In Banks v. Cypres Chase Condominium Association B, Inc. and Andre Bujold, No. 22-60747-CIV-MORENO, 2022 WL 2870127 (S.D.Fla. July 21, 2022), the court, inter alia, held that plaintiff did not sufficiently allege a race-based hostile work environment claim under 42 U.S.C. § 1981, and accordingly dismissed it under Federal Rule of Civil Procedure 12(b)(6).
From the decision:
[Defendant] Bujold’s alleged conduct here—calling Banks a liar, referring to her as “you people,” standing close to her, peering through the window at her, accusing her of poor performance, and yelling at her—falls short of creating a hostile work environment. A survey of Eleventh Circuit precedent confirms that the alleged conduct here is not “severe” as that term is used in the case law. See Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1254 (11th Cir. 2014) (confederate flag on co-worker clothing, racist graffiti in the men’s room, and several racial slurs); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 578-79 (11th Cir. 2000) (supervisor suggestively touched plaintiff on several occasions, lifted her dress, asked her to lunch, told her she was beautiful, stared at her, and called her at home on numerous occasions).
Take, for example, Judge Altonaga’s application of the relevant precedent in Thompson v. City of Miami Beach, Fla., 990 F. Supp. 2d 1335 (S.D. Fla. 2014). In that case, the plaintiff’s supervisor hurled profane racial slurs at him on three separate occasions, gave him a workplace nickname referring to a movie character of the same race, aggressively berated him about his performance, and monitored the plaintiff during his work so as to intimidate him. The order explained that the three racial slurs were insufficiently severe, in part given their infrequency, but especially absent any allegation that they interfered with the plaintiff’s job performance or involved physical harassment. And the other allegations were not race-related; instead, they reflected “boorish and rude behavior” which evidenced that the plaintiff’s supervisor needed better manners and leadership skills. Id. But still, the behavior fell well short of creating a hostile work environment.
Likewise here, the alleged slur—“you people”—is not severe enough on its own. There is no allegation that any of Bujold’s conduct interfered with Banks’s job performance. And while Banks alleges physical intimidation by “close” standing, this alleged physicality is not enough: if the Eleventh Circuit has found a short, physical “tussle” to lack sufficient severity, then standing close so as to intimidate an employee is also not severe. See Brathwaite v. Sch. Bd. of Broward Cnty., Fla., 763 F. App’x 856, 859 (11th Cir. 2019). Finally, though the alleged conduct is somewhat frequent—ten to fifteen occasions from March to July—that factor is not enough to overcome the deficiency in the other three considerations just discussed. Not to mention, it is questionable whether the use of the phrase “you people” is enough to meaningfully link the other alleged conduct to Banks’s protected status.
[Cleaned up.]
The court also dismissed plaintiff’s race-based discrimination claim, holding that plaintiff’s complaint failed to sufficiently allege that plaintiff was treated less favorably than a “comparator” outside her protected class.