Title VII Retaliation Claim Dismissed; Report of Discovery of “Pornographic Video” Was Not “Protected Activity”

In Brantman v. Fortistar Capital, Inc., No. 15-CV-4774 (NSR), 2017 WL 3172864 (S.D.N.Y. July 22, 2017), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s Title VII retaliation claim.

Plaintiff, while reviewing and cataloging boxes of files and documents belonging to defendant’s recently-retired general counsel, “found a DVD in a plastic case with a photographic image of a woman, taken from behind, bent over, exposing her bare backside.” Plaintiff alleges that she suffered retaliation for reporting the discovery of the DVD, which she characterized as a “sexually offensive pornographic video” that was “gender offensive.”

In dismissing her retaliation claim, the court explained:

According to Plaintiff’s testimony, her complaint to Ms. [Arlene] Camora [defendant’s Vice President and General Manager] consisted of her comment, “look what I found,” and her display of the DVD. (Pl. Tr. 96:13-24). Ms. Camora responded that Mr. Dunbar was no longer employed at Fortistar, and told her she could speak with Ms. Zanette “if she wanted.” (Id.) This conversation lasted a few minutes. (Id. at 94:9-16.) Plaintiff then showed Ms. Zanette the DVD and told her that she had found it in Mr. Dunbar’s boxes; according to Plaintiff, Ms. Zanette also responded that Mr. Dunbar was no longer at Fortistar. (Id. at 93:10-18.) Although Ms. Camora did note Plaintiff appeared “upset,” Plaintiff admits that she did not verbally express that the DVD made her feel uncomfortable or offended, or any sentiment to the effect that she felt she was being discriminated against, nor did she provide any verbal articulation with regard to how the DVD made her feel, see supra at 3. As such, though it may have been clear she found the DVD indecorous and perhaps upsetting, even when construed in the light most favorable to Plaintiff, the content of her complaints do not raise a genuine issue of fact as to whether she put Defendant on notice that she felt she was facing or opposing discrimination on the basis of her sex, as proscribed by Title VII.

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