The Second Circuit Court of Appeals recently rejected a Plaintiff’s claim of alleged hostile work environment harassment based on sporadic incidents of inappropriate behavior as well as the Plaintiff’s claim of retaliation under Title VII.
In Lewis v. City of Norwalk, the Plaintiff alleged that his supervisor “leered” at him and licked his lips in a provocative manner on several occasions over the course of two years. No. 13-2485 (2d Cir., Apr. 14, 2014). The Plaintiff further alleged that he felt uncomfortable when the supervisor asked him out for drinks, invited him to join his gym so the two could work out together, and complimented his taste in clothing. After the Plaintiff was presented with a poor performance review and offered the opportunity to resign, the Plaintiff complained about the supervisor’s alleged harassment. The employer hired an outside law firm to investigate the allegations. The investigator determined the allegations were uncorroborated, and the employer proceeded to terminate the Plaintiff’s employment.
With respect to the Plaintiff’s claim for hostile work environment harassment, the court concluded that the alleged incidents of leering and lip-licking occurred too infrequently to create a hostile work environment based on the Plaintiff’s sex. The court found that the other allegations (e.g., asking the Plaintiff out for drinks, inviting him to join a gym) were “facially sex-neutral incidents” that did not contribute to a hostile work environment.
With respect to the retaliation claim, the court held that there was no evidence of causation between the Plaintiff’s last-minute report of harassment and his termination. The court explained that “[e]mployers need not suspend previously planned [employment actions] upon discovering that a Title VII suit has been filed, and their proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.”
Takeaway: The Lewis case shows that courts continue to apply a high standard for hostile work environment claims and that allegations that are not sufficiently “severe and pervasive” will not suffice. The Lewis case also shows that an employee may not insulate him or herself from termination by alleging harassment or discrimination when it is clear that the employee’s termination is imminent.