In Cappelli v. Jack Resnick & Sons, Inc, No. 1:13-CV-3481-GHW, 2016 WL 958642 (S.D.N.Y. Mar. 8, 2016), the court granted defendants’ motion for summary judgment on plaintiff’s employment discrimination and retaliation claims.
Plaintiff, a male building superintendent, complained about the following conduct at work:
I have been the victim of sexual harassment that has been performed by the On Site Managing Agent Ms. Barbara Elliot [sic] and my assistant Mr. Ibrahim Paljevic. This sexual conduct during working hours occurs on a regular basis. Usually in the 43rd floor management office as well as other areas on the building. This behavior has been witness [sic] by various other employees and is the cause of much disruption here in the building. This conduct can happen anywhere inside or outside the building …. The sexual innuendo, touching and performances by these two individuals causes me much distress, anguish and embarrassment as Ms. Elliott sustains and encourages this behavior with a subordinate too [sic] her and I. This cause [sic] me to be ineffective in managing my assistant. …
They would engage in this sexual talk and descriptive talk about sex acts and things they were going to do to each other in my presence. … They would grind each other’s crotch and say you have your thongy thong, okay honey, we are going to do it tonight. We are getting it on. Those are the type of statements that were said multiple times in front of myself and in front of other people.
The court cited Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) for the proposition that the “critical issue [under Title VII] … is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”
Applying the law, the court concluded:
Mr. Cappelli cannot defeat the defendants’ summary judgment motion by simply proffering evidence that his co-workers engaged in sexually explicit activities in his presence. Instead, Mr. Cappelli needs to present a genuine issue of fact as to whether the hostile conduct was carried about because of Mr. Cappelli’s sex. The record lacks any evidence to support such a finding. … Mr. Cappelli simply does not offer evidence that would support a finding that his colleagues’ conduct was directed at him as a man, or even that it was particularly offensive to men, or intended to provoke Mr. Cappelli’s reaction as a man. …
Mr. Cappelli saw two colleagues engage in inappropriate behavior with sexual overtones, but there is no basis to conclude that the conduct was directed at him as a male. The evidence does not support Mr. Cappelli’s argument that there was a linkage between the conduct at issue in this case and Mr. Cappelli’s sex. Even if they were, the Court cannot conclude that the incidents described by Mr. Cappelli are sufficiently severe to support a claim for hostile work environment. While the conduct of Mr. Cappelli’s colleagues was inappropriate, these anti-discrimination statutes do not dictate a general civility code for the Mr. Cappelli’s workplace.
The court also dismissed plaintiff’s age discrimination and retaliation claims.