In Alvarado v. Mount Pleasant Cottage School District et al, 2019 WL 4039149 (S.D.N.Y. August 27, 2019), the court, inter alia, dismissed plaintiff’s race and national origin-based hostile work environment claim.
The court summarized plaintiff’s allegations as follows:
Here, Plaintiff has pointed to four incidents, perpetuated by Defendant Sheppard, that support her race/national origin-based hostile-work-environment claim. These incidents include Defendant Sheppard (1) purposefully misidentifying her as a Mexican instead of a Puerto Rican (AC ¶ 11); (2) tastelessly asking whether she was “scared” that “if Trump becomes President … he [would] send [her] back to Mexico” (id.); (3) suggesting that she adopt a Spanish student “because he’s Spanish like you and your family has money” (id. ¶ 12); and (4) perpetuating stereotypical generalizations by attributing a student’s Spanish slur to Plaintiff “merely because she is Spanish” (id. ¶ 13).
The court proceeded to explain why these allegations fail to meet the “severe or “pervasive” hostile work environment standard.
From the decision:
As alleged, these comments certainly target Plaintiff’s race/national origin. And, as the AC makes clear, Plaintiff subjectively found this conduct offensive. Nevertheless, even when viewed in a favorable light and considering the totality of the circumstances, Plaintiff’s claim fails to establish that Defendant Sheppard’s alleged conduct was objectively severe or pervasive.
First, Plaintiff has failed to establish that the alleged hostile work environment was pervasive. Although Plaintiff’s comments are related in substance, they were, at most, isolated and sporadic incidents that occurred over the course of a year. To be sure, there is “no fixed number of incidents that a plaintiff must endure to establish a hostile work environment.” Alfano v. Costello, 294 F.3d 365, 379 (2d Cir. 2002). But courts in this circuit have required more regularity than what Plaintiff has alleged. See, e.g., Martin v. City Univ. of N.Y., No. 17 Civ. 6791 (KPF), 2018 WL 6510805, at *8-9, *12 (S.D.N.Y. Dec. 11, 2018) (dismissing hostile-work-environment claim where defendant’s employee made four race- and job-related comments to and about plaintiff during an approximately one-year span); Lessambo v. PricewaterhouseCoopers, L.P., No. 08 Civ. 6272 (WHP), 2010 WL 3958787, at *11 (S.D.N.Y. Sept. 27, 2010) (concluding that the utterance of “three offensive remarks about [ ] national origin” in a one month period did not suffice to support a hostile-work-environment claim); Stepheny v. Brooklyn Hebrew Sch. for Special Children, 356 F. Supp. 2d 248, 264 (E.D.N.Y. 2005) (determining that the utterance of a racial remark “five times over an approximately five month period” did not amount to a hostile work environment). Simply put, the frequency Defendants’ conduct over the course of a year is insufficient to establish the pervasive pattern of discrimination necessary to constitute a hostile work environment under Title VII.
Second, Plaintiff has also failed to allege that Defendant Sheppard’s conduct was severe. As a general rule, “Title VII … does not set forth a general civility code.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotations omitted). The statute does “not prohibit employers from maintaining nasty, unpleasant workplaces, or even ones that are unpleasant for reasons that are due to the protected characteristic.” Carrington v. Mota, 16-CV-8061 (GBD) (JLC), 2017 WL 3835883, at *12 (S.D.N.Y. Aug. 31, 2017) (internal alterations and quotations omitted). Here, Plaintiff has not alleged that Defendant Sheppard’s behavior was physically threatening or humiliating, or that his comments interfered with her work performance. Instead, each of Defendant Sheppard’s remarks, even when viewed together, were, at most, offensive utterances and remarks that seemingly and understandably engendered offensive feelings in Plaintiff. While the Court agrees with Plaintiff that these comments, if true, are tasteless, meanspirited, and sound of ignorance and bias, under these circumstances, they do not meet the requisite standard for a Title VII claim. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (“ ‘[M]ere utterance of an … epithet which engenders offensive feelings in a[n] employee does not sufficiently affect the conditions of employment” (internal quotations omitted)). Plaintiff’s race/national origin-based hostile-work-environment claims are dismissed, without prejudice.