claims and the fact that we must construe all facts in the light
most favorable to the plaintiff, we will assume that plaintiff
made those complaints.
Plaintiff has satisfied a prima facie case of retaliation.
First, a "protected activity" under Title VII does not have to
"rise to the level of a formal complaint." Cruz, 202 F.3d at
566. It includes activities of "making complaints to management,"
id. (quoting Sumner v. United States Postal Serv.,
899 F.2d 203, 209 (2d Cir. 1990)), and may be in the form of a simple
"objection voiced to the employer." Barcher v. New York Univ.
Sch. of Law, 993 F. Supp. 177, 184 (S.D.N.Y. 1998) (quoting
Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410
(S.D.N.Y. 1996)). Therefore, plaintiff's verbal and written
complaints to Ehler and Lanchais about her working environment
are protected activities under Title VII. Furthermore, a
plaintiff only needs to show "a good faith, reasonable belief
that the underlying challenged actions of the employer violated
the law." Manoharan, 842 F.2d at 593. In this case, there is no
doubt that plaintiff possessed a good faith belief that she was
the victim of gender discrimination.
Second, the employer was clearly aware of her complaints.
Third, termination obviously constitutes an adverse employment
action. Thus, the parties' controversy is centered around whether
a causal connection between any of the complaints and plaintiff's
termination can be established. Notwithstanding plaintiff's
failure to offer any evidence in support thereof, the Court finds
that plaintiff has at least established a triable issue of fact
as to the existence of a causal connection.
A causal connection may be established either "indirectly by
showing that the protected activity was followed closely by
discriminatory treatment, or through other evidence such as
disparate treatment of fellow employees who engaged in similar
conduct, or directly through evidence of retaliatory animus
directed against a plaintiff by the defendant." See Johnson v.
Palma, 931 F.2d 203, 207 (2d Cir. 1991) (citations omitted)
(emphasis in original). Plaintiff's papers are devoid of any
allegations that would establish a temporal proximity between any
single complaint and the adverse termination. However, she
alleges that she made fifteen to twenty complaints over the
course of a year, which is approximately one and one-half
complaints per month. A causal connection has been indirectly
established. Therefore, plaintiff has established her prima facie
As stated above, the inability to get along with coworkers
constitutes a legitimate nondiscriminatory reason for terminating
plaintiff. See supra, Part II.A.2. However, plaintiff has also
satisfied her burden of establishing a factual issue as to
whether the articulated reason was pretextual. Plaintiff need
only show that a retaliatory motive was a factor in the adverse
employment action. See Padilla v. Metro-North Commuter R.R.,
92 F.3d 117, 122 (2d Cir. 1996); Dominic v. Consolidated Edison
Co., 822 F.2d 1249, 1254 (2d Cir. 1987). In this case,
defendant's inconsistencies regarding plaintiff's complaints may
be an attempt to hide the fact that a retaliatory motive did in
fact play a part in the decision to fire plaintiff. Thus, the
retaliation claim is probably stronger than the gender
discrimination claim because of defendant's denials.
Accordingly, defendant's motion for summary judgment with
respect to plaintiff's retaliation claim is denied.
C. Hostile Work Environment
Title VII requires employers to provide an atmosphere free of
abuse or hostility. Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). In order to
establish a hostile work environment, a plaintiff must show
conduct that the workplace was so ridden with "discriminatory
intimidation, ridicule and insult that is sufficiently severe or
pervasive to alter the condition of the victim's employment and
create an abusive work environment." Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295
(1993) (citations omitted). The victim must not only perceive the
environment as subjectively hostile, see id. at 21-22, 114
S.Ct. at 370, but the environment must be such that a reasonable
employee in the person's shoes would perceive it as hostile. See
Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997).
As an initial matter, plaintiff has not proven that she
subjectively perceived the environment as hostile. In Shepard v.
Frontier Communications Serv., 92 F. Supp.2d 279 (S.D.N.Y. 2000)
(Conner, J.), this Court found that a plaintiff did not view her
environment as hostile when she testified that she believed the
comments were "sexist" rather than sexual in nature. Id. at
289-90. In this case, plaintiff's entire claim is based upon the
fact that she was discriminated against because of her gender.
