In Rios v. Max Mara USA Inc. et al, No. 23-CV-9839 (LAP), 2025 WL 66502 (S.D.N.Y. Jan. 10, 2025), the court, inter alia, granted defendant’s motion for judgment on the pleadings (under Federal Rule of Civil Procedure 12(c)) on plaintiff’s claim of hostile work environment sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Plaintiff appears to allege a hostile work environment based on Fonseca’s behavior toward her, specifically his use of the word “pornstar” near or toward her on multiple occasions and his “motorboating” gesture. (See Pl. Opp. at 3; Ex. B at 2; Ex. C at 1.) Defendants argue that these facts fail to suggest conduct that was “objectively severe or pervasive” and thus Plaintiff fails to plead a hostile work environment claim under Title VII. (Defs. Br. at 14.) The Court agrees with Defendants and finds judgment on the pleadings against Plaintiff on this cause of action is warranted.
While Plaintiff has demonstrated that she subjectively perceived the environment to be abusive, her allegations lack proof of the severe, pervasive, and unreasonably interfering misconduct required by the objective element. Moll, 94 F.4th at 229. Plaintiff’s communications to Notari and the email she sent to the New York office establish that she “subjectively perceive[d] the environment to be abusive.” Id. (quoting Harris, 510 U.S. at 21); (see also Compl. ¶ 18; Ex. B at 1-2; Ex. C at 1-2.) However, her allegations that Fonseca called her “a porn star” over the course of three days and pretended to “motorboat” her do not constitute “a series of incidents [ ] sufficiently continuous and concerted to have altered the conditions of her working environment.” Alfano v. Costello, 294 F.3d 365, 374 (2d. Cir. 2002) (internal quotations and citations omitted); see also Zeng v. New York City Hous. Auth., 2023 WL 4553416, at *2 (2d Cir. July 17, 2023) (summary order).
First, Fonseca’s obscene name-calling occurred only a few times over three days and ceased after being promptly addressed by Max Mara HR. (See Compl. ¶¶ 10-13, 15; Ex. C at 1); see also Doyle v. Am. Glory Rest. Corp., 2024 WL 1466161, at *6 (S.D.N.Y. Apr. 4, 2024) (“The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.”) (citation omitted). Without more, the Court is hard pressed to conclude that these isolated comments were “sufficiently continuous and concerted” to rise to the level of “pervasive” harassment. Williams, 61 F.4th at 69 (quoting Alfano, 294 F.3d at 374). Moreover, after Max Mara’s HR department immediately addressed Fonseca’s behavior, the name-calling appears to have stopped altogether. (See Compl. ¶¶ 10-13, 15; Ex. C at 1-2.) This context cuts against “imputing the conduct” to Max Mara. Williams, 61 F.4th at 69 (quoting Whidbee, 223 F.3d at 72).
Second, Fonseca’s act of shaking his head near Plaintiff’s breasts, while unquestionably reprehensible, is not serious or pervasive enough to sustain a claim of a hostile work environment. (See Compl. ¶ 14.) For a single incident to create a hostile work environment, it “must have been ‘extraordinarily severe’ and therefore this standard is reserved only for the most egregious conduct.” Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, 103 (2d Cir. 2020) (quoting Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013)). Individual acts that have risen to the level of extraordinarily severe include rape, Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001), or when a plaintiff was “punched in the ribs,” “temporarily blinded by having mace sprayed in his eyes,” and “covered … with shaving cream” while subjected to “racially offensive comments,” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 213, 230 (2d Cir. 2004). In comparison, the Court of Appeals has found insufficient evidence of a hostile work environment where a plaintiff’s coworker (1) made a sexualized comment about her body and (2) “deliberately touched [her] breasts with some papers that he was holding in his hand.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002); see also Agosto, 982 F.3d at 103-104 (finding no hostile work environment where a principal performed a sexually suggestive act while looking at the teacher plaintiff). While Fonseca’s act was inappropriate and humiliating, it falls short of having severely or pervasively “altered the conditions of [Plaintiff’s] working environment,” especially given Max Mara’s HR department’s prompt response to Plaintiff’s complaint. Alfano, 294 F.3d at 374; (see Compl. ¶¶ 15, 21-22.) The totality of Fonseca’s conduct, including the “pornstar” remarks, does not rise to the level of severity or pervasiveness necessary to sustain a hostile work environment claim, given the brief duration of the harassment, Max Mara’s prompt remedial action, and the absence of any alleged misconduct beyond the initial three days. See Alfano, 294 F.3d at 374.
Considering the “nature of the workplace environment as a whole,” the Court holds Plaintiff fails to state a hostile work environment claim under Title VII. Kaytor, 609 F.3d at 547. Accordingly, Defendants’ Motion is granted with respect to Plaintiff’s Title VII hostile work environment claim.
This decision illustrates that not all objectionable conduct – even that deemed “unquestionably reprehensible” – will give rise to an actionable hostile work environment claim.