In Johnstone v. Village of Monticello & Gordon Jenkins, No. 16-2225, 2017 WL 1521475 (2d Cir. Apr. 28, 2017) (Summary Order), the Second Circuit affirmed the dismissal of a race-based hostile work environment claim asserted by a white police officer.
This case is unique, for at least the reason that the comments giving rise to the lawsuit were made by a non-employee (namely, a DUI arrestee who also happened to be the African American former mayor of Monticello).
The facts, as summarized by the court:
[Plaintiff] Johnstone, who is white, has been an officer for the Village of Monticello Police Department since 1989 and a lieutenant since 2010. On November 16, 2013, he arrested Gordon Jenkins — “a dark skinned natural person” — for driving while intoxicated. Johnstone alleges that Jenkins, while being processed at the Monticello Police Station, called Johnstone (and other white officers) a “racist,” a “cracker,” a “white mother fucker,” a “member of the KKK,” and a “Nazi,” and called an African American officer a “sellout,” an “Uncle Tom,” and a “token.” Jenkins was, at that time, the mayor of Monticello (he was removed from office on April 2, 2015 by the Appellate Division, Third Department). Johnstone thereafter brought this civil rights action against Jenkins and the Village of Monticello; he argues that Jenkins’s racial comments created a hostile work environment cognizable under Title VII of the Civil Rights Act of 1964 and under 42 U.S.C. § 1983 as a violation of the Equal Protection Clause.
The court explained the legal framework for evaluating hostile work environment claims, particularly where (as here) the alleged incident is a one-time event:
A hostile work environment claim requires a showing [1] that the harassment was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and [2] that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citation and quotation marks omitted). Isolated incidents generally “do not meet the threshold of severity or pervasiveness,” id. at 374, but a single act will suffice if it is so severe that it “work[s] a transformation of the plaintiff’s workplace,” id. “To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse.
In applying the law, the court stressed the importance of context for evaluating these types of claims:
Johnstone fails to plead facts sufficient to establish a hostile work environment claim. Since one consideration is the frequency of the alleged abuse, his reliance on a single incident over the course of a nearly 30-year career weighs heavily against him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient “to alter the conditions,” id. at 373, of Johnstone’s employment.
Notably, the court cited the Supreme Court’s teaching in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) that the Title VII analysis
requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field– even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.
In light of this, it continued/concluded:
Jenkins’s alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated citizen who was belligerent because he was being taken into custody and processed for violating the law. Being subjected to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer’s employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.