Hostile Work Environment Claim Dismissed; “Job Criticism” Insufficient

From Morales v. Bottling Group, LLC, 16-cv-6597L, 16-cv-6600L, 2019 WL 1593418 (W.D.N.Y. April 15, 2019):

Morales fails to demonstrate that any of the alleged conduct was racially motivated. Regarding Flaherty’s “verbal insult,” Morales’s own testimony suggests he did not perceive it to be racially motivated at the time, (Dkt. # M31-5 at 27) (explaining that he understood the comment to mean that “there was people that didn’t like [he and Campbell] and that [they] needed to try to figure out a way to get that stank off”), and that one-time comment is “too infrequent and insufficiently severe” to support his claim. Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 586 Fed. Appx. 739, 745 (2d Cir. 2014) (summary order).

*10 Indeed, Morales relies only on his speculative self-belief that the remaining allegations of harassment—undue scrutiny, criticism, yelling, and not receiving work emails—were motivated because of his membership in a protected class. That is insufficient to set forth a hostile work environment claim. See Sharpe v. MCI Commc’ns Servs., Inc., 684 F.Supp.2d 394, 400 (S.D.N.Y. 2010) (“Even assuming [plaintiff] was treated harshly by [employer], the record does not contain sufficient evidence to support a finding that his treatment was racially motivated.”).

Moreover, Morales has not demonstrated that the above-allegations were sufficiently pervasive or severe to alter his working conditions. The Second Circuit has described similar types of perceived harassment as “quite minor,” and insufficient to amount to a hostile work environment. Fleming v. MaxMara USA, Inc., 371 Fed. Appx. 115, 119 (2d Cir. 2010) (summary order) (finding allegations that employer wrongfully excluded plaintiff from meetings, excessively criticized plaintiff’s work, and refused to answer work-related questions to be “quite minor” and not supportive of an environment that was pervasive or severe).

In addition, absent extreme circumstances, which are not present here, “job performance criticism does not create a hostile work environment.” Busby v. Syracuse City Sch. Dist., 2017 WL 1380573, *6 (N.D.N.Y. 2017), aff’d, 715 Fed. Appx. 63 (2d Cir. 2018) (summary order); see also Opoku v. Brega, 2016 WL 5720807, *13 (S.D.N.Y. 2016) (allegations that supervisors wrongfully reprimanded plaintiff, criticized his work or attitude, and overly scrutinized his work could not support a claim for hostile work environment); Marcus v. Barilla Am. NY, Inc., 14 F.Supp.3d 108, 113 (W.D.N.Y. 2014) (“a series of sporadic, isolated incidents in which managers verbally disagreed with plaintiff or criticized her job performance … falls well short, as a matter of law, of describing discriminatory conduct that is objectively threatening, intimidating, humiliating or harassing, let alone so severe or pervasive, as to render [plaintiff’s] hostile work environment claims plausible”). Here, Bottling Group’s criticism of Morales was based on many alleged performance issues raised by several customers.