ANOTHER EMPLOYMENT DISCRIMINATION RULING FROM EDNY

Jackson v. SHERATON NEW YORK TIMES SQUARE HOTEL, No. 19-CV-4099 (AMD) (RML), Dist. Court, EDNY June 3, 2021:

",,,,,

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to "discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment" on the basis of the individual's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Disparate treatment claims under Title VII are analyzed using the McDonnell Douglas burden-shifting framework. Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179, 209-10 (E.D.N.Y. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). Under the framework, the plaintiff must first establish a prima facie case of discrimination. See id. Once the plaintiff makes that showing, "the burden of production [shifts] to the employer and require[es] the employer to come forward with its justification for the adverse employment action against the plaintiff." Littlejohn v. City of New York, 795 F.3d 297, 307 (2d Cir. 2015). If the employer meets this burden, "the presumption `drops out of the picture'" and the plaintiff must demonstrate that the employer's explanation is pretextual. Id. (citing St. Mary's Honor Cir. v. Hicks, 509 U.S. 502, 511 (1993)).

To establish a prima facie case of discrimination, the plaintiff must show that: (1) she is a member of a protected class; (2) she is qualified for the position; (3) she has suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. See McDonnell Douglas Corp., 411 U.S. at 802-04 (1973); Littlejohn, 795 F.3d at 307. The defendant does not dispute that the plaintiff, an African-American woman, is a member of a protected class. Nor does the defendant deny that the plaintiff was qualified for her position, or that she suffered an adverse employment action when she was terminated. The only disputed issue is whether the defendant fired the plaintiff under circumstances giving rise to an inference of discrimination.

The plaintiff has not established an inference of discrimination. She cites no evidence, and indeed does not claim, that anyone in a supervisory position disparaged her because of her race or made any racially charged statements about her or in her presence. In fact, the plaintiff cites only one incident: that in 2016, two years before the altercation that led to the plaintiff's termination, Ms. Acevedo called her a "fat black bitch." (ECF No. 6 at 7.) That statement, while certainly inappropriate and upsetting, does not raise a plausible inference that the defendant fired the plaintiff because of her membership in a protected class. Rather, that comment, far removed in time and made by a coworker with no authority over the plaintiff, is the kind of "stray remark" that courts have found insufficient to constitute employment discrimination. Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998). See also Jowers v. Family Dollar Stores, Inc., No. 09-CV-2620, 2010 WL 3528978, at *1 (S.D.N.Y. Aug. 16, 2010), aff'd., 455 F. App'x 100 (2d Cir. 2012) (noting that the single statement that "black people are lazy and incompetent" one month before the plaintiffs termination was a stray remark insufficient to establish an inference of discrimination on its own); Maqsood v. Bell Sec., Inc., 249 F. App'x 229, 230 (2d Cir. 2007) (summary order) (holding that sporadic comments made two years before the plaintiffs termination did not support a claim under Title VII for discrimination); Rosenfeld v. Hostos Cmty. Coll., No. 10-CV-3081, 2013 WL 1285154, at *5 (S.D.N.Y. Mar. 29, 2013) ("[S] tray remarks, without more, and with no nexus to the adverse employment action in this case, [do] not support ... an inference" of discrimination).^[8]

Because the plaintiff has not established a prima facie case, it is unnecessary to undertake the burden shifting analysis. Nevertheless, even if the plaintiff had made out a prima facie case, the defendant provides legitimate reasons for its decision to terminate her. As the recording makes clear, the plaintiff cursed at and threatened Ms. Acevedo for almost a half hour. She called her, among other things, an "idiot," a "stupid bitch," and a "dumb ass." The plaintiff also threatened that if Ms. Acevedo said "something else ... it's going to get real fucking ugly in here. Real fucking ugly ... fucking asshole. Say something else to me." The plaintiff carried on this way in front of other employees and guests. This behavior was legitimate grounds for termination; it violated the hotel's standards of conduct policies on workplace violence, anti-discrimination, unwelcome harassment and retaliation. Howell v. Montefiore Med. Ctr., 2016 WL 880373, at *6 (S.D.N.Y. Feb. 16, 2016), aff'd, 675 F. App'x 74 (2d Cir. 2017) (holding that the employer's determination that the plaintiff had violated the employer's policies constituted a legitimate reason to fire the plaintiff). Significantly, too, the defendant did not fire the plaintiff on the spot, despite the recorded evidence. It was only after a review by the hotel and then a determination by an impartial arbitrator that the plaintiff violated the hotel's policies that the defendant terminated the plaintiff's employment. Under these circumstances, a reasonable juror could conclude that the defendant fired the plaintiff because she violated the defendant's workplace policies. Thus, the defendant has met its burden to articulate a legitimate reason for termination.^[9]

Accordingly, the plaintiff's discrimination claim under Title VII is dismissed.

....."

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."

HOSTILE WORK ENVIRONMENT?

SIENA v. PRIMO PIZZA 84 LLC, 2020 NY Slip Op 51344 - NY: Supreme Court November 5, 2020:

"......

In order to establish a prima facie claim for hostile work environment, a plaintiff must demonstrate 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 (Schenkman v New York Coll. of Health Professionals, 29 AD3d 671, 673 [2d Dept 2006]; see Harris v Forklift Sys., Inc., 510 US 17 [1993]; Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]). Under the New York City Human Rights Law (NYCHRL), the court considers whether such comments amount to more than "petty slights and trivial inconveniences" (see Williams v New York City Hous. Auth., 61 AD3d 62, 79-80 [1st Dept 2009]). "Whether an environment is hostile or abusive can be determined by looking at all 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'" (Forrest, 3 NY3d at 310-311, quoting Harris, 510 US at 23). The conduct must have altered the condition of the victim's employment by being subjectively perceived as abusive by the plaintiff, and having created an objectively hostile or abusive environment (id. at 311).

Here, plaintiff's factual allegations, such as that defendants Goodman and Brill would refer to him as a "guido" or "wise guy" or imitate his accent, fall short of establishing that the "`workplace [was] permeated with discriminatory intimidation, ridicule, and insult. . . that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment'" (Schenkman, 29 AD3d at 673, quoting Harris, 510 US at 21). This court is cognizant that "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183 [1978]). Nonetheless, as defendants have demonstrated the absence of a prima facie case for national origin discrimination, summary judgment dismissing that cause of action is required (see Zhao v State Univ. of NY, 472 F Supp 2d 289 [ED NY 2007] [mimicking plaintiff's accent and comparing Turkish people to Chinese people were insufficient to establish a hostile work environment]). Indeed, in a similar case, Little v National Broad. Co., where a defendant's employee constantly used a "weird Spanish accent" when talking to Hispanic people, and on an occasion described Hispanics as being "very greasy," the court held that the "comments, standing alone, were not so severe that they could alter the conditions of [plaintiff's] employment. However, when combined with the display of Klu Klux Klan robes and/or [a] noose, these incidents may constitute an objectively hostile environment" (210 F Supp 2d 330, 390 [SD NY 2002])."\

....."

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]

^......

[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))."

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"