In Fitzgerald v. The We Company d/b/a WeWork et al, 20 Civ. 5260, 2022 WL 952963 (S.D.N.Y. March 30, 2022), the court, inter alia, granted defendants’ motion for summary judgment dismissing plaintiff’s hostile work environment sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Here, Fitzgerald describes an isolated instance in which, over the span of an evening, Stiles made comments about her relationship status, including encouraging her to “bang a few out,” and “have a bunch of one-night stands,” briefly touched her face, and, during a text exchange, twice asked her to “cuddle” in his hotel room, punctuated with a tongue emoji—a sexually suggestive image. Although Stiles’ comments could be construed as vulgar and inappropriate, the Court does not find that these comments and propositions, standing alone, are sufficiently “severe and pervasive” as to establish a hostile work environment claim. Compare Howley, 217 F.3d at 154 (single instance of verbal abuse created hostile work environment where offender went on a “tirade” about female plaintiff being promoted for performing fellatio, “at length” and “loudly” in front of large group of male subordinates), with Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58–59 (2d Cir. 2004) (two instances of supervisor propositioning employee for sex in one month did not establish hostile work environment claim).
Moreover, Fitzgerald does not adduce admissible evidence that Stiles’ behavior following the trip was sufficiently “continuous and concerted [as] to have altered the conditions of her working environment.” Howley, 217 F.3d at 153. Fitzgerald concedes that, after Stiles was reprimanded, he did not direct any further inappropriate behavior towards her. Fitzgerald Tr. at 186. And, although Fitzgerald levels more serious allegations at Stiles—including that he touched a co-worker’s breast and made advances on a client, id. at 186–92—she offers only inadmissible hearsay in support of these claims, which does not establish a triable issue of fact, see Weinstock, 224 F.3d at 44. At best, Fitzgerald adduces admissible evidence that Stiles occasionally made inappropriate, isolated jokes in group settings. Fitzgerald Tr. at 187–88. But, this does not rise to the level of severe and pervasive conduct necessary to establish a hostile work environment claim. Stiles’ actions, accordingly, “are sufficiently isolated and discrete that a trier of fact could not reasonably conclude they pervaded [Fitzgerald’s] work environment.” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768 (2d Cir. 1998).
[Cleaned up.]
Based on this, the court granted defendants’ motion for summary judgment on plaintiff’s Title VII hostile work environment claim. Having dismissed plaintiff’s federal claim, it declined to exercise supplemental jurisdiction over plaintiff’s claims under the New York State and City Human Rights Law, dismissing those claims without prejudice to renewal in state court.