In Yost v. Everyrealm, Inc. et al, No. 22 Civ. 6549 (PAE), 2023 WL 2224450 (S.D.N.Y. Feb. 24, 2023), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s sexual harassment claim asserted under the (extremely lenient) New York City Human Rights Law.
After summarizing the “black letter” law pertaining to this claim, the court applied it to the facts as follows:
Here, the SAC alleges Yorio made a handful of comments relating to sex.13 Even viewed in their totality, these statements fall far short of stating an NYCHRL claim, See Williams, slip op. at 23 (considering totality of circumstances in assessing hostile work environment claim); Mihalik, 715 F.3d at 111 (same). Of Yorio’s statements, only two addressed sexual orientation at all. Neither was about Yost; both concerned other employees. See SAC ¶¶ 64 (Yorio asked Yost’s opinion about whether a senior executive was “in the closet”), 69–70 (Yorio believed a cofounder was a “virgin” and “asexual or bisexual” because of his disinterest in “pretty girls” whom Yorio had set him up with).
Yorio’s other conduct on the topic of sex, as alleged, included repeating another employee’s statement that a coworker’s “balls will be in [his or her] mouth by the end of the night,” id. ¶ 66, gossiping that two employees were “sleeping together,” id. ¶ 73, and remarking that an Everyrealm cofounder, whom she had previously speculated was “in the closet,” “can’t manage [his or her] way out of a paper bag,” id. ¶ 71. The SAC does not link these comments to Yost’s sexual orientation, The SAC instead declares that Yorio must have believed Yost’s bisexuality made her “an expert on others’ sexual orientations.” Id. ¶ 63. Such is, however, the epitome of the conclusory statement in a pleading that a court must ignore. See Pungitore, 506 F. App’x at 42; Goodwine, 2016 WL 3017398, at *8. The Court accordingly puts aside these comments about others’ sexual doings or predilections. Such remarks, however inappropriate or infantile, are disconnected from any protected characteristic of Yost’s.
The SAC’s claim of sexual harassment therefore reduces to the two comments, above, by Yorio about other employees’ sexual orientations. Despite amending her complaint twice and being admonished to include in her SAC all factual allegations relevant to such claims, Yost has proven unable to allege any other comments by Yorio (or any other defendant) regarding sexual orientation—and no comments whatsoever about Yost’s. That lacuna is telling. See, e.g., Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. 19 Civ. 6034 (JPO), 2019 WL 6916099, at *6 (S.D.N.Y. Dec. 19, 2019) (NYCHRL gender-based discrimination claim not plausibly pled where plaintiff failed to demonstrate defendants declined to hire her because of her gender); Stinson, 2018 WL 2727886, at *10 (NYCHRL claim not plausibly pled where plaintiff did not allege comments were “based on” protected characteristic because “[a]t no point in his lengthy complaint does plaintiff allege that any defendant commented on his race in any way”); Goodwine, 2016 WL 3017398, at *9 (NYCHRL hostile work environment claim not plausibly pled where plaintiff failed to allege gendered language “signal[ed] views about the role of women … in the workplace” (alterations in original)). And as to the two comments about others’ sexual orientations, the mere allegation that Yorio knew of Yost’s bisexuality does not, without more, connect these remarks to Yost’s bisexuality.
The court explained further that while Yorio “presents as a full-spectrum and unfiltered purveyor of gossip, with a special obsession with matters of sex and intimacy,” plaintiff’s complaint “does not supply any basis, besides conjecture, to link her two comments concerning others’ same-sex or bisexual orientations to Yost’s sexual orientation.”