Title VII Sex-Based Hostile Work Environment Claim Survives Dismissal; “Continuing Violation” Doctrine Applied

In Stein v. Town of Greenburgh et al, No. 21-CV-05673 (PMH), 2023 WL 2432574 (S.D.N.Y. March 8, 2023), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s sex-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.

Here’s the core of court’s decision on that point:

A claim for hostile work environment, unlike a discrimination or retaliation claim, by its very nature involves repeated conduct,” and, as such, “cannot be said to occur on any particular day. So long as the “timely acts are sufficiently related to acts preceding the limitations period” the Court may consider the entire scope of the claim, including behavior outside the limitations period. Only two of the allegedly harassing acts took place within the 300-day period before Plaintiff filed her First EEOC Charge: (i) Albano’s comments regarding Plaintiff’s sexual orientation and “casting doubt on Plaintiff’s truthfulness” in relation to her reporting Cerone’s assault and (ii) Plaintiff being shown “pornographic photographs” by unidentified male officers who would also “describe their own sexual encounters” to her.

The latter conduct by the unidentified male officers is not sufficiently related to the time-barred conduct because the comments were made by different co-workers who, unlike Kozakiewicz and Cerone, were not alleged to be in supervisory roles relative to Plaintiff. See Dziedzic v. State Univ. of New York at Oswego, 648 F. App’x 125, 128 (2d Cir. 2016) (finding insufficient relatedness to apply the continuing violations doctrine where “the sexual joke was made by different co-workers in a different section of the paint department than the harassment allegedly predating [plaintiff’s] medical leave”). The comments by Albano implying that Plaintiff’s report of Cerone’s assault was false are plainly related to the escalating harassment Plaintiff alleges.

[Cleaned up.]

The court concluded, based on this, that plaintiff has “sufficiently alleged “that one act contributing to the [hostile work environment] claim occurred within the statutory period” and therefore “the entire time period of the hostile work environment may be considered by [the] [C]ourt for the purposes of determining liability.”


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