Race-Based Hostile Work Environment Claims Survive Summary Judgment

In James v. Van Blarcum, 2019 WL 5681334 (2d Cir. Nov. 1, 2019) (Summary Order), the court vacated the lower court’s dismissal of plaintiffs’ race-based hostile work environment claims.

Initially, the court held that the “continuing violations doctrine” applied, permitting consideration of otherwise-time barred conduct:

Appellants allege that the Ulster County jail has a policy of tolerating racially offensive comments in the workplace. See Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001) (“[E]ven where there is no formal policy, the continuing violation theory may be used where there have been specific and related instances of discrimination, and the employer has permitted them to continue unremedied for so long that its inaction may reasonably be viewed as tantamount to a policy or practice of tolerating such discrimination.”). The racial comments made within the limitations period and those made outside the period are sufficiently related for the continuing violation doctrine to apply. The “colored girl” comment made by Sergeant Polacco occurred in 2015. Other comments, such as the “Mandingo Hunter” reference, Officer Bell’s use of “nigger,” and Wenzel’s joke that “when you see a black man jogging, you know he stole something,” all occurred in 2014. There is evidence that similar comments were pervasive. These comments are related to others, such as Polacco’s earlier use of “nigger” and Bell’s use of “jigaboo” some time after 2007. Even those comments made outside the limitations period are sufficiently related to the timely allegations to be considered under the continuing violation doctrine. Other corrections officers, like Bell, or sergeants, like Polacco, made these comments, and they typically involved use of the same or similar derogatory terms or jokes. The continuing violation doctrine applies, making Appellants’ claims timely as to the racial comments alleged.

Turning to the merits, the court summarized the well-established legal standard for making out a hostile work environment claim:

A hostile work environment claim is established when “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.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks and citation omitted). The conduct 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.” Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015) (internal quotation marks and citation omitted). “[W]hether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment.”

Applying the law, the court found that plaintiffs submitted enough facts to overcome the summary judgement hurdle:

Appellants raised a question of material fact on whether a hostile work environment existed. The record is replete with evidence of racially derogatory language from coworkers and supervisors. There is little doubt that many, if not all, of the comments made—such as the naming of a police K-9 “Mandingo Hunter,” Wenzel’s joke about black men jogging, and Officer Brook’s joke that black officers or “niggers” could not become sergeants—are egregious. Some of these comments, such as the references to Lancaster as “Buckwheat,” were made by a sergeant. See Richardson v. N.Y. State Dep’t of Corr. Servs., 180 F.3d 426, 439 (2d Cir. 1999) (“Perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as nigger by a supervisor in the presence of his subordinates.” (internal quotation marks and citations omitted)). In addition, these comments were frequent. In total, there were at least twelve instances of racial slurs during the 2014-2015 and 2007-2008 period, though there is evidence that some of these comments had also been made previously or were made “constantly” and “all the time.” The fact that these comments were not always directed at Appellants or were heard secondhand does not undermine their relevancy; whether they in fact contributed to a hostile work environment is a question for the jury. Schwapp, 118 F.3d at 111-12. Nor does the lack of reporting in some instances preclude summary judgment. Rivera v. Rochester Genesee Regional Transp. Authority, 743 F.3d 11, 21 (2nd Cir. 2014).

In light of this, the court concluded that “[t]aking these facts in the light most favorable to Appellants … we cannot say that Appellants would be unable to prevail on a claim for a hostile work environment as a matter of law”, and therefore it “need not reach the question of whether those timely race-neutral acts Appellants have alleged can support a hostile work environment.”