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Accent- and Disability-Based Hostile Work Environment Claim Survives Summary Judgment

by mjpospis on September 18, 2017

in Disability Discrimination, Employment Discrimination, Employment Law, Hostile Work Environment, National Origin Discrimination

In Duarte v. St. Barnabas Hospital, 2017 WL 4082307, at *17 (S.D.N.Y. Sept. 13, 2017), the court held that material issues of fact precluded summary judgment for defendant on plaintiff’s disability and national origin-based hostile work environment claim.

As to plaintiff’s hearing condition, the court noted:

Here, Plaintiff has offered evidence that – during weekly staff meetings with other clinicians – Quinones, her supervisor, repeatedly made demeaning and degrading remarks concerning her hearing disability. … For example, Plaintiff testified that when she asked a question or asked Quinones to repeat himself during a staff meeting, Quinones would call her “deaf” or ask, “Are you deaf? Are you deaf, Ruth?” Quinones also told Plaintiff at the start of staff meetings, and in reference to her amplifier, to “[p]ut that thing on because you’re deaf and you’re not going to be able to hear what I have to say.” There is evidence that Quinones made such comments “more than 20 [times]” and perhaps as many as 100 times “[o]ver the course of [six] years.”

As to her accent, it noted:

Plaintiff also testified that, during the same staff meetings, “[i]f she said a word in English[ and] … the pronunciation did not appear to be correct,” Quinones “would repeat it, would correct [her], and everybody would laugh.” (Def. R. 56.1 Appx., Ex. 1 (Pltf. Dep.) (Dkt. No. 49-2) at 49, 60) Quinones also publicly corrected Plaintiff’s misspelling of English words in notes she took during staff meetings. (See id. at 60) Quinones also “told [Plaintiff that she] needed to go back to school because [she] did not know how to speak English and [that her] accent was so bad clients could not understand [her].” (Pltf. Aff. (Dkt. No. 56-7) ¶ 6)

Quinones also “called [Plaintiff] an immigrant and repeatedly made fun of [her] immigration status…. [He] constantly told [her] to ‘go back to Ecuador.

It then discussed the relationship between one’s accent and national origin, and in particular how ridiculing one’s accent may give rise to a national origin discrimination claim:

Courts have recognized that “accents are perhaps the most recognizable indication of one’s national identity, and ‘[a]ccent and national origin are obviously inextricably intertwined in many cases.’ ” Pibouin v. CA, Inc., 867 F. Supp. 2d 315, 324 (E.D.N.Y. 2012) (quoting Rivera v. Baccarat, Inc., 10 F. Supp. 2d 318, 324 (S.D.N.Y. 1998) (quoting Fragante v. City and County of Honolulu, 888 F.2d 591, 596 (9th Cir. 1989))). Indeed, “ ‘[t]he EEOC “defines national origin discrimination broadly as including” unequal treatment “because an individual has the physical, cultural or linguistic characteristics of a national origin group.’ ”” Costantin v. New York City Fire Dent., No. 06 Civ. 04631 (GBD) (THK), 2009 WL 3053851, at *19 (S.D.N.Y. Sept. 22, 2009) (quoting 29 C.F.R. § 1606.1 (2005)). Accordingly, “[e]vidence that supervisors ridiculed an employee’s accent may … help support a finding that the employer created a hostile work environment because of the employee’s national origin.” [Citing cases.]

The court concluded:

Here, this Court concludes that Plaintiff has offered sufficient evidence to raise a material issue of fact as to whether Plaintiff was subjected to a hostile work environment based on her hearing disability and national origin. A reasonable jury could conclude that Quinones’ disability-based and national origin-based remarks about Plaintiff were “sufficiently continuous and concerted to have altered the conditions of her working environment.’ ” Alfano, 294 F.3d at 374. Moreover, Quinones’ remarks about Plaintiff’s deafness and accent address closely related conditions, such that one “form[ ] of harassment… exacerbate[d] … the other.” Donahue, 208 F. Supp. 3d at 517. Because “ ‘the existence of… a hostile work environment’ is ‘a mixed question of law and fact,’ ” Boggs, 286 F. Supp. 2d at 297 (quoting Richardson v. New York State Dept. Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999)), “[s]uch mixed questions are especially well-suited for jury determination.”

While the court permitted plaintiff’s national origin and disability-based hostile work environment claims to survive, however, it dismissed plaintiff’s claims of gender and race-based hostile work environment.

Categories: Disability Discrimination, Employment Discrimination, Employment Law, Hostile Work Environment, National Origin Discrimination

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