NYC Teacher’s Title VII Race Discrimination Claim, Based on Accent Mocking, Dismissed

In Ochoa v. New York City Department of Education, 20-cv-9014 (ALC), 2022 WL 3646208 (S.D.N.Y. Aug. 24, 2022), the court dismissed plaintiff’s claims of race discrimination asserted under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

Plaintiff, a teacher, alleged among other things that her school’s assistant principal mocked, and treated her differently because of, her “heavy” Spanish accent.

In dismissing plaintiff’s Title VII claim, the court explained:

The Court now turns to Plaintiff’s Title VII hostile work environment claim. In evaluating a hostile work environment claim brought under Title VII, courts assess “the severity and pervasiveness of the alleged discriminatory behavior” using a set of nonexclusive factors, judging (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating; (4) whether the conduct unreasonably interfered with plaintiff’s work; and (5) what psychological harm, if any, resulted.” Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009) (internal quotation marks, alterations, and citations omitted). In order to succeed on a hostile work environment claim under Title VII, a plaintiff must demonstrate that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). “This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014) (citing Harris, 510 U.S. at 21–22). “[T]he fact that the law requires harassment to be severe or pervasive before it can be actionable does not mean that employers are free from liability in all but the most egregious of cases.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000). At this stage, Plaintiff need not prove a prima facie case of hostile work environment. She need only make “a short and plain statement of the claim that shows that [she is] entitled to relief and that gives the defendant fair notice of [her] claim or hostile work environment and the grounds upon which that claim rests.” Kassner, 496 F.3d at 241. Even so, a plaintiff alleging a hostile work environment must bring forth more than a mere scintilla of evidence to survive a motion to dismiss.

Here, Plaintiff’s race-based hostile work environment claim rests squarely on the effects of an individual repeatedly mocking Plaintiff’s accented English. Plaintiff alleges that Assistant Principal Beth Shimkin taunted her about her accented English. She alleges this behavior was “constant,” mocking her in front of her colleagues and her students. She further alleges Shimkin declined her requests for computers that would have proved beneficial in her classroom. Plaintiff believes Shimkin’s behavior affected her and her student’s performance in the classroom. It’s clear enough that Plaintiff felt that Shimkin’s mockery was uncomfortable and likely disruptive. However, Plaintiff’s allegations must still be sufficient such that a reasonable person would have found the environment hostile.

Other courts in this district have granted a motion to dismiss where a race-based hostile work environment claim was based solely on the mockery of an individual’s accent. See Yan v. Ziba Mode Inc., No. 15-CV-47 (RJS), 2016 WL 1276456, at *6 (S.D.N.Y. Mar. 29, 2016) (finding isolated incidents of mockery insufficiently severe as to create an abusive work environment); cf. Ward v. Shaddock, No. 14-cv-7660 (KMK), 2016 WL 4371752, at *7 (S.D.N.Y. Aug. 11, 2016) (finding incidents sufficiently continuous to meet the pleading requirements of a hostile work environment claim).

Additionally, the court dismissed plaintiff’s state- and city-law claims against the DOE, since she failed to file a notice of claim.

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