In Wilson v. National Grid USA Service Company, Inc. et al, 2018 WL 5886438 (N.D.N.Y. Nov. 9, 2018), the court dismissed plaintiff’s race- and gender-based hostile work environment claims.
Here is the court’s summary of the relevant law:
To state a hostile work environment claim in violation of Title VII, a plaintiff must plead facts that would tend to show that the complained of conduct: (1) ‘is objectively severe or pervasive, that is, … the conduct creates an environment that a reasonable person would find hostile or abusive’; (2) creates an environment ‘that the plaintiff subjectively perceives as hostile or abusive’; and (3) ‘creates such an environment because of the plaintiff’s [race],’ ” Patane, 508 F.3d at 113 (quoting Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir. 2001)), or because of any other characteristic protected by Title VII, see Gregory, 243 F.3d at 692 (indicating that any characteristic protected by Title VII is sufficient to satisfy the third element).
“In determining whether conduct constitutes a hostile work environment, the Court must consider the frequency and severity of the discriminatory conduct, whether the conduct is physically threatening or humiliating, and whether the conduct unreasonably interferes with the plaintiff’s work performance.” Salmon v. Pliant, 965 F. Supp. 2d 302, 305 (W.D.N.Y. 2013) (citations omitted). “[A] few isolated incidents of ‘boorish or offensive use of language’ are generally insufficient to establish a hostile work environment.” Id. (citations omitted). The court must review the totality of the circumstances, and may consider incidents that are facially neutral, “so long as a reasonable fact-finder could conclude that they were, in fact, based on sex [or race].” Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002) (collecting cases). However, the Court must exclude from its consideration “personnel decisions that lack a linkage or correlation to the claimed ground of discrimination” because “[e]veryone can be characterized by sex, race, ethnicity, or (real or perceived) disability; and many bosses are harsh, unjust, and rude.” Id.; see also Bowman v. Shawnee State Univ., 220 F.3d 456, 464 (6th Cir. 2000) (holding that objectionable but facially sex-neutral behavior by one person could not be considered in a hostile work environment claim where there was no evidence of that person’s bias).
Applying the law, the court noted, inter alia, that (as to her race-based claim) that plaintiff “never personally heard anyone use racially derogatory or racially offensive comments towards her or any other person” and that “aside from Plaintiff’s conclusory allegations, she was unable to recall more than a handful of offensive comments and conduct, nearly all of which either occurred outside of the relevant statute of limitations or are based on inadmissible hearsay.”