OPINION OF THE COURT
Plaintiff Martha Ellen Brennan claims that, on the basis of her sexual orientation, her former employer, the Metropolitan Opera Association (the Met), her former supervisor at the Met, David Kneuss, and the Met’s general manager, Joseph Volpe, refused to renew her contract and subjected her to a hostile work environment, in violation of New York City law. She appeals from an order granting summary judgment to defendants, and we affirm.
Plaintiff’s claims are among several causes of action she brought against these defendants in a suit commenced in April 1995 in the United States District Court for the Southern District of New York. Plaintiff alleged that defendants refused to renew her employment contract and subjected her to a hostile work environment because of her age, her sex and her heterosexual orientation, thereby discriminating against her under federal law (42 USC § 2000e-2 [a] [1] [prohibiting discrimination “because of * * * sex”]; 29 USC § 623 [a] [1] [prohibiting discrimination “because of * * * age”]) and state law (Executive Law § 296 [1] [a] [prohibiting discrimination “because of * * * sex”]), as well as New York City municipal law (Administrative Code of City of NY § 8-107 [1] [a] [prohibiting discrimination because of “actual or perceived * * * sexual orientation”]). In a decision affirmed by the United States Court of Appeals for the Second Circuit, the District Court dismissed
The IAS court held, as a matter of first impression, that plaintiff is protected, as a heterosexual female, under the New York City law against employment discrimination based on sexual orientation. As the court explained, “The fact that discrimination against heterosexuals is not as pervasive as that found against homosexuals does not change the clear wording of the municipal law nor does it lessen the impact of such prejudices on the individuals involved.” However, the court granted defendants’ motion for summary judgment dismissing the complaint upon its finding that plaintiffs evidence failed to establish that defendants refused to renew her contract because of her sexual orientation or created a hostile work environment. Our exhaustive review of the record compels us to the same conclusion.
The basic facts are as follows. Plaintiff, a heterosexual female, began working for the Met as secretary to PB, the executive stage director, during the 1987-1988 season. As executive stage director, PB supervised and made staffing decisions for the Met’s stage directing department, which consists of stage directors and assistant stage directors. In her capacity as PB’s secretary, plaintiff had only limited contact with defendant David Kneuss, a stage director at that time, but she says he was aloof and generally ignored her. Kneuss is a homosexual male. Plaintiff returned as PB’s secretary for the 1988-89 season with the understanding that she would be working at least part of the time for Kneuss. She describes Kneuss during her stint as his secretary as “friendly,” “gregarious,” and “charming.” In any event, to gain experience as an assistant stage director, plaintiff left the Met at the end of the 1988-89 season to work at other theatrical companies outside New York and to study languages in Germany.
In the 1989-90 season, Kneuss assumed many of PB’s responsibilities, and at the end of that season he invited plaintiff to return to the Met as an assistant stage director on a production of Der Rosenkavalier scheduled for the 1990-91 season. Plaintiff accepted Kneuss’s offer and in the summer of 1990
In accordance with the Met’s practice of informing its seasonal employees in February of each year whether they will be rehired for the following season, in February 1991, the Met sent plaintiff a letter advising that she would not be rehired for the 1991-92 season. Notwithstanding, Kneuss offered her a position as assistant stage director on a production of The Magic Flute that he was scheduled to direct during the 1991-92 season. Plaintiff then entered into a second “Standard Principal’s Contract (Weekly)” with the Met, which was substantially identical to the first.
Plaintiff’s problems began during production of The Magic Flute. Kneuss criticized her work and, according to plaintiff, his demeanor toward her changed. Through his “manner of speaking, his tone of voice, the expression on his face, the look in his eye” and his “overall general attitude,” Kneuss treated plaintiff daily in a “degrading” and “demeaning” manner. It was also during the 1991-92 season that plaintiff first noticed a set of photographs tacked up on a bulletin board in the assistant stage directors’ common office above the desk of SP, an assistant stage director who plaintiff asserts is homosexual. The photographs depicted men in various states of undress.
In February 1992, plaintiff received a letter from the Met offering to renew her contract for the 1992-93 season, and she entered into a third “Standard Principal’s Contract (Weekly),” identical to the previous two. Plaintiff says that Kneuss’s rude behavior “intensified” during that season, and that she found working for him “depressing and demoralizing.” She also continued to take offense at the photographs hanging above SP’s desk. In addition, plaintiff complains of a “lewd” conversation she overheard during the 1992-93 season between Kneuss and JF, the artistic administrator of the Met, who plaintiff asserts is homosexual.
