EMPLOYMENT DISCRIMINATION RULING FROM EDNY

Tassy v. BUTTIGIEG, Nos. 20-cv-2154 (BMC), 21-cv-0577(BMC), Dist. Court, EDNY, May 16, 2021:

"A. The Disparate Treatment Claim

Title VII bans employment discrimination against federal employees based on race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-16(a). Before suing under Title VII, however, "a federal government employee must timely exhaust the administrative remedies at his disposal." Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008) (quotation omitted). Those remedies appear in regulations from the Equal Employment Opportunity Commission. Id. at 74-75. Generally speaking, these regulations require an employee to contact an EEO counselor within 45 days of an allegedly discriminatory act. See 29 C.F.R. § 1614.105(a)(1). If counseling does not resolve the matter, the employee will receive a notice, see § 1614.105(d), and the employee must file a formal written complaint within 15 days of receiving that notice, see 1614.106(a), (b). Once the employee receives the final agency action, or if no action has been taken and more than 180 days have passed since the filing of the complaint, the employee may commence a suit in federal court. See § 1614.407(a), (b); see also 42 U.S.C. § 2000e-16(c).

Plaintiff's failure to comply with these procedures bars his claim for disparate treatment. Plaintiff first contacted the EEO counselor on August 18, 2018, which means that any discriminatory act must have occurred on or before July 4, 2018. Yet the claim is based on a failure to train, and plaintiff cannot cite a failure that occurred within the limitations period.

All but conceding this point, plaintiff seeks refuge in one of the timing requirement's equitable exceptions — the continuing violation doctrine. Under this doctrine, "if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012) (quotation omitted). Although this doctrine applies to hostile work environment claims, it does not apply to "discrete acts" such as "termination, failure to promote, denial of transfer, or refusal to hire." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002). Discrete acts are "separate actionable `unlawful employment practice[s].'" Id. at 114. So even if the acts are related or are "undertaken pursuant to a general policy that results in other discrete acts," only the acts within the limitations period are actionable. Chin, 685 F.3d at 157.

A failure to train is a discrete act. See Harvin v. Manhattan & Bronx Surface Transit Operating Auth., No. 14-cv-5125, 2018 WL 1603872, at *4 (E.D.N.Y. March 30, 2018), aff'd, 767 F. App'x 123 (2d Cir. 2019); Bright v. Coca-Cola Refreshments USA, Inc., No. 12-cv-234, 2014 WL 5587349, at *13 (E.D.N.Y. Nov. 3, 2014), aff'd, 639 F. App'x 6 (2d Cir. 2015); Thomas v. City of New York, 953 F. Supp. 2d 444, 452 (E.D.N.Y. 2013). The disparate treatment claim thus depends on the failures to train that occurred within the limitations period. Because there are none, the claim is time-barred.^[6]

B. The Hostile Work Environment Claim

To establish a hostile work environment under Title VII, "a plaintiff must 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.'" Littlejohn v. City of New York, 795 F.3d 297, 320-21 (2d Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). This standard "has objective and subjective elements: 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." Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (quoting Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). Only the objective element is at issue here.

To show that discriminatory conduct is sufficiently severe or pervasive, a plaintiff "must demonstrate 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, 294 F.3d at 374 (quotation omitted). "The more severe the harassment, the less pervasive it needs to be, and vice versa." Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 579 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (quotation omitted). "To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality," Alfano, 294 F.3d at 374, assessing "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 (alteration adopted and quotation omitted).^[7]

This case does not reach the threshold. Broadly speaking, plaintiff relies on five categories of conduct: the assignment incident, the smelling incident, the painting incident, the failure of his coworkers to say "good morning," and the "rough" treatment he received from his trainers. Yet none of these acts, standing alone, was so extreme to "work a transformation of [plaintiff's] workplace" and establish a hostile work environment. Alfano, 294 F.3d at 374; see also Rivera, 743 F.3d at 24 (suggesting that racial epithets would suffice); 3 N. Peter Lareau, Labor & Employment Law § 75.04[3] (2021) ("Despite broad support for the principle that a single, extreme incident can support a racial harassment claim, courts have found few instances where the stand-alone incident was severe enough to support the claim.").

To prevail, then, plaintiff must show that the conduct was sufficiently pervasive. For a series of incidents to qualify as pervasive, they must be "sufficiently continuous and concerted," not merely "episodic." Littlejohn, 795 F.3d at 321 (quotation omitted). Thus, the assignment incident, the smelling incident, and the painting incident are too isolated to establish a hostile work environment. See id. The failure to say "good morning" is simply too mild. See Demoret v. Zegarelli, 451 F.3d 140, 150 (2d Cir. 2006); Matlock-Abdullah v. N.Y. State Dep't of Lab., No. 6:15-cv-294, 2017 WL 5905564, at *13 (N.D.N.Y. Nov. 29, 2017).