She has not alleged that she perceived the comments were sexual
in nature, but rather that they were made because she was a
Moreover, none of the comments allegedly made by plaintiff's
coworkers, viewed individually or collectively, would establish a
work environment that is so severe and pervasive that it could be
considered hostile under Title VII. The Supreme Court has
provided a non-exclusive list of factors that should be weighed
when determining whether a workplace is permeated with
harassment. See Harris, 510 U.S. at 23, 114 S.Ct. at 371. These
factors include: (1) the frequency and severity of the conduct;
(2) whether the conduct was physically threatening, humiliating
or merely an offensive utterance; (3) whether it unreasonably
interferes with the employee's job performance; and (4) the
effect on the employee's psychological well-being. See id. at
23, 114 S.Ct. at 371. In other words, "[w]hether the sexual
harassment constitutes a Title VII violation is determined from
the totality of the circumstances." Carrerro v. New York City
Hous. Auth., 890 F.2d 569, 577-78 (2d Cir. 1989).
The application of these factors leads us to conclude that
Title VII liability cannot be imposed in this case. First, there
is no allegation that physical force was being threatened.
Although plaintiff complained about Marbumrung hitting her on the
shoulder, there was no allegation that the incident was sexual in
nature or motivated by anger or contempt. She has never disputed
the allegation that he was simply joking around with her.
Plaintiff did not even include the allegation in her EEOC
complaint, in which all of plaintiff's other allegations were
made. This also implies that she did not believe that
Marbumrung's act was abusive in nature. Second, plaintiff's work
did not suffer. Indeed, her ability to balance her food and labor
budgets actually improved over time. (Lanchais Aff. ¶ 13.)
Liability can be imposed only if the comments were severe
enough to establish a hostile work environment. In this case,
they were not. At most, they were occasional offensive utterances
which do not subject the employer to liability. See Harris, 510
U.S. at 22, 114 S.Ct. at 371. In order to establish a claim of
hostile work environment, "[t]he incidents must be more than
episodic; they must be sufficiently continuous and concerted in
order to be deemed pervasive." Carrero,
890 F.2d at 577; Lopez v. S.B. Thomas, Inc., 831 F.2d 1184,
1189 (2d Cir. 1987). There must be more than a minor "isolated
incident" or "casual comment" that expresses harassment or
hostility. See Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d
Plaintiff can only recall that the statements were made
sometime in 1998. Therefore, the six statements allegedly made by
Lanchais and Goodwin were made over a period of six months. (Pl.
Dep. at 414, 434, 438.) The Court recognizes that "even in the
absence of specific details about each incident," a finding of
liability may still result "if a jury were to credit
[plaintiff's] general allegations of constant abuse, which were
confirmed by her coworkers." Torres, 116 F.3d at 625. However,
none of plaintiff's allegation are confirmed by her coworkers.
She testified that Brian O'Byrne overheard Lanchais' comment,
that "[if] you wanted to do a man's job, you better make sure you
have what it takes in your pants to do it," but fails to submit
an affidavit or deposition testimony by him confirming the
remark. (Pl. Dep. at 415.)
We also recognize that a court should not merely inquire into
"how long the sexual innuendos, slurs, verbal assaults, or
obnoxious course of conduct lasts." Carrero, 890 F.2d at 578.
The offensiveness of the behavior is a factor that must be
considered. See id. Therefore, "even a single episode of
harassment, if severe enough, can establish a hostile work
environment." Torres, 116 F.3d at 631 n. 4; see Richardson v.
New York State Dep't of Corr. Servs., 180 F.3d 426, 439 (2d Cir.
1999). The plaintiff is required to prove only that the conduct
is unwelcome, prompted by gender and severe enough to create an
offensive environment. See Carrero, 890 F.2d at 578.
In order to demonstrate that the statements were not severe or
pervasive, several of the statements should be analyzed in the
context in which they were made. For example, in 1998, Lanchais
wanted to make sure that all employees had new uniforms.
Plaintiff testified that she had to open the buttons on the male
chef jacket she had been wearing because it was straighter than
the female version and she had been gaining weight. While
browsing through a catalogue, Lanchais pointed to the women's
section of the catalogue and said to plaintiff: "Why don't we get
this type? It's more like for a woman. It's got the shape of a
woman." (Pl. Dep. at 424-25.) Because chefs' jackets are supposed
to be buttoned (Lanchais. Dep. at 180-81), it is reasonable for a
supervisor to suggest a more professional attire to his
subordinate employees. See also Jalal v. Columbia Univ.,
4 F. Supp.2d 224, 236 (S.D.N.Y. 1998) (holding that the mere
acknowledgment of a person's gender does not constitute
discrimination). Accordingly, a reasonable person would not find
this comment abusive.
