Hostile Work Environment Claim Dismissed; Conduct Was Neither “Severe” Nor “Pervasive”

In Lonergan-Milligan v. New York State Office of Mental Health, 2018 WL 6605686 (W.D.N.Y. Dec. 17, 2018), the court dismissed plaintiff’s Title VII sexual harassment (hostile work environment) claim.

The law:

A prima facie case of a hostile work environment involves two showings: (1) that the complained-of conduct ‘was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment’; and (2) that there are grounds to hold the employer liable for the harassing employee’s conduct.

The court first addressed whether the first element was met. In finding that the alleged conduct was not “pervasive”, the court explained:

Drawing all reasonable inferences in Milligan’s favor, Defendants have established their entitlement to summary judgment because “no reasonable jury could find that the alleged misconduct was objectively severe or pervasive.” Id. Milligan, at most, alleges twelve objectionable exchanges over the course of sixty months (or five years), the main two of which occurred within days of each other in May of 2012. In addition to these two incidents, Milligan testified at her deposition that in 2007, she first complained about Rusin’s work performance to her supervisor, Deborah Reed.4 From 2007 to 2012, Milligan believes that she complained to Reed a maximum of ten times “about [Rusin’s] boundaries,” “lingering in the nursing office,” and “sitting in [her] chair,” and the way Rusin performed his work duties in general.

The incidents and comments Milligan attest to are not “sufficiently continuous and concerted to have altered the conditions of her working environment’ ” and thus cannot reasonably be characterized as pervasive.

The court also found that the element of “severity” was not met. The lleged conduct – including (inter alia) telling the plaintiff to “bend over” for a spanking and “nudg[ing]” plaintiff’s elbow while passing her – were “more akin to the … category of generally unactionable conduct” comprising “occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.”