an employee on the basis of a failed voluntary sexual
relationship does not of itself constitute discrimination because
of sex." Id. at 707 (citations omitted).
Furthermore, to make out a prima facie case of quid pro quo
sexual harassment, a plaintiff must allege that (i) she was
subject to unwelcome sexual conduct or an unwelcome sexual
advance, and (ii) her reaction to that conduct was used as the
basis for an employment decision. See Barcher v. New York Univ.
Sch. of Law, 993 F. Supp. 177, 184 (S.D.N.Y. 1998), aff'd,
172 F.3d 37 (2d Cir. 1999); Gutierrez v. Henoch, 998 F. Supp. 329,
334 (S.D.N.Y. 1998). "The gravamen of any sexual harassment claim
is that the alleged sexual advances were `unwelcome.'" Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S.Ct. 2399, 91
L.Ed.2d 49 (1986).
Kahn has not asserted that her continued sexual relationship
with Wolfe was an unwelcome condition of her employment, or that
she was discharged because of her refusal to submit to sexual
requests. Instead, she asserts that she was discharged in the
wake of Wolfe's decision to terminate their relationship. This
does not constitute quid pro quo harassment.*fn3 See, e.g.,
Huebschen, 716 F.2d at 1171-72; Holtz v. Marcus Theatres
Corp., 31 F. Supp.2d 1139, 1148 (E.D.Wis. 1999); Campbell, 955
F. Supp. at 530; Mauro, 697 N.Y.S.2d at 708.
Kahn has sought to distinguish these authorities by alleging
that Wolfe did not want Kahn in his employ unless he could have a
sexual relationship with her. By this allegation Kahn seeks to
establish that a sexual relationship was a condition of her
employment, but a difficulty arises from the fact that the
relationship was consensual and not unwelcome. Here, Wolfe
terminated Kahn's employment immediately after their last
encounter, and sought no further sexual contact.
The law against sexual harassment protects an employee from
being harassed or coerced by unwelcome sexual advances. Kahn
seeks to alter this purpose to grant to a participant in a
completely voluntary relationship with her superior a claim when
her employment is terminated at the end of the affair. There is
no authority or logic for such an extension. Rejection and
discrimination are not synonymous.
Moreover, while Kahn has also articulated a hostile work
environment claim, to make such a claim a plaintiff must allege
that her "workplace is permeated with discriminatory
intimidation, ridicule, and insult, . . . that is sufficiently
severe or pervasive to alter the conditions of the victim's
employment and create an abusive working environment." Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d
295 (1993) (internal references omitted). "The incidents must be
more than episodic; they must be sufficiently continuous and
concerted in order to be deemed pervasive." Perry v. Ethan
Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (quoting id.);
see Meritor Sav. Bank, 477 U.S. at 67, 106 S.Ct. 2399 ("For
sexual harassment to be actionable, it must be sufficiently
severe or pervasive to alter the conditions of [the victim's]
employment and create an abusive working environment"). Conduct
that is "merely offensive, unprofessional or childish is not
discriminatory conduct proscribed by Title VII." Cosgrove v.
Federal Home Loan Bank of N.Y., No. 90 Civ. 6455(RPP), 1999 WL
163218, at *20 (S.D.N.Y. Mar.23, 1999).
Kahn has failed to set forth any harassing conduct or any
intimidation, ridicule, or
insult arising from her relationship with Wolfe, and her
termination — no matter how unpleasant — does not create a
hostile work environment. See e.g., Succar v. Dade County Sch.
Board, 60 F. Supp.2d 1309 (S.D.Fla. 1999) (dismissing hostile
work environment claim where plaintiff had a sexual relationship
with colleague, noting that any "harassment arises not out of the
fact that Plaintiff is male, but rather, out of the termination
of the intimate physical and emotional relationship . . . [the
colleague] shared with him").
The allegation that Wolfe instructed Kahn "to call his wife at
her therapist's office and `beg' for her job back," is not the
kind of severe or pervasive conduct required for a hostile work
environment claim. It is, at most, a degrading and humiliating
episode which occurred after the sex and the termination.
Participation in a consensual office affair does not constitute
actionable gender discrimination when the termination of the
affair results in discharge. It may constitute unfair and
certainly unchivalrous behavior, but not discrimination because
On the basis of these authorities, and in the absence of any
coherent allegation that Kahn's termination was the result of her
rejection of sexual advances or that any advances she was
subjected to were unwelcome, Kahn's gender discrimination claims
will be dismissed. Since her state and municipal claims are
governed by essentially the same standards as her Title VII
claim, see Tomka v. Seiler Corp., 66 F.3d 1295, 1305 n. 4 (2d
Cir. 1995); Dimino v. New York City Transit Auth., 64 F. Supp.2d 136,
145 n. 3 (E.D.N.Y. 1999); Ortega v. New York City Off-Track
Betting Corp., No. 97 Civ. 7582(KMW), 1999 WL 342353, at *3
(S.D.N.Y. May 27, 1999); Alie v. NYNEX Corp., 158 F.R.D. 239,
244 (E.D.N.Y. 1994), her second, third, and fourth causes of
action shall be dismissed along with her Title VII claim.
The Amended Complaint is dismissed with prejudice and without
costs and disbursements. Submit judgment on notice.
It is so ordered.