NOT A HOSTILE WORK ENVIRONMENT?

It depends - actions can be despicable but not deemed a hostile work environment.

Lawrence v. Chemprene, Inc., No. 18-CV-2537 (CS) (S.D.N.Y. Oct. 24, 2019) :

"B. Hostile Work Environment

Defendants argue that Plaintiff’s hostile work environment claims should be dismissed because, among other things, Plaintiff has failed to allege that Defendants’ conduct was sufficiently severe and pervasive. (Ds’ Mem. at 11-16.) I agree.
“‘To establish a hostile work environment claim…a plaintiff must produce enough evidence to show that the 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.’” Davis v. N.Y. Dep’t of Corr., 256 F. Supp. 3d 343, 350 (S.D.N.Y. 2017) (alteration omitted) (quoting Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014)); see Smith v. Town of Hempstead Dep’t of Sanitation Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451 (E.D.N.Y. 2011) (hostile work environment standard “is essentially the same” for Title VII, §1981, and NYHRL claims), reconsideration denied, 982 F. Supp. 2d 225 (E.D.N.Y. 2013), motion for relief from judgment denied, No. 08-CV-3546, 2014 WL 12839299 (E.D.N.Y. Feb. 6, 2014). “In considering whether a plaintiff has met this burden, courts should examine the totality of the circumstances, including: the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with the victim’s job performance.” Rivera, 743 F.3d at 20 (internal quotation marks and alterations omitted). The test is both objective and subjective: “the misconduct shown must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.” Id. (internal quotation marks omitted). “Of course, it is axiomatic that mistreatment at work, whether through subjection to a hostile environment or through other means, is actionable under Title VII only when it occurs because of an employee’s protected characteristic, such as race or national origin.” Id. (internal quotation marks and alterations omitted) (emphasis in original).
While Plaintiff did not file a memorandum of law in opposition to Defendants’ motion, Plaintiff’s 56.1 Response, read in the light most favorable to him, includes the following allegations that go his hostile work environment claim: (1) in December 2007, Plaintiff was told that Arvelo told Simmons, “[T]ell that black [motherfucker] to order bags,” in reference to Plaintiff, (P’s 56.1 Resp

13-14); (2) Rodriguez told Plaintiff that Patinella had called him a “stupid nigger,” (id.
22);¹³ (3) Kiene drew a penis on a mixing bag, (id.
37); Kiene made a statement to the effect of “the police should shoot all the blacks,” (id.
41); and (5) Ford wrote something to the effect of “that’s a nigger job” on the sheet of paper assigning Ford to clean the pit, (id.
29). These allegations, however revolting they may be, fall short of establishing a hostile work environment.
Plaintiff’s first allegation supporting his hostile work environment claim was a derogatory statement that he did not hear directly, but rather of which he learned from a coworker. He was told by Simmons that Arvelo called him a “black motherfucker.” (P’s 56.1
13.) While secondhand statements “should not be ignored,” such statements “are not as impactful on one’s environment as are direct statements; consequently, they are less persuasive in stating a hostile work environment claim.” Sletten v. LiquidHub, Inc., No. 13-CV-1146, 2014 WL 3388866, at *7 (S.D.N.Y. July 11, 2014). Further, Defendant immediately fired Arvelo. (P’s 56.1 Resp.
15.) Where the harasser is a non-supervisory coworker, the employer is not liable for that harassment unless it knew of the conduct and failed to take appropriate remedial action. See Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 72 (2d Cir. 2000). Because Defendants took swift remedial action, Plaintiff cannot support his claim of hostile work environment with Arvelo’s statement.
Plaintiff’s second allegation is that Rodriguez told Plaintiff that Patinella called Plaintiff a “stupid nigger.” (P’s 56.1 Resp.
22.) As noted above, that allegation — which by Plaintiff’s account was in any event also outside his presence — must be disregarded because it contradicts Plaintiff’s deposition testimony.¹⁴
Plaintiff’s third allegation has to do with a penis drawn on a mixing bag, (id.
37), but Plaintiff failed to indicate how the drawing was discriminatory toward Plaintiff on account of his race. Rather, Plaintiff merely states that “[Simmons] went to HR about a racist incident involving Kiene but nothing was done,” (id.
37), without providing a single detail regarding the incident, how it was racist, or how it injured Plaintiff. Perhaps the racist incident to which Plaintiff is referring is his fourth allegation — Kiene’s statement that “police should shoot all the blacks” — but Plaintiff never makes that connection. In any event, Kiene was also terminated after a thorough investigation, so his misconduct cannot be attributed to Defendants.
Plaintiff’s fifth allegation has to do with Ford writing the N word on an assignment sheet. (Id.
29.) While any use of that word is a despicable act, there is nothing in the record to suggest that the note was directed at Plaintiff. There is no evidence that Plaintiff assigned Ford to clean the pit, that Plaintiff created the assignment sheet that Ford defaced, or that Ford wrote the note for Plaintiff specifically, as opposed to writing it for the whole mixing department to see. While “racial epithets need not be directed at an employee to contribute to a hostile work environment,” Abdullah v. Panko Elec. & Maint., Inc., No. 08-CV-0579, 2011 WL 1103762, at *13 (N.D.N.Y. Mar. 23, 2011), “whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs,” Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) (internal quotation marks omitted), and the severity is reduced when the slur is not directed at the plaintiff himself, see Hill v. Frontier Tel. of Rochester, Inc., No. 15-CV-6212, 2018 WL 1256220, at *6 (W.D.N.Y. Mar. 12, 2018).
In sum, Plaintiff has alleged one secondhand comment that cannot be attributed to Defendants, a racist remark that also cannot be attributed to Defendants, a lewd drawing, and one use of a racial epithet that was not directed at Plaintiff, all over the course of nine years. Not one of the incidents was physically threatening. Courts have dismissed hostile work environment claims as insufficiently severe and pervasive that are based on a greater number of incidents, including more severe forms of discrimination, over a shorter period. See Alfano v. Costello, 294 F.3d 365, 379 (2d Cir. 2002) (collecting cases); see Stembridge v. City of N.Y., 88 F. Supp. 2d 276, 286 (S.D.N.Y. 2000) (seven racially insensitive comments over three years, including one instance of calling the plaintiff the N word, were not pervasive).
Moreover, Plaintiff has “proffered no evidence that the alleged harassment interfered with [his] job performance, a sine qua non of such a claim, notwithstanding that…[the] comments may have been offensive.” Stepheny v. Brooklyn Hebrew Sch. for Special Children, 356 F. Supp. 2d 248, 265 (E.D.N.Y. 2005) (internal quotation marks and alterations omitted). Accordingly, I find that Plaintiff cannot establish a hostile work environment claim under Title VII, §1981, or the NYHRL, and Defendants are entitled to summary judgment on those claims.^15"