A case recently decided by the Eastern District of New York, Smith v NYC Health and Hosp Corp., 10-cv-714 (EDNY June 18, 2013), illustrates the somewhat difficult task faced by employment discrimination plaintiffs and confirms that not all workplace adversity is actionable.
In short, the law does not impose a “general civility code which prohibits all verbal or physical harassment in the workplace.”
There, the court dismissed pro se plaintiff Tiffany Smith’s sex discrimination, hostile work environment, and retaliation claims, which she brought under Title VII of the Civil Rights Act of 1964.
I’ve said it before: If you want to seek a legal remedy for perceived workplace discrimination, you must not delay.
That point is aptly illustrated by this case, where the court dismissed plaintiff’s sex discrimination claim – which was based on a single discriminatory act, namely, that she did not receive a particular assignment because of her gender – as time barred.
The law provides:
A Plaintiff must timely file an EEOC charge as a prerequisite to a Title VII claim in federal court. To be timely, a prospective plaintiff must file a charge with the EEOC within  days after the alleged unlawful employment practice occurred. … Failure to file a timely charge acts as a bar to a plaintiff’s ability to bring the action. Courts strictly adhere to the 300–day filing period.
Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice. The 300–day deadline starts to run when each discriminatory act occurs. Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. However, the timely charge requirement is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.
Plaintiff alleged that the single discriminatory act forming the basis for her sex discrimination claim occurred on November 7, 2007, yet did not file an EEOC charge until May 11, 2009. Therefore, ” any discriminatory acts that occurred prior to July 15, 2008, including the November 7, 2007 claim, are time-barred.”
Since plaintiff only alleged the November 7, 2007 incident and “a completed act such as a discontinuance of a particular job assignment is not of a continuing nature”, her claim was time-barred under 42 U.S.C. § 2000e-5(e)(1).
Hostile Work Environment
The court began by summarizing the well-established law regarding federal hostile work environment claims:
A plaintiff alleging a hostile work environment must demonstrate that, based on the totality of the circumstances, the workplace is permeated with discriminatory intimidation, ridicule, and insult [based on, inter alia, sex] that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The plaintiff must establish that “either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment. Isolated incidents typically do not rise to the level of a hostile work environment unless they are of sufficient severity to alter the terms and conditions of employment as to create such an environment. If a plaintiff relies on a series of incidents, they must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. Finally, a plaintiff must also demonstrate that a specific basis exists for imputing the objectionable conduct to the employer.
The “sporadic, isolated incidents” alleged by plaintiff to create a hostile work environment were insufficient:
Here, plaintiff complains of several allegedly hostile acts—that Lt. Muldrow approached [plaintiff] in a hostile, aggressive, intimidating manner brushing passed her shoulder; that Lt. Muldrow observed plaintiff from her car; and that Lt. Muldrow glared at plaintiff at unspecified times while she was working. Even if true, the sporadic, isolated incidents described by plaintiff were not sufficiently severe or pervasive, individually or in combination, so as to create a hostile work environment.
Plaintiff also failed to show that the alleged harassment was “because of her sex”:
By plaintiff’s own admissions, the incidents alleged were not done with intent to discriminate against plaintiff based on sex. Indeed, plaintiff stated in her deposition that the November 7, 2007 incident in which she was denied a shift in CPEP was the only instance where she was discriminated against based on sex. And in her amended complaint, plaintiff refers to the subsequent run-ins with Lt. Muldrow as retaliation for plaintiff having filed a complaint against her. Thus, plaintiff herself acknowledges that Lt. Muldrow’s hostility towards plaintiff stemmed from something other than plaintiff’s gender. Such motivation cannot form the basis of a hostile work environment claim.
Plaintiff made two allegations regarding retaliation: first, that the alleged harasser, Muldrow, “approached plaintiff in a hostile, aggressive, intimidating manner brushing passed her shoulder”, and that Muldrow “observed plaintiff from her car.”
The court assumed that plaintiff could establish that plaintiff engaged in a protected activity and that the defendant knew of the protected activity, plaintiff failed to show that she suffered an adverse employment action:
In order to satisfy the [adverse action element of a retaliation claim], the action must be materially adverse such that it could well dissuade a reasonable worker from making or supporting a charge of discrimination. In determining whether conduct amounts to a materially adverse employment action, the Court must consider the context and the alleged acts of retaliation both separately and in the aggregate.
Plaintiff alleges that she was looked at on multiple occasions in a way or amount of time that she did not subjectively appreciate, and was subject to an isolated incident of minor physical contact. The Court finds that there is insufficient evidence for a reasonable finder of fact to conclude that these incidents would dissuade a reasonable worker from making or supporting a charge of discrimination. Instead, they are just the kind of personality conflicts at work that generate antipathy and snubbing by supervisors and coworkers [that] are not actionable. This is true whether the incidents are considered individually or in the aggregate. Moreover, while the test is an objective one, it is relevant that [plaintiff] [her]self was not deterred from complaining. Indeed, the shoulder brushing incident occurred prior to plaintiff’s filing her EEOC charge and clearly did not dissuade her from making her charge of discrimination.