Hostile Work Environment Claim Dismissal Affirmed; “Mere Offensive Utterances” Insufficient

In Sosa v. New York City Department of Education, 2020 WL 3721866 (2d Cir. July 7, 2020) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal (on summary judgment) of plaintiff’s hostile work environment claim.

While plaintiff was able to muster some evidence of “offensive utterances,” the court – as have many others – held that this was insufficient.

From the Order:

To establish a hostile work environment claim, “a plaintiff must produce enough evidence to show that 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.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (internal quotation marks omitted). In conducting this analysis, this Court considers: “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff’s work; and (5) what psychological harm, if any, resulted.” Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009) (internal quotation marks omitted).

*4 Here, Sosa alleges only “mere offensive utterance[s].” Id. As this Court has observed, however, “Title VII does not set forth ‘a general civility code for the American workplace,’ ” Redd v. N.Y. Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ), and “[s]imple teasing [or] offhand comments … will not amount to discriminatory changes in the terms and conditions of employment,” Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ). While there is some evidence that Sosa was subject to sporadic teasing and offhand comments, on this record, no reasonable jury could conclude that the workplace was “permeated with discriminatory intimidation, ridicule, and insult” such that the environment “alter[ed] the conditions” of Sosa’s employment. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

The court also affirmed the dismissal of plaintiff’s failure-to-accommodate-disability and retaliation claims.

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