The opinion of the court was delivered by: Goettel, District Judge.
This employment discrimination case was commenced by the
plaintiff pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., alleging sex discrimination
and sexual harassment. The defendant has moved for summary
The plaintiff, Kimberley Joan Fair, is the former Associate
Director of Admissions for the defendant corporation Guiding
Eyes for the Blind, Inc. Guiding Eyes is a nonprofit
corporation with more than a dozen employees whose chief
purpose is to train and educate persons in the use of guide
The plaintiff's sexual harassment claim stems from many
conversations she had with Mr. Yablonski. The plaintiff
contends that Mr. Yablonski repeatedly spoke to her about his
alleged homosexuality*fn2 and tried to draw her into
conversation on the topic of sexual preference as early as her
first day of work. Because the nature of these conversations is
germane to the plaintiff's action and this motion, we will
delineate them here. The following are the alleged incidents
which the plaintiff contends constitute sexual harassment:
The plaintiff asserts that as a result of her reluctance to
speak with him on subjects she considered offensive, Mr.
Yablonski's attitude toward her changed. By mid-September,
the plaintiff had made clear her position that she was offended
by Mr. Yablonski's attempts at discussing sexual matters. From
that point forward, their working relationship deteriorated. On
October 22, 1987, while the plaintiff was still on probation,
Mr. Yablonski dismissed the plaintiff from her employment at
Guiding Eyes. In terminating the plaintiff's employment, Mr.
Yablonski told her that she "wasn't working out" and that he
"wanted to cut his losses." Mr. Yablonski contends that her
work was not satisfactory, and that others complained similarly
about her inadequate performance. The plaintiff, however,
alleges that she was terminated solely because of her status as
a woman and that she was not aware of Mr. Yablonski's
dissatisfaction with her work prior to her discharge. The
plaintiff was replaced by a man hired from within the
The plaintiff claims that Guiding Eyes wrongfully discharged
her because she would not discuss sexual matters with her
superior Mr. Yablonski. The plaintiff asserts that the
defendant has violated Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-2; 42 U.S.C. § 1983; and § 296 of the New
York Executive Law by discharging her because of her sex and
because of her refusal to submit to sexual harassment by the
II. SUMMARY JUDGMENT STANDARD
The defendant has moved for summary judgment. Fed.R.Civ.P.
56(c) provides that summary judgment is appropriate if "there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." The burden
is on the moving party to demonstrate the absence of a
material, factual dispute. Fed.R.Civ.P. 56(e); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d
142 (1970). If that burden is met, the non-moving party "must
set forth specific facts showing that there is a genuine need
for trial," Fed.R.Civ.P. 56(e), and there must be more than
merely "some metaphysical doubt as to [those] material facts."
Matsushita Ele. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). In
determining whether that burden is met, however, the court must
draw all reasonable inferences and resolve all ambiguities in
favor of the non-moving parties. United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176
(1962) (per curiam). We shall apply these principles as we
consider the defendant's motion for summary judgment.
III. SECTION 1983 CLAIM
As an initial matter, the plaintiff's section 1983 claim must
be dismissed. A cause of action under section 1983 lies only
where there has been a deprivation of rights or privileges
under color of state law. 42 U.S.C. § 1983. Although section
1983 has been the predicate for many types of employment
discrimination suits, including suits alleging sexual
harassment, section 1983 is not a basis for such claims where
the defendant has not acted under color of state law. No nexus
between the defendant's action and the state is alleged. Nor is
the Guiding Eyes a local government entity which could be
subject to municipal liability. Monell v. Department of Social
Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2035-36, 56
L.Ed.2d 611 (1978). Consequently, the plaintiff's claim based
on 42 U.S.C. § 1983 is dismissed.
IV. TITLE VII CLAIM
To defeat the defendant's motion for summary judgment on the
plaintiff's Title VII claims, the plaintiff must initially make
out a prima facie case of sexual harassment. The defendant may
discharge the burden of proof in rebuttal by showing a
legitimate, nondiscriminatory reason for the plaintiff's
dismissal. The burden then shifts back to the plaintiff who
must prove that the defendant's reasons for dismissal were just
a pretext for discrimination. See McDonnell Douglas Corp. v.
411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668
(1973); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 252-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). If
the plaintiff is unable to succeed in this endeavor, summary
judgment must be granted.
