From Polite v. Khan Funds Management America, Inc., 2018 WL 894394 (S.D.N.Y. Feb. 5, 2018):
Even assuming for purposes of this motion that KFMA is subject to Title VII, Plaintiff’s allegations still fail to state a claim for employment discrimination. Plaintiff has not alleged that his co-workers’ comments and behavior were either sufficiently pervasive or severe as to create a hostile work environment. Nor has he shown that their actions were motivated by discriminatory intent or animus based on his race or national origin. Plaintiff does not even allege that the comments in Mandarin were antagonistic or disparaging, much less understood; he claims only that they were “humiliating.” (Compl. ¶ 27.) At most, his co-workers’ “giggling, laughing, and mocking [off his gestures,” (id.), belong to the class of “minor annoyances that often take place at work and that all employees experience.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). As the Supreme Court has made clear, “occasional teasing” does not create a hostile work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Equally deficient are Plaintiff’s allegations that for most of his time at KFMA, he was the only black employee and that when another black employee was hired, he was terminated on the same day as Plaintiff. The complaint does not identify the total number of individuals under KFMA’s employ, nor does it allege any facts about the other black employee or the circumstances surrounding his termination. Accordingly, Plaintiff’s allegations provide no basis for a fact finder to infer discriminatory intent. See Mattison v. Potter, 515 F. Supp. 2d 356, 374 (W.D.N.Y. 2007) (rejecting argument that because plaintiff was the only black, female employee in her unit, the workplace harassment she suffered was racially motivated).
Plaintiff’s allegation that he did not receive emails or other office communications in a language he understood does little to save his claim. Indeed, it is well-settled that Title VII does not treat language as a protected class. See Soberal-Perez v. Heckler, 717 F.2d 36, 41 (2d Cir. 1983) (stating that “[l]anguage, by itself, does not identify members of a suspect class”); Brewster v. City of Poughkeepsie, 447 F. Supp. 2d 342, 351 (S.D.N.Y. 2006) (noting that Title VII “does not protect against discrimination on the basis of language”), Moreover, there is no indication that this behavior was motivated by any discriminatory animus whatsoever.