MICHAEL P. SHEA, District Judge.
Plaintiff Linda Flowers has brought sex discrimination and retaliation claims against Defendant Northern Middlesex YMCA (the "YMCA") under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Connecticut Fair Employment Practices Act ("CFEPA"). The YMCA has moved to dismiss Flowers's complaint in its entirety, arguing that Flowers's allegations fail to state a plausible claim for relief. Because Flowers's complaint asserts sufficient factual allegations to state plausible claims of a hostile work environment and retaliation in violation of Title VII and CFEPA, I deny the YMCA's motion to dismiss.
The complaint alleges the following facts. In 1984, the YMCA hired Flowers as a housekeeper. (Compl. ¶ 7.) She remained in that position until July of 2014. (Id. at ¶ 28.) About ten years earlier, on March 8, 2004, Bruce Thortenson, Director of Maintenance at the YMCA, struck and slid his hand across Flowers's buttocks. (Id. at ¶ 12.) This upset Flowers, and she reported Thortenson's conduct to Frank Sumpter, who was at the time the president of the YMCA. (Id.) Soon after Flowers reported the incident, Sumpter placed a report of Flowers's complaint in her personnel file. (Id.)
On January 23, 2014, Thortenson touched the side of Flowers's breast and left arm. (Id. at ¶ 10.) Flowers immediately told Thortenson not to "put his hands" on her. (Id.) Flowers reported the incident to the YMCA's human resources personnel. (Id. at ¶ 11.) The following day, a human resources representative informed Flowers that she had spoken to Thortenson, and that Thortenson would not touch Flowers again. (Id.) At the conclusion of their discussion, the human resources representative hugged Flowers, which caused Flowers to leave crying "in a state of immense distress." (Id.)
After the January 23, 2014 incident, Thortenson instructed other YMCA employees not to speak with Flowers and not to enter the laundry room if Flowers was there. (Id. at ¶ 16.) Thortenson also "frequently gave [Flowers] disgruntled facial stares" when she passed him or while she was working. (Id.) On April 7, 2014, Flowers allowed a representative to review her personnel file. (Id. at 13.) A search of the file yielded no documentation of the January 23, 2014 incident between Thortenson and Flowers. (Id.)
Flowers filed a complaint with the Connecticut Commission on Human Rights and Opportunities ("CRHO") and the United States Equal Employment Opportunity Commission ("EEOC") on April 10, 2014, in which she alleged violations of state and federal anti-discrimination laws. (Id. at ¶ 6.) After Flowers filed her complaint with the CHRO and EEOC, other employees refused to communicate with her about work. (Id. at ¶ 18.)
Between the time that the YMCA first hired Flowers and January 2014, the YMCA employed two housekeepers. (Id. at ¶¶ 19, 21.) The second housekeeper left the YMCA after January 2014. (Id.) Michelle — another YMCA employee — informed Flowers that due to financial constraints the YMCA did not intend to hire another housekeeper, and that Flowers would need to cover the former housekeeper's duties in addition to Flowers's normal responsibilities. (Id. at ¶¶ 19, 20.) Flowers attempted to accommodate her additional responsibilities by arriving at work around 7:00 a.m. — which apparently was earlier than she would arrive prior to January of 2014 — but another YMCA employee informed her that she could not work extra hours because she was "making too much money." (Id. at ¶ 22.) Flowers chose not to quit because she believed that if she did, she would not receive a pension. (Id. at ¶ 25.) At some point after she was assigned the additional responsibilities, Flowers suffered a stroke and, as a result, was forced to resign from her position. (Id. at ¶¶ 27-28.)
After obtaining a release of jurisdiction by the CHRO and EEOC on February 17, 2015 (id. at ¶ 6), Flowers filed suit in this Court on May 11, 2015. Flowers's complaint asserts the following counts: (1) sex discrimination in violation of Title VII due to a hostile work environment, (2) retaliation in violation of Title VII, (3) sex discrimination in violation of CFEPA due to a hostile work environment, and (4) retaliation in violation of CFEPA. On August 11, 2015, the YMCA filed this motion to dismiss.
A motion to dismiss tests the sufficiency of a claimant's pleadings. In considering a motion to dismiss, the Court takes Flowers's "factual allegations to be true and [draws] all reasonable inferences in" her favor. Loginovskaya v. Batratchenko, 764 F.3d 266, 269-70 (2d Cir. 2014). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged," Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (internal quotation marks omitted), and raises "a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Although a court must accept as true all of the allegations contained in a complaint, this tenet is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Sikhs for Justice, Inc. v. Gandhi, 614 Fed. App'x 29, 30 (2d Cir. 2015) (internal quotation marks omitted).
In Counts One and Three, Flowers claims that the YMCA is liable for Thortenson's sexual harassment because it created a hostile work environment in violation of Title VII and CFEPA, respectively. The parties do not dispute that a hostile work environment claim under CFEPA is analyzed in the same manner as one brought under Title VII. See, e.g., Martin v. Town of Westport, 558 F.Supp.2d 228, 242 (D. Conn. 2008) ("As with CFEPA discrimination claims, Connecticut courts look to federal law for guidance when analyzing CFEPA hostile work environmental claims."). I therefore use the same legal framework in addressing the YMCA's argument that Flowers fails to state federal and Connecticut law hostile environment claims. I conclude that, while a close question, Flowers alleges sufficient facts to state plausible claims of a hostile work environment in violation of Title VII and CFEPA because the physical harassment alleged was sufficiently severe to alter Flowers's work conditions for the worse.
In the context of a hostile work environment claim, an employer violates Title VII
"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.'" Redd, 678 F.3d at 175; see also Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000) ("Usually, a single isolated instance of harassment will not suffice to establish a hostile work environment unless it was `extraordinarily severe.'"); Brennan v. Metropolitan Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) ("Isolated, minor acts or occasional episodes do not warrant relief."). This is because Title VII "does not set forth a general civility code for the American workplace." Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted). Nonetheless, the Second Circuit has repeatedly "cautioned against setting the bar too high, noting that while a mild, isolated incident does not make a work environment hostile, the test is whether the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse." Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) (emphasis in original) (internal quotation marks and alterations omitted).
This legal standard has proven difficult for lower courts to implement, particularly at the motion to dismiss stage. Courts have arrived at seemingly inconsistent conclusions about what conduct suffices to create a hostile work environment. After reviewing the facts of two "remarkably analogous" cases, one court noted that they
Pryor v. Jaffe & Asher, LLP, 992 F.Supp.2d 252, 258-59 (S.D.N.Y. 2014).
The YMCA argues that Flowers's allegations do not state a hostile work environment actionable under Title VII or CFEPA. It emphasizes that Flowers never asked for "further investigation" into the March 2004 incident (Def.'s MTD Mem. at 7), and that she alleges no instances of harassment during the ten years in between the 2004 and 2014 incidents. In response, Flowers argues that Thortenson's post-January 23, 2014, conduct — instructing employees not to speak to Flowers or enter the laundry room when Flowers was in it and staring at Flowers in a disgruntled manner — made Flowers's work environment hostile: "Given the recent touching of her breast by this known predator, Thortenson's directives to other employees to isolate Plaintiff physically and mentally caused the Plaintiff to reasonably fear for her personal safety in the workplace." (Pl.'s Opp. Mem., ECF No. 16, at 8.)
As an initial matter, I disagree with Flowers that Thortenson's post-January 23, 2014 conduct constituted sexual harassment that can be considered for purposes of the hostile environment analysis. The complaint does not allege facts making it plausible that Thortenson's post-January 23 conduct, none of which had sexual overtones, was a result of Flowers's sex. Rather, the complaint's chronology suggests that his post-January 23 conduct stemmed from her opposing his earlier harassing actions by reporting the incident to human resources. The allegations regarding his conduct after January 23, 2014, are therefore relevant to Flowers's retaliation claims, not her hostile work environment claims. See Ericson v. City of Meriden, 113 F.Supp.2d 276, 288 (D. Conn. 2000) ("[Plaintiff] has alleged only one incident . . . which could conceivably support an inference of discrimination based on her sex. The later incidents of hostile behavior by her co-workers toward her . . . occurred after [plaintiff reported the supervisor's conduct]. While these allegation[s] support the retaliation claim, . . . they do not support an inference that gender-based animus prompted the hostility."). The only allegations relevant to Flowers's hostile environment claims based on sexual harassment, then, are the two instances of Thortenson's physical contact with Flowers, which occurred in March 2004 and January 2014.
