HOSTILE WORK ENVIRONMENT CLAIM SURVIVES

The plaintiff in this case has been proceeding pro se.

RUBERT v. King, No. 19-CV-2781 (KMK), Dist. Court, SD New York September 24, 2020:

"To state a claim of hostile work environment under § 1981, a plaintiff must plausibly allege that his "workplace was permeated with discriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment." Watkins v. N.Y.C Transit Auth., No. 16-CV-4161, 2020 WL 1888839, at *8 (S.D.N.Y. Apr. 16, 2020) (quotation marks and citation omitted); see also Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 723-24 (2d Cir. 2010) (same). A plaintiff may satisfy this standard by "demonstrat[ing] either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment." Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2001) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). Conduct that is "episodic" and not sufficiently "continuous and concerted" will not be deemed pervasive. Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (citation omitted). Moreover, a plaintiff must establish that the defendants "create[d] such an environment because of the plaintiff's race." Amaya, 295 F. Supp. 3d at 224 (citation, quotation marks, and alterations omitted); see also Colon, 983 F. Supp. 2d at 292 (noting that a hostile work environment must have been created because of the plaintiff's "membership in a protected class"). In determining whether a plaintiff has plausibly alleged an actionable hostile environment, courts must look at 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 an employee's work performance." Littlejohn, 795 F.3d at 321 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

Here, Plaintiff's hostile work environment claims survive the instant Motion for several reasons. First, the Court notes that whether "conduct is not severe or pervasive enough to successfully state a claim for hostile work environment under § 1981. . . is a factual question that is generally inappropriate for the Court to determine on a motion to dismiss." Amaya, 295 F. Supp. 3d at 224; see also Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (explaining that "whether a particular work environment is objectively hostile is necessarily a fact-intensive inquiry"). Second, while Plaintiff's Amended Complaint alleges only a single specific incident where King called him a "spic," (Am. Compl. 8), Plaintiff expands on this allegation in his subsequent filings, explaining that King used the word "spic" over a prolonged period of time, (Pl.'s Mem. ¶ 6), and called him a "`spic' not once but several times," (Pl.'s Sur-Reply ¶ 6). To be sure, "[f]or racist comments, slurs, and jokes to constitute a hostile work environment," there must be "a steady barrage of opprobrious racial comments" rather than "a few isolated incidents of racial enmity." See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citation and quotation marks omitted); see also McDowell v. North Shore-Long Island Jewish Health Sys., Inc., 788 F. Supp. 2d 78, 82 (E.D.N.Y. 2011) (explaining that "stray remarks" from coworkers do not amount to a hostile work environment under § 1981 (quotation omitted)). However, in light of Plaintiff's allegation that King's use of slurs was prolonged, the Court cannot determine as a matter of law that such slurs did not amount to "a steady barrage." Schwapp, 118 F.3d at 110. After all, whether racial slurs constitute a hostile work environment typically depends upon the "quantity, frequency, and severity of those slurs." Id. at 110-11 (quotation marks omitted).

Third, Plaintiff has alleged offensive conduct beyond King's use of racial slurs that may have contributed to the hostile environment. For example, Plaintiff alleges that King spread false allegations about him at work, and used "his position as a security guard" to "harass[] and "stalk[]" Plaintiff, "watching [Plaintiff] through the cameras, sending [him] text messages and basically tormenting [him]." (Am. Compl. 9.) Standing alone, these allegations do not suggest racially motivated harassment. However, when combined with allegations that King repeatedly used ethnic slurs in referring to Plaintiff, Plaintiff is entitled to the inference that King's other offensive conduct was motivated, at least in part, by racial animus. See Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 388 (2d Cir. 2020) ("Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim."); Pucino v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 118 (2d. Cir 2010) ("A plaintiff may rely on incidents of sex-based abuse to show that other ostensibly sex-neutral conduct was, in fact, sex-based." (citation omitted)); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547-48 (2d Cir. 2010) ("Circumstantial evidence that facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender may consist of evidence that the same individual engaged in multiple acts of harassment, some overtly sexual and some not." (citation and quotation marks omitted)).^[9] Of course, Walmart urges the Court to draw the opposite inference: that Plaintiff's allegations must be "taken within the context of King and Plaintiff's feud over Plaintiff's wife," and thus that King's conduct should be understood as the product of a personal feud rather than King's racial animus. (Def.'s Reply 6.) However, at this stage, the Court must draw all inferences in Plaintiff's favor, not Walmart's. Moreover, parsing the possible causes of King's conduct is a fact-dependent inquiry ill-suited to decision at this stage of the proceedings. See Patane, 508 F.3d at 114 (vacating and remanding because a district court made fact-dependent judgments regarding a hostile work environment claims on a motion to dismiss).

