In Kohler v. Federal Emergency Management Agency, et al, 17-cv-07839, 2021 WL 1240322 (S.D.N.Y. April 2, 2021), the court, inter alia, ruled against plaintiff on her sex/gender-based hostile work environment claim.
The court outlined the legal elements of such a claim:
A plaintiff claiming that her employer created or tolerated a hostile work environment based on sex must demonstrate that (1) she subjectively perceived her work environment as hostile or abusive, (2) a reasonable person would find the work environment objectively hostile or abusive, and (3) the hostility or abuse was based on sex.
Applying the law, the court explained:
Here, Kohler fails to make all three required showings. First, Kohler makes no showing that the comments and incidents of which she complains were based on gender. Kohler contends that several things comprise the hostile work environment, including: vulgar comments from Caetano about other FEMA employees and reporters; Caetano referring to a female employee as fit while implying that another is not; Caetano urinating near the driver’s side of a car while Kohler was in the passenger seat; Caetano allegedly threatening to fire her for confronting Hoey about his bullying; and statements by Caetano (encouraging Kohler to take a “softer” approach, “get in good with” and “ingratiate” herself to co-workers), Bresnahan (stating that women get labeled for being assertive and men don’t), and Baldry (suggesting Kohler plant ideas with someone with “credibility”) that Kohler contends invoke gender stereotypes.
*25 Kohler has failed to show these comments or incidents were caused by gender. Kohler has not alleged any facts that show the comments Caetano allegedly made regarding co-workers or reporters were made because of Kohler’s gender. Caetano’s statements about the fitness of a FEMA employee, without more, are not gender-based. See King v. Aramark Servs., No. 1:19-CV-77, 2019 U.S. Dist. LEXIS 129284, at *49 (W.D.N.Y. July 29, 2019) (collecting cases distinguishing gender-neutral, albeit rude, comments regarding weight from comments that evince gender discrimination). As to the urination incident, Kohler herself attributes that to crassness, rather than anything to do with her gender. Further, the allegation in Kohler’s Opposition that Caetano threatened to fire her for confronting Hoey is unsupported by the record. Kohler testified that Caetano said he “didn’t want to fire her” and her account of the meeting to Bresnahan indicates the statement was made in connection with her being persona non grata in New York and New Jersey. It also has no apparent connection to her gender, and Kohler has come forth with no facts showing a connection.
This leaves the statements from Caetano, Bresnahan, and Baldry, which require a closer look. “ ‘[S]tereotyped remarks can certainly be evidence that gender played a part’ in an adverse employment decision.” Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004). This applies to the “supposition that a woman will conform to a gender stereotype (and therefore will not, for example, be dedicated to her job), as to the supposition that a woman is unqualified for a position because she does not conform to a gender stereotype.” Id. However, the Second Circuit has made clear that it is not “objectively reasonable to label [ ] innocuous words as semaphores for discrimination.” Weinstock v. Columbia Univ., 224 F.3d 33, 44-45 (2d Cir. 2000). This is especially true where the plaintiff holds a job requiring “satisfactory qualities of personality and character.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 74 (2d Cir. 2015); see also DeVito v. Valley Stream Cent. High Sch. Dist., No. 09-CV-0287, 2011 U.S. Dist. LEXIS 87441, at *9 (E.D.N.Y. Aug. 3, 2011).
Here, Baldry’s statement that Kohler should funnel her ideas through someone with “credibility” is not reasonably viewed as referring to gender. Men and women can be credible. This cannot reasonably be a “semaphore for discrimination.” Nor can Caetano’s suggestions that Kohler “soften” her approach, “get in good with” colleagues, and “ingratiate” herself to them be reasonably viewed as relating to her gender. Currying the favor of colleagues by making a “soft” sell or “getting in good” with them or “ingratiating” oneself may be done by a man or a woman. Further, the record makes clear that Kohler’s ability to win over and influence her colleagues was in fact a matter central to her job performance. After all, Kohler served as a liaison between many stakeholders in a complex bureaucracy. Given this context, it would be unreasonable to read Caetano’s comment as related to gender, as Kohler did. Finally, Bresnahan’s statement that women may be labeled for being assertive cannot reasonably be considered an expression of hostility towards Kohler based on her gender. His statement can only reasonably be read as enunciating a perceived societal double standard to express sympathy with Kohler, not endorsing it. Kohler therefore fails to make the required showing of causation.
Kohler has also failed to make the required showing that FEMA was a subjectively hostile work environment. Even assuming that all of the incidents complained of occurred as Kohler said they did, she has not testified that they interfered with her work performance at all, much less unreasonably. When asked what impact Caetano’s alleged vulgar statements made, Kohler testified that they “solidified her poor opinion of Caetano.” Kohler also testified that Caetano allegedly urinating outdoors near a car she was seated in did not impact her work performance going forward. Kohler did not testify to any negative impacts on her work based on comments from Baldry that she should plant her ideas with someone with “credibility”; from Caetano that she should take a “softer” approach to working with her colleagues; or from Bresnahan that women get unfairly labeled for being assertive.
*26 Nor would it be objectively reasonable for someone to consider these incidents to amount to a hostile work environment based on gender. These are, at most, episodic offensive utterances that are not continuous or concerted and do not threaten to alter Kohler’s conditions of employment. Kohler’s contentions are insufficient to create a triable issue regarding whether her workplace was permeated with discriminatory intimidation, ridicule, and insult. FEMA is therefore entitled to summary judgment on Kohler’s hostile work environment claim.