Pregnancy-Related Hostile Work Environment Claims Dismissed Against Shake Shack et al

In Farmer v. Shake Shack Enterprises, LLC et al, 2020 WL 4194860 (S.D.N.Y. July 21, 2020) (J. Engelmayer), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s claims of hostile work environment asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. (Plaintiff did not assert a hostile work environment claim under the New York City Human Rights Law.) I addressed the court’s decisions finding that plaintiff sufficiently alleged discrimination and retaliation respectively here and here.

From the decision:

In support of the hostile work environment claim, Farmer points to these allegations: that (1) Cordova and a regional manager reprimanded her for not telling them about her pregnancy and questioned her, on a few occasions, as to whether she was able to do her job, see AC ¶¶ 35, 38–40, 54; (2) a manager commented that she was needed in the back of the house, even after she complained of being overheated, id. ¶¶ 49–51; (3) Cordova stated the he did not believe she was pregnant and demanded that she bring documentation on short notice, id. ¶¶ 56–60; and (4) Cordova, before firing her, chided her for using the restroom and told her that her pregnancy documentation “meant nothing,” see id. ¶¶ 63–70. See Pl. Mem. at 11.

Defendants counter that this conduct, however regrettable, falls short of an actionable hostile work environment claim. They argue that the conduct here is no more severe than that alleged in Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298 (2d Cir. 2017), in which a work environment hostile to a pregnant woman was also alleged. The plaintiff there alleged that (1) she had overheard a phone conversation in which defendants stated they “had a right” to disapprove of her pre-marital pregnancy and to disparage her and her attorneys; (2) defendants had removed her name from the synagogue’s newsletters and list of employees on a wall; (3) plaintiff’s boss insisted that she complete tasks before the date of her termination and transition her responsibilities to other employees; and (4) two of her bosses stopped speaking to her. See Shultz, 867 F.3d at 303, 308. The Second Circuit affirmed the dismissal of the hostile work environment claim. Id. at 309. It explained that “none of [those incidents] taken in isolation is sufficiently severe, and all of them taken together, over a period of just a few weeks, are not sufficiently pervasive, to raise an issue of fact as to whether she suffered a hostile work environment.” Id.

Farmer’s allegations are no more severe than those alleged in Shultz. The AC does not allege that Cordova or any other managers explicitly disparaged her or her pregnancy, or stopped speaking to her. While her conversations with Cordova in which he questioned her capacity to keep up with the job and demanded documentation of her pregnancy were surely uncomfortable, they do not rise to the level of severe as measured by caselaw in this Circuit. See Gratton, 2005 WL 1251786, at *9 (dismissing hostile work environment claim where plaintiff alleged that defendants harassed her about obtaining a doctor’s note explaining her limitations while pregnant and reprimanded her for complaining to others about her treatment); cf. Littlejohn, 795 F.3d at 321 (same where plaintiff alleged that defendant said negative things about her, was impatient and used harsh tones, stayed away from her, declined to meet with her, wrongfully reprimanded her, increased her reporting schedule, and made sarcastic comments to her).10

Farmer distinguishes her case from Schultz on the ground that, even if the conduct alleged is no more severe, she was subjected to uncomfortable conduct for a longer period. Pl. Mem. at 10–11. The AC, she states, alleges hostile behavior spanning “a period of months,” id. at 10, whereas, in Schultz, the events lasted only a “few weeks,” Shultz, 867 F.3d at 309. That is factually wrong. The AC claims that she did not first disclose her pregnancy to any employees until late November 2018 and did not tell Cordova until after Thanksgiving. AC ¶¶ 33–35. She was fired January 5, 2019. See id. ¶¶ 63, 70. Accordingly, the time period at issue in the AC covers some four to six weeks, not “a period of months.” In all events, the difference in time span between this case and Schultz is negligible at best.

The court concluded that the conduct alleged by plaintiff here was “not sufficiently continuous and concerted in order to be deemed pervasive.”

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