In Dole v. Town of Bethlehem, No. 1:16-CV-0173 (DJS), 2017 WL 1483451 (N.D.N.Y. Apr. 25, 2017), the court dismissed plaintiff’s sexual harassment case.
Plaintiff, a police officer, alleged that “she was subjected to sexual harassment and a hostile work environment when Officer Craig Sleurs [whom plaintiff dated] sent her numerous harassing and threatening text messages and voice mails” and that “she reported these incidents to her supervisor, but that nothing was done to reprimand Officer Sleurs.”
The court offers this summary of the governing law:
Title VII prohibits sex-based employment discrimination that creates a hostile work environment. In order to establish a hostile work environment claim, a plaintiff must show [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer. Furthermore, [i]t is axiomatic that mistreatment at work … is actionable under Title VII only when it occurs because of an employee’s sex, or other protected characteristic.
In determining that the alleged harassment was not because of plaintiff’s gender (and hence not actionable), the court explained:
In the first instance, Plaintiff’s claim fails because there is no evidence that Officer Sleurs harassed her on account of her sex rather than the end of their personal relationship. As stated above, “[a] plaintiff pursuing a sex-based hostile work environment claim ‘must always prove that the conduct at issue was not merely tinged with offensive connotations, but actually constituted discrimination because of sex.’ ” Raniola v. Bratton, 243 F.3d 610, 621 (2d Cir. 2001) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). This may be proved where the “victim is harassed in such sex-specific and derogatory terms … [as] to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace.” Id. (citation omitted). Where the conduct is facially neutral, a plaintiff must offer “some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory.” Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 118 (2d Cir. 2010) (quoting Alfano v. Costello, 294 F.3d at 378).
Notably, in similar cases, courts have found that harassment by a co-worker is not based on sex where it arises from a failed personal relationship. … That is not to say “that employees who are themselves the victims of harassment cannot invoke Title VII’s protection merely because of their previous relationship with the harasser.” Perks v. Town of Huntington, 251 F. Supp. 2d 1143, 1157 (E.D.N.Y. 2003); see also Sclafani v. PC Richard & Son, 668 F. Supp. 2d 423, 433 (E.D.N.Y. 2009) (rejecting a rule that “would effectively immunize from Title VII liability any sexual harassment following a failed relationship”). “If a jilted lover seeks retribution through actions that are not gender—or race-based, Title VII is not implicated. If the conduct is gender—or raced-based, it is.
Applying these standards here, it is evident that Officer Sleurs’s harassment of Plaintiff stemmed from the termination of their relationship and not from sex-based animus. The unwelcome voicemails, text messages, and Facebook posts express anger and frustration that Plaintiff had ended their relationship and refused to communicate with him. They also suggest that Officer Sleurs hoped they could resume the relationship. None of his communications, however, permit the inference that his harassment of Plaintiff was motivated by her sex. The communications are facially neutral and there is no circumstantial basis for concluding that they were motivated by anything other than romantic frustration. “Conduct motivated by personal animosity does not run afoul of Title VII’s prohibition against altering the terms and conditions of employment because of sex or race.
The court next determined that, even assuming that the alleged conduct was based on plaintiff’s sex, it did not rise to the level of “severe or pervasive.” [1]The court, unfortunately, at various points used the term “severe and pervasive”, as opposed to “severe or pervasive”.
The court explained:
The Second Circuit has consistently dismissed hostile work environment claims that involve harassment of greater frequency and severity than Officer Sleurs’s unwelcome communications. See Alfano v. Costello, 294 F.3d at 379 (citing cases where evidence was insufficiently severe or pervasive as a matter of law). Mindful of this case law, the Court finds that the present facts fail to establish the requisite pervasiveness or serverity. First, the unwelcome communications occurred over the span of approximately one week and consisted of five voicemails, approximately thirty text messages, and one Facebook post. See O’Connor Aff., Ex. A. While “[t]here is not fixed number of incidents that a plaintiff must endure to establish a hostile work environment,” Alfano v. Costello, 294 F.3d at 379, the limited time period and number of incidents of harassment here certainly suggests that Plaintiff’s workplace was not permeated with discriminatory intimidation. Second, the communications themselves do not raise to the level of objective severity required to prove a hostile work environment. Some of the communications express anger using profanity, but these communications are at most offensive and not threatening or humiliating. Furthermore, for as many angry communications Officer Sleurs sent, he sent a roughly equal number that express remorse and seek forgiveness for his behavior. Plaintiff may have subjectively found that these communications were intimidating or harassing, but the issue is whether they were “objectively hostile.” Conklin v. Cty. of Suffolk, 859 F. Supp. 2d at 426. Nor does the other conduct alleged of Officer Sleurs—driving his truck in Plaintiff’s neighborhood, friending one of her friends on Facebook, and commenting on her brother’s fiance’s Facebook—change the analysis. Indeed, Plaintiff acknowledges that these actions were not severe. See Dole Aff. at ¶ 17. Officer Sleurs’s behavior may have been inappropriate and annoying, but “[t]he ‘standard for redress is a hostile work environment, not an unpleasant one.
The court also cited as an additional reason for dismissal the fact that the alleged conduct occurred while plaintiff and the alleged harasser were both on disability leave, noting that “[a]s a general proposition, employers are not responsible under Title VII for hostile sexual acts resulting from nonwork-related, off-duty interactions between co-employees.”
| ↩1 | The court, unfortunately, at various points used the term “severe and pervasive”, as opposed to “severe or pervasive”. |
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