In Veras v. New York City Department of Education et al, No. 1:22-cv-00056 (JLR) (SN), 2024 WL 3446498 (S.D.N.Y. July 17, 2024), the court, inter alia, dismissed plaintiff’s complaint alleging hostile work environment sexual harassment under Title VII of the Civil Rights Act of 1964.
From the decision:
Plaintiff’s fourth cause of action alleges sexual harassment through a hostile work environment. In support of this cause of action, Plaintiff alleges that Salvador Fortunato “humped [by simulating intercourse with an inanimate object] in her presence” and “stuck this [sic] tongue out.” Plaintiff further alleges that Defendants condoned this harassment. The R&R recommends dismissing this cause of action because the Second Amended Complaint fails to allege more than episodic misconduct, which is insufficient to establish a hostile work environment.
Plaintiff “categorical[ly] disagrees with the characterization in Judge Netburn’s [R&R] … that the occurrences are too sporadic.” Plaintiff asserts that “the assimilation [sic] of sex (Fortunato); like rape itself, even when done once, is unacceptable and creates a lasting hostile work environment…. [O]ne does not need to be raped several times for the singular count to be an inherently punishable crime.”
This Court finds Plaintiff’s arguments unpersuasive. Allegations that a co-worker stuck out his tongue on one occasion and on another occasion motioned against an object in a suggestive manner are insufficient to plead a plausible claim for a hostile work environment. While it is true that “even a single act can meet the threshold if, by itself, it can and does work a transformation of the plaintiff’s workplace,” the present allegations do not rise to that level. Alfano v. Costello, 294 F.3d. 365, 374 (2d Cir. 2002); cf. Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (a single sexual assault in the workplace may be sufficient to alter the terms and conditions of victim’s employment), abrogated on other grounds as recognized by Ferris v. Delta Air Lines, 277 F.3d 128, 136 (2d Cir. 2001). Plaintiff’s comparison of the alleged conduct to rape is inapposite (and offensive).
Plaintiff next argues that “the condoning of sexual harassment in the workplace[ ] proves that a hostile [work] environment [exists] because employer received notice and refused to do anything.” Given the episodic nature of the two alleged instances of objectionable conduct, the employer’s failure to take action does not rise to the level of pervasive conduct. See Alfano, 294 F.3d at 374 (“[I]ncidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” (quotation marks and citation omitted)).
Plaintiff recognizes that the Second Circuit has previously explained that a hostile-work-environment claim requires a showing of conduct that is “sufficiently continuous and concerted in order to be deemed pervasive.” Plaintiff argues, however, that she should be afforded an exception to this requirement because she is “a disabled person who pleads the limited recollection due to memory issues caused by brain tumours [sic] of sexual harassment.” The Court sympathizes with Plaintiff’s reported condition and wishes her good health. However, a complaint must contain sufficient factual allegations to state a claim for relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff has had multiple opportunities to amend her complaint and has still been unable to identify factual allegations of sexual harassment sufficient to plead a sexual-harassment-based hostile-work-environment claim under Title VII.
[Citations omitted.]
Based on this, the court overruled plaintiff’s objections, and dismissed her sexual harassment claim.