In Pachura v. Lloyd J. Austin III, 6:21-cv-316 (AMN/MJK), 2025 WL 371786 (N.D.N.Y. Feb. 3, 2025), the court, inter alia, dismissed plaintiff’s hostile work environment sexual harassment claim. While the court found that plaintiff raised a triable issue of fact as to whether the work environment was objectively and subjectively “hostile,” the court found that there was no basis for imputing this conduct to plaintiff’s employer.
As to the first item, the court explained:
First, a reasonable juror could find that Plaintiff was objectively subjected to a hostile work environment. Defendant argues “there is no evidence in the record that Magnano’s interactions with Pachura altered the terms and conditions of her employment,” chiefly because their communications took place almost exclusively on Facebook Messager and on personal cell phones. Dkt. No. 52-2 at 15-16 (citing Paola v. DeJoy, 624 F. Supp. 3d 305, 319 (W.D.N.Y. 2022) and Devlin v. Teachers’ Ins. & Annuity Ass’n of Am., No. 02 Civ. 3228(JSR), 2003 WL 1738969, at *2 (S.D.N.Y. Apr. 2, 2003)).11 However, a large portion of Plaintiff’s messages with Mr. Magnano took place while she was on duty, necessarily impacting Plaintiff’s experience in the office. See, e.g., Dkt. No. 52-2 at ¶ 32. Moreover, as corroborated by an officemate of Plaintiff’s, Mr. Magnano did in fact approach Plaintiff’s desk on multiple occasions. Id. at ¶ 84. Even the communications that took place purely over Facebook Messenger involved Plaintiff’s work environment, including Mr. Magnano’s repeated desire to come by Plaintiff’s desk to look at her legs and his proposition to look at her tattoos in a particular office in the building he described as a “private spot[.]” See, e.g, id. at ¶¶ 41(s), 53; Dkt. No. 55 at ¶ 2(e); Dkt. No. 52-15 at GOV-001539. Defendant also does not dispute that Mr. Magnano would sometimes message Plaintiff on her work computer. Dkt. No. 55 at ¶ 3. Given these undisputed facts, a reasonable juror could find that though Mr. Magnano’s conduct largely took place over private messages, the conduct also permeated Plaintiff’s work environment to a sufficient degree to establish a claim. See Parrish v. Sollecito, 249 F. Supp. 2d 342, 351-52 (S.D.N.Y. 2002) (“the reach of the employment ‘environment’ should be viewed holistically.”).
Defendant also notes that Plaintiff “does not allege that the alleged conduct interfered with her ability to perform the functions of her job,” and therefore, cannot establish that Mr. Magnano’s conduct altered the terms and conditions of her employment. Dkt. No. 52-1 at 15-16 (citing Stepheny v. Brooklyn Hebrew Sch., 356 F. Supp. 2d 248, 265 (E.D.N.Y. 2005)). The Court need not determine if such allegations are necessary, rather than merely relevant to, a hostile work environment claim. Compare Stepheny, 356 F. Supp. 2d at 265 (describing such allegations as the “sine qua non” of a hostile work environment claim) with Harris, 510 U.S. at 23 (listing “whether [the conduct] unreasonably interferes with an employee’s work performance” as one of several factors to consider and explicitly stating “no single factor is required”). Here, a reasonable juror could find that Plaintiff suffered interference with her work performance. Plaintiff testified in her deposition that she might have told Mr. Magnano she was having issues getting her work done and that her work performance dipped during certain periods of her conversation with Mr. Magnano. Dkt. No. 53-1 at 80:15-82:12. Plaintiff also specifically alleged in her complaint, and continues to assert now, that her medical leave was caused by Mr. Magnano’s conduct, though Defendant refutes that Plaintiff’s contention is supported by any evidence beyond her own statements. Dkt. No. 22 at ¶ 17; Dkt. No. 59-1 (Response) at ¶ 15.
Beyond interference with her work, other factors suggest that there is an issue of fact as to whether Plaintiff faced an objectively hostile work environment. Mr. Magnano sent Plaintiff sexually charged messages almost every day, and thus, the alleged harassment was frequent. Mr. Magnano also sent an unsolicited picture of his genitals and visited Plaintiff’s desk on several occasions, and thus, a reasonable juror could find Mr. Magnano’s messages exceeded mere “utterances” and were sufficiently severe. See, e.g., Dkt. No. 52-2 at ¶ 45; contra Alfano v. Costello, 294 F.3d 365, 379 (2d Cir. 2002) (listing insufficiently severe scenarios). Therefore, the Court finds that there is a disputed issue of material fact as to whether Plaintiff objectively experienced a hostile work environment.
Next, Defendant contends that Plaintiff was “a willing participant in the relationship,” and therefore, the alleged conduct was not so unwelcome as to satisfy the subjective component. Dkt. No. 52-1 at 15 (citing Slinkosky v. Buffalo Sewer Authority, No. 97-CV-0677E(SR), 2000 WL 914118, at *6 (W.D.N.Y. June 29, 2000)). Defendant correctly points out, and Plaintiff does not dispute, that Plaintiff sometimes engaged in flirtatious conversation with Mr. Magnano and did not ask to end their conversation prior to October 9, 2019. Id. However, the Court finds that there is a disputed issue of material fact as to Plaintiff’s subjective feelings throughout her interactions with Mr. Magnano. After a close review of the messages between Mr. Magnano and Plaintiff, the Court finds that reasonable jurors could differ on their interpretation of the messages. Despite continuing the conversation with Mr. Magnano, Plaintiff did inform him that she was not interested in anything more than conversation. See, e.g., Dkt. No. 55 at ¶ 11(h). A reasonable juror could find that Mr. Magnano’s persistent requests and innuendos violated Plaintiff’s stated boundaries. Moreover, Plaintiff’s neighbor in the office reported that Plaintiff told her that Mr. Magnano was “stalking her on Facebook and making her uncomfortable” during the course of their messages. Dkt. No. 52-2 at ¶ 87. Finally, a reasonable juror could credit Plaintiff’s testimony about her history of abuse and her tendency to make light of uncomfortable situations as a lens through which to read Plaintiff’s participation in the messages. Dkt. No. 55 at ¶ 8 (citing Dkt. No. 53-1 at 104). Such facts could convince a reasonable juror that Plaintiff subjectively experienced a hostile work environment despite her apparent willingness to engage with Mr. Magnano.12 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68 (1986) (stating that the “question [of] whether particular conduct was indeed unwelcome presents difficult problems of proof and turns largely on credibility determinations committed to the trier of fact”). Moreover, Plaintiff has testified that she kept responding to Mr. Magnano’s messages in fear that she would be assaulted, in fear that he would come to her desk if she did not respond, and in fear that he would spread rumors. Dkt. No. 55 at ¶ 9. Such testimony, in conjunction with the other evidence listed above, is sufficient to create an issue of material fact as to whether the work environment was subjectively hostile.
However, the court held that defendant’s response was “prompt, extensive, and effective.” Among other things, the court noted that “DFAS initiated its management inquiry into Mr. Magnano’s conduct within a day of Plaintiff’s first report[,] [w]ithin three weeks of the report, the management inquiry lead, Ms. Iselo, interviewed all relevant parties, obtained and reviewed the messages between Plaintiff and Mr. Magnano, and crucially, issued No Contact orders to both Plaintiff and Mr. Magnano[, and] [e]ventually, despite a finding that no harassing conduct occurred, Mr. Magnano received a seven-day suspension without pay.”