A recent decision, Estevez v. Berkeley College et al, 18-cv-10350, 2021 WL 3115452 (S.D.N.Y. July 19, 2021), once again discusses when alleged gender-based conduct crosses the line and becomes an actionable “hostile work environment.” As the court’s detailed decision addresses a number of additional issues (including whether the alleged conduct was “because of” plaintiffs’ sex), I’ll limit the discussion here to the court’s consideration of whether the alleged conduct was sufficiently “severe or pervasive.”
In this case, the plaintiffs – all women – asserted that they were subject to gender discrimination primarily in the form of appearance-related comments, as well as staring.
From the decision:
Beginning with Carmichael’s comments, even well-intentioned compliments can create a hostile work environment if a reasonable person would consider them sufficiently severe or pervasive to alter a condition of employment. See Torres v. Pisano, 116 F.3d 625, 632 n.6 (2d Cir. 1997). Plaintiffs argue that Carmichael’s tone and body language when she complimented Plaintiffs’ appearance suggested that it was not to make them feel good, but rather was a passive-aggressive way to express her resentment and jealousy of Plaintiffs. (Ps’ Opp. at 22.) But even assuming that Carmichael’s comments about Plaintiffs’ bodies, clothes, lipstick, and hair were all backhanded compliments, they are too mild and innocuous to create a hostile work environment. See Spina v. Our Lady of Mercy Med. Ctr., No. 97-CV-4661, 2003 WL 22434143, at *3-4 (S.D.N.Y. Oct. 23, 2003) (supervisor’s compliments about plaintiff’s hair and eyes, comment that she “looked good in tight pants,” and reference to her as a “bitch,” were “simply too mild and innocuous” to create a hostile work environment, and his “constant” yelling and staring “was similarly mild,” particularly given that he “never touched plaintiff in a sexual manner, did not ask her to go out with him or engage in a sexual relationship, and never made any lewd gestures”), aff’d, 120 F. App’x 408 (2d Cir. 2005) (summary order); Bailey v. Nexstar Broad., Inc., No. 19-CV-671, 2021 WL 848787, at *19 (D. Conn. Mar. 6, 2021) (granting summary judgment where “the challenged comments were complimentary, innocuous, and never referred to sexual activity, never referred to sexual characteristics, and never used derogatory sexualized language” and “Plaintiff never seriously told his co-workers to desist comments about his appearance, hair, or relationship status”). Although Carmichael’s comments may have been unwelcome, behavior that would make a reasonable person even more uncomfortable than the behavior here has been found insufficient to create a hostile work environment. See Feliciano v. Alpha Sector, Inc., No. 00-CV-9309, 2002 WL 1492139, at *8 (S.D.N.Y. July 12, 2002) (granting summary judgment where supervisor complimented plaintiff, said he wanted to date her, attempted to hug her, stated on one occasion that he wanted to “lay with” her, and kissed her after giving her after giving her a ride home, and noting that although the supervisor “may well have breached the bounds of politesse” and plaintiff “may not have appreciated [his] interest in her, his activities … do not constitute actionable offenses under Title VII”).
Likewise, Carmichael’s staring, given the totality of the circumstances, is insufficient as a matter of law to create a hostile work environment. See Agosto, 982 F.3d at 102 (staring, sneering, cat-calling, singing, and yelling incidents insufficient to create an objectively hostile workplace); Lewis v. City of Norwalk, 562 F. App’x 25, 28-29 (2d Cir. 2014) (summary order) (supervisor licking his lips and “leering,” when considered under the totality of the circumstances with facially sex-neutral incidents, did not create an environment that a reasonable person would find hostile or abusive, even if it made plaintiff subjectively uncomfortable); Beiter v. Runyon, 50 F. App’x 32, 35 (2d Cir. 2002) (summary order) (supervisor’s actions, which included constantly staring at plaintiff, were insufficient to create a hostile environment); Gibson v. Jacob K. Javits Convention Ctr. of N.Y., No. 95-CV-9728, 1998 WL 132796, at *9-10 (S.D.N.Y. Mar. 23, 1998) (alleged harasser’s practice of regularly entering plaintiff’s office “without invitation apparently for the sole purpose of staring at specific portions of her anatomy” was “insufficient to support a hostile environment claim”) (cleaned up). Even if, as Plaintiffs contend, Carmichael’s staring and comments began to inform how they dressed for work, (see Ps’ Opp. at 22), that is not enough to create an objectively hostile or abusive work environment, see DeSimone v. JP Morgan/Chase Bank, No. 02-CV-7039, 2004 WL 2978011, at *6 (S.D.N.Y. Dec. 22, 2004) (alleged harasser’s conduct that compelled plaintiff to dress more conservatively, including leering and staring at plaintiff’s body, “although unquestionably offensive and inappropriate, was not so severe or pervasive as to alter the terms and conditions of a reasonable person’s employment”).
Plaintiffs also contend that Carmichael was “generally hostile” to other women in the office; for example, she stole another associate’s students. (Ps’ Opp. at 17.) This practice was admittedly fair game, however, and just because Carmichael was a difficult person with whom to work does not mean that Plaintiffs were subject to a hostile work environment. See Spina, 2003 WL 22434143, at *4 (Title VII “may not be used for turning otherwise ordinary disputes … into a claim for sexual harassment.”). Considering the totality of the circumstances (including Lapan’s and Martinez’s conduct, discussed below), Carmichael’s conduct was not sufficiently severe or pervasive to create an abusive working environment. See Lamar v. Nynex Serv. Co., 891 F. Supp. 184, 185 (S.D.N.Y. 1995) (supervisor’s conduct, which consisted of touching plaintiff’s hand, saying she looked “hot,” and staring at her, was “too mild and innocuous to constitute sexual harassment as a matter of law”).