In January or early February 1993, Kneuss told plaintiff that he expected assistant stage directors to progress to the
The Met’s Refusal to Renew Plaintiff’s Contract
Plaintiff claims that defendants refused to renew her contract because of her sexual orientation, i.e., they were motivated by animus against heterosexuals. In accordance with the order and nature of proof as outlined in McDonnell Douglas Corp. v Green (
Plaintiff failed to establish the fourth element of her prima facie case. She contends that the requisite inference of discrimination arises from the fact that the Met replaced her with a person who was not a member of her protected group, i.e., a “presumed homosexual,” namely, RG. However, the Federal District Court found that the evidence did not show that RG, in fact, replaced plaintiff as an assistant stage director at the Met (Brennan,
Even if plaintiff had raised an issue of fact on her prima facie case, we note that she still could not have defeated summary judgment, because she did not succeed in showing both that Kneuss’s proffered reason for deciding not to renew her contract was false and that the real reason was discrimination against heterosexuals (St. Mary’s Honor Ctr. v Hicks,
Plaintiff disputes the truth of Kneuss’s criticisms on the basis of her own assessment of her performance and cites alleged inconsistencies in Kneuss’s behavior. For example, she points out that Kneuss described her once in a memo as “compulsively organized,” while he said on another occasion that her organizational skills were “poor.” As the Federal District Court found, it is clear from the context of the memo that Kneuss was criticizing plaintiff for excessive organization, which rendered her “production books [ ] unusable because they have not[h]ing to do with actually ‘directing’ a piece” (Brennan,
However, to show that Kneuss used these criticisms as a pretext to discriminate against her, plaintiff must produce evidence to overcome the effect of Kneuss’s having made both the decision to hire her and the decision not to rehire her, which “strongly suggest [s] that invidious discrimination was unlikely” (see, Grady v Affiliated Cent.,
The Hostile Work Environment Claim
To prevail on her claim of a hostile work environment, plaintiff must show that she was subjected to harassment based on her sexual orientation and that the harassment was so severe or pervasive as to “alter the conditions of [her] employment and create an abusive working environment” (Meritor Sav. Bank v Vinson,
Kneuss’s Demeanor
Plaintiff described Kneuss’s treatment of her generally as “hostile,” “degrading,” “demeaning,” “derogatory,” “mean, nasty, and cruel,” “rude” and “insulting.” She related three incidents in particular. On one occasion Kneuss responded to a series of questions she asked him with a curt yes or no to each, and then told her, ‘You may go.” On another occasion, when she asked him a question, Kneuss rolled his eyes at another Met employee, and on a third occasion, after she introduced him to a visiting orchestra conductor, Kneyss gave her a “nasty” look and told the conductor to “stick with Irene,” another Met employee who was sitting next to plaintiff at the time. Reasonable people well might agree that Kneuss’s behavior as plaintiff describes it in these incidents was rude or insulting. But there is nothing in the descriptions from which a jury reasonably could find that Kneuss’s attitude toward plaintiff was based on her sexual orientation.
Plaintiff states that there' is no evidence of Kneuss treating homosexuals in this manner and asserts that Kneuss was hostile to other heterosexuals. It is appropriate for plaintiff to offer direct comparative evidence about how Kneuss treated individuals of different sexual orientations in a mixed-orientation workplace (Oncale v Sundowner Offshore Servs.,
Plaintiff’s corollary assertion, that Kneuss was hostile to other heterosexuals, is also not supported by the evidence.
The Photographs
The photographs, which depict naked or partially clad men, were displayed on a bulletin board above the desk of SP, an assistant stage director who plaintiff asserts is homosexual, in a common room shared by the assistant stage directors, plaintiff included. In one photograph, four naked men appear to be playing “ring-around-the-rosy” at the beach. The genitalia of two of the men are visible. In another, three men in skin-tight bikinis are sitting at the edge of a pool, dangling their legs in the water. The remaining photographs, with the exception of a photograph of two fully dressed Met employees, depict men with bare torsos. Plaintiff never complained to Kneuss about the photographs, but after they had been posted for more than one season, she removed them from the bulletin board while SP was out of the room. She had never complained about the photographs to SP either. When SP proceeded to put them back up, plaintiff said, “[C]ome on, do you really have to have those pictures up on the bulletin board?” She says the photographs offended her “as a woman, and as a heterosexual.”
We have no doubt that reasonable people would agree that photographs of naked men do not belong on display in an office at the Met. But there is nothing in the photographs from which a jury reasonably could find that they were offensive to heterosexuals qua heterosexuals. Plaintiff places particular emphasis on the testimony of Joseph Volpe, who she says “admit [ted] himself that the lewd pictures are shocking and should have been taken down.” But Volpe’s testimony does not
Indeed, plaintiff herself explained that the reason she was offended is “because I felt David [Kneuss] was giving preferential treatment to [SP] as a homosexual.” Plaintiff compares Kneuss’s failure to remove SP’s “lewd” photographs, thereby allowing “a perceived homosexual” to “have his way,” with his reaction to photographs that she and PM, a heterosexual staff stage director, posted.