Adding the "rough" treatment does not alter the mix. Although it persisted throughout plaintiff's time at Farmingdale, it was still a series of incidents. For his more than four-and-a-half years at Farmingdale, plaintiff cites only two incidents with Melcer, only three with Rachiele, and only two with Rose. This sort of episodic mistreatment falls short of the continuous, concentrated, and steady barrage of comments that would establish a hostile work environment. See, e.g., Augustin v. The Yale Club of N.Y.C., No. 03-cv-1924, 2006 WL 2690289, at *22 (S.D.N.Y. Sept. 15, 2006) (holding that four or five explicitly racist comments over five years did not establish a hostile work environment), aff'd, 274 F. App'x 76 (2d Cir. 2008).

Of course, I cannot evaluate each incident in isolation — I must consider the totality of the circumstances. See, e.g., Rasmy v. Marriott Int'l, Inc., 952 F.3d 379, 389 (2d Cir. 2020). But even then, the conduct was not so continuous and concerted to have altered the conditions of the working environment. See Littlejohn, 795 F.3d at 321 (holding that no hostile work environment existed where the employee's supervisor made negative comments about the employee, used "impatient and harsh tones" with the employee, distanced herself when the employee was nearby, declined to meet with the employee, and wrongfully reprimanded the employee); Fleming v. MaxMara USA, Inc., 371 F. App'x 115, 119 (2d Cir. 2010) (summary order) (holding that no hostile work environment existed where the defendants "wrongly excluded [the plaintiff] from meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to her").

Even if the conduct were sufficiently severe or pervasive, no reasonable jury could conclude that it occurred "because of" his protected characteristics. See Lee v. Colvin, No. 15-cv-1472, 2017 WL 486944, at *9 (S.D.N.Y. Feb. 6, 2017). Plaintiff relies primarily on his alleged mistreatment, which cannot itself suffice. "Title VII only protects employees from improper discriminatory intimidation; it does not reach so far as to protect plaintiffs from undiscriminating intimidation by bullish and abusive supervisors." Curtis v. Airborne Freight Corp., 87 F. Supp. 2d 234, 250 (S.D.N.Y. 2000).

Here, the record does not support a reasonable inference that the mistreatment occurred because of a protected characteristic. There were no explicit comments regarding plaintiff's national origin, and the only arguable mention of race occurred when Anderson pointed to his arm. Although this evidence is probative, it would not, standing alone, allow a reasonable jury to conclude that the subsequent conduct occurred because of a protected characteristic. Plaintiff does not name any other comment from any of his years at Farmingdale that mentioned his race.

To be sure, plaintiff can rely on "facially neutral incidents" to help create the necessary quantum of proof. Alfano, 294 F.3d at 377. But plaintiff must first "establish[] a basis from which a reasonable fact-finder could infer that those incidents were infected by discriminatory animus." Id. The basis in this case is lacking. For instance, Melcer may have "berated" and "derail[ed]" plaintiff, but plaintiff admits that he was "very gruff" to "many people" in the office. Plaintiff even recalled that Melcer "went crazy on" a white inspector, yelling "F this" and "F that" so loudly that plaintiff could hear it across the office. Later, a union representative told plaintiff, "Melcer was rough on me as well."

The same held true for the other trainers. Although plaintiff casts Rachiele as a "rough" individual, plaintiff admits that Rachiele "was generally `rough' on people." Likewise, plaintiff complains that Rose never took him out for training, but he only "believes" that Rose trained a white ASI — he lacks any evidence that the training occurred. Cf. Brown v. Henderson, 257 F.3d 246, 254 (stating that the fact that men and women were "treated similarly, if badly," would undermine an inference of sex discrimination).

Equally important, the record cannot establish that the trainers treated all ASIs badly, but plaintiff worse. See id. (discussing this possibility). Although plaintiff stresses that he "strongly believe[s]" that the rough treatment occurred because of his background, it is not his belief that matters — it is the evidence on which that belief is based. But he has offered very few facts to substantiate that belief. He notes that DePinto remarked: "Man, for some reason some of the people get really rough on you. Relax, [Jean-Claude], relax. Please relax." Plaintiff also testified that Melcer never yelled at the other employees with dual monitors, and Alvi did not use profanity with others in the office. Against the entirety of the record, these facts do not provide the quantum of proof necessary to support a reasonable inference that the mistreatment occurred because of plaintiff's background. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (noting that "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient [to survive summary judgment]; there must be evidence on which the jury could reasonably find for the plaintiff"); cf. Alfano, 294 F.3d at 377 (stating that facially neutral incidents "must be removed from consideration" if they support only an inference that the plaintiff was mistreated but not the inference that it occurred because of a protected characteristic).^[8]

On this record, no reasonable jury could find that plaintiff established the elements of a hostile work environment claim. Defendant is therefore entitled to summary judgment in the first case."