Hostile Work Environment Claims Dismissed; “Inappropriate” Comments Were Insufficiently Severe, and Not Tied to Protected Status

In McCullough v. John T. Mather Hospital of Port Jefferson, New York, Inc., 16-cv-4968, 2019 WL 1755436 (EDNY April 19, 2019), the court, inter alia, dismissed plaintiff’s hostile work environment claim.

It summarized the law as follows:

Title VII and NYSHRL prohibits an employer from discriminating against an employee on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1); N.Y. Exec. Law ¶ 296. These prohibitions encompass “requiring people to work in a discriminatory hostile or abusive environment.”

Where a claim of hostile work environment is asserted, the plaintiff must demonstrate, he or she is a member of a protected class and “that [his or] her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her work environment….” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quotation marks omitted). This standard is a “demanding one,” Scott v. Mem’l Sloan-Kettering Cancer Ctr., 190 F. Supp.2d 590, 599 (S.D.N.Y. 2002), requiring that a plaintiff establish both objective and subjective components, to wit, “not only that [the plaintiff] subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010); see also Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (“Plaintiff must show not only that [he] subjectively perceived the environment to be abusive, but also that the environment was objectively hostile and abusive.”). Furthermore, “there must be a specific basis for imputing the conduct creating the hostile work environment to the employer.” Doner–Hendrick v. N.Y. Inst. of Tech., 2011 WL 2652460, at *5 (S.D.N.Y. July 6, 2011) (internal quotation marks omitted).

“Isolated incidents typically do not rise to the level of a hostile work environment unless they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as to create such an environment.’ ” Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of Oneida, 375 F.3d 206, 227 (2d Cir. 2004) ). Rather, “[c]ourts look at all circumstances to ascertain whether an environment is sufficiently hostile or abusive to support a claim.” Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001). “Among the factors to be considered in determining whether conduct is sufficiently hostile under the totality of the circumstances are: frequency; severity; whether the conduct is physically threatening or humiliating; and whether it interferes with an employee’s performance.” Scott, 190 F. Supp.2d at 599 (citing Harris, 510 U.S. at 23). “[T]he Second Circuit has made it clear that insensitive comments are not per se unlawful.” Id. (citing Williams v. County of Westchester, 171 F.3d 98, 101 (2d Cir. 1999) ); see Preuss v. Kolmar Lab., Inc., 970 F. Supp. 2d 171, 184 (S.D.N.Y. 2013) (The “mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to establish a hostile work environment claim.”) (internal quotation marks omitted). It is necessary for the plaintiff to establish a link between the actions by defendants and plaintiff’s membership in a protected class.

Applying the law, the court granted defendant’s motion for summary judgment. Specifically, the court found that, inter alia, the alleged “comments, while wholly inappropriate, are not sufficiently severe to permit a rational fact-finder to conclude that the conditions of Plaintiff’s working environment were altered by a workplace severely permeated with discriminatory intimidation, ridicule and insult” and that “the criticism of Plaintiff’s work performance does not support a hostile work environment claim” since “[t]here is nothing to suggest that they are tied to Plaintiff’s protected status.”

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