In Nash v. City of Cincinnati et al, 2025 WL 2403821 (S.D.Ohio Aug. 19, 2025), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s race-based hostile work environment claim.
From the decision:
Defendants next move to dismiss Plaintiff’s hostile work environment claim. (Motion, Doc. 4, Pg. ID 42.) Title VII protects an employee who shows that her workplace “is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklist Sys., Inc., 510 U.S. 17, 21 (1993) (quotations omitted). A plaintiff may also allege that either “(1) an employer engaged in discrete discriminatory acts such as termination, failure to promote, denial of transfer, or refusal to hire; or (2) the employer’s repeated conduct created a hostile work environment.” Ogbonna-McGruder v. Austin Peay State Univ., 91 F.4th 833, 840 (6th Cir. 2024) (quotations omitted). But since these two types of claims are distinguishable, “allegations of discrete acts may be alleged as separate claims, and as such cannot properly be characterized as part of a continuing hostile work environment.” Id. (quotation omitted).
Defendants argue that some of Plaintiff’s allegations of discrimination amount to discrete acts and are thus precluded from supporting her hostile work environment claim. (Motion, Doc. 4, Pg. ID 41.) The Court agrees. Plaintiff’s allegation that she was denied the investigator position because of racial bias supports her claim for race discrimination. Hunter v. Sec’y of United States Army, 565 F.3d 986, 994 (6th Cir. 2009) (finding that a failure to promote an employee is a discrete act). Conversely, the only remaining allegations of harassment that Plaintiff uses to support her hostile work environment claim are the comments made by Defendant Pettis on the recorded phone call and her visit to Plaintiff’s home to intimidate her. (Response, Doc. 6, Pg. ID 60.)
Looking at these allegations together, Plaintiff has not alleged sufficient facts for this Court to infer that the harassment she experienced was pervasive. A Court must consider “the totality of circumstances in determining the severity and pervasiveness of alleged harassment, including ‘the frequency of the discriminatory conduct; its severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an employee’s performance.’ ” Ogbonna-McGruder, 91 F.4th at 840 (quoting Harris, 510 U.S. at 23). Moreover, the alleged harassment must be so pervasive to create both an objectively and subjectively hostile work environment. Harris, 510 U.S. at 21-22. A plaintiff’s experiences of “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).
Here, there were only two alleged incidents of harassment, occurring at least several months apart. These incidents, although troubling, are too remote to create a hostile work environment. See, e.g., Reed v. P&G Mfg. Co., 556 F. App’x 421, 433 (6th Cir. 2014) (finding that forming a noose behind the plaintiff’s head and racist remarks are not sufficiently severe or pervasive to support a hostile work environment claim); Woodson v. Holiday Inn Express, No. 18-1468, 2018 U.S. App. LEXIS 28272, at *5 (6th Cir. Oct. 4, 2018) (affirming judgment on the pleadings where the plaintiff only alleged two examples of racial harassment); Breeden v. Frank Brunckhorst Co., LLC, 2020 U.S. Dist. LEXIS 115950, at *16 (S.D. Ohio July 1, 2020) (“[T]he case law does not support a finding of hostile work environment based on only two such instances” of harassment.) Furthermore, the alleged harassment occurred outside of Plaintiff’s workplace. The Sith Circuit has noted that “when an employee is forced to work for, or in close proximity to, someone who is harassing her outside the workplace, the employee may reasonably perceive the work environment to be hostile.” Duggins v. Steak’n Shake, Inc., 3 F. App’x 302, 311 (6th Cir. 2001).
The court concluded that plaintiff “has failed to plead any facts suggesting that she worked with Defendant Pettis” and that “even when viewed together, Plaintiff’s allegations do not support a claim for hostile work environment.”