Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEXUAL HARASSMENT—D.N.J.: Hotel GM not liable for sexual harassment, but hotel denied summary judgment on claim, (Jan 2, 2025)

By Ursula Furi-Perry, J.D., MBA

A genuine dispute exists as to whether the plaintiff was sexually harassed by a direct supervisor, and a reasonable jury could conclude that the supervisor’s conduct was discriminatory and retaliatory.

After a hotel maintenance engineer sued his employer, along with the hotel’s general manager, alleging that the general manager and another lower-level supervisor sexually harassed him, creating a hostile work environment, a federal district court in New Jersey granted summary judgment for general manager. However, the court denied summary judgment for the hotel, holding that there was a genuine dispute as to whether the employee was sexually harassed by a direct supervisor. Reviewing sexually explicit messages and photos sent to the employee by his supervisor, the court concluded that the employee’s protestations to the supervisor may be based on an objectively reasonable belief that he was being harassed (Cespedes v. Harrison Hotel 1 Urban Renewal, LLC dba Element Harrison Newark, No. 23-cv-03029 (D. N.J. Dec. 18, 2024)).

Sexual harassment claims. The employee worked as a maintenance engineer at the defendant hotel. During his employment, he alleged that his general manager and another lower-level supervisor sexually harassed him, creating a hostile work environment. Specifically, the employee alleged that on several occasions, the general manager put his hands on and squeezed his shoulders, as well as commented on the fit of his pants. Further, the employee alleged that his direct supervisor also sexually harassed him, sending him sexually explicit photos and text messages on several occasions, and also asking him whether he had ever had sex with another man.

The employee reported that he asked both managers to stop, but the conduct continued. He also maintained that he was unfairly disciplined and received unfavorable evaluations. When the employee was terminated, he responded with a slew of homophobic slurs and pushed the general manager, resulting in a call to the police. Thereafter, the employee filed suit, claiming discrimination and retaliation under Title VII, along with violations of New Jersey state law for discrimination, retaliation, and aiding and abetting.

As an initial matter, the district court addressed the procedural issue under Rule 56 of the Federal Rules of Civil Procedure, assessing whether there were no material facts at issue so that the employer was entitled to judgment as a matter of law.

Hostile work environment. Regarding the hostile work environment claim, the court held that the general manager’s conduct as alleged did not constitute harassment that was sufficient to constitute a hostile work alleged. Characterizing the manager’s touching as harassment was a “stretch,” the court stated, particularly without any evidence other than the employee’s own testimony, and the court declined to read a sexual connotation into the general manager’s conduct.

However, the court denied summary judgment against the hotel on the same claim, holding that the direct supervisor’s conduct was different: he engaged in sexual banter with the employee, including during work, and sent several sexually explicit messages. Moreover, the court pointed out that the employee requested the conduct to stop, and even if the employee may be particularly sensitive to what he perceives as sexual attention from other men, a jury could still find the conduct to be objectively harmful. “A reasonable jury could determine that a male supervisor repeatedly sending sexual content to a male subordinate by text, engaging in sexual banter with the male subordinate, and asking whether that subordinate has had sex with another man creates a hostile work environment based on the subordinate’s sex,” the court held.

Retaliation. As to the employee’s retaliation claim, the court again granted summary judgment for the general manager, noting that there was nothing to suggest that the manager was aware of the employee’s complaints to and about the supervisor’s behavior. However, the court again denied summary judgment for the employer, holding that there was a genuine dispute as to whether the employee was sexually harassed by the supervisor and concluding that the employee’s protestations to the supervisor may be based on an objectively reasonable belief that he was being harassed. The facts alleged were sufficient for a jury to find ongoing antagonism, the court stated, particularly as less than a month had passed between one sexually explicit message and a disciplinary action form signed by the supervisor.

Accordingly, the district court granted the motion for summary judgment as to the general manager but denied it as to the hotel.

The case is No. 23-cv-03029.

Judge: Marini, W.

Attorneys: John C. Luke, Jr. (Slater Slater Schulman) for Jose Cespedes. Samuel J. Samaro (Pashman Stein) for Harrison Hotel 1 Urban Renewal, LLC dba Element Harrison Newark and James Erling.

Companies: Harrison Hotel 1 Urban Renewal, LLC; Element Harrison Newark

Cases: Discrimination SexualHarassment SexDiscrimination Retaliation Discharge NewJerseyNews