No sexual harassment case involving lewd talk and lollipop licks

This hostile work environment case fails because the plaintiff cannot show his working conditions were severe or pervasive under Title VII to make out a true sexual harassment claim. While this is a male-on-male harassment case, that is permissible under Title VII if the plaintiff can show the workplace abuse was based on sex and was so offensive that it altered the conditions of the workplace. Plaintiff cannot prove that, and the case is dismissed.

The case is Agosto v. New York City Dept. of Educ., issued on December 4. Plaintiff was a public school teacher. He claims the school principal, Urena, would stare, sneer, cat-call and clap at plaintiff, sang lyrics from the musical Annie while staring at him and said "Hi, Mr. Agosto" in a feminine voice. This is not enough to create a hostile work environment under Title VII. This behavior would qualify as the kind of workplace annoyance that courts have in mind when they remind us that Title VII is not a "general civility code," as the Supreme Court put it more than 20 years ago.

Plaintiff cites a few other incidents to bolster his claim. For various reasons, these incidents are not enough to force defendants to trial. First, plaintiff says, Urena stood closely behind him while plaintiff was bending over. Urena did not touch plaintiff, who says this was a "simulated act of anal penetration." While the Court of Appeals (Menashi, Lohier and Cabranes) says this is a serious charge, it is contradicted by plaintiff's summary judgment affidavit, which said the sexual harassment began in January 2017; the "anal penetration" incident purportedly happened in March 2016. If your summary judgment affidavit contradicts your claim, then the affidavit will be disregarded. The Court of Appeals has been saying this for years, and it says it again. Nor was this incident cited in the complaint, and the summary judgment record does not contain deposition testimony that references this episode under oath.

The second incident that the Court of Appeals disregards was the lollipop incident. Plaintiff says the principal licked a lollipop in a manner that simulated oral sex, and that he had directed this gesture toward plaintiff. While the Court agrees this incident was "offensive and inappropriate," it does not by itself support a hostile work environment claim. The Court does recognize that a single episode can create a hostile work environment, but those cases usually involve serious episodes, like rape or physical assault. One case found a hostile work environment when the plaintiff was "covered . . . .with shaving cream" while being subjected to "racially offensive comments." Cases in this area include Ferris v. Delta Air Lines, Inc., 277 F.3d 128 (2d Cir. 2001), and Patterson v. City of Oneida, 375 F.3d 206 (2d Cir. 2004). But in Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998), there was not hostile work environment where the plaintiff's coworker made a crude comment about her physical appearance  and "deliberately touched her breasts with some papers he was holding in his hand." Plaintiff's case is closer to Quinn than to Ferris or Patterson. The principal did not touch plaintiff, and the lollipop incident did not interfere with plaintiff's ability to maintain discipline over his students or modify the terms of his employment.