In Byer v. Periodontal Health Specialists of Rochester, PLLC et al, 2021 WL 3276725 (2d Cir. August 2, 2021) (Summary Order), the U.S. Court of Appeals for the Second Circuit, inter alia, vacated a district court’s order granting summary judgment to defendant on plaintiff’s racial harassment case asserted under the New York State Human Rights Law.
The court summarized its reasoning, and the underlying factual basis (including disturbing allegations of harassment) for it:
[A]s to the hostile work environment claim, Byer set forth evidence that Dr. Lowenguth made numerous derogatory and offensive statements, directly and implicitly referring to Byer’s race, many of which were made in the three years leading up to Byer’s resignation.4 For example, Dr. Lowenguth pulled Byer by the necklace and called her “Kunta”; circulated to the office a cartoon depicting Byer as a wild animal; said Byer looked like a “Mammy on the plantation”; told Byer to “talk that talk” to patients of color; brought to the office necklaces that displayed the words “bitch” and “slave” on them; commented that the office should provide Byer with fried chicken for lunch; joked that Byer would have nothing to eat when a restaurant said it had run out of ribs; referred to Byer as a pit bull; and said Byer dressed like the fictional Black character Buckwheat. App’x at 1378–80 (internal quotation marks omitted). Crediting this evidence, a reasonable juror could find that defendants’ conduct was sufficiently severe or pervasive that a reasonable person in Byer’s shoes would feel that it altered the conditions of Byer’s employment and created an abusive working environment. See Raspardo, 770 F.3d at 114; see also Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 84 (2d Cir. 2009) (cautioning against “focusing on a two-year stretch of time in which [plaintiff] fails to allege acts of hostility, and using that time to dilute the strength of his claims based on two discrete periods of more intense harassment”). Further, while there is some evidence in the record that suggests Byer did not find this behavior abusive, there is also some evidence to the contrary.
As for the timing of plaintiff’s allegations, the court – citing the Supreme Court’s decision in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) – explained that “[t]hat some of defendants’ misconduct occurred before the statutory time period is of no moment, because it does not matter that some of the component acts of the hostile work environment fall outside the statutory time period as long as some of acts fall within it.” (Internal quotation marks omitted.)