Hostile Work Environment Claim Dismissed; “Unprofessional” and “Upsetting” Conduct Insufficient

In Kobos v. Target Corporation et al, 15–cv-5573, 2018 WL 2943575 (E.D.N.Y. June 12, 2018), the court, inter alia, dismissed plaintiff’s hostile work environment claim.

The court explained the legal standard:

To establish a claim for a hostile work environment, a plaintiff must show “that the complained of conduct: (1) is objectively severe or pervasive—that is, 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 … [a] protected characteristic.

In support of her claims, plaintiff cited the following evidence:

(1) Defendant Martinez’s one offensive comment that Plaintiff was “crazy;”
(2) Defendant Martinez’s favoritism of younger workers evidenced by her accommodating their schedules in assigning shifts;
(3) Defendant Martinez embarrassing Plaintiff on one occasion by showing her how to pick up items in front of another employee;
(4) Defendant Martinez assigning Plaintiff too much work to complete in a given timeframe on one specific occasion;
(5) Defendant Martinez telling Plaintiff she was not to discuss her financial problems with her coworkers; and
(6) Defendant Martinez giving Plaintiff fewer hours than Plaintiff wanted, and scheduling Plaintiff to work later shifts. (See, e.g., Compl. ¶¶ 9–13; Mem. in Opp. at 1–3; P.’s R. 56.1 Stmt. ¶¶ n et seq.)

Applying the law, the court concluded:

While Defendant Martinez’s alleged actions were unprofessional, and understandably upsetting to Plaintiff, they do not raise to the level of “severe” or “pervasive.” Looking at the frequency of the conduct, each of the cited comments only happened one time, the embarrassing demonstration happened one time, and there is only one example in the record of an assignment of excessive work. None of the conduct is “severe,” as it was not physically threatening or humiliating. In fact, most of the instances were “a mere offensive utterance.” See National R.R. Passenger Corp., 536 U.S. at 117. While Plaintiff may claim that the conduct “unreasonably interfered” with her performance, this argument would be unavailing because the isolated and infrequent instances were not pervasive enough to impact her ability to do her job. See Petyan v. New York City Law Dept., 2015 WL 4104841, at *3 (S.D.N.Y. July 2, 2015) (holding that plaintiff’s hostile work environment failed as a matter of law when plaintiff “failed to sufficiently allege that he suffered from a hostile work environment” because the isolated incidents of hostile remarks did not mean his workplace was “permeated with discriminatory intimidation, ridicule, and insult.”) Therefore, Plaintiff cannot make out the first element of a hostile work environment claim as the conduct here was neither pervasive nor severe, and a reasonable person would not have found the isolated hostile remarks and unfavorable schedule constituted a hostile or abusive environment.

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