Flowers's allegations present a difficult case; the result of weighing the Harris factors appears near equipoise. The first factor — frequency of harassment — weighs against Flowers: the allegations of sexual harassment consist of only two isolated incidents that occurred ten years apart. The second, severity of the harassment, weighs in Flowers's favor. Physical abuse, such as unconsented touching and striking — particularly on sensitive areas of the body such as buttocks or breasts — are more severe than other forms, such as "vulgar banter." See, e.g., Redd, 678 F.3d at 177 ("On one side lies [complaints of] sexual assaults; [other] physical contact[, whether amorous or hostile, for which there is no consent express or implied]. . . . On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers." (internal quotation marks omitted)). In this sense, Thortenson's alleged "striking" of Flowers buttocks was particularly severe.
The third factor — whether the harassment is physically threatening or humiliating — weighs slightly in Flowers's favor. It is uncontroversial that unconsented touching of a woman's buttocks or breasts is physically intimidating and humiliating. Particularly when it has occurred on more than one occasion, the harassed employee is likely to fear that she will be subjected to further abuse, coloring subsequent interactions with her supervisor. Flowers's failure to allege additional facts detailing the two physical interactions at issue, however, limits the weight of her claim. For example, the complaint fails to indicate the manner in which Thortenson "touched" Flowers's breast and arm in 2014
With respect to the fourth factor, whether the harassment unreasonably interfered with Flowers's ability to perform in her position as a housekeeper, the details set forth in Flowers's complaint come up short. The only allegations in the complaint suggesting that Flowers's ability to perform her job functions was harmed during the period at issue is the alleged increase in her workload and isolation from other employees. As stated, however, those relate to Thortenson's retaliatory actions, not his sexual harassment.
On balance, the Harris factors demonstrate that while Flowers alleges instances of relatively severe harassment, the substance of those allegations are thin. Thortenson's conduct, as alleged, was inappropriate and harassing. His physical abuse of Flowers was likely threatening, and it is reasonable to infer that it made Flowers fear subsequent interactions with her supervisor. The instances of conduct were few and far between, however, and the allegations do not suggest that Thortenson accompanied his physical affront with additional harassment, verbal or otherwise.
In comparing Flowers's allegations to analogous case law, I find that Flowers has alleged barely enough to state a plausible claim of a hostile environment based on sexual harassment. In Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998) abrogated in part on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the court addressed a hostile work environment claim in which the plaintiff asserted that a supervisor "deliberately touched [her] breasts with some papers that he was holding in his hand," and "told [her] she had been voted the `sleekest ass' in the office." Id. at 768. The Second Circuit held that these instances of harassment were insufficiently severe or pervasive to prove a hostile work environment: "[t]hough the two incidents in question . . . are obviously offensive and inappropriate, they are sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded [her] work environment. Nor are these incidents, together or separately, of sufficient severity to alter the conditions of [her] employment without regard to frequency or regularity." Id. In Vito v. Bausch & Lomb, Inc., 403 Fed. App'x 593 (2d Cir. Dec. 17, 2010), the Second Circuit affirmed a district court's entry of summary judgment against a plaintiff who alleged that her supervisor placed his hand on her shoulder, which "slipped down . . . and touched her right breast," reasoning that, even "assuming that this incident occurred, its severity falls short of the deliberate touching of the petitioner's breast in Quinn." Id. at 597.
Flowers's allegations are more severe than the harassment in Quinn and Vito in three ways: (1) Thortenson's apparent intent, (2) the manner of physical contact, and (3) while far apart, the fact that this type of physical contact occurred more than once. As to the first, it is reasonable to infer based on the facts alleged that Thortenson appeared intentionally and physically to harass Flowers by striking and sliding his hand across her buttocks and touching her breast. Put another way, a reasonable person in Flowers's shoes would have interpreted Thortenson's acts as neither inadvertent nor unintentional. The Vito court found it crucial that the physical contact appeared to the plaintiff to be unintentional, italicizing the word "slipped" when recounting that the supervisor's "right hand slipped down [from Vito's shoulder] and touched her right breast." 403 Fed. App'x at 597. See also Reid v. Ingerman Smith LLP, 876 F.Supp.2d 176, 185 (E.D.N.Y. 2012) ("Intentionally grabbing, squeezing, or otherwise feeling an intimate part of another's body is vastly different than brushing against it—whether on purpose or by accident.").
