separate matter of imputing liability to Family Health remained. The parties disputed whether Dajani exercised supervisory authority over Jones and the employer argued that it had an anti-harassment policy in place that was distributed to all employees.

Assuming without deciding that Dajani was a supervisor for Title VII purposes, the court concluded that it could not apply the Faragher-Ellerthdefense. Jones did fail to take advantage of corrective opportunities by refusing to come into work for a meeting. "Given the seriousness of Plaintiff's accusation, a reasonable person in her position would have understood the importance of aiding the investigation," the court noted.

But Family Health failed to provide proof that Jones actually received or reviewed the company's anti-harassment policy, the judge said. While the employer stated the plaintiff received a copy of the employee handbook and that the document contained the company's reporting requirement as part of the anti-harassment policy, those assertions were "unaccompanied by a citation to the record—presumably because the record includes neither a copy of the handbook nor even a relevant excerpt. Nor did defense counsel ask Plaintiff a single question on deposition concerning whether she received, reviewed, or otherwise understood the policy."

The court refused to find that Family Health qualified for the Faragher-Ellerth defense absolving it of Title VII liability where it failed to produce a critical piece of evidence. "In all likelihood Plaintiff did receive a copy of the anti-harassment policy: in fact, she did not even contest this point in her own memorandum," Judge Bredar wrote. "But the Court will not seal gaps in the summary judgment record with judicial caulk. And since Family Health proffers no separate evidence of harassment-prevention efforts, it cannot prevail on the Faragher-Ellerth defense, at least not at this stage."

Judge Bredar granted summary judgment in favor of the employer on the remainder of Jones' claims, however. A "dearth of evidence" corresponded to her negligent hiring, training, and retention allegations, the court said, with no indication Family Health was on actual or constructive notice of impropriety when Dajani was hired. No reports were made during his employment with the company and there was no evidence regarding training for Family Health employees.

Jones' intentional infliction of emotional distress (IIED) claims failed against both Dajani and the employer. The acts alleged against Dajani were clearly committed outside the scope of employment, the judge wrote, and the plaintiff did not show that the acts rose to the level of IIED, given that recovery under the doctrine is "meted out sparingly" in Maryland. "[N]o reasonable jury could find that Dajani's conduct 'completely violate[d] human dignity,'" the court said, even assuming the doorway incident was "intentional and boorish."

While the battery claim failed against Family Health (with no evidence that Dajani's alleged battery was either authorized by the organization or furthered Family Health's business interests), Judge Bredar found that Jones stated a claim for the tort against the CFO. "A reasonable jury could interpret this incident as Defendants have characterized it in their memorandum, i.e., an 'incidental contact that occurs from time to time regardless of the sex of the parties,'" he wrote. "But an equally reasonably jury could conclude that the contact was intentional, particularly given the broad definition of intent under Maryland tort law. The Court cannot resolve this tension at the summary judgment stage, and so Plaintiff's battery claim against Dajani must proceed to trial."

To read the decision in Jones v. Family Health Centers of Baltimore, Inc., click here.