In Hernandez v. Kwiat Eye and Laser Surgery, PLLC, 2023 WL 372105 (N.D.N.Y. Jan. 24, 2023), the court, inter alia, dismissed plaintiff’s sex-based hostile work environment claims.
This is, unfortunately, yet another example of unpleasant, arguably sex-based conduct – when viewed through the lens of the applicable legal standard – does not rise to the level of an actionable claim.
Plaintiff alleges that she suffered a sex-based hostile work environment based on three specific incidents. First, she alleges that, in March 2018, Dr. Kwiat loudly asked, in her presence and the presence of other staff members, why a vagina was shaped the way it was, and he repeated the question when no one replied. Second, Plaintiff contends that, in July 2017, Dr. Kwiat stated in the presence of her and other staff members that another staff member should not have any more children because “her vagina would stretch.” Third, on an occasion that Plaintiff testified occurred sometime in 2016, she allegedly heard Dr. Kwiat state to other employees that women were “only good for sex.” With respect to Plaintiff’s Title VII hostile work environment claim, Plaintiff admits that two out of three of these allegations of sex-based discrimination occurred more than three hundred days before she filed her complaint with the EEOC on May 29, 2018. However, she argues that the continuing violation doctrine allows the Court to consider them. Contrary to Plaintiff’s claim, the Court finds that the continuing violation doctrine does not apply because she has not shown that those three isolated incidents – each occurring approximately one year apart from each other – are the result of a discriminatory policy.
Since the continuing violation doctrine does not apply, then the only allegation Plaintiff makes to support her Title VII sex-based hostile work environment claim pertains to Dr. Kwiat’s March 2018 comment, in Plaintiff’s and other staff members’ presence, regarding the shape of vaginas. Such a singular, isolated incident was likely boorish and offensive, but, on its own, it is insufficient to establish a sex-based hostile work environment claim. Thus, the Court grants Defendants’ motion for summary judgment with regard to Plaintiff’s hostile work environment claim pursuant to Title VII on this basis and dismisses that claim.
Regarding Plaintiff’s NYSHRL claim, in which the Court may consider all three incidents, the Court additionally finds that those incidents, while offensive and inappropriate, were not so severe or pervasive as to establish a hostile work environment. The Court therefore grants Defendants’ motion for summary judgment with regard to Plaintiff’s sex-based hostile work environment claim brought under the NYSHRL and dismisses that claim.
[Cleaned up.]
It bears noting that, in connection with plaintiff’s claim asserted under the New York State Human Rights Law, the court applies the “severe or pervasive” standard, which was jettisoned by 2019 amendments to that law.