In Gilbert v. Stony Brook University et al, 2022 WL 409716 (E.D.N.Y., 2022), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s sex-based hostile work environment claim.
From the decision:
To state a claim for a hostile work environment in violation of Title VII [or Section 1983], a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive – [that it] creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex. Patane, 508 F.3d at 113 (internal quotations omitted). To show that conduct was objectively severe or pervasive, a plaintiff “must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment.” Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (internal quotations omitted). “In determining whether a plaintiff suffered a hostile work environment, we must consider 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.
Ultimately, to avoid dismissal under FRCP 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that she was faced with ‘harassment … of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse. Patane, 508 F.3d at 113 (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)). A plaintiff may rely on evidence of discriminatory conduct, even if it was not aimed at her. McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 85 (2d Cir. 2010) (the court could consider comments that were not directed to or about the plaintiff “but also contributed to a work environment that was hostile to women.”).
Notably, the standard is somewhat lower under the NYSHRL. Under the NYSHRL, a “plaintiff need not show that the treatment was severe or pervasive but must only show unequal treatment based upon membership in a protected class.” Fattoruso v. Hilton Grand Vacations Co., 873 F. Supp. 2d 569, 579 (S.D.N.Y. 2012).
Gilbert contends that defendants’ publication of Flynn’s poem demonstrated support for offensive conduct against women, which she argues “is both subjectively and objectively offensive and creates a hostile work environment.” Although the Court credits her subjective belief that she found this offensive, she does not plausibly plead any non-conclusory facts that suggest a “reasonable person” would feel similarly. The allegations, in fact, point in the other direction, as one of Gilbert’s female colleagues, Amy Hempel, definitively did not agree.
Importantly, Gilbert does not suggest that the poem itself is objectively offensive, nor can she in good faith because she was the one who selected it. She also cannot credibly suggest that this single incidence of publication created a hostile environment because of her sex. Her attempts to analogize its presence to that of pornography in the workplace are unavailing; unsubstantiated allegations concerning the author of a poem cannot transform a neutral work into something objectively offensive and discriminatory. To hold otherwise would result in a substantial portion of cultural works being cancelled.Gilbert alleges that a hostile workplace was created when “she was bombarded with discriminatory emails, questioning her authority, competence, and her support for women and non-binary people” which her male boss promised to “smooth over.” This too is insufficient to be considered hostile, abusive, or even evidence of unequal treatment. For one thing, Gilbert’s characterization of these emails is inaccurate. Flynn sent her five e-mails over a single one-day period, one of which Gilbert responded to. Flynn was clearly upset that his poem was removed, noting that he “would have appreciated if you had done basic due diligence as an editor and asked a few basic questions before making your extremely harmful decision.” However, his email was objectively polite and professional. Any perceived questioning of her authority or competence went not to her gender, but to her decision to remove his poems without investigation. Having to deal with a few emails from a disgruntled contributor without her employer defending her does not create a hostile work environment, even if Flynn’s remarks had been unfairly critical. See Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (no hostile work environment when supervisor wrongly excluded plaintiff from meetings, excessively criticized plaintiff’s work, refused to answer work-related questions, imposed duties outside plaintiff’s responsibilities, threw books, and sent insulting e-mails).
Taken together, these allegations cannot support a finding of a hostile work environment that is so severe or pervasive as to have altered the conditions of Gilbert’s employment under Title VII or Section 1983. Further, even under the less burdensome standard of the NYSHRL, an actionable hostile work environment claim must include non-conclusory allegations establishing that the hostile work environment was created because of the plaintiff’s protected class.
There being no such allegations here, held the court, plaintiff’s claims must be dismissed.