“McLovin” Fake ID, While Inappropriate, Did Not Give Rise to a Hostile Work Environment Claim

In Crews v. The City of Ithaca et al, 2021 WL 257120 (N.D.N.Y. Jan. 26, 2021), the court, inter alia, dismissed plaintiff’s hostile work environment claim – which was based, in part, on plaintiff’s co-workers creating a fake ID that included Plaintiff’s picture with the name “McLovin” printed on the ID (which was a reference to the movie “Superbad”).

This case is a good example of why conduct that is “inappropriate” will not necessarily give rise to an actionable “hostile work environment.”

From the decision:

The Court has reviewed the operative complaint and compared its allegations with those in the initial complaint. Upon review, the Court finds that Plaintiff has not alleged any additional statements or actions by Defendants which could demonstrate that Plaintiff was subjected to a hostile work environment. The new factual allegations relate primarily to Plaintiff being ordered to conduct searches on female subjects, being passed over for promotions, being assigned to unfavorable beats, and the notices of discipline. See Dkt. No. 78 at ¶¶ 105-64. Apart from the allegations that the Court previously considered on the motion to dismiss, there are no allegations that Plaintiff was subjected to gender-based comments, abusive language, or physically threatening or humiliating conduct from Defendants. The conduct which the Court previously considered includes the “McLovin” incident. See Dkt. No. 22 at 21-22. The “McLovin” incident, although clearly inappropriate, is the sort of conduct described in Faragher as “ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” and, therefore, is not objectively severe enough to establish a hostile work environment. See Faragher, 524 U.S. at 778. Neither is the conduct “sufficiently continuous and concerted in order to be deemed pervasive.” See Alfano, 294 F.3d at 374. This single incident occurred very early in Plaintiff’s employ with the Department, which began in 2007, and the officers responsible forfeited leave time and were required to complete harassment training. See Dkt. No. 111 at ¶¶ 205-13.

Indeed, Plaintiff’s only argument is that her repeated discipline constitutes sufficiently severe and pervasive conduct. See Dkt. No. 102 at 11. As the Court has explained, Plaintiff admitted to the conduct underlying most – if not all – of the violations alleged in the notices of discipline. Thus, Defendants were investigating and acting on legitimate concerns of misconduct on the part of an employee. Such action does not create a hostile work environment. See Choulagh v. Holder, 528 Fed. Appx. 432, 438 (6th Cir. 2013) (finding that disciplinary actions are not severe and pervasive when the plaintiff does not put forth evidence refuting the disciplinary charges); see also Harewood v. New York City Dep’t of Educ., No. 18-CV-5487, 2020 U.S. Dist. LEXIS 226140, *47 (S.D.N.Y. Nov. 30, 2020) (collecting cases) (finding that negative performance reviews and disciplinary letters are not sufficiently severe or pervasive to give rise to a hostile work environment claim).

Based on this, the court – drawing all reasonable inferences in plaintiff’s favor – found that plaintiff was unable to establish that defendants’ conduct was sufficiently severe or pervasive to create a hostile work environment under Title VII of the Civil Rights Act of 1964.

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