Court Dismisses “Perceived as Muslim” Title VII Discrimination Claim, Among Others

In Le v. New York State, No. 1:16-CV-1517, 2017 WL 3084414 (N.D.N.Y. July 18, 2017), the court dismissed plaintiff’s Title VII discrimination, hostile work environment, and retaliation claims.

Plaintiff – a woman of Asian descent – alleged that “defendant has wrongly sided with, and failed to take corrective action against, plaintiff’s co-workers and supervisors, who are harassing and following her at her workplace and around her neighborhood.”

Plaintiff also alleged, inter alia, that she was treated unfairly because she was “perceived [as] Muslim.” The court swiftly rejected this claim, as it is not cognizable under Title VII:

First, to the extent Le alleges the OSC is liable under Title VII for certain comments and actions that plaintiff’s coworkers undertook because they “perceiv[ed]” her to [be] Muslim, those claims must be dismissed. See, e.g., Lewis v. N. Gen. Hosp., 502 F. Supp. 2d 390, 401 (S.D.N.Y. 2007) (“[T]he protections of Title VII do not extend to persons who are merely ‘perceived’ to belong to a protected class.”).

However, even assuming otherwise, the court held that plaintiff still failed to state a claim. The court summarized her allegations:

[P]laintiff’s disparate treatment allegations consist of the following conduct: Ferguson, one of plaintiff’s co-workers, approached her to say that she and several other co-workers were concerned plaintiff might do something similar to the “San Bernardino” shooting incident. Apparently, Ferguson and/or other co-workers also made a report to the OSC’s HR Department, which resulted weeks later in plaintiff being “interrogated” by Clevenger for the “strange behaviors” reported by other staff. When plaintiff explained to Clevenger that her co-workers had in fact “teamed up” to “watch” and “follow” her, Clevenger did not accept that explanation; instead, Clevenger referred plaintiff for a psychological evaluation and charged her with a “penalty.”

Applying the law, the court held:

These allegations do not state plausible discrimination claims based on religion, national origin, or gender. The insensitive and even possibly offensive comments made by a few of Le’s co-workers are insufficient bases on which to sustain a Title VII disparate treatment claim. …

In a similar vein, Le’s allegations about Clevenger’s actions also fail to provide a basis on which to sustain a Title VII claim. … Lyman v. NYS OASAS, 928 F. Supp. 2d 509, 521 (N.D.N.Y. 2013) (D’Agostino, J.) (“[I]nterrogations alone are insufficient as a matter of law to establish an adverse employment action.”); Krinsky v. Abrams, 2007 WL 1541369, at *7 (E.D.N.Y. May 25, 2007) (“[R]eferral for a psychological evaluation is not considered an adverse employment action.”).

Further, Le alleges that although Clevenger proposed “a week without pay” as a penalty after interrogating her, plaintiff received only an “official reprimand” as a result of this incident. Under those circumstances, neither the proposed penalty nor the penalty itself suffice to establish an adverse employment action for purposes of a Title VII disparate treatment claim. …

In fact, Le’s assertion that this official reprimand, which will remain in her “history folder” for three years, “will affect [her] future advancement and development” is entirely speculative and cannot suffice as an adverse employment action. …

Nevertheless, assuming one or more of these actions were sufficiently “adverse” for purposes of Title VII’s requirement, none of these actions occurred under circumstances giving rise to a plausible inference of discriminatory intent; that is, that the OSC’s perception of Le as a Muslim, or her status as either a woman or a person of Asian descent, was a “substantial” or “motivating” factor behind either Ferguson’s or Clevenger’s actions.

The court also dismissed plaintiff’s hostile work environment claim, which was based on her contention that her co-workers “teamed up to ‘follow’ and ‘watch her.'”

The incidents cited by plaintiff in support of her hostile work environment claim, “which took place in isolated phases over the course of nearly five years, are far too episodic to be deemed pervasive.”

In addition, the court observed that “very little of the conduct about which Le complains bears even an inferential connection to her gender, national origin, or religion.” Plaintiff’s “subjective belief that she was being subjected to a hostile work environment based on her membership in one or more protected classes — however strongly felt — is insufficient to satisfy [her] burden at the pleading stage.”

Finally, the court dismissed plaintiff’s retaliation claim noting, inter alia, that “any causal connection Le attempts to draw between the official reprimand and her earlier DHR complaint is undermined by the fact that the eventual issuance of the reprimand is alleged to have been the result of her earlier, pre-complaint meeting with Clevenger.”