Hostile Work Environment Claim Dismissed; Secondhand Knowledge of “Black Guy” Comment Insufficient

In Mohan v. City of New York et al, 17-cv-3820, 2018 WL 3711821 (SDNY Aug. 3, 2018), the court, inter alia, dismissed plaintiff’s race-based hostile work environment claim.

The court began by reciting the well-established “black letter” law applicable to hostile work environment claims:

A hostile work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice. … It is axiomatic that a hostile work environment claim is only actionable when it occurs because of an employee’s sex, or other protected characteristic. … To establish a hostile work environment under Title VII, § 1981, or § 1983, a plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. …

The incidents complained of must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. … In evaluating whether a plaintiff suffered a hostile work environment, a court consider[s] the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. … This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.

Applying the law, the court held that “[p]laintiff’s allegations do not plausibly allege that the workplace [was] permeated with discriminatory intimidation, ridicule, and insult,” finding that “the events alleged — considered individually or in tandem — are not sufficiently continuous, severe, or disruptive to show that Defendants subjected Plaintiff to a hostile work environment.”

Judge Failla elaborated:

As an initial matter, the only allegations in the [complaint] that arguably support discriminatory motive are those that the Court has already found insufficient in the context of Plaintiff’s race discrimination claim. See, e.g., Hicks v. Rubin, 6 F. App’x 70, 73 (2d Cir. 2001) (summary order) (affirming dismissal of hostile work environment claim for “same reason” as disparate treatment claim where plaintiff failed to establish that supervisors’ conduct toward plaintiff “was motivated by race”). But even assuming Plaintiff had sufficiently alleged a discriminatory motive, her hostile work environment claim fails because the wrongdoing she alleges was “not sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment[.]” Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (quoting Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002)). For instance, Plaintiff claims that Aaronson’s reassignment of Karen Cohen to a cubicle adjacent to Plaintiff’s was “very unsettling” (TAC ¶ 46); but Plaintiff does little to explain what made this arrangement so troubling, and this allegation is thus a far cry from the requisite degree of harassment necessary to sustain a hostile work environment claim. At most, the TAC alleges only that Cohen “observed” Plaintiff for some portion of each work day during the six-month period they had neighboring cubicles. (Id. at ¶ 45).

Plaintiff also contends that her lack of evaluations for certain years and Rivera’s “increased scrutiny” and “unmerited below average evaluation” contributed to a hostile work environment (TAC ¶¶ 105-06), but even “excessive criticism is generally insufficient to support a claim of a pervasive or severe hostile work environment,” Plahutnik v. Daikin Am., Inc., 912 F. Supp. 2d 96, 106 (S.D.N.Y. 2012) (citing Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (summary order)). Moreover, although Plaintiff alleges that “negative performance evaluations” could “adversely affect[ an] employee’s prospects for career advancement” (TAC ¶ 81), she does not allege either that her below-average evaluation contributed to any adverse employment action, or that it was motivated by race or national origin.17

*15 Finally, even assuming Kim’s single reference to another employee as a “Black guy” bespoke racial animus, the TAC suggests that Plaintiff only knew of this information secondhand (see TAC ¶ 78 (“Kim was known to have told [a coworker] … that there was a ‘Black guy[.]’ ”)), and this comment was not directed at her, cf. Leibovitz v. N.Y.C. Trans. Auth., 252 F.3d 179, 189-90 (2d Cir. 2001) (holding that female employee failed to establish hostile work environment based on alleged sexual harassment of coworkers, where she was not target of harassment, present when it occurred, or aware of it as it was ongoing). And even if this comment had been directed at Plaintiff, “[a] single incident of discriminatory comments is not sufficient to establish a hostile work environment. …

The court concluded that “[a]lone, each of these events does not amount to a hostile work environment” and “[c]onsidered together, they are at most isolated and sporadic incidents, [which are] generally insufficient to establish a hostile work environment claim.” Therefore, plaintiff failed to state a valid hostile work environment claim.

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