In Andrus v. Corning, Inc., No. 14-CV-6667-FPG, 2016 WL 5372467 (W.D.N.Y. Sept. 26, 2016), the U.S. District Court for the Western District of New York dismissed plaintiff’s Title VII hostile work environment sexual harassment claim arising from sexual comments made by plaintiff’s co-worker.
She alleged:
(i) In April 2013, Mr. Drane [the alleged harassing co-worker] told Plaintiff “you had better stick with me, I can make or break you.”(ii) In April 2013, Mr. Drane, told Plaintiff “I have $600 in my pocket right now, I bet I can make you squeal.”(iii) In April 2013, Mr. Drane told Plaintiff “I only need you Tuesdays and Thursdays.”(iv) In May 2013, Mr. Drane stared at Plaintiff’s breasts and commented “I feel like having milk for some reason.”(v) Plaintiff testified that Mr. Drane would answer her phone calls by stating “Did you miss me?”(vi) When Plaintiff worked on the night shift in 2010 or 2011, Mr. Drane referred to her as a “stupid cunt” on two or three instances.
Reciting well-established law, the court explained:
To establish a prima facie case for a hostile work environment claim under Title VII, Plaintiff must show: (1) that her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.”
Plaintiff’s case faltered on the second element:
Mr. Drane’s conduct is unacceptable, and his comments are inappropriate and distasteful. But whether these eight instances sufficiently demonstrate that Plaintiff’s workplace was permeated with discriminatory intimidation is a close question. …The Court does not need to determine whether Mr. Drane’s actions establish a hostile work environment under Title VII, because even if Plaintiff could establish a hostile work environment, liability cannot be imputed to Corning. This is because 1) Mr. Drane was Plaintiff’s co-worker, not a supervisor, and 2) Corning took prompt remedial action in response to her complaints. …
The undisputed facts demonstrate that Mr. Drane was Plaintiff’s coworker, and not a supervisor. Indeed, Plaintiff’s own deposition establishes this fact. Plaintiff testified that Mr. Drane did not have the authority to issue disciplinary warnings to her or her coworkers. She also testified that she had received several disciplinary warnings throughout her tenure at Corning, none of which were signed by Mr. Drane. Plaintiff testified that she attended disciplinary meetings with supervisors held to discuss those warnings, and Mr. Drane was not present at any of those meetings. Plaintiff further testified hat Mr. Drane did not have the authority to suspend Plaintiff or her coworkers without pay, to transfer Plaintiff or her coworkers to different shifts, or to promote Plaintiff or her coworkers. …
Because Mr. Drane was Plaintiff’s coworker, Corning could only be held liable for Mr. Drane’s conduct if it “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” See Murray 57 F.3d at 248. Regarding a “reasonable avenue for complaint,” it is undisputed that Corning’s Code of Conduct prohibits discrimination and harassment in the workplace, and it provides five separate reporting avenues to make complaints, including an external complaint line administered by an independent third-party. See ECF No. 18-3 at 135-138 (detailing Corning’s sexual harassment policies and avenues for complaint). Indeed, Plaintiff admits: 1) that the Code of Conduct was in effect during the relevant time periods; 2) that she received a copy of the Code of Conduct and formal training on the policy in February 2009; and 3) that she paid attention during the Code of Conduct training and understood its terms and provisions. See ECF No. 21-1 at 2-3; see also ECF No. 18-3 at 19-21. Accordingly, there is no dispute that Corning provided a reasonable avenue for complaint. …
Even assuming arguendo that the totality of the circumstances could support a finding that Plaintiff’s work environment was permeated with discriminatory intimidation to rise to the level of a hostile work environment under Title VII, liability cannot be imputed to Corning based on the fact that Mr. Drane was Plaintiff’s coworker, not her supervisor; and because Corning provided several avenues for complaint and conducted a prompt investigation, which culminated in the termination of Mr. Drane’s employment approximately two weeks after Plaintiff’s complaint to Corning.
The court also dismissed plaintiff’s retaliation claim, finding that she did not suffer an “adverse employment action.”