Sexual Harassment Hostile Work Environment Claim Insufficiently Alleged

In Alexander-Callender v. NBTY et al, No. 14-CV-2462 (JS)(AYS), 2015 WL 9581819 (E.D.N.Y. Dec. 30, 2015), the Eastern District of New York dismissed, as insufficiently pled, plaintiff’s sexual harassment (hostile work environment), race discrimination, and retaliation claims.

In her complaint, plaintiff alleged that a co-worker, for example, stared at plaintiff in a “sexually inappropriate manner” or with a “sexually suggestive look”, followed plaintiff, and grabbed his penis in front of plaintiff. She also asserted that before his transfer to plaintiff’s department, he had been the subject of a HR investigation for drawing a penis on a piece of cardboard at work and that she learned of his status as a registered sex offender.

These allegations, the court held, were insufficient to plausibly allege an actionable sex-based hostile work environment.

Judge Seybert flatly rejected defendant’s argument that “any conduct that did not involve Plaintiff cannot be considered under the totality of the circumstances” when evaluating a hostile work environment claim. Rather, “conduct directed at other employees is part of the totality of circumstances to be considered in evaluating a hostile work environment claim.”

However, the court held:

[T]he first-hand experiences and second-hand observations, taken as a whole, do not amount to a hostile work environment. Plaintiff essentially alleges that [the alleged harasser] stared at Plaintiff, followed her, made nonsexual comments to her, and grabbed his penis in front of her on one or two occasions. The second-hand observations–[the alleged harasser] entering the female restroom and receiving a Human Resources evaluation–do not amount to severe and pervasive conduct. And [the alleged harasser]’s prior criminal record, on its face, adds no support to the analysis. As [the alleged harasser] correctly argues, he has every right to be gainfully employed and to not be profiled without justification simply because of the fact he was a registered sex offender. …

At its core, the Complaint provides scant evidence with little specificity on timing, dates, and details. For instance, Plaintiff alleges that [the alleged harasser] stared at her “in a sexually inappropriate manner” or with a “sexually suggestive look” on his face. Missing from the Complaint, however, is any clarification on what staring “in a sexually inappropriate manner” or with a “sexually suggestive look” means. Further, although Plaintiff states that it was “nearly impossible” for her to perform her work, Plaintiff does not allege that [the alleged harasser] caused her emotional distress or, in any way, prevented Plaintiff from doing her job. (Emphasis added.)

The court distinguished the facts of this case from those in cases where the court found that a hostile work environment existed, namely, Joseph v. HDMJ Restaurant, Inc., 970 F. Supp. 2d 131 (E.D.N.Y. 2013), Guzman v. News Corporation, No. 09-CV-9323, 2013 WL 5807058 (S.D.N.Y. Oct. 28, 2013), and E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497 (E.D.N.Y. 2014).

It concluded that, while “[p]laintiff was, with good reason, upset and uncomfortable by [the alleged harasser]’s behavior … in light of the Second Circuit’s ‘remarkably high’ standard [for demonstrating an actionable hostile work environment] … [the alleged harasser]’s conduct did not amount to severe and pervasive sexual harassment.”

It also held that plaintiff failed to plausibly allege race discrimination or that the alleged harasser aided and abetted retaliatory conduct.

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