In Brown v. Fat Dough Incorp. doing business as Dominos Pizza, 2025 WL 2663170 (N.D.N.Y. Sept. 17, 2025), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s claim of sexual harassment asserted under Title VII of the Civil Rights Act of 1964.
This decision illustrates that even “inappropriate behavior” may fall below the threshold for an actionable claim.
From the decision:
Sexual harassment under Title VII can be alleged either under a “quid pro quo” theory or a “hostile work environment” theory. To allege Title VII harassment under a hostile work environment theory, “a plaintiff must plead facts that would tend to show that the complained conduct: (1) is objectively severe or pervasive—that is, … creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s sex.” Barton v. Warren Cty., No. 119-cv-1061 (GTS), 2020 WL 4569465 at *8 (N.D.N.Y. Aug. 7, 2020) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). “To satisfy this standard, a plaintiff must ‘produce enough evidence to show that the workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or pervasive to alter the conditions of the victim’s employment.’ ” Andersen v. Rochester City Sch. Dist., 481 F. App’x 628, 630 (2d Cir. 2012) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010)).
To determine whether conduct is “severe or pervasive,” courts review “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.’ ” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 79 (2d Cir. 2010) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). The “severe or pervasive” standard is difficult to meet. See Davis v. Verizon Wireless, 389 F. Supp. 2d 458, 475-77 (W.D.N.Y. 2005) (granting summary judgment for the employer because the evidence was insufficient to establish a hostile work environment where the employee was sexually propositioned twice and, after rejecting the advances, shunned by her co-workers); Dall v. St. Catherine of Siena Med. Ctr., 966 F. Supp. 2d 167, 190 (E.D.N.Y. 2013) (no hostile work environment when employees “spoke frequently about their sex lives and showed explicit photographs in the workplace, creating an uncomfortable and inappropriate work environment”); Alfano v. Costello, 294 F.3d 365, 380-81 (2d Cir. 2002) (same where allegations included four sexually inappropriate comments/conduct combined with eight examples of sex-based disparate treatment over a five-year span); id. at 379 (collecting cases from other circuits where the evidence was insufficient to establish a hostile work environment). Furthermore, if the conduct occurs over a brief period of time, it is unlikely to be considered “severe or pervasive.” See Ford v. N.Y.C. Dep’t of Health & Mental Hygiene, 545 F. Supp. 2d 377, 393 (S.D.N.Y. 2008) (“while [the plaintiff] was subjected to unkind comments on a daily basis, the comments continued for only four months,” and concluding that for this and other reasons, “no reasonable jury could find that the alleged misconduct was so severe or pervasive as to be objectively hostile or abusive”).
Here, viewing the evidence in the light most favorable to Plaintiff, during his approximately 20-day employment, a supervisor told him that soldiers may request oral sex from him, an employee threw dirty water and mushrooms at him once, an employee drew a “smiley face” on his windshield with pizza grease, and employees allegedly discussed slashing his tires. Although this is inappropriate behavior, it is not sufficient for Plaintiff to establish the severe and pervasive environment required for hostile work environment claim. Furthermore, Plaintiff cannot establish that any of these actions were connected to Plaintiff’s sexual identity or expression.
Based on this, the court held that summary judgment dismissal was warranted.