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Race-Based Hostile Work Environment Claim Dismissed Against UPS

by mjpospis on January 7, 2019

in Employment Discrimination, Employment Law, Race/Color Discrimination

In Morrison v. United Parcel Service, Inc., 17-CV-2885, 2019 WL 109401 (S.D.N.Y. Jan. 4, 2019), the court, inter alia, granted defendant UPS’s motion for summary judgment on plaintiff’s race-based hostile work environment claim.

From Judge Pauley’s opinion:

Even drawing all inferences in Morrison’s favor, he does not establish a pattern of behavior meeting § 1981 and the NYSHRL’s demanding standard. In total, Morrison faced three isolated incidents with purportedly racial overtones: (1) his supervisor’s referring to him as a “byword”; (2) his co-worker’s use of a racial epithet; and (3) the same co-worker’s “jungle juice” remark. “[T]here is [no] threshold magic number of harassing incidents that gives rise, without more, to liability as a matter of law.” … However, courts in the Second Circuit require a more pervasive and relentless pattern of behavior. …

Three stray, unconnected remarks over the course of a seven-week period are “episodic” and therefore will not “meet the threshold of severity or pervasiveness,” Gonzalez v. N.Y. State Div. of Human Rights, 2011 WL 4582428, at *4 (S.D.N.Y. Sept. 29, 2011) (quoting Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999)). To be sure, “the appalling conduct alleged in prior cases should not be taken to mark the boundary of what is actionable,” Richardson, 180 F.3d at 439, and “[t]he use of a racist epithet is certainly evidence of racial discrimination,” Rayboy-Brauestein, 467 F. Supp. 2d at 360. However, the “mere utterance of an … epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate [§ 1981].” Jowers v. Family Dollar Stores, Inc., 2010 WL 3528978, at *4 (S.D.N.Y. Aug. 16, 2010) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (quotation mark omitted). While this Court does not condone the comments that Morrison describes, he has not demonstrated a pattern of hostility actionable under § 1981 and the NYSHRL.

Morrison also draws no factual connection between his race and his supervisor’s criticisms. And subjectively attributing a discriminatory motive to these otherwise race-neutral interactions smacks of “mere conjecture” that does not create a material dispute of fact. Hicks, 593 F.3d at 166. Moreover, § 1981 “does not set forth a general civility code for the American workplace.”

The court proceeded to explain why liability could not be imputed to UPS, noting (inter alia) that “[h]is supervisor’s lone comment is not by itself a cognizable pattern of conduct, and so there is nothing to impute to UPS.”

Categories: Employment Discrimination, Employment Law, Race/Color Discrimination

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