Hostile Work Environment Claim Properly Dismissed; Allegations re Pornography Insufficient

In Kimball v. Village of Painted Post, 2018 WL 2944337 (2d Cir. June 11, 2018) (Summary Order), the court, inter alia, affirmed the dismissal of plaintiff’s hostile work environment claim.

In discussing plaintiff’s allegation of a hostile work environment based on pornography in the office, the court explained:

[Plaintiff] has failed to establish that any such incident occurred that was part of a practice that was either severe or pervasive enough for a reasonable jury to find that she experienced a hostile work environment after Yost’s retirement. Notably, Kimball did not testify that she saw pornographic images at her workplace after Yost retired. Instead, she averred that she discovered evidence suggesting that male officers were viewing pornography: she testified that, on “many” unspecified occasions in 2007 and 2008, she saw pornographic windows minimized on the toolbar of the computers at the police station, and the URLs of pornographic websites on occasion autopopulated when she used the work computers. App’x at 698-99. Her testimony is vague and conclusory, however. Although she testified that, on unspecified occasions, pornographic URLs autopopulated on the Department computers, the record does not suggest that these URLs were particularly graphic or degrading to women, nor does she describe the import of the URLs. The record falls short of supporting an inference of the severity needed to sustain her claims.

Nor does the record support an inference that the pornography-viewing practice of which Kimball complains was “pervasive.” Kimball identified only two specific instances in two years in which she discovered evidence suggesting that other officers were viewing pornography on the Department’s computers (one in February 2007 and one on May 26, 2008). Although she testified that she saw such evidence of viewing pornography “many times,” her testimony is nonspecific and provides an inadequate basis for a jury determination that her colleagues’ viewing was so common in the workplace as to be nearly inescapable—in which case a hostile work environment may have existed—or whether Kimball saw it on a number of occasions, but infrequently over the full course of her employment at the Department. See App’x at 698. Accordingly, Kimball has not provided an adequate basis for a reasonable jury to find a hostile work environment.

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