In Hoit v. Capital District Transportation Authority, 10-202, 2020 WL 1514754 (2d Cir. March 30, 2020) (Summary Order), the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s hostile work environment claim asserted under the New York State Human Rights Law.
In sum, plaintiff’s lawsuit arose from an incident in which, on his last day of work at defendant, “several of his male coworkers assaulted and tea-bagged him.” (The court notes, with a citation to 2nd Circuit authority, that the court “has defined tea-bagging as ‘a hazing act—indeed a form of sexual assault—during which the victim is pinned down on the floor by several [people] while another [person] rubs his genitalia in the victim’s face.’”)
Specifically:
Hoit worked as a mechanic in the CDTA’s Albany garage. In October 2013, he gave notice that he was resigning from the CDTA to take a higher-paying job at a different company. A few weeks later, on Hoit’s last day at the CDTA, Hoit’s fellow mechanic, Clanton, grabbed him while he was working, wrestled him down to the ground, and pinned him face-down. Clanton, sitting on top of Hoit’s buttocks, kept him pinned to the floor and “dry humped” him by “rubbing his hips and groin on [Hoit’s] back, while making humping noises and telling [Hoit] to ‘Let it happen. Let it happen.’ ” Hoit yelled at Clanton to get off of him and physically struggled to get away. Then Baez, a foreman for the mechanics, came running over, pulled his pants down and kneeled over Hoit’s head in his boxer briefs, placing his clothed testicles on Hoit’s head. [Citations omitted.]
In order to make out a hostile work environment sexual harassment claim under the NYSHRL, a plaintiff must establish two elements: (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 the employer “encourage[ed], condon[ed], or approv[ed]” the sexually harassing conduct.
Here, plaintiff’s case faltered on the second element:
Even assuming the Incident altered the terms and conditions of Hoit’s employment, his hostile work environment claim fails because the evidence of pre-Incident misconduct does not provide a basis for concluding that the CDTA encouraged, condoned, or approved the kind of conduct that Hoit suffered during the Incident. Nothing like the Incident had ever happened to Hoit before at the CDTA. Nor does Hoit claim to have ever observed such conduct prior to the Incident. Instead, he relies largely on rumors about Baez and Clanton and on observations of conduct less serious than the Incident. See, e.g., J. App. 1023–25, 1036–1038 (Hoit heard that Baez dry humped someone else and routinely exposed his penis on the job); id. at 1138–42 (Mancini heard rumors that Baez inappropriately exposed his penis); id. at 669 (Clanton heard rumors about Baez engaging in “sexual harassment stuff” but did not know any details); id. at 914 (Another mechanic heard through “[s]hop talk” that Baez exposed himself at work); id. at 415–16 (Baez testified that he heard rumors that Clanton had dry humped another employee before Hoit); id. at 1575 (One CDTA employee regarded Clanton as “one of the most inappropriate people at CDTA”: “[s]macking people on the butt, grabbing people, throwing them to the ground, horsing around, fake wrestling with guys, knocking tools off your box and things of that nature”). There is, moreover, no evidence that the CDTA received any complaints about such conduct except for one harassment complaint against Baez in 2009, to which the CDTA responded appropriately.3 Even if the CDTA was aware of all the other conduct, we cannot conclude that the CDTA should have acted upon it as gender-based discrimination in the absence of complaint.
The court rejected plaintiff’s argument that liability should have been directly imputed to defendant because the alleged conduct was engaged in by supervisors, noting that while “under Title VII [of the Civil Rights Act of 1964], an employer can be held strictly liable for the discriminatory conduct of a supervisor if the supervisor’s conduct culminates in a tangible employment action … [plaintiff] does not assert a Title VII claim here, and the strict liability rule does not apply in the NYSHRL context[.]”