In Pulizotto v. McMahon et al, 2019 WL 3997681 (S.D.N.Y. Aug. 23, 2019), the court, inter alia, dismissed plaintiff’s sexual orientation-based hostile work environment claim.
From the decision:
Claims 9 and 10 allege [defendant] created a hostile work environment for Pulizotto and discriminatorily transferred him based on his sexual orientation in violation of the NYSHRL. …
Pulizotto fails to plausibly allege behavior by [defendant] that is “so extraordinarily severe … to have altered the conditions of [his] working environment.” … Most of the allegations of hostile working environment are directed at actions by non-party Quirk. Between May 2015 and September 2017, the time period discussed in the Complaint, Pulizotto alleges four acts by [defendant] giving rise to a hostile work environment. “On more than one occasion,” [defendant] made Pulizotto bring her coffee when her secretary was absent. … Pulizotto states in a conclusory fashion that his “sexual orientation was a determinative or motivating factor” in [defendant]’s coffee order. … Without more, this bare assertion does not give rise to a plausible inference of discriminatory intent. … The subjective belief of sexual orientation discrimination, “however strongly felt – is insufficient to satisfy his burden at the pleading stage.” …
[Defendant] allegedly was upset that Pulizotto did not thank her during a speech at a Gay Pride parade. … This does not allege “discriminatory intimidation, ridicule, [or] insult.” …
Pulizotto’s most significant allegation in support of his hostile work environment claim is that during a dinner in February 2016 [defendant] “[o]penly mocked Pulizotto’s sexual orientation, including but not limited to speaking to Pulizotto in an exaggerated, effeminate tone while using homophobic, stereotypical hand gestures, including limp writs.” … Accepting that this conduct has discriminatory intent, and even accepting the November 2015 incident as an act with [defendant]’s knowledge, Pulizotto has not shown that these were more than “isolated acts,” which “do not meet the threshold of severity or pervasiveness.”
The court concluded that “[c]onsidering the totality of the circumstances including the frequency of conduct its severity, physical impact, and alleged impact on Pulizotto’s employment, Pulizotto has not alleged enough to support a claim for a hostile work environment.”