Sex-Based Hostile Work Environment Sufficiently Alleged; Allegations Included “Wives” Comment, Inappropriate Touching

Some court decisions, particularly in the employment discrimination context, are perfect examples of “what not to do” in the workplace.

In such a recent case, Shkoza v. NYC Health & Hospitals Corp., 20-CV-3646, 2021 WL 4340787 (S.D.N.Y. Sept. 22, 2021), the court held that plaintiff sufficiently alleged a sex-based hostile work environment under the New York City Human Rights Law (but not under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. Among other things, this decision illustrates the important distinctions between these statutes.

From the decision:

Whether Plaintiff has stated a claim that she was subjected to a hostile work environment because of her sex is a closer question. In her opposition to Defendants’ motion to dismiss, which the Court considers as supplementing the complaint’s factual allegations, see Brooks v. Jackson, No. 11-CV-6627 (JMF), 2013 WL 5339151, at *3 (S.D.N.Y. Sept. 23, 2013), Plaintiff asserts facts that suggest a claim of being subjected to a hostile work environment on the basis of her sex. Of note, she alleges that Lujan (1) commented, about female employees, that “for me all are my wives”; (2) touched Plaintiff’s arm with his elbow during a colleague’s retirement celebration and remarked “Don’t you want this job to have a retirement plan”; (3) massaged Plaintiff’s shoulders while telling her not to worry after she complained of a hostile work environment.

*5 The Court finds these allegations to be insufficient to state a claim of a hostile work environment under Title VII or the NYSHRL. A federal or New York State hostile-work environment claim is assessed by looking at “the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Littlejohn, 795 F.3d at 321 (internal quotation marks omitted). What is alleged here are essentially two “isolated incidents of offensive conduct”—an inappropriate remark and an incident of unwanted touching—which, “unless extremely serious,” will “not support a hostile work environment claim.” Gallo v. Alitalia-Linee Aeree Italiane-Societa per Azioni, 585 F. Supp. 2d 520, 536 (S.D.N.Y. 2008) (internal quotation marks and citation omitted). Courts regularly dismiss similar claims under Title VII at either the motion to dismiss or summary judgment stages. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), abrogated in part on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (two alleged incidents involving an explicit sexual remark and inappropriate, deliberate touching did not establish hostile work environment); Dayes v. Pace Univ., No. 98 CIV. 3675 (WHP), 2000 WL 307382, at *4 (S.D.N.Y. Mar. 24, 2000), aff’d, 2 F. App’x 204 (2d Cir. 2001) (no hostile work environment where plaintiff was subjected to sexual comments and touched on the back); Lessambo v. PricewaterhouseCoopers, L.P., No. 08-CV-6272, 2010 WL 3958787, at *11 (S.D.N.Y. Sept. 27, 2010), aff’d, 451 F. App’x 57 (2d Cir. 2011) (three allegations of offensive remarks insufficient to constitute a hostile work environment); Wessinger v. OSI Rest. Partner’s LLC, No. 5:14-CV-175 (MAD), 2014 WL 5168702, at *8 (N.D.N.Y. Oct. 14, 2014) (two incidents of a shoulder and back rub insufficient to create an abusive working environment). The conduct described in Plaintiff’s opposition memorandum, even if inappropriate, is insufficiently severe and continuous to rise to the level of a hostile work environment under Title VII and the NYSHRL.3

As noted above, however, the NYCHRL’s more liberal standard “omit[s] the requirement that the complained-of conduct be severe or pervasive” to constitute a hostile work environment. Moazzaz, 2021 WL 827648, at *8. Although “petty slights and trivial inconveniences” do not amount to a hostile work environment, Reichman, 179 A.D.3d at 1118, even “a single comment that objectifies women … made in circumstances where that comment would, for example, signal views about the role of women in the workplace [may] be actionable.” Williams v. New York City Housing Authority, 872 N.Y.S.2d 27, 41 n.30 (1st Dep’t 2009). See Hernandez v. Kaisman, 103 A.D.3d 106, 115 (1st Dep’t 2012) (trial court erred in granting summary judgment on plaintiff’s NYCHRL claim where defendant disseminated emails containing mildly offensive sexual media content and made sexually charged comments about female colleagues’ bodies); Baez v. Anne Fontaine USA, Inc., No. 14-CV-6621 (KBF), 2017 WL 57858, at *5 (S.D.N.Y. Jan. 5, 2017) (denying summary judgment on NYCHRL claim of a hostile work environment where plaintiffs’ “coworkers spread a rumor that she went bra-less to a meeting”); Grimes-Jenkins v. Consol. Edison Co. of New York, Inc., No. 16 CIV. 4897 (AT), 2021 WL 1226658, at *8 (S.D.N.Y. Mar. 31, 2021). Reading Plaintiff’s pro se allegations with due leniency, the combination of Lujan’s alleged comment that he views female coworkers as his “wives”—a comment that arguably signals views about the role of women in the workplace—with an incident of alleged unwanted touching, even if insufficiently severe or pervasive to amount to a hostile work environment under federal or state law, satisfies the more liberal NYCHRL standard. Accordingly, the Court denies Defendants’ motion to dismiss with respect to Plaintiff’s city law claim for a hostile work environment on the basis of sex at this stage of the litigation.

[Citations and internal quotation marks omitted; cleaned up.]

The court also held that plaintiff sufficiently alleged retaliation, in that she suffered an adverse employment action (termination) shortly after she engaged in protected activity (complaining of national origin discrimination and opposing a perceived sexual advance).

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