Sex-Based Hostile Work Environment Claim Dismissed on Summary Judgment; Sheep-Sex and Other Comments Notwithstanding

In Stern v. Denis McDonough, Secretary of Veterans Affairs, 5:18-CV-71 (MAD/TWD), 2022 WL 4236298 (N.D.N.Y. Sept. 14, 2022), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s gender-based hostile work environment claim.

After summarizing the black-letter law, the court applied it to the facts, as follows:

Plaintiff fails to establish that any allegedly hostile conduct was severe or pervasive. Moreover, there is no evidence in the record that the few events Plaintiff alleges were on account of her gender. Plaintiff alleges that she regularly witnessed “jokes, swearing, [and] crosstalk across the hallway.” She further alleges that “one source of jokes” regarded army personnel having sex with sheep. The only other reference to offensive language that Plaintiff points to is that MSCs “chanted Army cadences in the workplace, some of which could have had offensive language.” Plaintiff also alleges that she was told in 2013 that she would make a great wife someday, and that she was occasionally referred to by the nickname “Doc McStuffins.” No reasonable juror could conclude that those allegations rise to the level of severity or pervasiveness necessary to prevail on a hostile work environment claim. Courts have regularly held that such few and sporadic events, over such a large period of time, is insufficient to demonstrate the “high bar” required to state a claim for a hostile work environment. Regardless, the record lacks any evidence that any behavior occurred because of Plaintiff’s gender. Instead, all the record shows is that jokes that were offensive in a general nature were occasionally made in the workplace. This is the kind of boorish or offensive use of language that are generally insufficient to establish a hostile work environment.

[Cleaned up.]

This case illustrates the point that, under the current state of the law, experiencing offensive, “boorish”, etc. comments is, standing alone, not necessarily enough to make out an actionable “hostile work environment” claim as that term has come to be defined.

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