Co-Worker’s Sexual Advances Did Not Constitute an Actionable Hostile Work Environment, Court Holds

In Kilgannon v. Social Security Administration et al, 20-cv-01891, 2021 WL 4523505 (S.D.N.Y. Sept. 30, 2021), the court, inter alia, dismissed plaintiff’s claims of hostile work environment sexual harassment, which were predicated on sexual advances by plaintiff’s co-worker.

From the decision:

Plaintiff alleges numerous specific, instances of Ms. Borges’s alleged harassing behavior which he claims constitute severe and pervasive discrimination. While the behavior may be pervasive, especially based on the nearly two-year period over which it occurred, the allegations in the complaint do not allege behavior severe enough to support a claim of a Title VII violation.

Plaintiff first relies on the romantic and sexual overtures Ms. Borges made, including that she repeatedly gave Plaintiff photos of herself, expressed affection toward him (including by stating “te amo” – “I love you” in Spanish), and, in one notable instance at the beginning of her interactions with Plaintiff, left a chocolate rabbit “with a bite taken out of the crotch area” on his desk at work. [Compl. ¶¶ 13, 26-31.] Plaintiff also notes that Ms. Borges repeatedly commented on his appearance, but does not state what she said specifically. [Compl. ¶ 31.] Then, Plaintiff claims that Ms. Borges’s behaviors stepped up when she said she knew where he lived, had a weapon, and that her son is a police officer. [Compl. ¶ 50.] There is no dispute that Plaintiff subjectively perceived that Ms. Borges’s conduct created a hostile and abusive work environment for Plaintiff. [Compl. ¶¶ 39-40, 56; Opp. at 7-8.] Plaintiff described that he was “flabbergasted” and was made “uncomfortable” by Ms. Borges’s conduct, Compl. ¶¶ 26, 28, and that eventually he sought medical treatment for the stress she caused him. Compl. ¶ 56.

The law is clear, however, that the vast majority of the conduct about which Plaintiff complains does not rise to the level of the “remarkably high’ standard” for a hostile work environment. … Flirtatious, non-sexual messages also are not sufficiently “severe” to establish a hostile work environment. Id. Most of Ms. Borges’s comments focused on Plaintiff’s appearance or were largely innocuous remarks, including asking him to go for walks and stating her fondness for him. [Compl. ¶¶ 18-20, 31-32.] Nowhere in the complaint does Plaintiff allege overt sexual behavior or comment from Ms. Borges that might make these innocuous comments actionable. Indeed, even more severe behavior than what Plaintiff alleges here, like physical grabbing and “fondling” has been held not to constitute severe behavior sufficient to constitute a hostile work environment. Lekettey v. City of New York, 637 F. App’x. 659, 661-62 (2d Cir. 2016).

Similarly, photographs displayed in the workplace, without sexual behavior or remarks, do not rise to the level of creating a hostile work environment. Brennan v. Metropolitan Opera Ass’n, Inc., 192 F.3d 310, 322 (S.D.N.Y. 1999). Even when the photographs are partially or fully nude, “[a] momentary display of photos of nudes, without a hint of sexual activity, could not reasonably be found to constitute a hostile work environment.” Id. While Ms. Borges sent photos of herself to Plaintiff, they were not nude or overtly sexual photographs of Ms. Borges, and she did not follow them up with overt sexual actions.

Finally, physical actions like blocking someone’s way in an office do not create a hostile work environment where there is no allegation of physical contact. Turner v. Saloon, 595 F3d. 679, 685 (7th Cir. 2010). Nor, for that matter, do Plaintiff’s allegations of “staring” and other menacing behavior from Ms. Borges.

The court also noted that plaintiff’s claims were “even weaker because Ms. Borges never was his supervisor, and instead may have been his subordinate for at least some the period relevant to this case.”

Finally, the court held that the alleged harasser’s “troubling, and perhaps even threatening comments” were not not enough to establish a plausible claim, and that “where there is no allegation of physical assault, vailed threats that were investigated by Plaintiff’s employer cannot give rise to a hostile work environment claim.”

It should be noted that since plaintiff was a federal employee, he was unable to assert claims under the New York State and City Human Rights Laws, such that the court assessed his claims only under the (more stringent) standards of Title VII of the Civil Rights Act of 1964.

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