Discrimination Claims Dismissed; While “Inappropriate”, Comments Were Non-Actionable

In Jean-Pierre v. Citizen Watch Company of America, Inc., 18-CV-0507, 2019 WL 5887479 (S.D.N.Y., 2019), the court – invoking the principle that Title VII of the Civil Rights Act of 1964 is not a “general civility code for the American workplace” – dismissed plaintiff’s discrimination claims.

It summarized the law in this regard:

In determining whether inappropriate comments in the workplace constitute an adverse employment action, courts “must ‘filter out complaints attacking the ‘ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.’ ’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal citation omitted). The emphasis on determining whether an employee has experienced material adversity reflects the importance of distinguishing “significant from trivial harms.” Id. Although the employment discrimination laws protect employees from conduct that materially affects their employment conditions, “Title VII [ ] does not set forth ‘a general civility code for the American workplace’ ” and is not meant to “immunize [an] employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”

Applying the law, the court explained:

Here, Plaintiff describes two allegedly inappropriate interactions with Thumm. Although possibly inappropriate, they do not constitute adverse employment actions. First, Plaintiff alleges that Thumm “humiliated her in front of her colleagues by making a negative comment about her African-American hair texture.” Pl. Am. Mem. of Law at 4; Pl. Dep. at 278:23-280:16. Second, Plaintiff claims Thumm approached her at a work-related event and said, “I don’t know what you think you’re doing, but it’s not working.”7 Pl.’s 56.1 Resp. ¶ 97; Pl. Dep. at 287:8-287:12. Although these comments may have been inappropriate, actions or comments “that cause a plaintiff ‘embarrassment or anxiety’ are insufficient to qualify as an adverse action because such intangible consequences are not materially adverse alterations of employment conditions.” E.E.O.C. v. Bloomberg L.P., 967 F. Supp. 2d 816, 872–73 (S.D.N.Y. 2013) (quoting Miksic v. TD Ameritrade Holding Corp., No. 12-CV-1446, 2013 WL 1803956, at *3 (S.D.N.Y. Mar. 7, 2013)). Because Plaintiff has not proffered any evidence that these statements had a material impact on the condition of her employment, they do not constitute adverse employment actions. See Lee v. N. Y. State Dep’t of Health, Nos. 98-CV-5712 & 99-CV-4859, 2001 WL 34031217, at *1, 16 (S.D.N.Y. Apr. 23, 2001) (explaining that being yelled at and receiving unfair criticism do not rise to the level of adverse employment actions because they do not have a material impact on the terms and conditions of the plaintiff’s employment or affect any ultimate employment decisions).

The court rejected plaintiff’s argument that she was subjected to an adverse employment action in the form of profanity, noting decisions holding “repeatedly that alleged yelling and screaming do not amount to materially adverse changes” in the terms and conditions of employment.

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