Hostile Work Environment Claim Dismissed, as it was Largely Based on Conduct Experienced by Others

In Lax v. City University of New York et al, 2020 WL 6161253 (EDNY Oct. 21, 2020), the court, inter alia, dismissed plaintiff’s hostile work environment claim.

The court summarized the “black-letter law” as follows:

A hostile work environment claim requires a showing: (1) that the harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment,” and (2) that “a specific basis exists for imputing the objectionable conduct to the employer.” Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). The plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of his employment were thereby altered. Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 188 (2d Cir. 2001). Importantly, the Second Circuit has held that “Title VII’s prohibition against hostile work discrimination affords no claim to a person who experiences it by hearsay.” Id. at 182. Accordingly, “[d]istrict [c]ourts within the Second Circuit have been … reluctant to accept a prima facie case of a hostile work environment based on harassment experienced by a third party.” Kamrowski v. Morrison Mgmt. Specialist, 05-CV-9234, 2010 WL 3932354, at *16 (S.D.N.Y. Sept. 29, 2010); see also Pronin v. Raffi Custom Photo Lab, Inc., 383 F. Supp. 2d 628, 635 (S.D.N.Y. 2005) (“[M]erely working in the same area as [the individual who was harassed] and witnessing” a harassing incident does not, without more, affect “the terms and conditions of [a plaintiff’s] employment.”).

Applying the law, the court explained:

Nonetheless, Plaintiff predicates his hostile work environment claim largely on wrongful conduct purportedly experienced by other individuals. In particular, that Plaintiff maintains that Suss repeatedly refused to interview and hire “Orthodox/obvious Jews;” made deals to hire a Jewish candidate only in exchange for an agreement that multiple non-Jewish persons would be hired; violated CUNY By-laws to prevent Orthodox and obvious Jews from receiving promotions; and vetoed Provost Gomez’s recommendation to give Plaintiff a compensation increase while giving increases to non-Jews; and used invidious adjectives like “horrible,” “the Devil,” “crazy,” “evil,” and “the enemy” to describe Jews. (Pl.’s Opp’n 25–26; see also Pl.’s Resp. 56.1 ¶¶ 124, 136, 147, 155, 166.) Absent from the record, however, is any evidence that Plaintiff was personally subjected to any of this conduct. In fact, during his deposition, Plaintiff acknowledged that he did not have any personal knowledge of any acts of vandalism, (Pl.’s Resp. 56.1 ¶ 156), and never personally heard Suss say that there were “too many Jews” or that they were “horrible people.”

While plaintiff proffered additional acts/conduct – including a veto of a “recommendation to give Plaintiff a compensation increase while giving increases to non-Jews” – the court held that plaintiff “failed to proffer evidence sufficient to demonstrate that these acts were sufficiently severe or pervasive.”

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