Fourth, Walmart has advanced no arguments regarding the extent (or lack thereof) of its own involvement in and liability for King's conduct. The Court notes that the precise contours of supervisory liability in the § 1981 context are unsettled. On the one hand, it is clear that § 1981 claims require personal involvement and discriminatory intent. See Gen. Bldg. Contractors, 458 U.S. at 389 (explaining that § 1981 claims require "purposeful discrimination"); Burgis, 798 F.3d at 68 (explaining that § 1981 claims require "discriminatory intent"); Whidbee, 223 F.3d at 68 (explaining that § 1981 claims "must be predicated on the actor's personal involvement"); Lauture v. Int'l Bus. Machines Corp., 216 F.3d 258, 261 (2d Cir. 2000) ("To establish a § 1981 claim, a plaintiff. . . must show. . . an intent to discriminate on the basis of race by the defendant. . . ."). Additionally, in the context of § 1983 claims, the Supreme Court has explained that these same requirements necessarily demand that a supervisor himself act with discriminatory purpose, rather than with mere acceptance of an employee's discriminatory purpose. See Iqbal, 556 U.S. at 677 (rejecting the view that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to" a violation of the Equal Protection Clause, and explaining that "[i]n the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, purpose rather than knowledge is required"); see also Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009) (explaining that Iqbal's rejection of liability based on "a supervisor's mere knowledge of his subordinate's discriminatory purpose" applies to "intent-based constitutional claims . . ., specifically racial discrimination"). Given the similarities between race discrimination claims under § 1981 and § 1983, see Patterson, 375 F.3d at 226 (discussing the nearly identical legal standards governing § 1981 and § 1983), Iqbal's requirements may well apply to § 1981 claims as well, see Juarez v. Nw. Mut. Life Ins. Co., 69 F. Supp. 3d 364, 368 (S.D.N.Y. 2014) (applying Iqbal's "purposeful discrimination" standard to § 1981 claims); see also Burgis, 798 F.3d at 69 (discussing how statistics may be used to provide a plausible inference of "discriminatory intent in a § 1981 or Equal Protection case" in light of Iqbal).

On the other hand, Iqbal was decided specifically in the context of constitutional claims, and of government officials protected by qualified immunity. See Iqbal, 556 U.S. at 677 ("In the context of determining whether there is a violation of a clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination. . . ."). Here, Plaintiff's claims against Walmart are statutory, and Walmart is a private entity which has no claim to qualified immunity. Moreover, prior to Iqbal, the Second Circuit had decided that "personal involvement" in a civil rights tort included both "fail[ure] to remedy the wrong" after learning of it, and "gross negligen[ce] in supervising subordinates who committed the wrongful acts." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted). Although Iqbal altered that standard for constitutional discrimination claims, courts in the Second Circuit have continued to apply Colon's personal involvement standard in other contexts, explaining that "Colon still controls with respect to claims that do not require a showing of discriminatory intent." Lebron v. Mrzyglod, No. 14-CV-10290, 2017 WL 365493, at *4 (S.D.N.Y. Jan. 24, 2017). Moreover, some courts have asserted, even after Iqbal, that "respondeat superior claims may reach private entities under § 1981." Tchatat v. City of New York, No. 14-CV-2385, 2015 WL 5091197, at *13 (S.D.N.Y. Aug. 28, 2015), on reconsideration in part, 2015 WL 6159320 (S.D.N.Y. Oct. 20, 2015). There is, therefore, a lack of clarity regarding the standards by which an employer may be held liable for the discriminatory conduct of its employees. Compare Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015) (asserting, without analysis, that an employer's liability under § 1981 "depends on the plaintiff showing that the employer knew (or reasonably should have known) about the harassment but failed to take appropriate remedial action"), with Littlejohn, 795 F.3d at 314 (asserting, without analysis, that "[a]n individual may be held liable under §§ 1981 and 1983 only if that individual is personally involved in the alleged deprivation" (quotation marks omitted)).

Here, Plaintiff has alleged that he complained about King's conduct to two of his Walmart supervisors, and that they failed to take any action in response. (Am. Compl. 10.) However, Plaintiff has not alleged that these supervisors were Walmart policymakers, nor that they acted pursuant to Walmart policy. See Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 409 (2d Cir. 1990) (explaining, in the context of § 1983, that for private businesses as for municipalities, "action pursuant to official. . . policy" is required to establish personal involvement). Whether King's conduct is attributable to Walmart thus turns on the precise legal standards by which an employee's discrimination can be imputed to his employer under § 1981, particularly in the aftermath of Iqbal. In the absence of any discussion or argument from Walmart with respect to these issues, the Court declines to consider them sua sponte. Plaintiff's hostile work environment claims therefore survive the instant Motion.^[10]

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[9] This is not to say that any vaguely discriminatory remark will automatically suffice to suggest that other adverse conduct by the speaker is motivated by animus. See Harrison v. State Univ. of N.Y. Downstate Med. Ctr., No. 16-CV-1101, 2018 WL 4055278, at *14 (E.D.N.Y. July 6, 2018) ("[The defendant's] expressions of disdain for women at various points during the more than ten years that plaintiff worked [for her employer] are insufficient to plead that the specific events in January and early February 2015 were caused by such disdain. At no point does plaintiff allege that [the defendant] made such a remark during the relevant period."), report and recommendation adopted, 2018 WL 4054868 (E.D.N.Y. Aug. 24, 2018). Rather, such inferences necessarily depend on the "totality of the circumstances." Kaytor, 609 F.3d at 547.

While the plaintiff in Rasmy raised § 1981 claims as well as Title VII claims, the Second Circuit's analysis focused exclusively on Title VII standards. Rasmy does not, therefore, specifically address whether § 1981 requires a greater degree of connection between evidence of a defendant's racial animus and his offensive conduct. Thus, while Rasmy makes clear that, for the purposes of Title VII, a defendant's use of ethnic slurs at one moment will often be sufficient to suggest that the defendant's separate conduct is racially motivated, it is not clear that the same holds true for § 1981 claims. Indeed, in light of Title VII's "lessened causation standard," Naumovski, 934 F.3d at 21, there is reason to think otherwise. However, as Walmart has not raised this argument, the Court need not consider it at this stage.

[10] Plaintiff's NYSHRL hostile work environment claims survive for substantially the same reasons discussed above. See Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) ("Hostile work environment claims under Title VII and the NYSHRL are governed by the same standard." (citation omitted))."