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Employee Again Shows Genitals to Co-Workers: Litigation Again Follows

Dear reader, we know that after seeing this headline, you are saying to yourself: Super; and in other news, scientists have determined that the big bright thing in the sky is pretty warm. Fear not, however, because in this tale of southern exposure, the alleged harassment victim did the pants dropping (!) Plus, there’s stuff about softball, fortune telling and allegations of breakfast food with a side order of sexual innuendo.

(Like you’re not going to keep reading.)

After Horizon Lines, Inc. fired him for what the Court referred to as “engaging in sexually inappropriate workplace conduct” (three guesses on that one), Vladimir Pérez sued both the company and Grace Acevedo, Horizon’s HR Manager for Puerto Rico, claiming that his termination was unjust and that Acevedo had sexually harassed him. The District Court granted the defendants’ motion for summary judgment and Pérez appealed.

The First Circuit’s opinion noted that after an investigation, Acevedo and Horizon concluded that Pérez had been the subject of a photograph depicting a man from the waist down exposing his genitals that had been taken on Horizon property. In addition, during the investigation, employees recounted a number of other occasions in which Pérez allegedly exposed himself to coworkers in the workplace and “also described a general atmosphere of sexually-charged horseplay among Horizon's employees, in which Pérez participated.” This investigation resulted in Horizon terminating Pérez’s employment in November 2010.

Pérez subsequently filed a sexual harassment charge with the EEOC. After receiving his right to sue letter, he then filed a complaint in federal court asserting sexual harassment and gender discrimination under Title VII and parallel claims under Puerto Rico law.

As the parties litigated the case, Pérez's sexual harassment claim focused primarily on four sets of events that allegedly took place between 2006 and 2010:

  • Two similar events at Horizon's 2006 and 2007 Christmas parties, at which Pérez testified that Acevedo urged him to dance with her and attempted to drag him to the dance floor by taking him by the arm and pulling him.

Pérez claimed that the requests made him uncomfortable and that he rejected them.

  • An incident at a bar following a Horizon company softball game in which Acevedo admittedly placed Pérez’s car keys in her pants and allegedly told Pérez that he would have to return to her home to retrieve them.

Pérez testified that he refused Acevedo’s request and that she did not return his keys for over an hour.

  • Pérez also claimed that at an early morning meeting Acevedo required him to attend at her office, instead of discussing work concerns, she instead engaged in a “sea shell reading,” which involved divining aspects of Pérez's life from the way in which the shells landed on a straw mat.

Acevedo testified in her deposition that Pérez requested the reading, which he denied. Pérez also testified that during the reading “Acevedo grabbed his hands and touched his arms in a sexually suggestive fashion.”

  • The final incident involved Acevedo's almost weekly requests that Pérez bring cornbread and pastries to her office. Pérez claimed that Acevedo asked him to personally bring the cornbread and pastries to her office and to bring them "hot."

Pérez interpreted this as an appeal for sexual favors, in part because Acevedo's office was in a different location than his workplace and because of the prior sea shell reading.

The First Circuit wasted little time in dismissing Pérez’s contentions. First, the Court pointed out that at his deposition, he had conceded that Acevedo actually directed the cornbread requests to another employee. The Court concluded that the other incidents were too remote to Pérez’s termination to support a quid pro quo harassment claim.

Pérez fared no better on his hostile work environment claims. First, the Court ruled that “[e]ven if a reasonable jury could conclude that Acevedo’s requests that Pérez have another employee deliver cornbread and pastries to her office was harassing, no reasonable jury could conclude that those requests were sufficiently severe or objectively offensive to prove actionable.” Additionally, as the district court had previously noted, the other incidents that Pérez alleged contributed to the hostile work environment were, on their own, time barred. Finally, the First Circuit also affirmed the lower court granting the defendants summary judgment on Pérez’s claim under Puerto Rico law for termination “without just cause,” noting that Acevedo's investigation suggested that the lower-torso photograph depicted Pérez, indicated that he had exposed his genitals in the workplace on multiple occasions and “was generally involved in an atmosphere of inappropriate sexual horseplay and behavior.” As such, the First Circuit affirmed the District Court’s Order granting the defendants summary judgment.

Although the car key and sea shell reading incidents are not exactly out of the SHRM best practices playbook, for the most part Horizon seems to have acted reasonably here  - with one gigantic exception – allowing (either by act or omission), the atmosphere in which Pérez was able to carry on like this. Based upon the First Circuit’s opinion, the Company is lucky that it wasn’t one of his former co-workers raising these issues before the EEOC and in court.

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