Lewd & Inappropriate, But Not Actionable: Sex-Based Hostile Work Environment Claim Dismissed

In Tortorici v. Bus-Tev, LLC d/b/a Early Morning Seafood and Eric Tevrow, 17-cv-7507, 2021 WL 4177209 (S.D.N.Y. Sept. 14, 2021), the court granted defendants’ motion for summary judgment on plaintiff’s gender-based hostile work environment claims on her New York State and City Human Rights Laws.

This case illustrates the principle that, in order to make out a case for unlawful employment discrimination, there must be evidence that the alleged objectionable conduct occurred because of one or more protected characteristics – in this case, gender. Here, the court holds that the plaintiff did not do so.

The court summarized the facts as follows:

Plaintiff cites to approximately six separate instances of allegedly hostile treatment that form the basis for his hostile work environment claim. Three of the six instances involved Tevrow telling Plaintiff about his sex life, or lack thereof, with his wife. (Reply 56.1 ¶¶ 56-58.) The three other instances were: (1) Tevrow commented on a restaurant hostess’s breasts while at a work lunch (Reply 56.1 ¶ 59); (2) Tevrow told Plaintiff that he once “fucked the shit out of” a girl in a restaurant bathroom (Reply 56.1 ¶ 60); and (3) Tevrow once told Plaintiff to “suck his dick.” (Reply 56.1 ¶ 61.) Plaintiff could not recall the precise dates on which Tevrow made the above comments, but recalled generally that they took place sometime in 2015 and 2016. (Tortorici Dep. 303:13-313:11.)

Applying the law, the court explained:

Tevrow denies having made these comments. However, the Court will assume that all of the comments were made for the purposes of the Court’s analysis on summary judgment. Indeed, even assuming that Tevrow made all of these comments, Plaintiff has not adduced any evidence to demonstrate that he was treated unequally well because he was a man. In other words, Plaintiff does not point to any evidence that reasonably suggests that Tevrow targeted these comments at Plaintiff because of Plaintiff’s gender.

While the statements at issue are certainly lewd and inappropriate, they do not implicitly target Plaintiff on the basis of his gender. Accordingly, a reasonable jury could not find that Tevrow subjected Plaintiff to a gender-based hostile work environment under the NYCHRL. The relevant case law from this Circuit supports that conclusion. See Russo v. New York Presbyterian Hosp., 972 F. Supp. 2d 429, 453 (E.D.N.Y. 2013) (granting summary judgment on NYCHRL hostile work environment claim because the defendant’s inappropriate comments and actions, while difficult to deal with, did not raise a genuine issue of fact as to whether the plaintiff was discriminated against because of her gender); see also Leizerovici v. HASC Ctr., Inc., No. 17-cv-3605 (BMC), 2018 U.S. Dist. LEXIS 31640, at *30-31 (E.D.N.Y. 2018) (dismissing gender-based hostile work environment claim under the NYCHRL on a motion to dismiss because the defendant’s comments, while sexually explicit and vulgar, were not driven by a discriminatory animus against plaintiff’s protected characteristic); Magnoni, 701 F. Supp. 2d at 505-06 (holding, after a bench trial, that even assuming the defendant told plaintiff crude anecdotes about his sex life with another woman, occasionally referred to the plaintiff as voluptuous, and occasionally knocked her knee, those allegations were insufficient to state a claim under the NYCHRL).

Accordingly, I recommend that Plaintiff’s hostile work environment claim under the NYCHRL be dismissed.

Share This:
(212) 227-2100