Title VII Sex-Based Hostile Work Environment Claim Dismissed; Staring at Breasts, Among Other Conduct, Deemed Insufficient by Court

In Garza v. Antony Blinken, Secretary of United States Department of State, 2023 WL 2239352 (D.D.C. Feb. 27, 2023), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s sex-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.

From the decision:

Plaintiff’s allegations against Favret do not amount to a hostile work environment. Most of the alleged “comments or actions directed at” Plaintiff do not “expressly focus[ ]” on her sex, Baloch, 550 F.3d at 1201, and are more appropriately characterized as “mere offensive utterance[s],” Morgan, 536 U.S. at 103. Favret made comments to Garza regarding “his wife, who was a feminist and expressed frustration with him at times,” as well as his historical practice of giving women “good reviews” and “support[ing] women even if they take some of the jobs [he] want[s].” Compl. ¶ 9. He also complained about the number of women working in the State Department; questioned whether the agency “discriminated against men since there were ‘too many women’ ” in the workplace, id.; and refused to give female employees leave during Mexico’s “day without women” because it “would be discriminatory against men,” id. ¶ 20. While this behavior may be considered “harsh, unfair and rude,” it does not “rise to the level of a Title VII violation.” Peters v. District of Columbia, 873 F. Supp. 2d 158, 188 (D.D.C. 2012). Other allegations pertain to reports of Favret’s behavior that Plaintiff received but did not experience. See Compl. ¶¶ 12, 22–24. “Conduct directed at others rather than at plaintiff … is less indicative of a hostile work environment.” Lester v. Natsios, 290 F. Supp. 2d 11, 31 (D.D.C. 2003); see Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1144 (7th Cir. 1997) (“[T]he impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff.”).

To be sure, some of Favret’s comments and actions are related to Garza’s sex. See Compl. ¶ 10 (Favret “frequently called Garza into his office for unscheduled meetings, often to discuss topics unrelated to work” and “would stare at her breasts during these meetings”), ¶ 13 (said “hi beauty” to Garza), ¶ 14 (interrupted a meeting to say “oh, should I leave until after the spanking?”). But the last two of these allegations are no more than isolated comments that cannot support a hostile work environment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (holding that “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” are not sufficiently serious to create a hostile work environment); Tomasello v. Rubin, 167 F.3d 612, 620 n. 11 (D.C. Cir. 1999). And while Favret’s alleged staring at Plaintiff’s breasts is unquestionably discomforting and boorish behavior, Plaintiff does not actually say how “frequently” this occurred during her time at Embassy Mexico. Without more, the court cannot say Plaintiff has plausibly alleged a hostile environment claim based on Favret’s collective comments and actions. See Stewart v. Evans, 275 F.3d 1126, 1134 (D.C. Cir. 2002) (“Even a few isolated incidents of offensive conduct do not amount to actionable harassment.”).

Adding Creamer’s alleged conduct to the mix does not help Plaintiff’s cause. Plaintiff claims that Creamer “scolded” her when she first reported Favret’s behavior and said that “her reports of sexually inappropriate comments … were nonsensical.” Id. ¶ 16. After her report, Creamer attempted to exclude Garza from a meeting and reduced her ability to participate in another meeting. Id. ¶¶ 18–19. When she drafted Favret’s curtailment order, Creamer described the order as “emotional.” Id. ¶ 27.

The court concluded that “[e]ven if these episodes could be attributed to Plaintiff’s sex—as opposed retaliatory animus—they are, at most, “ordinary tribulations of the workplace” that do not give rise to an actionable hostile work environment claim.”

Share This: