In McKinney v. State of New York et al, 19-CV-3920, 2022 WL 602970 (S.D.N.Y. March 1, 2022), the court, inter alia, dismissed plaintiff’s (a correction officer) race-based hostile work environment claim.
The court summarized the “black letter” law of this claim as follows:
To state a hostile work environment claim, Plaintiff must show that Defendants’ conduct (1) was objectively severe or pervasive, (2) created an environment that was subjectively perceived as hostile or abusive, and (3) created such an environment because of the plaintiff’s race. To survive a motion to dismiss, a plaintiff need only plead facts sufficient to support the conclusion that she was faced with harassment of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse. The Court looks at the totality of circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. [Cleaned up.]
Applying the law, the court explained:
To support her claim, Plaintiff alleges she was subjected to oppressive and hostile visits to her house and was aggressively questioned while she was out on unpaid sick leave. She alleges this occurred “on multiple occasions” and the officers would position themselves in visible spots and watch Plaintiff’s movements around her home. Plaintiff also alleges her supervisors made comments castigating her for taking time off for sickness saying it’s not a good reflection on the career of an officer who wants to advance.
Defendants argue that Plaintiff has not alleged severe or pervasive conduct that arises to a hostile workplace based on racial animus. (Def. Mot. at 6.) The Court agrees. First, Plaintiff has not alleged that the questioning, monitoring, and visitations at her home during sick leave were pervasive enough to “alter the conditions of employment.” Beale v. Mount Vernon Police Dep’t, 895 F. Supp. 2d 576, 590 (S.D.N.Y. 2012). Although there is no “magic number of incidents above which harassment is actionable,” id., Plaintiff’s broad allegations of this happening on “multiple occasions” since March 2017 are insufficient to show pervasiveness. Id. (finding half-dozen comments over a sixteen-month period are insufficient). Moreover, all these instances occurred at Plaintiff’s home while she was on sick leave. Plaintiff has not alleged that this conduct, which occurred outside of the workplace, altered the conditions of her employment at the Dutchess County Jail or that similar conduct has occurred at the workplace. See, e.g., Meece v. Atl. Se. Airlines, Inc., No. 1:0-CV-3698-WSDECS, 2006 WL 2228937, at *2 (N.D. Ga. Aug. 2, 2006) (alleged harassment occurring off work premises “did not occur in the work environment within the meaning of Title VII.”). Second, Plaintiff points to comments by her supervisors that castigate Plaintiff for taking too much sick leave. These comments—that it is “not a good reflection on the career of an officer who wants to advance”—do not appear to be related to Plaintiff’s race and are comments with regards to Plaintiff’s number of sick leave requests.
The court concluded that, without more, plaintiff’s allegations were insufficient, warranting dismissal of her hostile work environment claim without prejudice.