“Go Back to Your Country”: Hostile Work Environment Claim Survives Dismissal

From Bernardi v. New York State Department of Corrections and Supervision et al, No. 19-cv-11867, 2021 WL 1999159 (S.D.N.Y. May 19, 2021):

Here, Plaintiff alleges that his colleagues, including Rushia, told him to “go back to his own country,” made many references to Plaintiff’s immigrant status, claimed that his “guinea food stinks,” and used Italian slurs. (AC ¶¶ 20–21.) “[R]acist comments, slurs, and jokes … constitute a hostile work environment” where there are “ ‘more than a few isolated incidents of racial enmity,’ meaning that ‘instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.’ ” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citations and alteration omitted). In evaluating whether such comments create a hostile work environment, courts consider their frequency and severity. Id. at 110–11 (“[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.’ ” (citations omitted)). Plaintiff has alleged that these comments were sufficiently frequent. He claims that he experienced “many” such comments, (AC ¶ 20), and that they “continued unchecked,” (id. ¶¶ 19, 23), “[t]hroughout his employment,” (id. ¶ 19), which spanned from 2002 through at least 2018, (id. ¶¶ 18, 52). These allegations suffice at this stage to establish that the comments were sufficiently frequent, even though “the Amended Complaint ‘is not entirely specific about the exact dates of certain incidents.’ ” Ward v. Shaddock, No. 14-CV-7660, 2016 WL 4371752, at *7 (S.D.N.Y. Aug. 11, 2016) (holding that the plaintiff sufficiently alleged a hostile work environment claim by alleging “a pattern of racial slurs and derogatory remarks … over the course of at least seven years”).

*8 The Court reaches the same conclusion regarding the alleged comments’ severity. Where there is a prolonged pattern of slurs and demands that a plaintiff return to his or her country, courts have found that these comments are “much more than isolated incidents of racial enmity,” and suffice to establish a hostile work environment claim. Wishner v. Cont’l Airlines, No. 94-CV-8239, 1997 WL 615401, at *2 (S.D.N.Y. Oct. 6, 1997) (denying motion for summary judgment where the plaintiff presented evidence of “incidents of racial comments” and “the regular use of offensive racial epithets”); see also Rios v. Buffalo & Fort Erie Pub. Bridge Auth., No. 04-CV-375, 2007 WL 4991189, at *10 (W.D.N.Y. Sept. 7, 2007) (concluding that a jury could find a hostile work environment based on offensive cartoons, “repeated ethnic jokes by a supervisor,” and similarly racist comments), report and recommendation adopted, 2008 WL 657121 (W.D.N.Y. Mar. 7, 2008), aff’d, 326 F. App’x 612 (2d Cir. 2009); Brewster v. City of Poughkeepsie, 447 F. Supp. 2d 342, 349 (S.D.N.Y. 2006) (upholding a jury verdict on the plaintiff’s hostile work environment claim where the plaintiff and others testified to statements including “[g]o back to your own country if you want to speak Spanish”); cf. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70–71 (2d Cir. 2000) (holding that evidence of “a stream of racially offensive comments,” including one that “was physically threatening,” sufficed to survive summary judgment). Where courts have reached the opposite conclusion, it has been where the plaintiff alleged one or a small number of such comments. See Obi v. Westchester Med. Reg’l Physician Servs., P.C., No. 19-CV-3022, 2020 WL 1434159, at *8 (S.D.N.Y. Mar. 23, 2020) (noting the “infrequent and sporadic nature of the remarks at issue”); Kalola v. Int’l Bus. Machs. Corp., No. 13-CV-7339, 2015 WL 861718, at *9 (S.D.N.Y. Feb. 3, 2015) (dismissing claim where the plaintiff “only allege[d] two specific episodes of harassment or abuse based on his race”); Salmon v. Pliant Corp., 965 F. Supp. 2d 302, 306 (W.D.N.Y. 2013) (noting that the “plaintiff’s allegations describe isolated incidents”); Ogbo v. N.Y. State Dep’t of Fin., No. 99-CV-9387, 2001 WL 986546, at *7 (S.D.N.Y. Aug. 28, 2001) (finding that “five comments over a two year period are insufficient” to make out a hostile work environment claim), aff’d, 45 F. App’x 58 (2d Cir. 2002); see also Chukwuka v. City of New York, 513 F. App’x 34, 36–37 (2d Cir. 2013) (summary order) (holding that “three events—which were spread out over a year—were not ‘sufficiently continuous and concerted’ ” to establish a hostile work environment claim (citation omitted)); Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 118–19 (2d Cir. 2010) (summary order) (holding that “while [a racially harassing] comment may be seen as severe, it is isolated” and noting that the Second Circuit has “found a hostile work environment only where such a racially-harassing comment is one of many racially-motivated comments”). Thus, Defendants’ Motion is denied with respect to Plaintiff’s hostile work environment claims.

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