Hostile Work Environment Claim Dismissed; “Al-Qaeda” and Other Remarks Not “Severe” or “Pervasive”

In Hindi and Aljader v. The Port Authority of New York and New Jersey, 14-cv-8984, 2019 WL 2325969 (SDNY May 30, 2019), the court, inter alia, granted defendants’ motion for summary judgment on plaintiffs’ religion- and national origin-based hostile work environment claims.

Plaintiffs’ allegations included having a picture of one’s face superimposed onto a picture portraying Osama Bin Laden, referring to one plaintiff as “Alcader” (allegedly referring to the terrorist organization Al-Qaeda), and one plaintiff being asked if he “arrived on his magic carpet.”

After reviewing the legal standards governing hostile work environment claims, the court applied the law to the facts:

First, the Court is not satisfied that the alleged harassment was objectively abusive such that it created an actionabl[e] hostile work environment. These incidents were not frequent. Although Plaintiffs fail to provide specific dates for many of the incidents, Plaintiffs’ proffers indicate that they encountered allegedly hostile incidents, on average, just once every two years. Plaintiffs provide no evidence to indicate that these incidents were part of a concerted pattern of harassment; rather, the record suggests that these incidents were isolated and sporadic. Because none of the perpetrators has been identified, a reasonable fact finder could not conclude that each incident was carried out by the same actor or group of actors.

Plaintiffs have also failed to demonstrate that the incidents that supposedly created a hostile work environment were sufficiently severe to support liability under federal law. Title VII is not a “general civility code” and it does not protect against the kind of offhand remarks and offensive behavior that Plaintiffs endured. These incidents and comments were not physically threatening. Plaintiffs also provide no evidence that the incidents resulted in any functional change to the terms and conditions of their employment, or that the alleged harassment otherwise interfered with their work performance. Plaintiffs never sought a transfer of assignment; quite the opposite—they sought to extend the time they spent in these allegedly hostile work environments by electing to work significant overtime hours.

Second, even assuming that the alleged harassment was objectively abusive enough to constitute a hostile work environment, Plaintiffs fail to provide any basis for imputing liability to the Port Authority. The Port Authority provided a reasonable avenue for Plaintiffs to complain about the hostility against them. Plaintiffs were free to lodge an anonymous complaint with the Port Authority’s Office of Equal Opportunity by following the procedures set forth in the “Equal Employment Opportunity Guide.” (Alterman Decl., Ex. P.) Plaintiffs neglected to use this reasonable avenue. (Def. 56.1 ¶¶ 25, 39.)

Furthermore, Plaintiffs fail to adduce any evidence that the Port Authority knew or should have known about the harassment. Plaintiffs speculate that the Port Authority must have known about the harassment because some of the incidents occurred in a common break room, but they provide no evidence to substantiate this assertion. A reasonable fact finder would have no basis to infer that anyone besides the Plaintiffs and the co-workers who posted the offensive images knew of their existence. Therefore, liability for the allegedly hostile work environment Plaintiffs endured cannot be imputed to the Port Authority.