Alleged Lewd Comments About DMV Customers, Bowling Buttocks Text, Etc. Insufficient to Establish Hostile Work Environment

The Northern District of New York’s recent decision of Saile v. New York Dep’t of Motor Vehicles, No. 5:13-CV-1394 ATB, 2015 WL 6962688 (N.D.N.Y. Nov. 9, 2015) reminds us that a plaintiff alleging a sex-based hostile work environment must do more than merely allege that they were made “uncomfortable” by sexual comments – here, alleged lewd comments and actions by by plaintiff’s DMV co-workers. (While the court also dismissed plaintiff’s retaliation claim, here I’ll focus on the court’s analysis of her hostile work environment Claims.)

Under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, a plaintiff alleging a hostile work environment must “show that the conduct of which she complains: (1) is objectively severe or pervasive—that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex, or other protected characteristic.”

Among other things, plaintiff alleged that two of her co-workers “would make ‘sexual innuendos’ and other comments about customers of the DMV on a ‘daily basis.'” Specifically:

This alleged conduct involved making comments about a female customer’s “ass,” whether they thought she was “pretty” or “cute,” or had “sizable boobs,” commenting on a customer’s “rack,” making “passes” at customers and trying to get their telephone numbers, making “derogatory” comments about individuals who were “too ugly” or “too pretty,” and making comments about gay men. On March 14, 2012, [one of plaintiff’s co-workers] told plaintiff, in the presence of several other co-workers, that he thought a customer was “hot.”

Applying the law, the court found plaintiff’s evidence lacking:

None of the statements allegedly made by [plaintiff’s co-workers] created a hostile work environment for purposes of either Title VII or the NYHRL. Although plaintiff states that she suffered a “barrage” of statements, she claimed that prior to 2010, the comments were infrequent. Although she stated that they got worse after 2011, she still could only remember a few instances in which she heard [her co-workers] make comments about the physical attributes of DMV customers. The fact that these comments may have made plaintiff “uncomfortable,” does not create an abusive or hostile work environment. … Even assuming that [plaintiff’s co-workers] would “flirt” with customers, this alleged conduct had nothing to do with the plaintiff or more importantly, the fact that plaintiff was a woman. The fact that plaintiff may have found the alleged “flirting” or comments offensive or unprofessional does not convert the inappropriate behavior into a hostile work environment for her.

The court analogized the facts of this case to those in Dall v. St. Catherine of Siena Med. Ctr., 966 F.Supp.2d 167 (E.D.N.Y.2013), which held that “[p]laintiff’s contention that the radiology department was a sexually-charged and inappropriate workplace for all employees, both male and female, is simply not actionable.”

It also noted that plaintiff “failed to causally relate the alleged conduct to the fact that she is a woman”, citing plaintiff’s testimony that while plaintiff’s co-workers “may have been making inappropriate comments about customers, they were not ‘singling out’ plaintiff because she was a woman” but instead “were making comments so that all the employees would hear.”

Plaintiff also alleged that she was exposed to “unwanted nudity.” In what she characterized as the “worst” incident,

[one of plaintiff’s co-workers] was bowling with co-workers at a holiday function, and someone took a picture of him from behind, bowling with his pants down, exposing his buttocks. Plaintiff was not present at the function, but the photograph was sent by text message to every employee. She knew that the photograph went to all the employees because it became the subject of conversation at work.

Evaluating this evidence, the court held:

The incident in which [the co-worker] was photographed at the bowling alley with his pants down also does not contribute to establishing a hostile work environment. Plaintiff was not present at the bowling alley, and the photograph was admittedly texted to all the employees without regard to their gender. Plaintiff cannot allege that she was singled out for mistreatment because of her sex based on a photograph that was sent to all employees.

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