Title VII Hostile Work Environment Sexual Harassment Claim Dismissed as Time-Barred

A recent Southern District of New York case, McLeod v. Jewish Guild for the Blind, No. 1:13-CV-6746-GHW, 2015 WL 5008732 (S.D.N.Y. Aug. 21, 2015), illustrates the importance of timely filing an EEOC charge when asserting claims under, e.g., Title VII of the Civil Rights Act of 1964 in an employment discrimination (here, sexual harassment) case.

The court explained:

Like all Title VII claims, hostile work environment claims must be filed with the EEOC within 300 days of the occurrence of the alleged discriminatory conduct. See 42 U.S.C. § 2000e–5(e)(1). In assessing the timeliness of a hostile work environment claim under this provision, the Court must consider the entire scope of the claim, including behavior alleged outside the statutory time period, … so long as an act contributing to [the] hostile environment takes place within the statutory time period.

Here, each of the five alleged comments asserted by plaintiff that arguably related to her sex and that potentially contributed to the creation of a hostile work environment were outside of the limitations period that began on August 9, 2012 (i.e., 300 days preceding the filing of her EEOC charge).

The court rejected plaintiff’s argument that she did not timely file an EEOC charge because she was afraid of losing her job, finding that that rationale did not operate as a basis for “equitable tolling.” It therefore dismissed her hostile work environment claim as time-barred.

It also held that, even if plaintiffs claim were not time-barred, it would have been dismissed on the merits:

Ms. McLeod’s claims in this case are premised entirely on the following five comments allegedly made by Dettmer [plaintiff’s supervisor] over a period of approximately six years: (1) after Ms. McLeod changed clothes to attend a party on a boat, Dettmer allegedly remarked, “let me find out you have another job”; (2) while Ms. McLeod was picking up soup containing sausage, Dettmer allegedly remarked that she “likes a lotta [sic] juice on her sausage”; (3) when Ms. McLeod was wearing cowboy boots, Dettmer allegedly asked her, “what horse you gonna [sic] ride today[?]”; (4) while Ms. McLeod was picking up a bin, Dettmer allegedly asked her, “[a]re you trying to show me your ass for points[?]”; and (5) Dettmer allegedly noted that Ms. McLeod was wearing go-go boots, told her that she “probably work[s] the whole weekend,” and asked her when she made her money, how much money she made per night, and when her best night was.

As an initial matter, it is not at all clear to the Court that the first three of these comments are related to Ms. McLeod’s sex. Nonetheless, the Court will resolve any possible ambiguity on this point in Ms. McLeod’s favor and assume that a reasonable juror could find that they are so related. The Court agrees with JGB, however, that a reasonable juror could not find that these comments were sufficiently severe or pervasive to establish a hostile work environment in violation of Title VII. While the latter two of the above comments were clearly inappropriate, none of the five comments were physically threatening, and no reasonable person would consider these five comments made over a six-year period to be sufficiently frequent or severe to alter the conditions of Ms. McLeod’s employment and create an abusive working environment.

The court also dismissed plaintiff’s disparate treatment sex discrimination claim, finding that plaintiff failed to demonstrate (as she was required to do under the McDonnell Douglas v. Green analytical framework) that she suffered an “adverse employment action” based on her sex. While plaintiff based her claims “entirely on a small number of sexually inappropriate or arguably sexually inappropriate comments allegedly made by her supervisor”, she “has not attempted to connect any of these comments to an adverse employment action.”

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