Second Circuit Affirms Dismissal of Same-Sex Hostile Work Environment/Harassment and Retaliation Claims

In a Summary Order issued today in Mendez-Nouel v. Gucci America, Inc., the Second Circuit affirmed summary judgment for defendant Gucci on plaintiff’s same-sex hostile work environment/sexual harassment and retaliation claims.

Harassment/Hostile Work Environment

Initially, the Court explained the legal standard for sexual harassment claims:

[F]or sexual harassment to be actionable, it must be sufficiently severe or pervasive – both subjectively and objectively – to alter the conditions of [the victim’s] employment and create an abusive working environment. And, of course, the plaintiff must establish that the hostile or abusive treatment was because of his or her sex.

To establish the severe or pervasive element of a hostile work environment claim, a plaintiff does not need to show that his hostile working environment was both severe and pervasive; only that it was sufficiently severe or sufficiently pervasive, or a sufficient combination of these elements, to have altered [his] working conditions.

The record indicated

two instances of touching, the more significant being an incident in which Mendez’s supervisor touched his lower back for four to five seconds. There was also workplace banter about a supervisor’s sexual orientation and nightlife, and  single occasion where a supervisor told Mendez he was gay but “[y]ou just don’t know it.”

This conduct, according to the Court, did not rise to the level of a hostile work environment.  In particular, “considering all the circumstances, the episodes complained of were simply too episodic, insufficiently serious, and insufficiently tied to his gender or sexual orientation, to have materially altered the conditions of [Mendez’s] employment.”

It quoted the Supreme Court’s 1998 decision in Oncale v. Sundowner Offshore Servs. for the proposition that:

Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive.

In addition, it cited its 2012 decision in Redd v. N.Y. State Div. of Parole for the proposition that “casual contact” is normally unlikely to give rise to a hostile work environment, absent “aggravating circumstances such as continued contact after an objection” and “direct contact with an intimate body part”.


The Court also affirmed the district court’s grant of summary judgment on plaintiff’s retaliation claim. As to that claim, there was only a “weak issue of fact” as to pretext.

In particular:

It is undisputed that Gucci began an investigation after one of Mendez’s colleagues expressed concerns about his behavior to Gucci’s Human Relations department. That investigation revealed that other employees were disturbed by Mendez’s seemingly unstable and distracted actions, providing Gucci with an “abundant” independent basis for terminating Mendez. Further, although Mendez argues that the investigation into the complaints lodged against him was in and of itself pretextual and that the complaints were untrue, the record shows that Gucci’s HR department took the investigation seriously, with copious notes memorializing conversations with other employees. Mendez has not put forward evidence that suggests unresolved questions of material fact with respect to his termination and Gucci’s motive.

It quoted McPherson v. N.Y.D. Dept. of Education, 457 F.3d 21 (2d Cir. 2006) for the proposition that in discrimination cases, courts are “not interested in the truth of the allegations against the plaintiff” but only “in what motivated the employer.”  That is, “the factual validity of the underlying imputation against the employee is not at issue.”

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