The second difference in this case — that on two occasions Thortenson touched sensitive areas of Flowers's body with his hands — makes the physical harassment more severe than that in Quinn. In Quinn, the supervisor touched the plaintiff's breasts with a piece of paper he was holding, not his actual body. Here, not only did Thortenson touch Flowers with his hands at two separate times, but on one of the incidents, he "struck" a sensitive area on Flowers's body with his hand. Other courts have found this distinction significant. See, e.g., Redd, 678 F.3d at 180 ("In Quinn, the only allegation of touching before us was that the plaintiff's supervisor on one occasion had touched her breast with some papers he was holding. There was no suggestion that he had engaged in the substantially more intrusive behavior here, of repeatedly touching [plaintiff] with his hands or any other part of his body, or that he had `felt' her breasts." (citation omitted)); Guzman v. Macy's Retail Holdings, Inc., No. 09-cv-4472(PGG), 2010 WL 1222044, at *5 (S.D.N.Y. 2010) (distinguishing Quinn by referring to the contact in that case as "incidental and fleeting").
Finally, this case differs from Quinn in that Thortenson subjected Flowers to physical sexual harassment more than once. While the ten-year gap between the acts — and the absence of any alleged incident during that gap — would preclude any inference that Thortenson's harassment was pervasive, a hostile work claimant need not demonstrate pervasiveness to prevail. Rather, a plaintiff can prevail by showing "that [the harassment] was sufficiently severe or pervasive, or a sufficient combination of these elements, to have altered her working conditions." Pucino, 618 F.3d at 119 (emphasis added). Here, the hostile nature of the work environment, produced primarily by the severity of Thortenson's touching, sliding across, and striking Flowers in sensitive areas, is enhanced by the fact that Thortenson did so more than once.
I admit that many, if not most, of the analogous cases in which courts have denied motions to dismiss or for summary judgment have presented instances of harassment more severe than what Flowers alleges. See, e.g., Wahlstrom v. Metro-North Commuter Ry. Co., 89 F.Supp.2d 506 (S.D.N.Y. 2000) (denying summary judgment on hostile environment claim when evidence showed that co-worker gave plaintiff a bear hug, slapped plaintiff's buttocks multiple times, and later verbally attacked plaintiff); Reid, 876 F. Supp. 2d at 186 (denying summary judgment when supervisor "grabbed and squeezed" one of plaintiff's breasts and remarked, "those things are huge"). Nonetheless, as stated, the Second Circuit has repeatedly cautioned against resolving hostile environment claims via judicial disposition by setting the threshold for stating a hostile work environment claim too high. See, e.g., Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004); Terry, 336 F.3d at 148; Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000); cf. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 75 (2d Cir. 2001) ("An Article III judge is not a hierophant of social graces. Evaluation of ambiguous acts such as those revealed by the potential evidence in this case presents an issue for the jury." (internal quotation marks omitted)).
At the motion to dismiss stage, the Court must consider whether the allegations make out a plausible claim, or in other words, raise the claim "above the speculative level." The complaint here asserts that on more than one occasion, Thortenson physically harassed Flowers by putting his hands on sensitive areas of her body, and on one of those occasions, striking her. It is plausible and not speculative to conclude that a reasonable employee in Flowers's shoes would fear that her body remained at risk of future physical harassment by Thortenson. See Guzman, 2010 WL 1222044, at *5 ("At the 12(b)(6) stage, [t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. . . . Here . . . Plaintiff has pled facts concerning unwanted sexual contact sufficient to defeat a motion to dismiss." (internal quotation marks omitted)). As a matter of law, it cannot be said that these actions, taken together, did not alter Flowers's working conditions. As a result I deny the YMCA's motion to dismiss as to Counts One and Three.
Counts Two and Four assert claims that Thortenson and others retaliated against Flowers after she reported Thortenson's January 2014 conduct in violation of Title VII and CFEPA, respectively. As with hostile environment claims, Connecticut and federal retaliation claims operate under the same legal framework. State v. Comm'n on Human Rights & Opportunities, 211 Conn. 464, 469-70 (1989) ("Although the language of [Title VII] and that of the Connecticut statute differ slightly, it is clear that the intent of the legislature in adopting [CFEPA] was to make the Connecticut statute coextensive with the federal.").