As to the claim of sexual harassment under Title VII of the
Civil Rights Act of 1964, there are multiple elements which
must be satisfied. 42 U.S.C. § 2000e-2(a). The plaintiff does
not allege "quid pro quo" sexual harassment, but, rather,
attempts to prove her sexual harassment claims on a "hostile
work environment" theory. See Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 65-66, 106 S.Ct. 2399, 2404-05, 91 L.Ed.2d
49 (1986). In order to establish a prima facie case of sexual
harassment resulting in the creation of a hostile work
environment, the plaintiff must demonstrate that: (1) she
belongs to a protected group, (2) she was the subject of
unwelcome sexual harassment, (3) the harassment was based on
her sex, (4) the sexual harassment affected a term, condition
or privilege of employment, and (5) the employer knew or should
have known of the harassment and failed to take remedial
action. See id. at 63-69, 106 S.Ct. at 2403-06 (1986); Jones v.
Flagship Int'l, 793 F.2d 714, 719-20 (5th Cir. 1986), cert.
denied, 479 U.S. 1065, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987);
Bennett v. New York City Dept. of Corrections, 705 F. Supp. 979,
984 (S.D.N.Y. 1989); Koster v. Chase Manhattan Bank,
687 F. Supp. 848, 862 (S.D.N.Y. 1988).
The first factor simply requires that the employee belong to
a protected group. The plaintiff is a woman, and, therefore, is
within the protected class for purposes of claims based on sex
Second, the employee must be the subject of unwelcome sexual
harassment. Although Mr. Yablonski's attempts to engage the
plaintiff in conversation may have been unwelcome or even
offensive to the plaintiff, we have difficulty seeing how the
alleged incidents rise to the level of sexual harassment. To be
actionable, the sexual harassment must be so severe or
pervasive as to alter the conditions of the victim's employment
and create an abusive working environment. Meritor Savings
Bank, 477 U.S. at 67, 106 S.Ct. at 2406. "Whether conduct
reaches that threshold of severity or pervasiveness is a
determination that must be based on the `totality of the
circumstances,' which, as pleaded, must promise more than minor
`isolated incidents' or `casual comments' that express
harassment or hostility." Watts v. New York City Police Dept.,
724 F. Supp. 99, 104 (S.D.N.Y. 1989) (quoting Snell v. Suffolk
County, 782 F.2d 1094, 1103 (2d Cir. 1986)); accord Lehtinen v.
Bill Communications, Inc., No. 88-8257 slip op. 1989 WL 129533
(S.D. N.Y. Oct. 24, 1989) (evaluating whether working
environment is poisoned by sexual harassment). Thus, to
establish unwelcome sexual harassment, the plaintiff must show
that the conduct complained of would have interfered with a
reasonable person's work performance and would have seriously
affected a reasonable person's emotional well-being.
The remarks allegedly made to the plaintiff by Mr. Yablonski
appear to have little direct relation to the plaintiff's job at
Guiding Eyes. Mr. Yablonski's offending comments included
derogatory remarks about a woman with whom the plaintiff was
unfamiliar, a challenge to the plaintiff's views on abortion
and homosexuality, and a statement regarding sexually
transmitted diseases. Sporadic comments like these are nothing
more than petty, inappropriate remarks made by someone
conducting himself in an improper and unprofessional manner.
The plaintiff may not rely on "trivial events and `sporadic
conversation'" to establish pervasiveness. See Christoforou v.
Ryder Truck Rental, Inc., 668 F. Supp. 294, 301 (S.D.N.Y. 1987).
Mr. Yablonski's comments, though uninvited and in poor taste,
seem relatively innocuous. We do not condone Mr. Yablonski's
purported conduct toward the plaintiff. Harassment, however,
does not always follow from the unprofessional conduct of a
supervisor. Although we harbor grave doubts about the
plaintiff's ability to persuade a jury that Mr. Yablonski's
amounted to sexual harassment, we recognize that issues of fact
and credibility pervade this conclusion. Consequently, for the
purposes of the plaintiff's prima facie showing, we will assume
that the plaintiff has demonstrated unwelcome harassment.
The third factor, however, is no less troublesome. This
factor requires that the alleged sexual harassment be based on
sex. A showing must be made that but for the fact of her sex,
the plaintiff would not have been the object of harassment.
Barnes v. Costle, 561 F.2d 983, 990 & n. 55 (D.C. Cir. 1977).
This criterion is critical to the determination of whether a
legitimate claim of sexual harassment has been stated.
The essence of a sexual harassment claim under Title VII is
that an employee is intentionally singled out for adverse
treatment on the basis of a prohibited criterion, which in this
case is sex. McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973); Rabidue v.