Similarly, the statements that plaintiff was "emotional," could
not "manage the kitchen," and should "go home," are not so severe
and pervasive to impose Title VII liability. (Pl. Stmt. Undisp.
Mat. Facts ¶ 81; Pl. Dep. at 430.) Plaintiff testified that she
was involved in a "heated argument" with Lanchais in which both
parties were raising their voices for approximately five minutes.
(Pl. Dep. at 430-31.) Lanchais' comments were made when
plaintiff, "upset" by the conversation, prepared to leave his
office. (Id.) Again, it is reasonable for a supervisor to
suggest that an employee leave the office if she was upset and
could not fulfill her job responsibilities for the remainder of
None of the cases cited by plaintiff contradict this Court's
they actually support it. In Torres, the plaintiff complained
that the defendant "habitually": 1) described her as a part of
the female anatomy; 2) commented about the size of the
plaintiff's breasts and buttocks; 3) made sexual innuendos about
the plaintiff and remarked to others his desire to have sexual
intercourse with her; and 4) remarked to coworkers that when she
was absent she was probably performing sexual favors. 116 F.3d at
628. Furthermore, in Cruz, the plaintiff demonstrated that she
and other women co-workers*fn9 were regularly subjected to
harassment, including, inter alia, statements that "her nipples
[were] erect," 202 F.3d at 564, and that a supervisor would look
the women "up and down" and move toward them in such a way that
they would "end up against the wall." Id. at 571. In contrast,
the comments, the most offensive of which was "[if] you wanted to
do a man's job, you better make sure you have what it takes in
your pants to do it," while inappropriate in the workplace, do
not establish a hostile work environment. See also Irvine, 2000
WL 502863, at *1, 4 (holding that four insulting e-mails which
described plaintiff as a "wrinkled-up, hairy upper-lipped
neighbor and co-worker," "grave-lady," "wrinkled but aged babe,"
and that she "looks like Mickey Mantle just before the time he
received his liver transplant," were not severe enough to
establish liability under the Age Discrimination in Employment
Contrary to plaintiff's assertion, not all claims of hostile
work environment survive summary judgment. "Title VII is . . .
not intended to act as a general civility code," Shepard, 92
F. Supp.2d at 289, and "should not be exploited through misuse and
misapplication." Dean v. Westchester County District Attorney's
Office, 119 F. Supp.2d 424, 430 (S.D.N.Y. 2000) (Conner, J.).
Accordingly, defendant's motion for summary judgment with respect
to plaintiff's hostile work environment claim is granted.
1. Employer Liability
Plaintiff argues that defendant breached its affirmative duty
to timely investigate complaints of harassment and discrimination
and therefore is liable as a matter of law. We agree that every
employer has an affirmative duty to eliminate harassment in the
workplace. However, we do not agree that the failure to
investigate imposes liability as a matter of law.
When a supervisor creates a hostile work environment, an
employer may be held vicariously liable. See Faragher v. Boca
Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 2292-93, 141 L.Ed.2d
662 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998). In Snell,
the Court of Appeals held that "once an employer has knowledge of
a . . . combative atmosphere, he has a duty to take reasonable
steps to eliminate it." 782 F.2d at 1104. The failure to do so
"may allow a jury to impose liability on the employer." Malik
v. Carrier Corp., 202 F.3d 97, 105 (2d Cir. 2000) (emphasis
added); see Agosto v. Correctional Officers Benevolent Ass'n,
107 F. Supp.2d 294, 307 (S.D.N.Y. 2000). Contrary to plaintiff's
assertion, the Second Circuit has never stated that liability
must be imposed when the employer fails to investigate a sexual
harassment claim. See Thomlison v. Sharp Elecs. Corp., No. 99
Civ. 9539, 2000 WL 1909774, at *4 n. 2 (S.D.N.Y. Dec.18, 2000).
In any event, the issue of defendant's vicarious liability has no
bearing on this case because plaintiff
has proffered no evidence that would establish a hostile work
For the reasons stated above, defendant's motion for summary
judgment is granted with respect to the hostile work environment
claim and denied with respect to the gender discrimination and