In Berrie v. Bd. of Educ. of Port Chester-Rye Union Free Sch. Dist., No. 14-CV-6416 (CS), 2017 WL 2374363 (S.D.N.Y. May 31, 2017) (J. Seibel), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s hostile work environment claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and 42 USC 1981.
Initially, the court held that the evidence of discrimination proffered by plaintiff – including a teacher’s reference to African Americans as “porch monkey[s]” (and totaling “six remarks over a three to four year period” – were insufficient to rise to the level of a hostile work environment.
Even if they were, plaintiff’s case was nevertheless subject to dismissal under the so-called Faragher/Ellerth defense. The court explained that defense:
The Second Circuit has adopted the Supreme Court’s Faragher/Ellerth framework for determining whether an employer is liable for a hostile work environment created by its employees.  Under that standard, if an employee has not suffered a tangible employment action,  an employer can avoid liability by establishing that (1) the employer exercised reasonable care to prevent and correct promptly any discriminatory harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Applying the law to the facts, Judge Seibel concluded:
[T]he undisputed facts reveal he unreasonably failed to take advantage of the District’s policies. Plaintiff argues that “any complaint [would have been] futile because of the impropriety of the District’s investigation into his previous complaints, the fact that the District did nothing to address his prior complaints, and the fact that other complaints were ignored.  [A] failure to report … harassment may be excused where the employee has a credible fear that her complaint would not be taken seriously or that she would suffer some adverse employment action as a result of filing a complaint. …
But Plaintiff has presented no evidence—aside from conclusory allegations—from which a reasonable juror could conclude that the District ignored or failed to address his prior complaints, or undertook improper investigations. To the contrary, the District addressed each of Plaintiff’s prior complaints, even for incidents that occurred more than ten years prior, and there is no evidence that any complaint was ignored. Plaintiff may be referring to instances in which he allegedly discussed discriminatory incidents with Fanelli and, according to Plaintiff, Fanelli “would basically talk [him] down from it.”  Plaintiff did not invoke the policy on these occasions, however, nor was he given any indication that if he did, the District would not take him seriously. …
Therefore, because on the undisputed facts the District had a properly disseminated anti-discrimination policy in place, and conducted reasonable investigations into all presented allegations of discrimination, and because Plaintiff could have but did not raise other allegations, the District may avail itself of the Faragher/Ellerth defense.
The court also dismissed plaintiff’s retaliation claims, finding (inter alia) that the alleged retaliatory acts were not “materially adverse” and therefore not actionable.