Initially, since plaintiff alleges that Kneuss made a “decision to allow the [SP] photos to remain displayed,” we must address the issue of whether Kneuss knew about the photographs (see, Matter of State Div. of Human Rights v St. Elizabeth’s Hosp.,
We now address the incidents involving plaintiffs photograph and PM’s photographs. As secretary to PB and Kneuss, plaintiff sat at a desk in their office. When she taped a snapshot of PB’s baby to the window separating her desk from the outer stage directors’ office, Kneuss asked her to take it down. When PM displayed a series of photographs of his son on a bulletin board in his office, Kneuss, according to plaintiff, “by his facial expression,” “joined in ridicule of them” with another stage director. Plaintiff claims that, by not allowing her to display photographs of PB’s baby and by ridiculing PM, a.heterosexual, for displaying photographs of his son, while allowing SP, a homosexual, to display his “lewd” photographs (her emphasis), Kneuss was discriminating against heterosexuals.
Kneuss testified that he asked plaintiff to remove the snapshot of PB’s baby because he did not want any pictures on the glass partition separating his office and the outer office. Plaintiff does not dispute that there was nothing else on that window. Nor does she contest that Kneuss did not prevent her from posting the snapshot elsewhere or from displaying anything in the assistant stage directors’ office after she became an assistant stage director. Kneuss testified that the stage director with whom he was looking at PM’s photographs was LK — whom, it must be noted, plaintiff hás identified as a “perceived heterosexual” — and that they were joking that the display was “excessive because there must have been thirty or forty pictures on the bulletin board.” Nothing in these two incidents supports plaintiffs claim that Kneuss discriminated against heterosexuals.
The Explicit Conversations
Initially, we note that, whatever else may be said about these two conversations, they are too few and too minor to have altered the terms and conditions of plaintiffs employment (Meritor, supra,
More important, the evidence of the “lewd” conversations does not support plaintiff’s claim that the work environment was hostile to her because of her sexual orientation, because presumably JF’s joke would have had the same effect on her if it had been told by a woman or to a heterosexual man, and she would have found a sex act that involved the use of a live animal disgusting even if it occurred between a man and a woman, rather than, as she alleged, between two men.
The Totality of the Circumstances
Plaintiff argues that the kind of behavior exhibited in JF’s telling Kneuss the joke in front of her “set a tone” that signified that “[i]f it was all right for them to indulge in crude homosexual banter, it was all right for others, like [SP], to bring lewd homosexual photos into the work place.” Although she testified that the incident involving Kneuss and JF took place during the 1992-93 season and that SP’s photographs had been hanging on his bulletin board since some time in 1991 — and, in any event, the record reflects only the one incident involving Kneuss and JF and no evidence that SP witnessed it — plaintiff apparently means to suggest that this incident was just one of many involving that kind of behavior, and that that kind of behavior, rampant among the homosexuals in the office, who felt free to be themselves, caused heterosexuals to feel intimidated, embarrassed and subjected to “disadvantageous terms or conditions of employment to which [homosexuals] [were] not exposed” (Harris, supra, at 25 [Ginsburg, J., concurring]). Her contention is that the environment at the Met was pervasively and severely anti-heterosexual, exulting in homosexuality in its every manifestation, for instance, SP’s homoerotic photographs, and only barely tolerating heterosexuals.
However, plaintiff cannot prove that the environment was hostile to heterosexuals by citing an allegedly anti-heterosexual incident and stating that it could only have occurred in an environment hostile to heterosexuals. Nor may she rely on the allegedly anti-heterosexual tenor of the incident to color a court’s or a jury’s view of the hostility with which she alleges Kneuss treated her. She must show, and indeed it is the centerpiece of her argument, that Kneuss, the only person she accuses of discriminatory animus, was hostile to her because she is heterosexual, and created an environment hostile to her on that basis. As indicated, plaintiff alleges that Kneuss treated
Plaintiff urges the exercise of that “[c]ommon sense, and an appropriate sensitivity to social context” (Oncale,
Accordingly, the order of the Supreme Court, New York County (Paula Omansky, J.), entered February 23, 2000, which granted defendants’ motion for summary judgment dismissing the complaint, should be affirmed, without costs.
Nardelli, J. P., Mazzarelli, Saxe and Buckley, JJ., concur.
Order, Supreme Court, New York County, entered February 23, 2000, affirmed, without costs.