Work place harassment is still with us. And, courts still struggle with the term “severe or pervasive.” To rise to the level of work place harassment, conduct must be “severe or pervasive.” In Sanders v. Christus Santa Rosa PASC, 995 F.Supp. 2d 626 (W.D. Tex. 2014), the court looked at the totality of the circumstances and found there was issue of fact whether the harassment was severe or pervasive. Stephanie Sanders worked as a nurse at Christus Santa Rosa Hospitak. Dr. Michael Decherd made numerous sexual comments to the nurse. He showed her a video of a horse sodomizing a woman. He frequently sought her out, hugged her, showed a picture of her to a subordinate, and asked her to friend him on Facebook. He showed her a picture of a man performing oral sex on a woman and said he had changed his mind about oral sex.

The hospital filed a motion for summary judgment. It argued that Dr. Decherd did not follow her into a utility room, but was invited by the nurse. The court correctly pointed out that whether she invited him into the room is for a jury to resolve. The employer pointed out that once in the room, he did not attempt to accost her or kiss her.

The employer pointed to cases which found isolated teasing or banter did not rise to the level of sexual harassment. In those cases, male supervisors engaged in some 5 or 6 incidents of questionable behavior. Yet, the Fifth Circuit in those two cases found them to be isolated or somewhere less than “severe or pervasive.” The Western District observed that the higher court seemed almost to be counting incidents within a certain amount of time to see if there were enough incidents to qualify as severe or pervasive. And, the Western District pointed to a more recent case from the Fifth Circuit, Royal v. CCC & R Tres Arboles, LLC, 737 F.3d 396 (5th Cir. 2013), in which the court found hovering by two men over a woman in a confined space and sniffing could constitute severe or pervasive, such that a jury should resolve the issue. The Western District found these incidents severe or pervasive such that a jury should resolve the issue. It denied the motion for summary judgment.

The employer also argued that because Ms. Sanders continued working after this harassment occurred, that continued working precluded severity as a matter of law. The court rightly noted there is no authority for such an argument. The court then referred to the “aggressive” questioning of Plaintiff during her deposition. It noted that Nurse Sanders had asked Dr. Decherd a medical question about her breast implants. ¬†Apparently based on that question, at Plaintiff’s deposition, the defense asked such questions as did Ms. Sanders flirt with Dr. Decherd, whether she took any responsibility for how Dr. Decherd acted around the nurse, and whether Plaintiff “brought it on at all.” Sanders, supra, at 634. The court rightly seemed troubled by the nature of these questions. I think any defense lawyer asking these sorts of questions without much better basis, is indeed risking judicial ire.

And, in its motion for summary judgment, the defendant had argued that there was nothing sexual or objectively offensive about asking for a cell phone number, being followed into a room and told you are “sexy.” The court did not appear to agree. At that point, the court found that based on the totality of the circumstances, these statements do raise a fact issue regarding whether this conduct was severe or pervasive and constituted harassment. Sanders, supra, at p. 633, n.9. In my opinion, in trying to argue that these sorts of statements are not sexual at all, the defense lawyer lost much credibility with the court.

So, the nurse defeated the employer’s motion for summary judgment. But, it was all for naught. In the end, the jury found Nurse Sanders was not harassed based on her gender. A jury in U.S. District Court essentially sided with the hospital, despite this evidence. Fortunately, the plaintiff had settled with the doctor before the hospital filed its motion for summary judgment. Indeed, with the doctor absent from the trial, the plaintiff may have found it more difficult to use some evidence. The jury did submit one note during its deliberations, suggesting it did at least have some discussion about the merits. This is a note of caution to all plaintiffs: even if you win the motion for summary judgment, that is no guarantee of victory last trial.