In Ghiorse v. John H. Cook, Jr. Painting Contractor, Inc. et al, No. 3:25-CV-1578 (BKS/MJK), 2025 WL 3465995 (N.D.N.Y. Dec. 2, 2025), the court, inter alia, recommended the the district court allow plaintiff’s hostile work environment claim under Title VII o the Civil Rights Act of 1964 to proceed against the entity defendant – but directed plaintiff to amend her complaint to specify the status (supervisor or co-worker) of an alleged participant in the harassment.
From the decision:
The hostile work environment standard includes both objective and subjective components. McNamara v. Cnty. of Saratoga, 748 F. Supp. 3d 68, 89 (N.D.N.Y. 2024) (cleaned up). To state a Title VII hostile-work-environment claim, plaintiffs must plausibly allege “(1) that the alleged conduct was severe or pervasive enough to create an objectively hostile or abusive work environment and (2) that the plaintiff subjectively perceived that environment to be abusive.” Black v. Verizon Commc’ns, Inc., No. 20-CV-5309, 2025 WL 888477, at *8 (E.D.N.Y. Mar. 22, 2025) (cleaned up). When assessing the objective component, courts examine “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.” Id. “The incidents typically must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” McNamara, 748 F. Supp. 3d at 89 (cleaned up). That is not to say “a single incident may” not “qualify. But to do so, it must be ‘extraordinarily severe.’ ” Agosto v. New York City Dep’t of Educ., 982 F.3d 86, 102 (2d Cir. 2020) (cleaned up). Not to be forgotten, plaintiffs must also plausibly allege that the “complained of conduct” was created “because of the plaintiff’s sex.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007).
Ghiorse subjectively perceived her environment as abusive. Ghiorse alleges that Jerry, “instigated and encouraged” continuous “comments regarding women and gender,” specifically noting that “women don’t belong here.” (Complaint, Dkt.1, at pg. 1). When Ghiorse asked “them to stop” the comments “escalated.” (Id. at pgs. 1-2) (cleaned up). Fed up, Ghiorse told Jerry that June 14, 2023, would be her last day. (Id. at pg. 2). In response, Jerry “went on a screaming tirade about ‘it’s women like you’ and that [Ghiorse] should know better.” (Id.). Jerry then made “sexually verbally harassing” comments toward Ghiorse. (Id.). All told, Ghiorse, who “was subjected to a sexually tainted environment and comments” about her “gender,” believes that she has been “discriminated against based on her sex, female.” (Id.; Exh. A, Dkt. 1-1, at pg. 1); see also Bostock v. Clayton County, 590 U.S. 644, 656 (2020). Doubtless, the Complaint plausibly alleges the subjective element. See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir.1997) (concluding that “general allegations of constant abuse” creates a jury question as to severity and pervasiveness “even in the absence of specific details about each incident”).
Turning to the objective element, Ghiorse’s Complaint plausibly alleges that the alleged conduct was severe or pervasive enough to create an objectively hostile or abusive work environment. In the 14 days that Ghiorse worked at the painting company, Alex Stevens, one of Ghiorse’s former coworkers, “saw several instances of harassment directed at” Ghiorse. (Exh. B., Dkt. 1-2, at pg. 1). Stevens notes that the comments were “inappropriate and sexist.” (Id.) (cleaned up). Stevens also notes that Jerry “went along with the deriding of [Ghiorse] and others” and he told Stevens that “women shouldn’t be on the job site.” (Id.) (cleaned up). Similarly, Tevin McGill, another one of Ghiorse’s former co-workers, noted that “Jerry the manager and the other employees,” would make “vulgar and demeaning” comments and he “heard sexual discrimination rants against Charlotte.” (Exh. C, Dkt. 1, at pg. 1). Specifically, McGill notes that Jerry said “[Ghiorse’s] just jealous because no one wants to fuck her pussy.” (Id.). This environment caused Ghiorse to feel “terrorized,” “concerned for [her] physical safety, and” concerned for her “mental health.” (Complaint, Dkt. 1, at pg. 2). Considering § 1915’s forgiving review, Ghiorse’s Complaint plausibly pleaded the objective element. See Patane, 508 F.3d at 114–15 (2d Cir. 2007) (finding that all three elements were sufficiently pleaded when the plaintiff pled “facts sufficient to allow a jury to find much of Clark’s complained of conduct particularly offensive to women and intended to provoke Plaintiff’s reaction as a woman.”).
Ghiorse’s Complaint plausibly alleges a Title VII work-place-discrimination claim against the painting company. “When the harassment is attributable to a co-worker, the employer will be held liable only for its own negligence.” Black, 2025 WL 888477, at *9. “In such cases, the plaintiff must show either (1) that the employer failed to provide a reasonable avenue for complaint or (2) that the employer knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Id. (internal quotation omitted). The Complaint makes clear that everyone was aware of how Ghiorse was being treated. See, e.g., (Exh. C, Dkt. 1, at pg. 1) (noting that “Jerry the manager and the other employees,” would make “vulgar and demeaning” comments). Yet the Complaint does not allege that any action was taken. See generally (Complaint, Dkt. 1). Thus, this Court finds that Ghiorse plausibly alleges a hostile-work-environment claim against the painting company. And because of that finding, this Court recommends the District Court allow Ghiorse’s Title VII hostile-work-environment claim against the painting company to proceed.
But the contours of the claim need clarification for liability purposes. Ghiorse needs to identify whether Jerry is a supervisor or an employee, as a matter of law. “To establish employer liability for hostile actions taken by an employee, a plaintiff must establish that the hostile work environment can be imputed to the employer.” E.E.O.C. v. Suffolk Laundry Servs., Inc., 48 F. Supp. 3d 497, 511 (E.D.N.Y. 2014) (cleaned up). “Where the harasser is a supervisor, an individual empowered to take tangible employment actions against the victim, and the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable.” Id. (cleaned up). On the other hand, employers are liable under a negligence theory “only if [the employer] was negligent in controlling working conditions.” Vance v. Ball State University, 570 U.S. 421, 424 (2013).
It is unclear if Jerry is a supervisor. “An employee is a supervisor only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Bentley v. AutoZoners, LLC, 935 F.3d 76, 91 (2d Cir. 2019) (quoting Vance, 570 U.S. at 431 (2013)). Here, the Complaint does not identify what power Jerry had to take tangible employment actions against Ghiorse. See generally (Complaint, Dkt. 1). In fact, Ghiorse’s own exhibits note that “her pay couldn’t be decrease[d] because she was in the union and … there is a set pay in [her] contract.” (Exh. D, Dkt. 1-4, at pg. 1) (emphasis added). Because the Complaint is unclear as to Jerry’s powers, the Court views Jerry as a non-supervisor employee. And because the Court views Jerry as such, it construes the Complaint as only alleging a negligence theory of liability. If Ghiorse it trying to allege a strict liability theory, she must amend her Complaint to identify how Jerry is a supervisor. As the Complaint is now, it is unclear if Jerry is a supervisor as a matter of law.
(Cleaned up.)
However, the court held that to the extent plaintiff is alleging a Title VII claim against the individual defendants, it recommended dismissing those claims without leave to amend, since Title VII does not permit individual liability.