In Ilinca v. Bd. of Coop. Educ. Servs. of Nassau, No. 13-CV-3500(JS)(AYS), 2016 WL 6989780 (E.D.N.Y. Nov. 29, 2016), the court dismissed plaintiff’s sexual harassment (hostile work environment) claim under Title VII of the Civil Rights Act of 1964.
The decision gives us a summary of the relevant law:
[A] plaintiff states a Title VII hostile work environment claim by establishing that the conduct at issue: (1) is objectively severe or pervasive, that is … the conduct creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex. This standard necessitates both an objective and subjective inquiry as the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.
To overcome summary judgment, the plaintiff must proffer evidence that his “workplace was so severely permeated with discriminatory intimidation, ridicule, and insult, that the terms and conditions of his employment were thereby altered. In determining whether a work environment is hostile, the Court examines the totality of the circumstances, which include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. However, limited, infrequent, and at worst, mildly offensive conduct,” does not suffice to raise triable issues of fact regarding an objectively hostile work environment.
Plaintiff, a bus driver, alleged that the person to whom he reported (Louise Flynn), e.g., asked plaintiff to “coach her how to work out, to exercise, what exercises to do, what techniques to employ [ ] because she wanted to get in shape”, referred to Plaintiff as “skinny boy” and remarked on his “sexy legs,” and looked at Plaintiff’s groin while reviewing his evaluation
Applying the law, the court explained why plaintiff’s claim failed:
The Court finds that Plaintiff has failed to raise triable issues of fact regarding the existence of a hostile work environment. The record does not indicate the number of times Flynn allegedly referred to Plaintiff as “skinny boy,” harassed him with “looks and stares,” or followed him around. Plaintiff testified that Flynn’s harassment began in 2009, (Pl.’s Dep. Tr. 114:14-116:5), concedes that her comments ceased in 2011, (Pl.’s 56.1 Counterstmt. ¶ 27), but alleges that after his meeting with Siegel, Rowcroft, and Flynn in 2011, Flynn continued harassing him by “looking” at him when he was wearing jeans or shorts, (Pl.’s Dep. Tr. 169:20-170:9). Nevertheless, in the absence of any evidence regarding the frequency or duration of this behavior, a reasonable jury could not evaluate whether these comments were sufficiently pervasive. See Jackson v. Citiwide Corp. Transp., Inc., No. 02-CV-1323, 2004 WL 307243, at *3 (S.D.N.Y. Feb. 17, 2004) (granting summary judgment on the hostile work environment claim and holding that “without any information as to frequency or severity or duration of the alleged stares, no reasonable jury could be expected to be able to evaluate whether these purported actions contributed to the altering of [Plaintiff’s] conditions of employment”). *7
However, with respect to severity, the Court finds that Flynn’s overtly sexual conduct—namely, the verbal remarks, looks and stares, following Plaintiff around, and incident in which she stared at Plaintiff’s groin during his evaluation—while inappropriate and grossly unprofessional, were relatively mild. See Lewis v. City of Norwalk, 562 Fed.Appx. 25, 28-29 (2d Cir. 2014) (affirming the grant of summary judgment to the defendant where the plaintiff alleged, inter alia, that the supervisor “sporadically” licked his lips and “leer[ed]” at him); Spina v. Our Lady of Mercy Med. Ctr., No. 97-CV-4661, 2003 WL 22434143, at *3 (S.D.N.Y. Oct. 23, 2003), aff’d, 120 Fed.Appx. 408 (2d Cir. 2005) (holding that the supervisor’s conduct in calling the plaintiff a bitch on two occasions, stating that she “looked good in tight pants,” and complimenting her hair and eyes was not sufficiently severe to establish a hostile work environment and the supervisor’s yelling and staring at the plaintiff and following her “was similarly mild”). While Plaintiff may have subjectively felt uncomfortable as a result of Flynn’s behavior, this conduct does not rise to the level of an objectively hostile work environment.