In Prude v. Logistics One Transport, Inc., No. 1:20-cv-0674, 2022 WL 4120266 (N.D.N.Y. Sept. 9, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law.
This decision is instructive as to how courts apply the “severe or pervasive” hostile work environment standard where the alleged offensive conduct consists of both “severe” and “pervasive” conduct, and particularly where a single allegedly “severe” incident pushes otherwise non-actionable conduct “over the line.”The court additionally discussed and applied in plaintiff’s favor the “continuing violation doctrine,” which when applicable permits acts that are technically outside the Title VII limitations period to be considered as part of an “ongoing policy of discrimination.”
From the decision:
Defendant argues that the racially offensive incidents Prude experienced while employed at the Company are not sufficiently severe or pervasive to create a hostile work environment. The record generally indicates isolated racial remarks made by coworkers, many of which were either not directed at plaintiff or not understood by plaintiff to be racially motivated. See, e.g., Russel making broad comment, not directed toward plaintiff, that “city guys … move upstate and mess up the town”; Trackey telling plaintiff he was disciplined by the Company the week prior for using the “N” word when referring to Martin Luther King Day; Murphy calling plaintiff a “coon” and an “Uncle Tom,” comments plaintiff did not understand to be racially motivated at the time; LaBarge calling plaintiff a “jigaboo,” which plaintiff believed at the time to mean “gay”.
The record also shows that Clark, Prude’s supervisor for a brief period, engaged in certain racially insensitive behavior. Clark made one, possibly two, racially insensitive comments to coworkers outside of plaintiff’s presence: (i) plaintiff learned from a coworker that Clark called him a “coon” during a meeting in May 2018; and (ii) plaintiff learned from another coworker that Clark said he would “go back to selling drugs” if he could not work out his scheduling issues with the Company.
In sum, no reasonable jury could find that these isolated comments made by several different coworkers over Prude’s three-year employment period were sufficient to alter plaintiff’s working conditions and create an abusive working environment.
The above incidents may not be severe or pervasive enough to establish the first element of a hostile work environment, but they provide context for another incident that Prude argues is sufficiently severe on its own to create an issue of material fact – when LaBarge held a banana over his head in front of a room full of coworkers and called him a “jigaboo” and “my little monkey” while making monkey sounds. Predictably, LOTI responds that this incident was not “extraordinarily severe” enough to create a hostile work environment.
Given that the banana incident involved not only highly offensive racial remarks and gestures, but also a physical prop in the form of a banana, which LaBarge held in close proximity to plaintiff while several people watched, the Court is unable to determine, as a matter of law, that such an incident is insufficiently severe to create a hostile work environment. This is particularly true in light of the aforementioned isolated incidents of racism that plaintiff experienced while employed at LOTI. Ultimately, whether the banana incident was sufficiently severe to create an objectively hostile or abusive work environment, and whether plaintiff subjectively perceived that environment to be abusive, are questions for the factfinder.
As to the issue of imputing liability, the court – applying the “negligence” standard applicable to “co-worker harassment” cases – held that “a reasonable jury could conclude that [defendant employer] failed to effectively respond to the banana incident and remediate the hostile work environment,” and that while the employer suspended the alleged offender for a week without pay and issued him a final written warning, “a reasonable juror could view this punishment as a ‘slap on the wrist,’ particularly because it ultimately failed to deter [him] from future racially insensitive behavior.”
|The court additionally discussed and applied in plaintiff’s favor the “continuing violation doctrine,” which when applicable permits acts that are technically outside the Title VII limitations period to be considered as part of an “ongoing policy of discrimination.”