In Wallace v. Crab House, Inc. et al, 21-cv-5757 (LJL), 2022 WL 1501089 (S.D.N.Y. May 12, 2022), the court dismissed plaintiff’s claims of race discrimination and hostile work environment asserted under federal, state, and local law.
In sum, plaintiff (who is African American) alleges that he and two employees of Hispanic descent were treated differently from other white or Asian employees.
After dismissing plaintiff’s discriminatory termination claim (on the ground that plaintiff did “not allege that there were any other employees who engaged in comparable conduct whose employment was not terminated”), the court turned to plaintiff’s hostile work environment claim.
First, some law:
Count II alleges that Plaintiff was subject to a hostile work environment in violation of 42 U.S.C. § 1981. See Littlejohn, 795 F.3d at 320 (“Section 1981 has been interpreted to ‘provide a cause of action for race-based employment discrimination based on a hostile work environment.’ ” (alteration adopted) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000))). To plead a hostile work environment under federal law, a plaintiff must plead that a defendant’s conduct: (1) was objectively severe or pervasive in that it created an environment that a reasonable person would find hostile or abusive; (2) created an environment that the plaintiff subjectively perceived as hostile or abusive; and (3) occurred because of the plaintiff’s protected characteristic. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007); Littlejohn, 795 F.3d at 320–21; Sherman v. Fivesky, LLC, 2020 WL 2136227, at *5 (S.D.N.Y. May 5, 2020). To plead conduct that is pervasive, a plaintiff must allege incidents that are “more than episodic; they must be sufficiently continuous and concerted.” Littlejohn, 795 F.3d at 32; see also James v. Borough of Manhattan Cmty. Coll., 2021 WL 5567848, at *8 (S.D.N.Y. Nov. 29, 2021). “Isolated incidents usually will not suffice to establish a hostile work environment, although [the Second Circuit has] often noted that even a single episode of harassment can establish a hostile work environment if the incident is sufficiently ‘severe.’ ” Redd v. New York Div. of Parole, 678 F.3d 166, 175–76 (2d Cir. 2012). “In determining whether a plaintiff suffered a hostile work environment, [courts] must consider the totality of the 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.’ ” Littlejohn, 795 F.3d at 321 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Conduct that is offensive but that is directed at and affects members of protected classes and others equally is not actionable. See Menaker v. Hofstra Univ., 935 F.3d 20, 38 n.88 (2d Cir. 2019) (“Put bluntly, the equal opportunity harasser escapes the purview of Title VII liability.” (quoting Brown v. Henderson, 115 F. Supp. 2d 445, 450 (S.D.N.Y. 2000))).
Having articulated the applicable “black letter” law, the court proceeded to apply it to the facts:
Plaintiff does not allege facts sufficient to state a claim for a hostile work environment. He alleges that he was forced to run food to the table of other waiters, to clean tables, to take out the garbage, to sweep and mop the floor, and to play “bodyguard.” But that he was required to do these tasks does not amount to conduct by Defendants that a reasonable person would find hostile or abusive; the functions Plaintiff was asked to perform are functions that are typically performed in a restaurant. Plaintiff also alleges that one of the defendants frequently accused him of stealing money and that he received undesirable table assignments. But he does not plead facts to suggest that this conduct occurred because of his race. There are, for example, no allegations of racial slurs or comments directed at him and, as noted, there also are no allegations that similarly situated individuals were treated differently. In the absence of any allegations that would satisfy the three prongs of a hostile work environment claim, Count II must be dismissed.
Having dismissed plaintiff’s federal claims, the court declined to exercise supplemental jurisdiction over plaintiff’s state law and local law (the New York State and City Human Rights Laws, respectively).