In Gamble v. Fieldston Lodge Nursing and Rehabilitation Center et al, No. 20-CV-10388-LTS, 2022 WL 1778488 (S.D.N.Y. June 1, 2022), the court granted defendant’s motion, for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), on plaintiff’s claim of sexual orientation discrimination in violation of Title VII of the Civil Rights Act of 1964.
In sum, plaintiff (a lesbian woman) alleged that after video of her engagement with her same-sex partner was posted to social media, it “went viral” at plaintif’s workplace and “attracted adverse and negative attention,” including “discriminatory comments and jokes” and “awkward silence and looks.”
Here is the court’s analysis, and rejection, of plaintiff’s hostile work environment theory:
Plaintiff’s Complaint does not plausibly allege the existence of an environment that was so “objectively severe or pervasive” as to rise to the level of a hostile work environment under Title VII and the case law interpreting it, or facts indicating that Plaintiff subjectively perceived that environment as such. Rather than alleging specific severe or pervasive conduct based on her protected characteristics that changed her conditions of employment, Plaintiff cites the incidents that undergird her discrimination and retaliatory behavior claims, and asserts generally that “Defendants promoted, allowed, encouraged and maintained a hostile work environment for Plaintiff by Defendants’ failure and/or refusal to prevent, cure or eliminate the discrimination and the abusive work conditions Plaintiff endured.” (Compl. ¶ 67.)
The few examples proffered in the Complaint of comments made to Plaintiff by her co-workers after learning of her sexual orientation over a period of four months (Compl. ¶¶ 36, 47, 49), while insensitive and offensive, are not “so severe or pervasive as to have altered the conditions of [Plaintiff’s] employment.” Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015). The same is true as to those comments alleged to have been made by Plaintiff’s co-workers about Plaintiff’s male co-worker who was believed to be a homosexual (Compl. ¶¶ 43, 45) which, though also offensive, were few in number and neither directed at Plaintiff nor especially severe in nature. See Lane v. Collins & Ailman Floorcoverings, Inc., No. 00-CV-3241-RMB, 2001 WL 1338918, at *5 (S.D.N.Y. Oct. 31, 2001) (granting summary judgment in favor of defendants on a plaintiff’s hostile work environment claim premised in part on his co-workers’ “infrequent, isolated” “wrist dropping” and “lisping”).4 Similarly, the three alleged responses from the persons to whom Plaintiff complained on May 22, 2019 (Compl. ¶¶ 37-40), are insufficient, alone or in combination with the other alleged comments, to support plausibly a hostile work environment violative of Title VII.
The Complaint’s two allegations about administrator Knolls—that he “stopped talking to Plaintiff almost completely” after she made her complaints on May 22, 2019, and that he “was heard numerous times using the word ‘faggot’ in a derogatory manner when referring to gay men” (Compl. ¶¶ 46, 51)—are disturbing, but without more and even considered in their totality among the Complaint’s other allegations do not suffice to indicate the existence of a severe or persistent hostile work environment. The allegation that Mr. Knolls stopped talking to Plaintiff “almost” completely (conduct that the Complaint alleges was retaliatory (see id. ¶¶ 50, 51)), at least absent any more specific allegations about the regularity and volume of contact between Plaintiff and Mr. Knolls before Plaintiff’s complaints, does not support an inference that there was a workplace in which hostility based on a protected characteristic was objectively severe or pervasive. See Orsaio v. New York State Dep’t of Corr. & Cmty. Supervision, No. 6:17-CV-685-BKS-TWD, 2019 WL 3891085, at *24 (N.D.N.Y. Aug. 19, 2019) (“As for the allegation that Hess ignored Plaintiff, that behavior is not sufficient severe or pervasive to be actionable.”); Dechberry v. New York City Fire Dep’t, 124 F. Supp. 3d 131, 157 (E.D.N.Y. 2015) (“Such instances of coworker discord do not rise to the level of a hostile work environment.”); Corso v. New York State Dep’t of Corr. & Cmty. Supervision, No. 1:16-CV-01488-BKS-ML, 2019 WL 2869573, at *10 (N.D.N.Y. July 3, 2019) (granting summary judgment in favor of defendant on a plaintiff’s hostile work environment claim premised in part on claims of being ignored by colleagues); Costello v. New York State Nurses Ass’n, 783 F. Supp. 2d 656, 680 (S.D.N.Y. 2011) (same). As to Administrator Knolls’ alleged use of the term “faggot” to refer to gay men, the Complaint does not allege that Plaintiff was present when that term was used, or proffer any details as to who heard Mr. Knolls use that term or when and how Plaintiff learned of its use. While abhorrent, Mr. Knolls’ alleged use of that epithet outside Plaintiff’s presence, at least without such supporting allegations, does not support plausibly a hostile work environment claim. See Garcia v. NYC Health & Hosps. Corp., No. 19-CV-997-PAE, 2019 WL 6878729, at *7 & at *7 n.9 (S.D.N.Y. Dec. 17, 2019) (dismissing hostile work environment claim notwithstanding a plaintiff’s allegation that his supervisor referred to him as a “faggot” in another language, explaining that the plaintiff’s allegations fell short of the standards to plead such a claim, and collecting cases); DeLuca v. Sirius XM Radio, Inc., No. 12-CV-8239-CM, 2017 WL 3671038, at *20 (S.D.N.Y. Aug. 7, 2017) (acknowledging that offensive comments heard second-hand, while “less persuasive,” can also impact the work environment, but granting summary judgment in favor of defendants on a plaintiff’s state law hostile work environment claims despite that plaintiff’s evidence that her supervisor used the terms “dyke” and “faggot” to describe Plaintiff and her gay coworkers). See also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“[M]ere utterance of an … epithet which engenders offensive feelings in a employee … does not sufficiently affect the conditions of employment to implicate Title VII.”) (internal quotation marks and citation omitted).
Further, while the alleged comments her co-workers at Fieldston directed at Plaintiff (or made in her presence) were inappropriate, the Complaint does not allege that those comments were threatening or humiliating, rather than merely offensive, or that they interfered with Plaintiff’s work performance in the few months before Fieldston terminated her employment. While not dispositive, the absence of such allegations in the context of the totality of the circumstances alleged in the Complaint is still relevant, Rasmy, 952 F.3d at 390, and weighs in this case against a conclusion that the environment alleged in the Complaint was objectively severe or pervasive.
Finally, and for similar reasons, the Complaint does not plausibly allege that Plaintiff subjectively perceived her work environment as hostile or abusive under the relevant hostile work environment standards. The Complaint alleges that Plaintiff made three complaints arising from the circulation of her engagement video in May 2019, but those three complaints occurred on a single day (see Compl. ¶¶ 37-40) at the very beginning of the relevant period; the Complaint does not allege how Plaintiff reacted (either internally or externally) to the charged conduct during the following four months. The Complaint’s conclusory allegation that “[d]ue to the stress and anxiety caused by” the sum of Fieldston’s actions (which included Plaintiff’s termination), Plaintiff (at unspecified times) “suffered and continues to suffer from severe emotional distress” (id. ¶ 57), likewise does not plausibly frame a claim that Plaintiff subjectively perceived her environment as hostile or abusive during the relevant time period.
The court concluded that “[a]s pled, Plaintiff’s Complaint, construed in the light most favorable to her, does not plausibly allege that she experienced an objectively severe or pervasive work environment as that term has been construed in this Circuit—or that she subjectively perceived that environment as such—while employed at Fieldston” and on that basis dismissed her Title VII hostile work environment claim.