A recent decision issued by the United States District Court for the Southern District of New York held that allegations of episodic touching, together with a series of alleged comments made by a department manager which occurred on the sales floor, were insufficient for purposes of establishing a hostile work environment.

In Mendez-Nouel v. Gucci America, Inc., 10 Civ. 3388 (PAE), United States District Court Judge Paul A. Englemayer dismissed a former Gucci employee’s discrimination, harassment and retaliation claims asserted under Title VII and the New York State Human Rights Law (“NYSHRL”). In the case, Plaintiff Adolfo Mendez-Nouel, a former sales associate in Gucci’s flagship retail store on Fifth Avenue in Manhattan, alleged that he was discriminated against and harassed on the basis of his gender and/or sexual orientation. In support of these claims, Mendez-Nouel claimed that he was (1) inappropriately touched by the store manager on at least two occasions; and (2) subjected to inappropriate comments by his department manager. He also claimed that he was retaliated against for objecting to this behavior by placing him on administrative leave and ultimately terminating his employment.

With respect to Mendez-Nouel’s claim that he was inappropriately touched by the store manager, the Court noted that the “two brief shoulder rubs” alleged by Mendez-Nouel were not evocative of sexual desire, as Mendez-Nouel had alleged, in particular where they were not accompanied by any suggestive comments. The Court further noted that the store manager had apparently touched or hugged employees of both sexes, undermining the notion that the conduct was based on Mendez-Nouel’s gender or sexual orientation – a necessary element for Mendez-Nouel’s claims.

With respect to the alleged comments, Mendez-Nouel alleged that his department manager made a series of inappropriate comments of a sexual nature, including one that Mendez-Nouel was “gay inside” and “just [didn’t] know it,” as well as comments about the manager’s own sex life, his attraction to other men, and his sexuality in general. These comments, according to Mendez-Nouel, were made on the sales floor, and in front of both male and female and homosexual and heterosexual employees. While the Court noted that only one of the comments could be said to have been motivated by Mendez-Nouel’s gender or sexual orientation, it viewed all of the comments together and determined that they “lack[ed] the pervasiveness, ridicule, or intimidation necessary to create a hostile work environment ….” Even viewing the record as a whole, i.e. combining the allegations of the comments and the touching, the Court still found that the allegations were insufficient for purposes of establishing a hostile work environment, as they were “episodic, insufficiently serious, and, most important, insufficiently tied to [Mendez-Nouel’s] gender or sexual orientation.”

With respect to Mendez-Nouel’s retaliation claim, the Court determined that while he did engage in a protected activity in the form of an internal complaint to human resources (which occurred three days after Mendez-Nouel had been disciplined), he was unable to establish a causal connection between his internal complaint and the company’s decision to terminate him. Instead, the Court noted that Gucci decided to terminate Mendez-Nouel following an internal investigation brought on by another employee’s complaint, which revealed a pattern of erratic and unstable behavior by Mendez-Nouel, including multiple comments that “something big” was about to happen, and at least one reference to shooting himself and/or others. Under these circumstances, the Court held, Mendez-Nouel was unable to show any legitimate evidence that Gucci’s stated reason for his termination was pretextual.

While the Court dismissed Mendez-Nouel’s discrimination and harassment claims, it is important to note that just because the managers’ alleged comments did not rise to the level of unlawful harassment, does not mean they did not run afoul of the company’s internal policies. Indeed, most employers maintain anti-discrimination/harassment policies which set a much lower standard for conduct that would be deemed inappropriate than that which is defined as unlawful harassment under federal, state and local anti-discrimination laws. This is particularly important and relevant in the retail industry, where inappropriate comments made on the sales floor might be heard by customers or vendors, and interpreted in a way that could adversely affect the company’s brand. Managers, in particular, must be well-trained on their employer’s standards of conduct, in light of their potential status as agents of the company for which they work.

This case also reminds us that employers have a legitimate interest in protecting the safety and well-being of their employees and customers. While employers are often hesitant to discipline employees who have engaged in some protected activity – and understandably so – such activity should not prevent the employer from enforcing its lawful policies and procedures in a non-discriminatory way.