Retaliation Claim, But Not Female-on-Male Sexual Harassment (Hostile Work Environment) Claim, Survives Dismissal

In Bell v. Baruch College—CUNY, 16-cv-8378, 2018 WL 1274782 (S.D.N.Y. March 9, 2018), the court granted defendant’s motion to dismiss plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964 and the NYC Human Rights Law, but denied its motion to dismiss plaintiff’s Title VII retaliation claim.

In sum, plaintiff – a male who worked as an office assistant and resident unit assistant at Baruch College – alleged that his female co-worker (Darlington) inappropriately touched him on three separate occasions, and was subject to retaliation for reporting it and filing a charge of discrimination with the EEOC.

In dismissing plaintiff’s hostile work environment sexual harassment claim, the court explained:

The behavior alleged in the Amended Complaint—that Darlington touched Plaintiff’s shoulder and bicep on three occasions in September 2015—does not constitute objectively “severe” or “pervasive” conduct such that a reasonable employee would find the conditions of his employment altered for the worse. These acts—although perhaps unprofessional—do not rise to the level of creating a hostile work environment under Title VII, even considering all of the circumstances. Indeed, courts in this District have routinely rejected hostile work environment claims alleging similar or even more offensive incidences. …

Plaintiff’s allegations constitute the type of “casual contact” that the Second Circuit has said “would normally be unlikely to create a hostile environment in the absence of aggravating circumstances such as continued contact after an objection.” Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 177 (2d Cir. 2012) (listing examples of “casual contact” to include “a hand on the shoulder, a brief hug, or a peck on the cheek”). Here, there are no allegations of any “aggravating circumstances.” In fact, Plaintiff indicates that at the union rally in October 2015 he, for the first time, told Darlington to stop touching his arm, she said “sorry,” and no incidents of inappropriate behavior are alleged to have occurred thereafter. Accordingly, Plaintiff has not sufficiently stated a hostile work environment sexual harassment claim.

The court reached the opposite conclusion, however, with respect to plaintiff’s retaliation claim:

Plaintiff has pled sufficient facts to establish the first two elements of a retaliation claim: Plaintiff engaged in protected activity by making both informal and formal sexual harassment complaints, see Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) (noting that a “protected activity” refers to action taken to protest or oppose discrimination and includes formal or informal complaints to management), and Plaintiff claims that at least some of his co-workers and supervisors were aware of his complaints. With regard to the third factor, Plaintiff argues, and Defendant concedes, that at least the termination of Plaintiff’s employment constitutes an adverse employment action. (Def.’s Mem. 17; see also Guzman v. News Corp., No. 09 Civ. 09323(LGS), 2013 WL 5807058, at *21 n.7 (S.D.N.Y. Oct. 28, 2013) (opining that termination “indisputably constitutes an ‘adverse employment action’ ”).)8 Finally, I find that Plaintiff has alleged facts sufficient to demonstrate a causal connection between his complaint and his termination. Approximately five months elapsed between the time Plaintiff made his complaint and the time he was terminated, a time period generally accepted as supporting an inference of causation at the motion to dismiss stage. See, e.g., Lindner v. Int’l Bus. Machs. Corp., No. 06 Civ. 4751(RJS), 2008 WL 2461934, at *7 (S.D.N.Y. June 18, 2008) (noting that “retaliation claims are rarely dismissed pursuant to Rule 12(b)(6) where the plaintiff has alleged a time period of less than one year between the protected activity and the alleged retaliatory conduct”).9 Liberally construed, the allegations provide sufficient support for the inference that Defendant retaliated against Plaintiff in response to Plaintiff’s filing of a sexual harassment complaint.

Share This: