In Mimitz v. Safe Haven Security Services, LLC, 2025 WL 2650441 (Conn.Super. Sept. 9, 2025), the court granted defendant’s motion for summary judgment on plaintiff’s hostile work environment sexual harassment claim.
From the decision:
The defendant moves for summary judgment on the ground that there exists no genuine issue of material fact as to the plaintiff’s hostile work environment claim based on sexual harassment.1 The defendant argues that the instances proffered are insufficiently severe or pervasive to sustain such a claim as a matter of law. In opposition, the plaintiff contends there remains a genuine issue of material fact as to whether the incidents alleged were offensive and pervasive enough to support a claim for hostile working environment.
The Appellate Court has laid out factors that courts must analyze when considering claims of a hostile work environment. One factor asks courts to consider the frequency of the discriminatory conduct. Another factor looks to the severity of the conduct, whether it was physically threatening or humiliating, or a mere offensive utterance. “To establish a hostile work environment claim, a plaintiff must produce evidence sufficient to show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment …. [I]n order to be actionable … a sexually objectionable environment must be objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so…. Whether an environment is objectively hostile is determined by looking at the record as a whole and at all 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.” (Internal quotation marks omitted.) Feliciano v. Autozone, Inc., 316 Conn. 65, 85, 111 A.3d 453 (2015).
Frequency is, however, not the only consideration for hostile work environment claims, “[w]hether the challenged conduct is sufficiently severe or pervasive depends on the totality of the circumstances…. The [United States] Supreme Court in Harris [v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)] established a non-exclusive list of factors …. to consider in this regard: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff’s work; and (5) what psychological harm, if any, resulted…. Our case law treats the first two of these factors—the frequency and the severity of the misconduct—as the principal focus of the analysis; the last three factors are specific considerations within the severity inquiry. Core hostile work environment cases involve misconduct that is both frequent and severe …. [b]ut an employer’s motion for summary judgment must be denied if the claimed misconduct ranks sufficiently highly on either axis.” (Citations omitted; emphasis added; internal quotation marks omitted.) Aulicino v. New York City Dept. of Homeless Services, 580 F.3d 73, 82 (2d Cir. 2009).
Looking at the first factor, frequency of the discriminatory conduct, the courts have explained that “incidents of allegedly offensive conduct must … be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Holtz v. Rockefeller & Co., 258 F.3d 62, 75 (2d Cir. 2001). For example, the Appellate Court has previously held that two incidents of inappropriate conduct in a single year do not satisfy the severe or pervasive standard. Heyward v. Judicial Dept., 178 Conn. App. 757, 765, 176 A.3d 1234 (2017). Applying this first factor to the present case, the court determines that the plaintiff’s allegations of four incidents spread out over nine months cannot be considered pervasive because they were unrelated, noncontinuous, and episodic in nature.
The second factor calls for the court to analyze the severity of the conduct, whether it was physically threatening or humiliating, or a mere offensive utterance. For example, in Feliciano, the Supreme Court found that the plaintiff raised a genuine issue of material fact as to her sexual harassment claim due to the severity of the allegations. Feliciano v. Autozone, Inc., supra, 316 Conn. 80. Feliciano alleged numerous incidents of inappropriate touching and language by her manager. Id., 81. Specifically, her manager repeatedly bumped into her and rubbed his body up against her, going so far as to rub his crotch against her buttocks even after she asked him to stop. Id., 81-82. The plaintiff testified that he also talked about another female coworker named Pina. Id., 81. He directed comments at the plaintiff such as “Pina had a ‘big ass’ and the plaintiff had a ‘flat ass.’ ” Id. The plaintiff also testified that her manager would “[touch] his crotch on more than one occasion and would ‘play with’ Pina and ‘smack her on the ass.’ ” Id. When women came into the store, the manager would compare their appearance and say things like “I ain’t had a black, juicy piece like that,” and “I do black, white, Puerto Rican, anything.” Id., 81-82. When the plaintiff told other managers about these incidents, they did nothing to stop the harassment. Id., 82.
The facts of the present case are unlike those in Feliciano. Davis’s comments made during the visit to the homes of potential customers were mere offensive utterances. Moreover, Davis’s question about the plaintiff’s relationship status can be characterized as workplace banter. See Fernandez v. Mac Motors, Inc., supra, 205 Conn. App. 679 (“individuals reasonably should expect to be subject to [the] vicissitudes of employment, such as workplace gossip, rivalry, personality conflicts and the like…. That is simply an unavoidable part of being employed.”). When the plaintiff reported Davis’s comments to Branch, he brought the matter to the national sales director’s attention, who in turn set up a meeting with human resources and Davis. After Davis’s meeting with the national sales director and human resources, the plaintiff was not required to work with him.
Two of the harassment incidents alleged by the plaintiff were not directed specifically at her. See Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2nd Cir. 1997) (“[E]vidence of specific hostility directed toward the plaintiff—is an important factor in evaluating [a hostile environment sexual harassment] claim”). The first incident involved Davis using vulgar language with a candidate for a job. The plaintiff was not part of this conversation and would not have even known about it had she not questioned Branch. The second incident that did not directly involve the plaintiff was the phone call she overheard in which Davis referred to someone as a “bare minimum sales rep.” There is little evidence indicating that Davis was talking about the plaintiff. Moreover, the incident where the plaintiff was removed from a group work chat cannot be considered severe because it was neither physically threatening nor humiliating and was arguably work related. The plaintiff was removed from the group work chat after all her coworkers left the company. Though Davis occasionally used vulgar language, his conduct was not sufficiently severe to support a cause of action sounding in hostile work environment discrimination.
The court thus concluded that plaintiff failed to raise a genuine issue as to any material fact regarding the sole count of her complaint, such that defendant is entitled to judgment as a matter of law.