In Borden v. City of New York, 23-CV-8330 (RPK) (CLP), 2025 WL 754147 (E.D.N.Y. March 10, 2025), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s sex-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Plaintiff’s non-time barred allegations do not plausibly amount to a hostile work environment. To begin, plaintiff does not allege that much of the conduct of which she complains “occurred because of a protected characteristic”—her sex. Ibid. “Facially neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on sex.” Alfano, 294 F.3d at 378. “But this requires some circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory.” Ibid. “Incidents, however abusive, that are not gender-related are not relevant to establish a claim” of a hostile work environment. Beale v. Mt. Vernon Police Dep’t, 895 F. Supp. 2d 576, 587 (S.D.N.Y. 2012) (quoting Casalino v. N.Y. State Cath. Health Plan, Inc., No. 09-CV-2583 (LAP), 2012 WL 1079943, at *7 (S.D.N.Y. Mar. 30, 2012)).
Many of plaintiff’s allegations amount to dissatisfaction with scheduling decisions, work assignments, and missed promotions. In November 2022, plaintiff alleges that she was not selected for a promotion she had sought. Am. Compl. ¶ 32. In April 2023, plaintiff asked Inshiqaq for a transfer away from his command but was denied. Id. ¶¶ 35–36. Soon after, Inshiqaq changed plaintiff’s work schedule to prevent her from attending an event she needed for a different job offer. Id. ¶ 40. Between late April 2023 and when plaintiff quit in June, Inshiqaq manipulated plaintiff’s schedule so that she would work more closely under him in less favorable assignments. Id. ¶¶ 43–50. Two weeks before she quit, plaintiff also learned that Chief Perrino was planning to reassign her to work full time under Inshiqaq—when she objected, an interview for a promotion was cancelled. Id. ¶¶ 48–49. Plaintiff’s complaints about Inshiqaq’s conduct to Chief Perrino went unanswered. Id. ¶¶ 34, 38, 49, 51–53.
Plaintiff does not plausibly allege that these incidents were related to her sex or the earlier harassment she experienced at the hands of Inshiqaq. Notably, plaintiff does not allege that Inshiqaq ever sexually harassed plaintiff after December 2022, including during the time after she was transferred to work more closely under his supervision. These therefore did not contribute to a hostile work environment on the basis of plaintiff’s sex. See Beale, 895 F. Supp. 2d at 587–88 (finding that instances of supervisor yelling at plaintiff for non-sex-based reasons did not contribute to hostile work environment based on sex, despite same supervisor on other occasions engaging in sex-based harassment); cf. Sanderson v. Leg Apparel LLC, No. 19-CV-8423 (GHW), 2020 WL 3100256, at *6, 8–9 (S.D.N.Y. June 11, 2020) (finding that black plaintiff had met his burden to plead that his heavier workload contributed to race-based hostile work environment claim because he alleged that similarly situated white colleagues were not assigned as much work).
What remains are plaintiff’s allegations that Inshiqaq, plaintiff’s supervisor, twice targeted plaintiff with unwelcome sexual innuendos: in March 2022 and again approximately nine months later in December. Am. Compl. ¶¶ 30–31, 33. On the second occasion, Inshiqaq also grabbed plaintiff from behind, resting his chin on her head and caressing her arm. Id. ¶ 33.
Inshiqaq’s conduct was neither pervasive nor severe enough to plausibly constitute a hostile work environment. Whereas “repeated touching of intimate parts of an unconsenting employee’s body is by its very nature severely intrusive,” “[c]asual contact” such as “[a] hand on the shoulder, a brief hug, or a peck on the cheek” would not generally “create a hostile environment in the absence of aggravating circumstances such as continued contact after an objection.” Redd v. New York Div. of Parole, 678 F.3d 166, 177, 179 (2d Cir. 2012) (emphasis and internal citation omitted). Further, “[f]or sexist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of sexual enmity.” Dabney v. Christmas Tree Shops, 958 F. Supp. 2d 439, 458 (S.D.N.Y. 2013), aff’d sub nom. Dabney v. Bed Bath & Beyond, 588 F. App’x 15 (2d Cir. 2014) (internal quotation marks and citations omitted). Separated in time by nine months, the two incidents described in plaintiff’s complaint—sexual innuendo and being grabbed on the head and arm from behind—are quintessential “[i]solated acts,” which generally do not “meet the threshold of severity or pervasiveness.”
The court further cited Second Circuit cases where the court held that there was no hostile work environment, as a matter of law, on similar facts, and rejected plaintiff’s reliance on case law which involved more egregious conduct than alleged by plaintiff here.