Title VII
To survive the YMCA's motion to dismiss, then, Flowers's complaint must allege sufficient facts to plausibly demonstrate that Thortenson subjected Flowers to a materially adverse action, and that the but-for cause of that action was Flowers's reporting Thortenson's harassment to the human resources personnel or filing a complaint with the CHRO. See White, 548 U.S. at 67-68 ("[A retaliation] plaintiff must show that a reasonable employee would have found the challenged action materially adverse . . ."); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013) ("Title VII retaliation claims must be proved according to traditional principles of but-for causation . . ."); Littlejohn v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015) ("The Supreme Court . . . recently clarified . . . that, when an employee communicates to her employer a belief that the employer has engaged in . . . a form of employment discrimination, that communication virtually always constitutes the employee's opposition to that activity." (emphasis in original) (citation, internal quotation marks, and alterations omitted)).
The YMCA contends that Flowers has not stated a retaliation claim because Flowers did not experience a materially adverse employment action. In the retaliation context, an action is materially adverse if "it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington, 548 U.S. at 68 (internal quotation marks omitted). "Such actions must be more than trivial harms and must go beyond the petty slights or minor annoyances that often take place at work and that all employees experience." Rodas v. Town of Farmington, 567 Fed. App'x 24, 27 (2d Cir. May 20, 2014) (internal quotation marks omitted). "An employer's actions need not be related to the terms and conditions of employment to be materially adverse for purposes of a Title VII retaliation claim." Levitant v. City of New York Human Res. Admin., 558 Fed. App'x 26, 28 (2d Cir. March 6, 2014).
After Flowers complained to human resources about Thortenson touching her, Thortenson instructed other YMCA employees not to speak to Flowers and not to enter the laundry room if Flowers was present. Contrary to the YMCA's assertion in its memorandum, the complaint does allege that other employees heeded Thortenson's instructions. (Compl. ¶ 18.) The YMCA argues that, even if her co-workers shunned Flowers at Thortenson's demand, this does not amount to a materially adverse employment action.
This Court was unable to uncover any controlling precedent stating that social isolation ordered by a supervisor cannot be a materially adverse action for purposes of a retaliation claim. The Second Circuit has recognized cognizable claims of retaliation for "transfer-based retaliation claims . . . [that involved] isolation," Kellman v. Metropolitan Transp. Auth., 8 F.Supp.3d 351, 384 (S.D.N.Y. 2014), but such cases entail isolation pertaining to a decrease in responsibilities or functions, not employer-orchestrated coworker isolation, e.g., Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006) (holding defendant was not entitled to summary judgment when plaintiff "[s]upervis[ed] . . . a large number of managerial, professional and clerical support staff" in previous position, but was transferred to a position in which "he in fact was allowed to supervise no one"). Especially in light of my obligation to draw all reasonable inferences in the plaintiff's favor, I nonetheless conclude that the employer-orchestrated social isolation she alleges "could well dissuade a reasonable worker from making or supporting a charge of discrimination." White, 548 U.S. at 57. Flowers's allegations of supervisor-driven social isolation in the workplace, which resulted from her opposition to Thortenson's sexual harassment, state a claim of retaliation.
Because Flowers alleges sufficient facts to state a plausible claim of a hostile work environment on the basis of sexual harassment and retaliation in violation of Title VII and CFEPA, the YMCA's motion to dismiss is DENIED.
IT IS SO ORDERED.
Conn. Gen. Stat. § 46a-60(a)(8).
42 U.S.C. § 2000e-3(a).
Conn. Gen. Stat. § 46a-60(4).
The YMCA also argues that Flowers cannot state a claim of retaliation because she has not stated a claim of unlawful sexual harassment. Because, as discussed above, I conclude that Flowers states a claim of a hostile work environment, this argument is without merit. Even if I had concluded otherwise, however, the YMCA mischaracterizes controlling law. In this circuit, a plaintiff may prevail on a retaliation claim without proving that the alleged discriminatory act was unlawful as long as the plaintiff had a good faith reasonable belief that the employer's conduct was unlawful. E.g., Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998) ("[T]he plaintiff need not establish that the conduct she opposed was actually a violation of Title VII, but only that she possessed a `good faith reasonable belief that the underlying employment practice was unlawful' under that statute.").
