Court Dismisses Hostile Work Environment Claim Against UPS on Statute of Limitations Grounds

In Pignone v. United Parcel Service, Inc., 2020 WL 1140509 (N.D.N.Y. March 9, 2020), the court dismissed plaintiff’s hostile work environment claim, finding that there was no act committed by defendant within the relevant statute of limitations (here, three years under the New York State Human Rights Law). (while the court denied defendant’s motion to dismiss plaintiff’s constructive discharge claim, here I ill focus on the court’s assessment of her hostile work environment claim.)

In sum, plaintiff alleges that she was subjected to sexual harassment (e.g., “sexually suggestive and generally inappropriate comments”) by another employee, and eventually resigned.

The court summarized the relevant law as follows (paragraphing altered):

A hostile work environment exists under [the NYSHRL] where the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (reviewing Title VII and NYSHRL hostile work environment claims simultaneously and using the same standard).2 In deciding whether the environment reached the level of being abusive, “courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). *6 “Facially [sex-]neutral incidents may be included … among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.” Moll, 760 F.3d at 203 (citing Alfano, 294 F.3d at 378). “This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015). To prove a hostile work environment claim against an employer for conduct perpetrated by an employee, the “plaintiff[ ] must show not only severe or pervasive harassment but also ‘a specific basis … for imputing the conduct that created the hostile environment to the employer.’ ” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000) (discussing racially hostile work environment under 42 U.S.C. § 1981) (citing Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996)); see Brown v. N.Y. State Dep’t of Corr. Servs., 583 F. Supp. 2d 404, 419 (W.D.N.Y. 2008) (applying Whidbee in Title VII context). One method of proving out the employer’s involvement in creating the environment is for a plaintiff to demonstrate that the employer “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Van Zant, 80 F.3d at 715.
However, “[federal] courts (including district courts in this circuit) appear to have uniformly rejected the notion that a failure adequately to remediate sexual harassment itself constitutes an act that may contribute to a hostile work environment claim.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010). That said, the Second Circuit, although implicitly endorsing the concept in Fincher, still has not held outright that a failure to remediate cannot contribute to a hostile work environment claim. Id.

The defendant argued that plaintiff plead no act by defendant occurring within three years of her filing her lawsuit on October 10, 2019. Notably, by October 2016, plaintiff had left work on medical leave; her only contacts with defendant after she left work in September were a meeting occurring on September 27, 2016, and her resignation on November 28, 2016.

The meeting was wholly outside the limitations period, and therefore the court did not consider it. As to her resignation, the court noted that this “was entirely of her own doing, and defendant played only a passive role in accepting it.”