Osceola Refining Co., 805 F.2d 611, 619-20 (6th Cir. 1986),
cert. denied, 481 U.S. 1041, 107 S.Ct. 1983, 95 L.Ed.2d 823
(1987); Henson v. Dundee, 682 F.2d 897, 903-05 (11th Cir.
1982). If the acts complained of would be equally offensive to
both sexes, then the subject of the harassment cannot claim to
have been singled out because of her sex. When the comments
creating a sexual harassment claim are not linked in any way to
the recipient's gender, there has been no disparate treatment
under Title VII. Thus, to prove a sexual harassment claim based
on a hostile work environment, the plaintiff must show that she
was treated differently than similarly situated persons of the
other gender. The plaintiff has made no such showing.
It is difficult to understand how Mr. Yablonski's allegedly
calling a man on the golf course a "bitch" can be considered
sexual harassment towards either a woman or a man. It is just
as difficult to comprehend how senseless comments allegedly
made by Mr. Yablonski as to the inappropriateness of men
wearing pastel pants constitute harassment based on sex.*fn4
Further, Mr. Yablonski's statements concerning how he feels
about Anita Bryant do not reveal a link between his comments
and the plaintiff's status as a woman. Other comments were even
less related to one's sex. Mr. Yablonski allegedly asked the
plaintiff how she could support the Pope when he has taken
certain stands on abortion and homosexuality. Though these
comments are surely irrelevant to their work at Guiding Eyes
and may demonstrate a certain insensitivity, there is no
evidence to suggest that the statements would be more offensive
to one sex than to another.
On their face, Mr. Yablonski's comments had little or nothing
to do with the plaintiff's gender. Rather, they concerned his
opinions on various political, moral and social issues, many of
which were linked, though indirectly, to homosexuality. In
light of the general slant of his comments, the plaintiff's
claim that these comments were sexually harassing strains
incredulity. The plaintiff seems to confuse sexual comments
with comments based on the recipient's sex. Comments about
homosexuality from a man believed to be homosexual directed at
a woman contain no direct sexual threat. Comments of a
homosexual nature directed at a man, on the other hand, might
be considered to be based on sex. In the present scenario, we
can make no such conclusion. We find that the plaintiff has
failed to prove an element of a prima facie case, namely that
the alleged harassment was based on her sex. Consequently, the
plaintiff's sexual harassment claim must be dismissed.
Having failed to satisfy an element of the prima facie case
of sexual harassment, we need not consider the remaining
elements. However, even if we were to assume that the plaintiff
has made out a prima facie case of sexual harassment, the
defendant has satisfied its burden of articulating a
legitimate, nondiscriminatory reason for her discharge. The
defendant offers ample reasons for having discharged
the plaintiff during her six-month probationary period. Several
students with whom the plaintiff worked were dissatisfied with
plaintiff's job performance and the plaintiff did not get along
at times with at least two other employees. Also, Mr. Yablonski
criticized the plaintiff for making inappropriate changes to
medical forms and improper use of a corporate credit card.
Thus, the burden shifts back to the plaintiff to prove that the
defendant's stated reasons for termination are pretextual. The
plaintiff has offered no such proof. The simple fact that the
plaintiff's successor is male does not satisfy the burden of
proof. Consequently, even if the plaintiff had presented a
prima facie case, the defendant would nonetheless be entitled
to summary judgment. In short, the defendant's motion for
summary judgment must be granted on the plaintiff's sexual
V. NEW YORK EXECUTIVE LAW
Similarly, the plaintiff's claim under section 296 of the New
York Executive Law must be dismissed. The language of the New
York statute is almost identical to that contained in Title
VII. Kersul v. Skulls Angels Inc., 130 Misc.2d 345, 495
N.Y.S.2d 886, 888 (1985). New York courts require the same
standard of proof as that applied to cases brought under Title
VII. See Nicolo v. Citibank New York State, ___ Misc.2d ___,
554 N.Y.S.2d 795, 797 (Sup.Ct. 1990) (discussing Meritor, 477
U.S. at 67, 106 S.Ct. at 2405 and other federal case law). For
the reasons stated above, the plaintiff's claim under section
296 cannot withstand the burden of proof. Accordingly, the
defendant's motion for summary judgment is granted as well on
the plaintiff's Executive Law claim.
For all the foregoing reasons, the defendant's motion for
summary judgment is granted in its entirety. The Clerk will
enter judgment for the defendant.