“Evil Eye”, Work Scrutiny Insufficient to Make Out Hostile Work Environment Claim

From JAMES R. FREZZELL, Plaintiff, v. NEW YORK STATE DEPARTMENT OF LABOR, et al., Defendants. Additional Party Names: Heather Romano, John Triller, Justin Heinbuch, Margaret Sheehan-Nolan, Marty Selleck, Robert Young, Sara Harms, Symone Wango, 2017 WL 5054722, at *7 (N.D.N.Y., 2017):

Plaintiff’s claim that Harms created a hostile work environment by “giving [him] the evil eye, overly scrutinizing [his] work,” and “reprimanding [him] in front of the—in front of the other people,” Frezzell Tr. 98:22–99:2, fails as a matter of law. Absent extreme circumstances, job performance criticism does not create a hostile work environment. See Marcus v. Barilla Am. N.Y. Inc., 14 F. Supp. 3d 108, 113 (W.D.N.Y. 2014) (“[A] series of sporadic, isolated incidents in which managers verbally disagreed with plaintiff or criticized her job performance … falls well short, as a matter of law, of describing discriminatory conduct that is objectively threatening, intimidating, humiliating or harassing.”); Williams v. New York City Hous. Auth., No. 12-CV-825, 2013 WL 12080915, at *7 (E.D.N.Y. Aug. 7, 2013) (holding that issuance of instructional and counseling memoranda does not create a hostile work environment). “[M]ere criticism of an employee’s work … does not fall within the ambit of Title VII unless [the supervisor’s] conduct is so severe, pervasive, offensive and ‘permeated with discriminatory intimidation’ as to alter the terms and conditions of his subordinate’s employment.” Marcus, 14 F. Supp. 3d at 114 (quoting Harris, 510 U.S. at 21). The record contains no indication that Harms’s criticisms were “so severe” or “permeated with discriminatory intimidation,” id., so as to constitute harassment.


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