In Agosto v. New York City Department of Education et al, 2020 WL 7086060 (2d Cir. Dec. 4, 2020), the court, inter alia, affirmed the dismissal of plaintiff high school teacher’s same-sex sexual harassment/hostile work environment claim based on the alleged conduct of the principal (Ureña).
In support of his claim that he suffered a hostile work environment, Agosto contends that Ureña would “stare,” “sneer,” “cat-call and clap” at Agosto, and—on a few occasions over the course of a year—sang or talked in an unusual manner to Agosto. These latter incidents include once singing lyrics from the musical Annie while staring at Agosto, once saying “Hi, Mr. Agosto” in “a feminine voice,” and once walking closely to Agosto while yelling “It’s a beautiful day.” Appellant’s Br. 36-37; J. App’x 971, 1011. The district court did not err in concluding that these acts are insufficient to create an objectively hostile workplace. See Desardouin, 708 F.3d at 105 (noting that the workplace must have been “severely permeated with discriminatory intimidation, ridicule, and insult”). Title VII is not “a general civility code” but rather “forbids only behavior so objectively offensive as to alter the ‘conditions’ of the victim’s employment.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998).
Agosto responds by pointing to two discrete acts that he claims were so severe that, despite not being pervasive conduct, nonetheless created a hostile work environment. The first such act was in March 2016, when Agosto claims that Ureña stood closely behind Agosto—but did not touch him—while Agosto was bending over. In his briefing to this court, Agosto describes this as a “simulated act of anal penetration” on Agosto’s body. Appellant’s Br. 35. That is a serious charge. But it is contradicted by Agosto’s own sworn affidavit filed at the district court. In opposition to summary judgment, Agosto attached an affidavit made under penalty of perjury in which he states that Ureña “began sexually harassing me in January 2017”—not in March 2016 or earlier—and the “first incident” of harassment was the January 2017 lollipop episode. J. App’x 971. Agosto’s contention that the first instance of harassment was actually in March 2016 therefore contradicts his sworn affidavit and cannot create a material dispute of fact. See Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991) (holding that a party may not “create a material issue of fact” by “disputing his own prior sworn testimony”). Moreover, Agosto’s affidavit demonstrates that, at the time of summary judgment, even Agosto himself did not view Ureña’s act in March 2016 as amounting to sexual harassment, let alone an incident severe enough on its own to create a hostile work environment. See Alfano, 294 F.3d at 374 (holding that, to create a triable issue, “the victim must also subjectively perceive that environment to be abusive”).
Even setting aside his sworn affidavit, Agosto points to nothing in the record indicating that Ureña attempted to simulate a sex act on Agosto. The March 2016 incident is not mentioned in the complaint, and Agosto’s opposition to summary judgment did not attach the deposition transcript pages in which he allegedly described the incident,10 meaning that the district court had no record evidence of the incident. See Fed. R. Civ. P. 56(c)(1)(A) (noting that the party opposing summary judgment must cite to “particular parts of materials” that are “in the record”); Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (holding that “unsupported allegations do not create a material issue of fact”). The defendants’ reply in support of summary judgment quoted what appears to be the relevant portion of Agosto’s deposition, but that quotation says nothing about Ureña simulating a sex act on Agosto. The district court therefore understandably made no mention of the incident in its opinion. Given the state of the record on appeal, Agosto cannot demonstrate that the district court erred in concluding that there was no genuine dispute of material fact on this issue sufficient to defeat summary judgment.
The second serious act that Agosto identifies was in January 2017, when Ureña allegedly looked at Agosto while licking a lollipop. During his deposition, Agosto gave divergent descriptions of what he believes Ureña did with the lollipop, ranging from “simulating fellatio, back and forth in his mouth,” J. App’x 1002, to testifying just seconds later that Ureña was merely doing “[w]hat you do when you lick lollipops,” id. Even assuming Ureña did suggestively lick a lollipop, we conclude that, while offensive and inappropriate, that one-time act was not sufficiently severe to alter the terms of Agosto’s employment. Although a single incident can create a hostile work environment, the incident must have been “extraordinarily severe” and therefore is reserved only for the most egregious conduct. Desardouin, 708 F.3d at 105. For example, this standard was met when a plaintiff was raped, Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001), or was “punched in the ribs,” “temporarily blinded by having mace sprayed in his eyes,” and “covered … with shaving cream” all while being subjected to “racially offensive comments.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 213, 230 (2d Cir. 2004). By contrast, this court has held that there was insufficient evidence of a hostile work environment when, for example, a plaintiff’s colleague made a crude comment about her appearance and then “deliberately touched [her] breasts with some papers that he was holding in his hand.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Although offensive and inappropriate, Ureña’s alleged act of suggestively licking a lollipop is not in the category of “extraordinarily severe” single actions that create a hostile work environment, such as the acts in Ferris and Patterson. Nor was Ureña’s alleged act even as severe as the intimate touching and sexualized comment that were held to be insufficient to survive summary judgment in our prior, binding decision in Quinn. Agosto does not claim that Ureña touched him at all, let alone that Ureña deliberately touched a sensitive body part as occurred in Quinn. Nor does Agosto claim that anyone else saw the lollipop incident or that it interfered with his ability to maintain discipline over his students or teach his classes—i.e., that it modified the terms of his employment. See Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (holding that a jury could conclude that the plaintiff’s terms of employment and ability to do her job had been altered after a colleague aggressively shouted her down at a meeting by calling her extremely graphic sexual names “at length, loudly, and in a large group” containing many of her colleagues and subordinates, especially given that the profane “verbal assault included charges that [the plaintiff] had gained her office of lieutenant only by performing fellatio”). Ureña’s alleged actions fall within the category of behavior that is “obviously offensive and inappropriate” but did not “alter the conditions of [Agosto’s] employment” such that it was actionable. Quinn, 159 F.3d at 768.
Therefore, in sum, the court concluded by affirming the district court’s grant of summary judgment on plaintiff’s hostile work environment claim, since “there was no objectively and subjectively hostile work environment that altered the terms of Agosto’s employment.”