In Trail v. New York State Department of Corrections and Community Supervision, 17-cv-7273, 2020 WL 5504277 (SDNY Sept. 10, 2020), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s hostile work environment claim. [1]I discussed the court’s denial of defendants’ motion for summary judgment as to one aspect of plaintiff’s discrimination/disparate treatment claim – receiving harsher punishment than another employee with whom plaintiff was involved in a physical altercation – here.
After summarizing the applicable black-letter law, the court explained:
Plaintiff testified at his deposition that during various incidents, Schmelmer [plaintiff’s supervisor] called three subordinates, Brown, Mangione, and plaintiff, “nigger” or “punk-ass-nigga.” (Trail Tr. at 24–25). At least one of these instances was reported to ODM. (Am. Compl. at 41–42). DOCCS has offered no evidence that any corrective action was taken in response to such report.
Moreover, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence of his subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d at 24. The fact that plaintiff was not present during every alleged use of this derogatory term does not undermine the incidents’ relevancy; whether they in fact contributed to a hostile work environment is a question for the jury. Schwapp v. Town of Avon, 118 F.3d at 111–12.
It is true plaintiff appears to have confused certain details of the instances during which he claims Schmelmer used the “n-word.” For instance, during his deposition, plaintiff stated Mangione was present during the June 13, 2016, incident, but Mangione attested he no longer worked at Taconic on that date. But that plaintiff was unable to recall specific details of Schmelmer’s use of the “n-word” does not preclude a finding by a reasonable factfinder that Schmelmer did in fact use racial slurs toward a subordinate, especially when supported by contemporaneous evidence in the form of the October 31, 2016, letter to ODM in which Schmelmer’s use of the term “punk-ass-nigga” toward Brown was detailed. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d at 23 (“Although [plaintiff] could not recall certain details of [an] incident [during which a the ‘n-word’ was allegedly used] during his deposition testimony, he provided enough details, which were supported by contemporaneous evidence in the form of an EEOC charge ….”); cf. id. at 22 (noting summary judgment was appropriate in a case where the “District Court found nothing in the record to support plaintiff’s allegations other than plaintiff’s own contradictory and incomplete testimony”). Nor are comments made outside of plaintiff’s presence inadmissible hearsay; such comments have not been offered “to prove the truth of the matter[s] asserted in the statement[s].” See Fed. R. Evid. 801(c)(2).
Furthermore, in addition to informing ODM about Schmelmer’s use of the “n-word” toward his subordinate Brown, plaintiff’s union president wrote to DSS Daye that Kanojia had called plaintiff a Jamaican Coconut on “numerous occasion and Trail felt offended about this.” (Am. Compl. at ECF 16). Daye informed the union president that the letter had been forwarded to ODM. (Am. Compl. at ECF 28). DOCCS has not submitted any evidence that any action was taken in response to such complaint. Accordingly, there exists a genuine factual dispute as to whether DOCCS acquiesced in, or did nothing to prevent, Kanojia’s alleged contribution to the creation of a hostile work environment. See Williams v. Consol. Edison Corp. of N.Y., 255 F. App’x 546, 550 (2d Cir. 2007) (reversing summary judgment for defendant when factual questions existed as to whether appropriate remedial action had been taken in response to a racially hostile work environment); see also 29 C.F.R. § 1604.11(d) (stating an employer is liable for co-worker harassment when it “knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action”).
The court concluded that, although it viewed this case as a “close call”, having construed the facts, resolved all ambiguities, and drawn all permissible inferences in plaintiff’s favor, it was unable to conclude as a matter of law that plaintiff was unable to prevail on his hostile work environment claim.