The court next held that another employee’s comments that there was “too much estrogen” in the office were “too infrequent and mild” to create a hostile work environment. This was so even notwithstanding that the comment was “offensive and inappropriate” and even assuming that it was made “constantly” (30 times a year).
Finally, the court held that the conduct of a third employee, Martinez, was insufficient to rise to make out a hostile work environment claim.
The court addressed those allegations as follows:
Plaintiffs argue that Martinez engaged in various behaviors that created a hostile work environment. First, they assert that Martinez flirted with Estevez in Spanish and would make “unwanted sexual jokes and comments.” (Ps’ Opp. at 2, 20-21.) But this is not supported by the record. Estevez described Martinez’s jokes as a “rude, weird, flirty way to make a connection,” but she could not recall a single joke that he made to her, and she said that “he was probably referring to [their] culture” or “everyday stuff.” (Noonan Decl. Ex. JJ at 369:12-370:6.) “Without any detail or even the sum and substance of the jokes, no reasonable jury could evaluate the severity of the purported jokes or whether they contributed to creating a hostile work environment.” Jackson v. Citiwide Corp. Transp., Inc., No. 02-CV-1323, 2004 WL 307243, at *3 (S.D.N.Y. Feb. 17, 2004). And even if Martinez’s motivation for speaking to Estevez in Spanish was to flirt with her, this does not even approach the severity of more direct romantic advances that have nonetheless been found insufficient to create a hostile work environment. See Feliciano, 2002 WL 1492139, at *8; see also Oncale, 523 U.S. at 81 (holding that “ordinary socializing in the workplace,” including “intersexual flirtation,” does not create discriminatory conditions of employment).
Plaintiffs note that after Estevez was terminated, Martinez “intimated that he wanted to have a sexual relationship with her in a text.” (Ps’ Opp. at 2; see id. at 20-21.) But this cannot contribute to a hostile work environment, because it occurred after her termination and therefore could not have altered her working conditions. See Hopkins v. Bridgeport Bd. of Educ., 834 F. Supp. 2d 58, 65 (D. Conn. 2011).
Second, Plaintiffs contend that Martinez created a hostile work environment by asking Mekuli whether Mancini would “be able to perform the way she did with the new baby.” (Nanau Decl. Ex. 13 at 260:8-21; see Ps’ Opp. at 2, 19.) This isolated remark, however, is not severe enough to constitute a Title VII violation. See Fletcher v. ABM Bldg. Value, 775 F. App’x 8, 13 (2d Cir. 2019) (summary order) (“Stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination.”) (cleaned up); Baron v. Winthrop Univ. Hosp., 211 F. App’x 16, 17 (2d Cir. 2006) (summary order) (series of remarks evidencing bias against women in the workplace “were not sufficiently severe or pervasive to alter the terms and conditions of plaintiff’s employment, so as to constitute a hostile work environment”) (cleaned up). Although the comment was “inappropriate, the record does not suggest [it] altered the conditions of [Plaintiffs’] work environment so as to establish a claim.” Campbell v. N.Y.C. Transit Auth., 662 F. App’x 57, 60 (2d Cir. 2016) (summary order).
Third, Plaintiffs argue that Martinez condoned Lapan’s sexist comments about there being “too much estrogen” by inviting Lapan to lunches and manager meetings. (Ps’ Opp. at 8.)18 To support this argument, Plaintiffs cite to Estevez’s testimony that she complained to Bertone about Lapan’s “insubordination,” the “hostility” in the admissions office, Lapan stealing her students, and Martinez excluding her from managerial meeting and inviting Lapan instead. (Ps’ 56.1 Resp. ¶ 120.) Plaintiffs do not cite any evidence that Estevez complained to Bertone about Lapan’s “too much estrogen” comments or that Martinez even knew about them. Regardless, Estevez’s occasional exclusion from lunches and meetings is too trivial to constitute an abusive work environment. See Rosinski v. Am. Axle & Mfg., Inc., 402 F. App’x 535, 537 (2d Cir. 2010) (summary order) (plaintiff’s exclusion from a celebration was “too insignificant to support a hostile work environment claim”).
Fourth, Plaintiffs contend that Martinez undermined Mancini’s authority by determining that Carmichael should be supervised by Mekuli, and undermining a supervisor’s authority because she is a woman is actionable harassment under Title VII. (Ps’ Opp. at 20 (citing Howley v. Town of Stratford, 217 F.3d 141, 154-55 (2d Cir. 2000).) But Plaintiffs ignore the fact that Martinez reassigned Carmichael’s supervision to another woman, which forecloses the argument that it was done because of Mancini’s sex. And in contrast to the case Plaintiffs cite, in which the defendant undermined the plaintiff’s authority by suggesting that she attained her position by performing sexual favors, see Howley, 217 F.3d at 154-55, undermining someone’s authority by reassigning supervisors is not sufficiently severe to create a hostile work environment, see O’Dell, 153 F. Supp. 2d at 387 (supervisor’s actions that allegedly undermined plaintiff’s authority by withholding certain information from her and talking directly to her subordinates about things that needed to be done, even when viewed together with his “dogged” romantic pursuit of plaintiff, was “not sufficiently abusive as to render plaintiff’s work environment hostile”).
The court concluded its hostile work environment analysis by noting that even if these three employees’ conduct was viewed together under the totality of the circumstances, “no reasonable juror could find that Berkeley was permeated with gender-based discriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions of the Plaintiffs’ employment and create an abusive working environment.”