“Old White Bitch” Among Comments Held Sufficient to Allege Age/Race/Gender Discrimination & Hostile Work Environment Claims

In MacAlister v. Millennium Hotels & Resorts et al, 2019 WL 3765825 (S.D.N.Y. August 9, 2019), the court held, inter alia, that plaintiff – a white American woman over the age of 40 – sufficiently alleged discrimination and a hostile work environment based on her age. gender and race.

As to plaintiff’s discrimination claims, the court explained:

[Plaintiff] alleges that Wong made comments about her age, race and gender on numerous occasions by calling her “Treacy’s” or “nasty” “old white bitch.” In the month of December alone, MacAlister alleges Wong called her a “nasty old white bitch” twenty nine times. According to Shiffler, not only did Wong refer to MacAlister’s age, race and gender in his name calling, Wong allegedly stated that he intentionally put her “in a closet,” presumably, the converted closet that became her office. At the time, Wong was the acting president of Millennium and MacAlister’s direct supervisor. See Shao v. City University of New York, 12 Civ. 1566 (RJS), 2014 WL 5038389, at *5 (S.D.N.Y. Sept. 30, 2014); see also Dietrich v. City of New York, No. 18 CV. 7544 (CM), 2019 WL 2236585, at *10 (S.D.N.Y. May 16, 2019) (“allegations that younger detectives were promoted instead of Plaintiff and that Plaintiff was subject to a discriminatory remark” were “sufficient to meet the (minimal) burden” establishing age discrimination for the purposes of a motion to dismiss”).

Wong’s remarks were made within a one month period, not during the span of a year or a couple of years. See Haggood v. Rubin & Rothman, 14 Civ. 34: (SJF) (AKT), 2014 WL 6473527, at *11 (E.D.N.Y. Nov. 17, 2017) (comments were made on four occasions over a thirty three month period prior to adverse employment action and so discriminatory intent could not be inferred). In addition, Wong’s remarks that he intentionally moved her to a converted closet are so closely tied to her age, race and gender that discrimination can be inferred as the motivation for the move and other difficulties MacAlister faced. See Raniola v. Bratton, 243 F. 3d 610, 622 (2d Cir. 2001) (citing Howley v. Town of Stratford, 217 F. 3d 141 (2d Cir. 2000) (“prior derogatory comments by a co-worker may permit an inference that further abusive treatment by the same person was motivated by the same sex-bias manifested in earlier comments”). Despite the fact that solely being moved to a smaller office, or being precluded from certain meetings may not, by themselves, constitute adverse employment actions, MacAlister suffered these in addition to actions that the Court has already found to be adverse, such as the loss of administrative staff. See Dietrich, 2019 WL 2236585, at *10.

*5 Moreover, Wong’s remarks and actions against MacAlister occurred during the same month, December. See Luka v. Bard Coll., 263 F. Supp. 3d 478, 487 (S.D.N.Y. 2017) (finding that “the alleged remark about plaintiff’s disability was neither made close in time to the decision nor in relation to the specific employment decision challenged” to infer disability-based discrimination, however regularly calling the plaintiff a “bitch” along with other facts is sufficient to infer gender-based discrimination); see also Peralta v. Roros 940, Inc., 72 F. Supp. 3d 385, 395 (E.D.N.Y. 2014) (“alleged episodes of name calling heard secondhand could be indicative of discriminatory animus”). The Court finds the alleged name calling, in combination with the other slights MacAlister suffered, are sufficient to sustain the minimal burden of demonstration discriminatory animus based on age, gender and race. See Raniola v. Bratton, 243 F. 3d 610, 622 (2d Cir. 2001) (citing Howley v. Town of Stratford, 217 F. 3d 141 (2d Cir. 2000) (“prior derogatory comments by a co-worker may permit an inference that further abusive treatment by the same person was motivated by the same sex-bias manifested in earlier comments”).

Turning to plaintiff’s hostile work environment claims, the court explained:

[Plaintiff] alleges the loss of her administrative staff interfered with her ability to get her end of the year reports done. In addition she alleges that exclusions from meetings and name calling undermined her authority over her direct reports. Doc. 42, ¶11. This Court is required to accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff’s favor; and so at this juncture these unheard statements in conjunction with MacAlister’s loss of support staff, demotion, alleged attempts of sabotage, relocation to converted office space and false allegations of disappearance could objectively create “an environment that a reasonable person would find hostile or abusive.” Sardina v. United Parcel Service, Inc., 254 Fed. Appx. 108, 110 (2d Cir. 2007) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citations omitted) (“just as a racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment … the fact that a plaintiff learns secondhand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment”); see also Vazquez, 2009 WL 2596490, at *15. Therefore, the Defendants’ motion to dismiss MacAlister’s claims of a hostile work environment, and age, gender and race based discrimination under ADEA and Title VII is DENIED.