Derogatory, Boorish Language Did Not Give Rise to Hostile Work Environment

A recent decision, Dotson v. City of Syracuse et al, 18-cv-750, 2019 WL 2009076 (N.D.N.Y. May 7, 2019), underscores that so-called “hostile work environment” claims require more than simply “derogatory”, “boorish”, or “offensive” language.

The court summarized the well-established law applicable to plaintiff’s hostile work environment claim:

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.” … “[A] few isolated incidents of ‘boorish or offensive use of language’ are generally insufficient to establish a hostile work environment.” … 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].” … 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.” …

Applying the law, the court explained:

Plaintiff has failed to plead a claim for a hostile work environment. First, the allegations of derogatory language are insufficient to state a claim for a hostile work environment. This is the kind of “boorish or offensive use of language” that are “generally insufficient to establish a hostile work environment.” Salmon, 965 F. Supp. 2d at 305. Plaintiff does not allege that this language was frequent or physically threatening, does not allege any instance of personal humiliation and does not allege that this language affected any personnel decisions. In fact, Plaintiff has failed to allege that there were any specific incidents that were motivated by race or gender, and as discussed above, has failed to plead any link between these comments and her termination. …

Moreover, Plaintiff has failed to plead a claim for a hostile work environment on the basis of the surveillance allegations in paragraph 17 of the Amended Complaint. Plaintiff alleged that she was “subjected to extensive, intrusive, and secret retaliatory and discriminatory surveillance by conduct including, but not limited to: surreptitiously recording and monitoring her daily movements, persons she spoke with, computer usage, statements and expressions she made, usage of sick time, and other invasions of Plaintiff’s privacy.” … She further alleges that these activities “extended over a period of over a year or more.” Id. Despite these allegations, Plaintiff fails to allege any facts plausibly suggesting that these activities were done because of her membership in a protected class. Plaintiff has wholly failed to suggest that this surveillance was connected to her sex or race, other than to state that such surveillance was “retaliatory and discriminatory” in a conclusory manner. Such conclusory pleading does not satisfy pleading requirements to withstand a motion under Rule 12(b)(6).

The court also held that plaintiff’s claim was barred on statute of limitations grounds:

[A]s discussed above, Plaintiff was absent from the workplace from August 18, 2014 until her termination on February 9, 2015. As such, all of the conduct alleged in support of her hostile work environment claim necessarily occurred at the latest in August of 2014. Plaintiff filed her complaint in this matter on February 8, 2018. … Although Plaintiff’s termination occurred within the three-year statute of limitations, Plaintiff has failed to plausibly alleged that Defendants terminated her because of any protected characteristic. Rather, the Amended Complaint makes clear that Plaintiff was terminated after her alleged disability rendered her unable to return to work. Therefore, since Plaintiff’s termination was not “ ‘part of the same actionable hostile work environment practice,’ ” it may not be considered in connection with this claim. … As such, all of the alleged hostile conduct occurred outside of the three-year statute of limitations applicable to this claim.