In Diggs v. Oscar De La Renta, LLC (decided Dec. 9, 2014), a race discrimination case, the Supreme Court, Queens County denied defendants’ motion for summary judgment on plaintiff’s discrimination claim under the NYC Human Rights Law and her retaliation claims under the NYC and NYS Human Rights Laws.
According to plaintiff,
twice on second day of work, she heard Elezay, a Caucasian and her only co-worker in the children’s wear division, utter the epithet “n—–” to Ramon Cabral (Cabral), a Hispanic employee at ODLR. Both times, the word was used as a jocular greeting to get his attention, and Elezay and Cabral laughed at her use of the word afterward. Elezay used the word a few times on Wednesday and once again on Thursday.
Shortly after plaintiff told Elezay that she did not think she should be using the “n-word” in the workplace, plaintiff was terminated.
In denying summary judgment on plaintiff’s hostile work environment claim under the New York City Human Rights Law, the court pointed both to the “severity” of the “n-word”, as well as to defendant’s inadequate response to plaintiff’s complaints:
With respect to the language used by Elezay, many a court has agreed that “far more than a mere offensive utterance, [the racial slur “n–—-”] is pure anathema to African-Americans. 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 [‘n–—-’]”. Particularly given the history carried in that single word, Elezay’s act of uttering “n—–” in the presence of plaintiff, even if not directed toward her, may still contribute to the creation of a hostile work environment. A reasonable factfinder could conclude that plaintiff’s repeated subjection to hearing the word would make that work environment objectively hostile.
Despite the severity of the epithet uttered by Elezay the evidence does not support a finding that its usage was “pervasive,” as required under the NYSHRL. However, a jury could find that the complained-of conduct amounted to more than “petty slights and trivial inconveniences” under the more liberal NYCHRL. Moreover, triable issues of fact remain whether ODLR, as her employer, took reasonable steps to promptly remedy the harassing conduct. Such corrective action “must be real and not a sham”. Here, Cheek issued a written warning to Elezay that merely described her misconduct as “using inappropriate slang in corporate environment” without further remedial steps. Similarly, Santos allegedly responded to plaintiff’s complaint by stating that her colleagues would continue such conduct when plaintiff was not present in any event. A jury could find that ODLR’s response to plaintiff’s complaint was not reasonable or sufficient.
[Note – the court’s dismissal of plaintiff’s discrimination claim under the New York State Human Rights Law on the basis that the usage of the “n-word” must be “pervasive” is questionable, since under federal and state law the harassment must be “severe OR pervasive”, not “severe AND pervasive”, to be actionable.]
The court next declined to dismiss plaintiff’s retaliation claims under either the state or city statute, pointing to the “short time period between her protected activity [i.e., her complaints to her employer about the alleged comments] and her termination six days later.” In addition to temporal proximity, plaintiff’s testimony “calls into question defendant’s proffered non-discriminatory explanation of reduced work volume, particularly in light of the fact that ODLR hired a permanent employee the day after it discharged plaintiff.”