Race, National Origin-Based Hostile Work Environment Claims Dismissed; Alleged Comments Amounted to “Isolated Incidents of Racial Enmity”

In Lopez v. City of New York, 16-cv-4934, 2021 WL 4893624 (E.D.N.Y. Oct. 20, 2021), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s race- and national origin-based hostile work environment claim(s) asserted under Title VII of the Civil Rights Act of 1964.

From the decision:

The plaintiff here does not rely on a single incident of harassment that he claims was sufficiently severe to transform his workplace into a hostile environment. Cf. Redd v. New York Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012).

Rather, he relies on a claim of pervasive hostility or mistreatment. Pervasiveness requires that the offensive behavior be “continuous and concerted” rather than merely “episodic,” and isolated incidents typically will not amount to discriminatory changes in the “terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). “[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.” James v. Van Blarcum, 782 F. App’x 83, 85 (2d Cir. 2019) (alteration in original) (quoting Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997)).

In terms of racist statements, plaintiff testified to hearing FF Derrig refer to him as a priority hire and “George Lopez” and FF Virgonda’s use of a racist slur about Hispanic people in plaintiff’s presence. Plaintiff also testified regarding an incident in which Chief Regan made plaintiff trace the alphabet, which plaintiff inferred was done based on his presumed inability to read and write in English. With regard to other behavior that plaintiff found hostile, he testified to conflict with FF Eberheardt, which, when viewed in the light most favorable to the nonmoving party, amounted to, at most, isolated incidents of racial enmity. Plaintiff also testified to an incident where Captain Bruno attempted to physically attack him. However, plaintiff did not testify to any comments by Captain Bruno about plaintiff’s race or national origin and failed to provide any reason why plaintiff believed Captain Bruno’s behavior was motivated by discrimination.

Even taking into consideration all of the statements or acts that can be attributed to plaintiff’s race or national origin, they are insufficient to constitute an intolerable alteration of the terms and conditions of his employment. Under the totality of circumstances, these incidents amount to insufficient evidence for a rational jury to conclude by a preponderance of the evidence that plaintiff’s workplace was permeated with abusive, race-based hostilities.

Having dismissed plaintiff’s claims under Title VII, the court declined to exercise its discretion to exercise supplemental jurisdiction over (and dismissed without prejudice) plaintiff’s claims under the comparatively broader New York City Human Rights Law, noting that the development of the legal framework under that law raises “novel and complex issues of State law.”

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