In Doyle v. American Glory Restaurant Corp. and Joseph Fiero, 23 Civ. 7624 (PAE), 2024 WL 1466161 (S.D.N.Y. April 4, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s first amended complaint (FAC) alleging a sex-based hostile work environment under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
From the decision:
Taking the well-pled factual allegations in the FAC as true, the FAC plausibly pleads that Doyle was subjected to a hostile work environment. “The required showing of severity or seriousness of the harassing conduct varies inversely with the pervasiveness or frequency of the conduct.” Trotta v. Mobil Oil Corp., 788 F. Supp. 1336, 1349 (S.D.N.Y. 1992) (cleaned up); see also, e.g., King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990) (“Although a single act can be enough, generally, repeated incidents create a stronger claim of hostile environment, with the strength of the claim depending on the number of incidents and the intensity of each incident.” (citation omitted)). Here, the FAC specifies that some of Fierro’s misconduct occurred on a more limited number of occasions. “On approximately five occasions,” for instance, Fierro “said that [Doyle’s] breasts could serve as a draw for older men to patronize the Restaurant.” Id. ¶ 37. But Fierro also “repeatedly” displayed pornography on American Glory’s “reservation tablet” and talked to Doyle about sex. Id. ¶¶ 40–41. Similarly, when Doyle complained, Fierro would sometimes tell her that she “was acting like or being a ‘bitch.’ ” Id. ¶ 57. But, as noted, the FAC also alleges that Fierro made certain sexually offensive comments “daily”—notably, his remarks about Doyle’s and customers’ breasts. See id. ¶¶ 22, 34.
Complaints alleging harassing commentary of this frequency have widely been upheld as plausibly alleging a hostile work environment. See, e.g., Sharp v. S&S Activewear, LLC, 69 F.4th 974, 977 (9th Cir. 2023) (reversing grant of motion to dismiss where complaint alleged that coworkers and supervisors frequently “yelled obscenities [and] made sexually explicit remarks” to plaintiff, and “routinely play[ed]” offensive, “misogynistic” music throughout the workplace); Massey v. Doming, 611 F. Supp. 3d 1301, 1315 (N.D. Ala. 2020) (denying motion to dismiss where complaint alleged that coworkers and supervisors “on a near daily basis” referred to women in the workplace as “whores,” “prostitutes,” and “bitches”); Green v. N.Y.C. Transit Auth., No. 15 Civ. 8204 (ALC), 2019 WL 1428336, at *2, *5 (S.D.N.Y. Mar. 28, 2019) (denying motion to dismiss where complaint alleged that supervisor and coworkers called her a “bitch” on “several occasions” and supervisor often “sen[t] [her] obscene text messages and images”); Perez v. Town of North Providence, 256 F. Supp. 3d 139, 152 (D.R.I. 2017) (denying motion to dismiss where complaint alleged that supervisors “frequently” made “gender based comments,” “routinely characterizing” her as a “slut[,] bitch, and whore”); Pfeiffer v. Lewis County, 308 F. Supp. 2d 88, 104–06 (N.D.N.Y. 2004) (denying motion to dismiss where complaint alleged that supervisors and coworkers referred to women as “bitches” and subjected plaintiff to “comments about [her] appearance” on “a daily basis”). Evidence of this nature has also been a basis for the denial of defense motions for summary judgment. See, e.g., Zeng v. N.Y.C. Hous. Auth., No. 22 Civ. 138, 2023 WL 4553416, at *3 (2d Cir. July 17, 2023) (reversing grant of summary judgment where plaintiff alleged “repeated incidents of abusive, discriminatory remarks” by supervisors who would sometimes call her a “fucking stupid bitch”); Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811–12 (11th Cir. 2010) (en banc) (issue of fact existed whether environment was objectively hostile where coworkers regularly called women “whores,” “bitches,” and “cunts,” and engaged in “vulgar discussions of women’s breasts, nipples, and buttocks”); Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 578 (D.N.J. 2005) (issue of fact existed whether environment was objectively hostile where supervisor commented on female employees’ genitalia once a week or more and often called women “pussies” and “cunts”). The FAC thus sufficiently pleads comments that are “sufficiently continuous and concerted [as] to be deemed pervasive.” Carrero v. N.Y.C. Hous. Auth., 890 F.2d 569, 577 (2d Cir. 1989). And the commentary alleged was of a type classically actionable, as “a raft of case law establishes that the use of sexually degrading, gender-specific epithets, such as … ‘bitch,’ has been consistently held to constitute harassment based upon sex.” Franchina v. City of Providence, 881 F.3d 32, 54 (1st Cir. 2018) (cleaned up); see also Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263 (6th Cir, 2009) (issue of fact existed whether environment was objectively hostile where coworkers routinely described women in sexist terms and called plaintiff a “bitch” and a “heifer” with “udders”).
The cases cited by defendants are inapposite. Almost all were disposed of on summary judgment, at which point a plaintiff has the burden of adducing admissible evidence giving rise to a material issue of fact; at a motion to dismiss, by comparison, a plaintiff need only plead facts plausibly giving rise to an entitlement to relief. See Patane, 508 F.3d at 113 (“[T]o avoid dismissal under [Rule] 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that she was faced with ‘harassment … of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse’ ….” (quoting Terry, 336 F.3d at 148)). And the three cases defendants cite that arose on a motion to dismiss are easily distinguished. The first involved just three “insensitive” comments relating to the plaintiff’s perceived sexual orientation during more than two years’ employment. Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 7342742, at *6–7 (S.D.N.Y. Dec. 14, 2020). The second involved vague allegations that the plaintiff was “observed constantly” by his female manager, who “at times” would “touch his shoulders.” Carter v. Verizon, No. 13 Civ. 7579 (KPF), 2015 WL 247344, at *1, *12 (S.D.N.Y. Jan. 20, 2015). And the third involved a single “belittling” comment and the assignment of “unspecified menial tasks” to the plaintiff. Myers v. Doherty, No. 21 Civ. 219 (PAE), 2021 WL 5599502, at *12–13 (S.D.N.Y. Nov. 30, 2021), aff’d, No. 21 Civ. 3012, 2022 WL 4477050 (2d Cir. Sept. 27, 2022). These cases are far afield from the daily flow of harassing remarks aimed at Doyle that the FAC alleges. Given these allegations, that the FAC may be sparse as to other particulars of Doyle’s employment does not require dismissal under Rule 12(b)(6). Cf. Fowler v. UPMC Shadyside, 578 F.3d 203, 211–12 (3d Cir. 2009) (“Although [the] complaint is not as rich with detail as some might prefer, it need only set forth sufficient facts to support plausible claims.”).
Based on this, the court held that plaintiff’s complaint states a claim for hostile work environment under Title VII, and further that since “Title VII acts as a ‘floor’ for” the New York State Human Rights Law, plaintiff’s identical claim under that statute necessarily survives.