In Diallo v. Whole Foods Market Group, Inc., 2019 WL 140728 (S.D.N.Y. Jan. 9, 2019), the court, inter alia, adopted a Magistrate Judge’s recommendation to deny defendant’s motion for summary judgment on plaintiff’s hostile work environment claim.
From the decision:
As to the merits, Whole Foods’ argument on the hostile work environment claim presents a close question. The Second Circuit has held that such a claim must be based on more than mere petty slights. Rather, “the workplace [must be] 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.” Littlejohn v. City of New York, 795 F.3d 297, 320–21 (2d Cir. 2005) (citations omitted). “The incidents complained of must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Id. at 321. The workplace statements of which Diallo complains are less severe than those reported in many cases sustaining hostile work environment claims. Nevertheless, viewing the remarks that Diallo has alleged in totality and in the context of his particular workplace, the Court, like Judge Fox, is persuaded that a finder of fact could find this standard met by the frequent name-calling that Diallo alleges occurred, by the frequent negative references to his African heritage, and by the multiple comments allegedly made that can be read to equate African heritage with lesser workplace competence and capability.