Court Dismisses Sex-Based Hostile Work Environment Claims; Discusses “Out-of-Office” Conduct

In Whipple v. Reed Eye Associates, 15-CV-6759L, 2021 WL 852039 (W.D.N.Y. March 8, 2021), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s sex-based hostile work environment claim.

While the court ultimately ruled against the plaintiff on the merits, this decision is nevertheless instructive as to how courts evaluate the situation where some events constituting the alleged hostile environment occur outside the workplace proper.

From the decision:

[T]he Court must first determine which incidents or acts are relevant to plaintiff’s claim. Many of the acts of alleged harassment occurred outside the workplace, and not all were committed by Weissend or any other defendant. In particular, Whipple alleges that she was harassed by Weissend’s wife, and that she had at least one confrontation with his daughter. See Whipple Tr. at 101, 141.

“Conduct wholly outside of the workplace has been held insufficient to form the basis of a hostile work environment claim.” Vereen v. City of New Haven Public Works Dep’t, No. 17-cv-1509, 2018 WL 950117, at *2 (D. Conn. Feb. 20, 2018). See, e.g., Feliciano v. Alpha Sector, Inc., No. 00 CIV. 9309, 2002 WL 1492139, at *8 (S.D.N.Y. July 12, 2002) (noting allegations “including the alleged kiss, the alleged telephone calls to Feliciano’s home, and the ‘surprise’ meeting at the restaurant all occurred outside of the workplace,” and finding the employer not liable for “hostile sexual acts resulting from nonwork-related, off-duty interactions between co-employees”); Devlin v. Teachers’ Ins. & Annuity Ass’n of America, No. 02 CIV. 3228, 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003) (“As a general rule, employers are not responsible under Title VII for hostile sexual acts resulting from nonwork-related, off-duty interactions between co-workers, because those actions are not part of the work environment”); see also Andersen v. Rochester City Sch. Dist., 481 Fed.Appx. 628, 630 (2d Cir. 2012) (affirming summary judgment for school district on claim by teacher arising from harassment by student, and concluding that “no reasonable jury could find that [the student’s] entirely out-of-school conduct had the effect of permeating Andersen’s workplace with discriminatory intimidation, ridicule, and insult. Those courts that have concluded that harassment occurring outside the workplace can support a hostile work environment claim have insisted on a greater connection between the harassment and the work environment”) (citation omitted).

*10 In the case at bar, plaintiff does rely on some events that occurred at Westfall. She alleges that on one occasion, Weissend tried to kiss her at Westfall. She also contends that the note that he placed in her bag at Westfall, his self-removal from her anesthesiologist rotation, and his wife’s unannounced visit also contributed to a hostile work environment.

In light of those allegations, the Court may and will consider the incidents that occurred outside of Westfall, as they form part of the “totality of the circumstances” concerning whether a hostile work environment claim has been established. Falu v. County of Orange, 814 Fed.Appx. 655, 659 (2d Cir. 2020). See Brown v. N.Y.S. DOCS, 583 F.Supp.2d 404, 418 (W.D.N.Y. 2008) (incidents that occurred outside of plaintiff’s workplace “provide context for the incidents that did occur at work, and they tend to show the motivation for the harassing behavior of plaintiff’s coworkers”). But they cannot, in themselves, give rise to such a claim; what matters in the end is plaintiff’s work environment.

Turning to the merits, the court found that the alleged harassing conduct did not give rise to an actionable claim; it noted, inter alia, that plaintiff was receptive to the overtures, and that plaintiff instigated a non-work relationship with the alleged harasser, which overtures were not reciprocated.

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