In Stern v. State University of New York et al, 2018 WL 4863588 (EDNY Sept. 30, 2018), the court, inter alia, dismissed plaintiff’s hostile work environment claim.
The court summarized the well-established law in this area:
To establish a hostile work environment under Title VII …, a plaintiff must show that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Littlejohn, 795 F.3d at 320-21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “The laws do not reach ‘genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex’; instead, they forbid ‘only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.’ ” Lenart v. Coach Inc., 131 F. Supp. 3d 61, 66 (S.D.N.Y. 2015) (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998)). “Such a showing requires a plaintiff to identify incidents that are more than ‘episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.’ ” Pouncy v. Advanced Focus LLC, No. 15-CV-6260 (JMF), 2017 WL 4280949, at *5 (S.D.N.Y. Sept. 25, 2017), appeal filed, No. 17-3455 (2d Cir. Oct. 26, 2017). “Moreover, the incidents must show that the employer discriminated against the employee ‘because of [the employee’s] race, color, religion, sex or national origin.’
Applying the law, the court explained:
Plaintiff has failed to meet her pleading burden. Plaintiff principally alleges that SUNY-DMC has created a hostile work environment by “treat[ing] male telecommuters more favorably than female telecommuter[s] based on their gender.” (Id. ¶ 230.) In support of this claim, Plaintiff alleges that, since February 2017, Clenman has required Plaintiff and at least two of her female coworkers to submit to electronic monitoring while telecommuting. (Id. ¶¶ 224, 228.) Plaintiff does not specify the severity or pervasiveness of the monitoring; just that male employees are allegedly not subject thereto. (Id. ¶ 225.) Based on Plaintiff’s pleadings, the court cannot conclude that this monitoring, by itself, materially altered the terms and conditions of her employment See Demoret v. Zegarelli, 451 F.3d 140, 150 (2d Cir. 2006). Courts holding that excessive monitoring gives rise to a hostile-work-environment claim do so only when the monitoring is alleged in combination with other activities that “plausibly suggest the existence of an objectively hostile environment.” See, e.g., Rother v. NYS Dep’t of Corrs. & Cmty. Supervision, 970 F. Supp. 2d 78, 92-93 (N.D.N.Y. 2013); Lamar v. Inst. for Family Health, No. 09-CV-1154, 2011 WL 2432925, at *11 (N.D.N.Y. June 16, 2011) (“Here, the record contains ample evidence of alleged sexually based harassment that could allow a jury to conclude that the monitoring of plaintiff’s time, an otherwise sex-neutral incident, was, in fact, sex-based.”); Levitant v. City of N.Y. Human Res. Admin., 625 F. Supp. 2d 85, 100-01 (E.D.N.Y. 2008) (considering “evidence of excessive monitoring … in determining whether the overall work environment … was sufficient to constitute a hostile work environment” given the plaintiff’s contention that the monitoring was “part of a broader campaign of harassment and retaliation” (citations omitted)). Plaintiff’s only other allegation regarding gender-based discrimination in this context is that Sookhoo “is in the process of implementing an unlawful ban on telecommuting as an accommodation.” (Id. ¶ 232.) Nevertheless, Plaintiff herself continues to telecommute, as do some of her other coworkers. (See id. ¶¶ 224-36.) With this alleged ban not having yet been put into place, Plaintiff plainly cannot show that the terms and conditions of her employment have been altered thereby, nor can Plaintiff use it to support her claim that the monitoring of her telecommuting constituted a hostile work environment.