‘Intersexual flirtation’ doesn’t make environment hostile

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Where an employee’s supervisor allegedly touched his shoulder and bicep, placed her hand on the small of his back, briefly rubbed his earlobe and made a few positive remarks about his appearance, these actions did not amount to the level of “severe and pervasive” harassment that the Fourth Circuit requires for a hostile work environment.

Background

In the operative complaint, plaintiff James Freeman asserts claims for unlawful termination, hostile work environment and retaliation under Title VII against Science Applications International Corporation, or SAIC. Before the court are SAIC’s motion for summary judgment and Freeman’s motion for summary judgment as to Counts One and Three. 

Unlawful termination

Defendant argues that plaintiff has failed to establish his prima facie case in two ways: “First, he cannot show that his job performance was satisfactory. Second, he cannot show that similarly situated employees outside his protected class received more favorable treatment.” Both of defendant’s arguments are fully supported by the evidence. 

Other than plaintiff’s personal view of his job performance, he has not offered any evidence that he was performing his work satisfactorily, and he has offered nothing but speculative evidence that his position was filled by someone outside of his protected class. Because plaintiff has not produced evidence sufficient to make out a prima facie case of unlawful termination, defendant’s motion for summary judgment on Count One will be granted, and plaintiff’s motion denied.

Hostile work environment

Plaintiff has not provided any evidence that corroborates his own self-serving testimony about sexual harassment by his direct supervisor, Stefanie Wall, between October and November 2018. While plaintiff alleged that co-workers were surprised by Wall’s reaction to plaintiff’s revelation about having a girlfriend, and testified in his deposition that “we were all standing around the proverbial watercooler” when Wall reacted negatively and dramatically to the news, there are no declarations in the record or depositions from any co-workers who corroborate that allegation or any other claim about Wall treating plaintiff inappropriately. There is also no evidence in the record from any of plaintiff’s friends with whom he and Wall met in New York to corroborate the allegations that she was showing unusual attention to plaintiff.

Plaintiff also did not raise his allegations of sexual harassment in either of the first two meetings in which he complained to Walls’s superior, Stacey Page, and the chronology of his concerns which he presented to Page makes no reference to sexual harassment other than an “odd text” and “questionable photo” in New York City. 

Even if the court were to accept plaintiff’s uncorroborated deposition testimony, his claims do not amount to the level of “severe and pervasive” harassment that the Fourth Circuit requires. Plaintiff alleges that Wall touched his shoulder and bicep, placed her hand on the small of his back, once briefly rubbed his earlobe and made a few positive remarks about his appearance. Plaintiff’s allegations in this matter certainly describe behavior that may be inappropriate or unprofessional; however, the Supreme Court has been clear that courts are not to “mistake ordinary socializing in the workplace – such as . . . intersexual flirtation – for discriminatory ‘conditions of employment.’” As a result, summary judgment in defendant’s favor is appropriate on Count Two.

Retaliation

The evidence does not support a conclusion that plaintiff’s Jan. 18 conversation with Page was a protected activity under Title VII, because plaintiff did not tell Page that he believed he had been discriminated against or harassed. Similarly there is no evidence in the record that plaintiff’s Jan. 30 conversation with Page was protected activity because nothing in plaintiff’s timeline of his grievances, which he read to Page verbatim, discusses sexual harassment or a hostile work environment based on sex discrimination. 

Even if – contrary to the evidence in the record – plaintiff had brought up his allegations of discrimination in his Jan. 18 “30,000 foot overview” to Page, his retaliation claim would still fail because the decision to remove plaintiff from the Echo contract was already being processed. Plaintiff’s deposition establishes that he was told he would be removed from the contract before he made any complaint about his situation to his supervisors. 

Plaintiff’s motion for partial summary judgment denied. Defendant’s motion for summary judgment granted. 

Freeman v. Science Applications International Corporation, Case No. 1:19-cv-1502, Nov. 24, 2020. EDVA at Alexandria (Brinkema). VLW 020-3-576. 19 pp.