When Is Harassing Conduct ‘Severe’ Enough?

When Is Harassing Conduct ‘Severe’ Enough?

Written on 09/20/2019
Will Aitchison

Kevin Perry worked as a corrections officer for the Westchester County Department of Corrections in New York. Perry was assigned to the DOC’s booking unit, and Captain Robert Slensby was one of his supervisors.

In July 2014, Perry completed a medical leave and returned to work at the DOC. Perry testified that on July 22, 2014, he was in jail booking with Slensby when Slensby placed his hands on Perry’s shoulders and began massaging him. As Slensby did so, Perry testifies that Slensby said in a serious tone, “If I was a female, I would fuck the shit out of you, and I would get a strap on and go for broke up your ass.” Another officer, named Officer Mateo, was present. Perry claims that Officer Mateo smiled and stated, “What man says that to another man.” Perry responded by tensing up his shoulders and smirking.

After this incident, Perry related that he suffered from substantial sleeplessness due to nightmares of being raped by Captain Slensby. Because of these nightmares, Perry claimed he took medications, called in sick for work and sought psychological treatment. Perry claimed that the July 2014 incident made him irritable and unable to satisfy his fiancé because of his sexual dysfunction. Perry also testified to have suffered from heightened blood pressure and anxiety due to Slensby’s actions.

Perry sued Slensby, claiming sexual harassment. A federal court in New York disagreed and dismissed the lawsuit.

The Court ruled that “to prevail under Title VII on a hostile work environment theory, Perry must show the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alter the conditions of his employment. The standard has both subjective and objective components: conduct complained of must be so severe that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.

“Here, neither party disputes that Perry found Slensby’s conduct subjectively hostile. Therefore, what is at issue is whether Slensby’s actions were objectively hostile. On this, the Court finds that a trier of fact would not find Slensby’s actions to be hostile because: (1) employees in the DOC routinely used sexual language and joked with each other; (2) Slensby was not violent with Perry when he massaged Perry’s shoulders; (3) Slensby complied with Perry’s request to never touch him again; (4) Slensby’s conduct did not cause humiliation; and (5) Slensby’s conduct did not alter Perry’s work performance. Additionally, Perry has failed to establish Slensby was motivated by sexual desire.

“Courts have held that a defendant’s actions are objectively hostile when the single incident is violent and intentional, or when the defendant frequently makes unwelcome sexual contact and statements. Additionally, a defendant’s actions are objectively hostile when they are physically threatening and/or humiliating.

“Here, a reasonable jury could not find Slensby’s actions objectively hostile. Again, social context is crucial in evaluating whether a reasonable person in Perry’s position would find Slensby’s actions simple teasing between members of the same sex or severely hostile. Here, Perry himself testified to the work environment of the DOC by stating employees joked with each other, used vulgar and sexual language with each other, talked about sex with each other, and put their hands on each other. Even Officer Mateo testified to both Perry and Slensby laughing after the incident.

“Additionally, Perry himself testified to laughing. Hence, a trier of fact could not find Slensby’s statements and shoulder massage to be severely hostile, particularly since such conduct was common in the DOC. Slensby’s conduct is also not objectively hostile because the single incident was neither egregious nor frequent. Slensby only massaged Perry’s shoulders once. Additionally, unlike defendants who frequently made demeaning statements, initiated unwelcome sexual physical contact, intimidated employees, used foul language, and made sexually explicit comments in public, here, there was only one instance of unwanted touching and foul language that was neither violent nor lasting.”

Perry v. Slensby, 2019 WL 3409894 (S.D. N.Y. 2019).