“Snickering” and “Under the Breath” Comments Held Insufficient to Establish Hostile Work Environment

In Sanderson v. NY State Electric & Gas Corp., No. 13-1603-cv (2d Cir. Mar. 27, 2014) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s sex-based hostile work environment, disparate treatment, and retaliation claims.

Plaintiff worked as a gas fitter for defendant. Initially, she worked on the day shift as the only woman of approximately thirty gas fitters. Plaintiff voluntarily transferred to the night shift, but was forced to return to the day shift. Plaintiff claimed that her male co-workers “shunned” her “on a daily basis”, declined to assist her, made at least one sexist remark, urinated in her presence, and engaged in “snickering and … under the breath” comments when they saw her. 

Hostile Work Environment

First, the court held that plaintiff’s hostile work environment claim was untimely, since the alleged harassing events occurred more than 300 days before she filed her EEOC charge.

The law, as summarized by the court:

Title VII requires a claimant to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action. This statutory requirement is analogous to a statute of limitations. Accordingly, [a] plaintiff may bring a claim under Title VII only for acts of discrimination that occurred within the statutory period set by 42 U.S.C. § 2000e-5(e)(1). In order to recover for a discrete act of discrimination or retaliation, such as a discharge, failure to hire, or failure to promote, the plaintiff must demonstrate that the discrete act took place within the statutory time period. With respect to a claim that the plaintiff suffered a hostile work environment, on the other hand, the claim is timely so long as one act contributing to the claim occurred within the statutory period. If that is the case then the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

In order for a timely incident to prolong a hostile work environment created by earlier actions, the timely incident must be sufficiently related to the prior events so that they can be said to be part of the ‘same’ hostile work environment. … Moreover, while a harassing incident need not be overtly sex-based, there must be reason to believe that the act was motivated by the plaintiff’s sex in order for the incident to contribute to a sexually hostile work environment.

In finding that her hostile work environment claim was time-barred, the court reasoned:

The events Sanderson points to do not satisfy these standards. First, there is no evidence that Sanderson’s reassignment to the day shift was related to the earlier instances of harassment, or that it was based on her sex. Sanderson does not claim that the supervisors who directed her reassignment were among the perpetrators of her earlier harassment. Furthermore, Sanderson concedes that she was the only scheduled worker not already working on the day shift at the time of the 2009 reassignment, so the fact that she was the only worker reassigned does not suggest that she was treated differently than similarly situated male employees. Second, the fact that Sanderson complained in 2009 of the men’s pre-2007 conduct cannot render a claim based on the earlier conduct timely. Were the rule otherwise, any claimant could circumvent the statutory limitations period simply by discussing incidents of harassment that occurred outside of the limitations period with her employer during the statutory limitations period.

Sanderson does not claim to have experienced any difficulties with her male co-workers — the perpetrators of the earlier instances of harassment — within the statutory limitations period, other than the men’s snickering and under-the-breath comments. She was unable to identify the nature or content of those comments. Such occasional, unspecified sotto voce comments are too insubstantial to contribute to a hostile work environment, and thus to permit consideration of earlier instances of harassment.

Disparate Treatment

Next, the court rejected plaintiff’s disparate treatment claim, finding that she “offers no evidence to suggest that the individuals who harassed her on the day shift played any role in the decision to terminate her employment” and “has failed to demonstrate that, in reassigning her to the day shift in 2009, NYSEG treated her differently than any similarly situated male employee.”


Finally, the court held that plaintiff failed to establish unlawful retaliation:

We assume arguendo that Sanderson established a prima face case of retaliation. However, NYSEG has offered a non-retaliatory reason for her discharge — namely, her refusal during the November 3, 2009 meeting to return to work the following day — and Sanderson has failed to present evidence from which a reasonable jury could conclude that NYSEG’s proffered reason is a pretext for retaliation. Sanderson insists that the temporal proximity between her complaint about sex-discrimination and her discharge — only a number of hours — is sufficient on its own to demonstrate that NYSEG’s asserted reason is pretextual and her complaint was the but-for cause of her firing. She is mistaken. While temporal proximity alone may be sufficient to satisfy a retaliation plaintiff’s prima facie burden, we have held that “temporal proximity is insufficient to satisfy [plaintiff’s] burden to bring forward some evidence of pretext.” Apart from temporal proximity, Sanderson offers no evidence that NYSEG’s reliance on her insubordination as the reason for her discharge was a pretext for retaliation.

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