Hostile Work Environment Claim Insufficiently Alleged; “Chalk Buttock Line” Insufficient

A recent case, Bady v. Illinois Central Railroad Company, No. 2:21-cv-2693-MSN-cgc, 2023 WL 2482229 (W.D.Tenn. March 13, 2023), illustrates the difficulties encountered by plaintiffs in attempting to plead and prove a hostile work environment claim.

To wit:

Drawing a chalk line down Plaintiff’s buttock without his knowledge or consent, posting a photo about it, and making a comment likely to offend Plaintiff is not conduct suitable for the workplace. But neither is it indicative of an environment so “permeated with discriminatory intimidation, ridicule, and insult” as to be considered abusive. Rather, these facts demonstrate a situation more akin to the “[s]imple teasing, [ ] offhand comments, and isolated incidents (unless extremely serious) [that] will not amount to discriminatory changes in the terms and conditions of employment. Faragher, 524 U.S. at 787 (1998) (citing Harris, 510 U.S. at 23).

First, the alleged conduct was infrequent. While the Complaint suggests harassment was ongoing,4 it only provides descriptions of two incidents—the chalk incident (including the accompanying post on Facebook) and the locker room incident. (See ECF No. 1.) That Plaintiff suffered two (or three to include the Facebook post) relatively minor incidents over more than two years of employment with Defendant is not the kind of frequency Title VII has in mind.5 Courts have declined to find a hostile work environment when conduct was not even a weekly event. See, e.g., Kelly v. Senior Ctrs., Inc., 169 F. App’x 423 (6th Cir. 2006) (finding that two uses of the “n” word, three racist “jokes,” and other comments about African-Americans did not create an actionable hostile work environment claim partly because “such conduct … was not a daily or even a weekly event”).

Second, the conduct—while no doubt unwelcome and offensive to Plaintiff—was not severe or physically threatening. The chalk incident, though it involved physical contact, went unnoticed even by Plaintiff for a time, and Plaintiff was unaware of the Facebook post until it was brought to his attention by another employee. (ECF No. 1 at PageID 3.) These facts belie any contention that the conduct, albeit unwise and inappropriate, was intended to threaten Plaintiff. The locker room incident did not involve inappropriate touching, but rather an inappropriate comment. Other “courts have found that ‘[o]ne or two comments … do not result in a work environment that is so intolerable that it would force any reasonable employee to resign.’ ” Ragland v. F&M Koz, Inc., No. 2:21-cv-02530-TLP-cgc, 2022 U.S. Dist. LEXIS 56653, at *13 (W.D. Tenn. Mar. 29, 2022) (quoting Kaminski v. Hillman Grp., Inc., No 1:19-cv-1010, 2021 U.S. Dist. LEXIS 31946, at *3 (S.D. Ohio Feb. 22, 2021)).

In short, even “conduct that is deplorable, off-color, or offensive to our most basic value of according respect and dignity to every person, is not always legally actionable as a ‘hostile environment,’ ” Kelly, 169 F. App’x at 429, and what Plaintiff has alleged falls short of that. This principle that conduct must be extreme to be actionable has led courts to reject claims of hostile work environments at the motion to dismiss stage that alleged more offensive or frequent conduct than what Plaintiff alleges here. See, e.g., Middleton v. United Church of Christ Bd., No. 20-4141, 2021 WL 5447040, at *5 (6th Cir. Nov. 22, 2021) (finding that the district court applied the correct Rule 12(b)(6) standard in finding plaintiff’s allegations, which included two offensive comments based on the plaintiff’s race, did not rise to the level of pervasiveness or severity necessary to survive a motion to dismiss).

Third, Plaintiff has not provided evidence to support a reasonable inference that these alleged actions of his coworkers affected his ability to perform his job. Plaintiff alleges that he requested a medical leave of absence “due to anxiety and stress due to his work situation.” (ECF No. 1 at PageID 3). But even if this allegation was meant to indicate that he requested the leave because the alleged harassment caused him anxiety and stress, and thus made it more difficult to do his job, it would be no more than a conclusory statement void of supporting factual content. Accordingly, there is no evidence from which the Court can draw a connection between the alleged harassment and an interference with Plaintiff’s job performance necessary to support a hostile work environment claim under Title VII. See Keys v. Humana, No. 3:09-cv-00834-CRS, 2013 U.S. Dist. LEXIS 151242 (W.D. Ky. Oct. 13, 2013) (citing Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 274 (6th Cir. 2009)) (finding that plaintiff’s allegations concerning negative comments from three coworkers, a Vice President of Sales, and a Manager failed to establish a hostile work environment capable of surviving a motion to dismiss when the plaintiff did not provide evidence that the harassment made it harder to perform her job).

The court concluded that while plaintiff is not required to make out a prima facie case at the pleading stage, he is still required to plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged – which, even assuming the truth of the alleged facts, plaintiff did not do here.

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