The recent Southern District of New York case of Amar v. New York City Health and Hospitals Corp., 14-cv-2503 (SDNY June 15, 2015) is instructive on pleading a hostile work environment claim under Title VII of the Civil Rights Act of 1964.
In Amar, Judge Ramos held that the plaintiff, an African American woman employed by defendant as a patient care assistant, sufficiently alleged a hostile work environment and therefore denied defendant’s motion to dismiss on the pleadings under FRCP 12(c).
Plaintiff alleged that, for example, two of her co-workers harassed her (by calling her names such as “fat ass,” “retard,” “bitch,” “monkey,” “devil,” “stupid African,” “porch monkey,” and “asshole” and physically assaulting her) and that the defendant failed to take action to protect her.
The court summarized the often-stated standard for alleging a hostile work environment under Title VII:
To state a claim for hostile work environment under Title VII, a plaintiff must plead facts that would tend to show that the complained of conduct: (1) is objectively severe or pervasive, that is, the conduct creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of plaintiff’s … characteristic protected by Title VII.
In finding that plaintiff plausibly alleged a hostile work environment claim, the court explained:
While a mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee is not, by itself, actionable under Title VII, an objectively hostile and abuse environment may be plausibly inferred based on the totality of the circumstances present here. First, Jemison’s comments were not isolated incidents. Over approximately one month, [one co-worker] is alleged to have “repeatedly” and “continuously” called Plaintiff “stupid African” and “porch monkey.” Second, [the co-worker] verbally threatened Plaintiff and assaulted Plaintiff by elbowing her. While [the co-worker]’s comments alone may be considered non-actionable “offensive utterance[s],” when considered together with [the co-worker]’s threats and actual physical assault, Plaintiff plausibly alleges a hostile or abusive work environment.
Additionally, plaintiff plausibly alleged that the co-worker’s harassment was due to plaintiff’s race, color and national origin, based on the co-worker’s use of the slur “porch monkey” and reference to plaintiff as “stupid African.”
Judge Ramos also rejected defendant’s argument that the co-worker’s conduct is based on personal animosity, rather than plaintiff’s race, national origin, or color, noting that “a plaintiff is not required to show that his or her protected characteristic is the only motivating factors for the alleged conduct but must show only that it is a motivating factor.” (Emphasis in original.) Plaintiff sufficiently alleged that race, national origin, or color were a motivating factor for the co-worker’s conduct. The co-worker did not merely “objectively comment on Plaintiff’s race, color, or national origin, but rather repeatedly used racial slurs towards Plaintiff in a threatening manner.”
As to whether liability could be imputed to the employer, “[i]f the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions … such as if the employer failed to provide a reasonable avenue for complaint or … failed to take appropriate remedial action about harassment of which it knew, or in the exercise of reasonable care should have known.”
Here, although defendant immediately suspended the co-worker after an incident, that “incident was the culmination of what Plaintiff alleges was near daily harassment she suffered at the hands of [the co-worker] since she returned to work a month earlier.” When “determining the reasonableness of an employer’s actions, courts consider the amount of time that elapsed between the complaint and the remedial action.” In this case, “in the three weeks between Plaintiff’s first complaint and Defendant’s remedial action, [the co-worker]’s alleged conduct continued and escalated into a physical assault.” In light of the facts as alleged, defendant’s three-week delay was “insufficient in light of the pervasive and threatening nature of [the co-worker]’s alleged conduct.”
Finally, the court dismissed plaintiff’s retaliation claim, finding the element of temporal proximity lacking. In particular, the one-and-a-half years between plaintiff’s protected activity (filing a NYSDHR complaint) and the beginning of the co-worker’s harassing conduct was too long to state the requisite causation between the protected conduct and the adverse action.