Two recent federal decisions this past summer illustrate the significant hurdles that an employee will have to surmount in order to sustain a claim of hostile work environment beyond an employer's summary judgment challenge. In each case, the court concluded as a matter of law that the employee's charge of a hostile work environment was not predicated upon a factual showing sufficient to demonstrate a severe and pervasive environment that altered the conditions of the plaintiff's work. Employers should take heed that defending a claim of a hostile work environment can often turn on the ability to demonstrate that the allegedly offensive conduct about which an employee complains was too sporadic or incidental to non-offensive behavior, such that the work environment is not permeated by hostility.
In Byrne v. Telesector Resources Group, Inc ., No. 08-0101-cv, 2009 U.S. App. LEXIS 15493 (2d Cir. July 14, 2009), the plaintiff alleged that she was subjected to gender discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as well as discrimination under the Equal Pay Act and the New York Human Rights law. Specifically, the plaintiff alleged that she received pay unequal to that of two comparable male employees; that she was discriminatorily passed over for promotion, that her manager retaliated against her by withdrawing a job posting after she applied for it and by transferring her position from Buffalo, New York to Syracuse, New York; and that she was subjected to sexual harassment rising to the level of a hostile work environment.
With respect to her claim of a hostile work environment, the plaintiff submitted evidence that a male co-worker told her that a colleague gave out his work fax number as "25penis," that her supervisor invited a former manager who had been accused of sex discrimination to the holiday party, and that on multiple occasions she heard male co-workers making inappropriate sexual references in conversation. The Second Circuit affirmed the trial court's dismissal of the hostile work environment claim and held that such allegations did not rise to the level for establishing workplace sexual harassment, which requires an environment "permeated with discriminatory intimidation that [is] sufficiently severe or pervasive to alter the conditions of [the] work environment." Petrosino v. Bell Atl. , 385 F.3d 210, 221 (2d Cir. 2004). The Second Circuit reaffirmed that "offhand comments or isolated incidents of offensive conduct (unless extremely serious) will not support a claim of discriminatory harassment." Id. at 223. The court reviewed the plaintiff's evidence and concluded it was not "sufficiently severe" to constitute an actionable hostile work environment claim.
The recent trial court decision in Gallimore v. City University of New York Bronx Community College , No. 04 Civ. 8236 (RJS), 2009 U.S. Dist. LEXIS 56449 (S.D.N.Y. July 2, 2009), is of a like accord. In Gallimore , the trial court granted summary judgment dismissing the plaintiff's hostile environment claims, despite the plaintiff's allegations that her supervisor would peek out of the office at her, would roll her eyes and "suck her teeth" at the plaintiff, and would brush close to the plaintiff in an intimidating manner. The plaintiff also alleged that she was the recipient of numerous hang-up phone calls and that her car was vandalized.
The trial court found the plaintiff's hostile work environment evidence insufficient as a matter of law, to survive summary judgment, noting the Second Circuit's admonition regarding the severity and frequency of offensive conduct that must be present in order to sustain a hostile work environment claim. The trial court concluded that the harassing comments and conduct the plaintiff alleged were episodic and not sufficiently continuous and concerted, and therefore failed to rise to the level of severe or pervasive conduct necessary to sustain her claim.
As these recent decisions reflect, employers faced with claims of hostile workplace environment should vigorously defend such claims, particularly where the employee cannot demonstrate that the allegedly offensive and inappropriate behavior is either pervasive or severe enough to satisfy the high evidentiary bar necessary to survive summary judgment. Absent a detailed factual record that the allegedly offensive behavior permeated the workplace and altered the conditions of the employee's work environment, employers can take comfort that claims of hostile work environment are unlikely to survive summary judgment.
David J. Meiselman and Jeffrey I. Carton are Senior Litigation Partners in the White Plains firm of Meiselman, Denlea, Packman, Carton & Eberz P.C. Jill C. Owens contributed to the article.The firm represents plaintiffs and defendants in state and federal courts throughout the country. Messrs. Meiselman and Carton have been selected by their peers for inclusion in "Best Lawyers" and "Super Lawyers" and were noted in 2009 to be amongst the top 25 New York Metro area attorneys in the Westchester area of Business Law.