In Ancrum v. New York City Department of Environmental Protection, 2024 WL 5009145 (S.D.N.Y. Dec. 6, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s sexual harassment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
For Title VII purposes, a workplace is actionably hostile when it is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [the plaintiff’s] employment and create an abusive working environment.” Littlejohn, 795 F.3d at 320-21 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Because the hostile environment standard has an objective and a subjective component, the plaintiff must allege both that the harassment was “ ‘severe or pervasive enough that a reasonable person would find it hostile or abusive’ and that the plaintiff ‘subjectively perceive[d] the work environment to be abusive.’ ” Moore v. Hadestown Broadway LLC, 722 F. Supp. 3d 229, 245 (S.D.N.Y. 2024) (quoting Littlejohn, 795 F.3d at 321). In determining whether the plaintiff’s work environment was objectively hostile, courts “must consider the totality of the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ” Littlejohn, 795 F.3d at 321 (quoting Harris, 510 U.S. at 23). To survive dismissal under Rule 12(b)(6), however, “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.” Patane, 508 F.3d at 113 (internal quotation marks omitted).
When harassment takes the form of offensive comments, the existence of a hostile work environment “typically depends upon the quantity, frequency, and severity” of the verbal abuse. Donahue v. Asia TV USA Ltd., 208 F. Supp. 3d 505, 514 (S.D.N.Y. 2016) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997)); see also Harris, 510 U.S. at 21 (explaining that the “mere utterance of an … epithet which engenders offensive feelings in a[n] employee does not sufficiently affect the conditions of employment to implicate Title VII” (citation omitted)). Here, the only well pleaded allegation of potential sexual harassment in Ancrum’s Complaint is that in December 2021, a co-worker (Guzman) told her that he had heard other unknown “laborers” claim that she “has herpes and gave oral sex out to men” and that she had a “dick in [her] mouth.” Compl. ¶¶ 23-24. While there is no question that comments like these are highly offensive, this alleged isolated episode of sexually demeaning language is insufficient to plausibly show that Ancrum was subject to the sort of “steady barrage of opprobrious [sexual] comments” that gives rise to a hostile environment. Levy v. NYC Health + Hosps., 660 F. Supp. 3d 220, 234 (S.D.N.Y. 2023) (internal quotation marks omitted). Nor does the Complaint allege sufficient facts to plausibly show that this single incident was “extraordinarily severe” such that it would suffice to establish a hostile work environment on its own. Banks, 81 F.4th at 262 (internal quotation marks omitted). Thus, “[a]lthough the alleged comments are despicable and offensive, they fail to constitute discriminatory behavior that is sufficiently severe or pervasive to cause a hostile environment.” Brown v. Coach Stores, Inc., 163 F.3d 706, 713 (2d Cir. 1998) (holding that the plaintiff failed to allege a hostile work environment claim on the basis of allegations “that one [of the plaintiff’s] supervisor[s] made, on occasion, racist remarks and [that] one such comment was directed at [the plaintiff]”); see also LaSalle v. City of New York, No. 13 Civ. 5109 (PAC), 2015 WL 1442376, at *7 (S.D.N.Y. Mar. 30, 2015) (concluding that allegations that the plaintiff’s coworkers “called her a ‘bitch’ as well as other derogatory and/or sexist names” and said that “anybody can get her ass” were not “sufficiently frequent, severe, or pervasive to constitute a hostile work environment”).5
Apart from Guzman’s alleged comments in December 2021, the only allegations that Ancrum presents in support of her hostile environment claim concern unknown “men” following her on the bus and in vehicles. See Compl. ¶ 26 (alleging that Ancrum “was being followed by unknown men on her bus ride to work and sometimes saw cars outside of her home that she believed were observing her”); id. ¶ 27 (referencing “men” who started “riding the bus with [Ancrum]” and alleging that “vehicles were following her in the morning when she took her grandchildren to school”); id. ¶ 28 (alleging that “cars were shining their high beams into [Ancrum’s] bedroom at her home”). The Complaint, however, contains no factual detail regarding the identities of the men who were allegedly following Ancrum, their motivations in doing so, or what their relationship (if any) to the Department was. Thus, the Complaint contains no factual basis that would allow the Court to infer that these events constituted sexual harassment or were in any way connected to Guzman’s December 2021 comments or to Ancrum’s workplace in general. And Ancrum’s drive-by allegation that she “continues to suffer from discrimination at work to this very day and has been subjected to pranks and belittlement,” id. ¶ 45, is likewise “too vague to be actionable.” Makhsudova v. City of New York, No. 20 Civ. 10728 (KPF), 2022 WL 1571152, at *11 (S.D.N.Y. May 18, 2022); see also Lawtone-Bowles v. City of New York, No. 17 Civ. 8024 (WHP), 2019 WL 652593, at *4 (S.D.N.Y. Feb. 15, 2019).6
Based on this, the court held that plaintiff’s complaint “fails to plausibly allege facts tending to show that she was subject to severe or pervasive sexual harassment,” warranting dismissal of her Title VII hostile work environment claim.