In Fullwood v. Sodexo, Inc. et al, 16-cv-6527, 2018 WL 3439866 (WDNY July 17, 2018), the court, inter alia, dismissed plaintiff’s race- and sex-based hostile work environment claims.
As to her sex-based claim, the court explained:
Plaintiff also claims that sexual harassment caused a hostile work environment. Pl. Mem. at 20. The Court has reviewed the parties’ arguments and finds that, similar to her race-based claims, Plaintiff has not alleged that Baugh’s conduct was sufficiently severe or pervasive to give rise to a hostile work environment. Although she testified that Baugh called her a “bitch all the time,” see Pl. Ex. 5 at 169, the Second Circuit has held that “[i]solated, minor acts or occasional episodes do not warrant relief.” Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999); see also LaSalle v. City of N.Y., No. 13-cv-5109, 2015 WL 1442376, at *1, 7 (S.D.N.Y. Mar. 30, 2015) (granting a motion to dismiss Title VII hostile work environment claim where plaintiff alleged that supervisors “habitual[ly]” called her a “bitch” and used other derogatory and sexist names toward her but did not indicate an approximate number of times or the time period in which the statements occurred).
Likewise, her allegation that Baugh punched her in the arm three times, see Pl. Ex. 5 at 214, is not “extraordinarily severe,” such to alter the conditions of her working environment. Mathirampuzha v. Potter, 548 F.3d 70, 79 (2d Cir. 2008) (finding that, where supervisor grabbed plaintiff’s arm, punched him in the arm, spit at him, and poked him in the eye, “[t]he physical encounter itself, while understandably upsetting, was not so severe as to alter materially the plaintiff’s working conditions….”); cf. Funk v. F & K Supply, Inc., 43 F. Supp. 2d 205, 215 (N.D.N.Y. 1999) (evidence supported jury’s finding of a gender-motivated hostile work environment included frequent use of vulgarities, numerous sexually offensive physical contacts, threats, and physical abuse).
In any event, there is no genuine issue of fact that the alleged conduct and comments were because of Plaintiff’s gender. The record shows that Baugh admitted to touching (putting his arms around employees, gently punching individuals in the arm) male and female co-workers during conversation or when providing recognition. Def. Ex. 14 at 15. One witness who observed Baugh calling Plaintiff a “bitch” told Chittenden that, “they were actually playing…they were both calling each other names.” Id. Baugh did not deny using the term to Plaintiff, id. at 16, and Plaintiff testified that Baugh “was just very comfortable with me.” Pl. Ex. 5 at 214. This kind of “rude and “boorish behavior, without more, does not create an actionable hostile work environment,” Johnson v. IAC/Interactive Corp., 2 F. Supp. 3d 504, 517 (S.D.N.Y. 2014), and the evidence falls short of raising an issue of fact as to whether Plaintiff was subjected to the hostility because of her membership in a protected class.
While this result may seem counterintuitive – the word “bitch” is arguably gender-specific, and it is difficult to conceive how being punched at work would not qualify as “hostile” – this case illustrates that no one factor in a hostile work environment case is dispositive.