In Bautista v. PR Gramercy Square Condominium et al, 2022 WL 17156628 (S.D.N.Y. Nov. 22, 2022), the court, inter alia, dismissed plaintiff’s claims of race-based hostile work environment asserted under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York City Human Rights Law.
From the decision:
Bautista’s hostile work environment claims are predicated chiefly on the following allegations: that Gjeci [plaintiff’s supervisor] “glared” at him; that Gjeci only spoke to him when he “absolutely had to;” and that Gjeci would, when giving assignments, either fail to fully discuss his expectations for completion of the tasks, or assign tasks which Bautista felt were outside of his job description.
These allegations fail to make out a claim for a hostile work environment that is “so severe or pervasive as to have altered the conditions of [Bautista’s] employment.” Littlejohn, 795 F.3d 297 at 321. Allegations of the exact kind Bautista alleges have been previously held to be insufficient to support a hostile work environment claim. In Fleming v. MaxMara USA, Inc., this Circuit concluded that no hostile work environment existed even where the defendants had “refused to answer work-related questions,” and “arbitrarily imposed duties outside of [plaintiff’s] responsibilities.” Fleming v. MaxMara USA, Inc., 371 Fed.Appx. 115, 119 (2d Cir. 2010). Deliberate avoidance of the plaintiff in Davis-Molina v. Port Auth. of N.Y. & N.J., alongside an increased workload of menial tasks similarly was insufficient to support a finding of severe or pervasive conduct. Davis-Molina v. Port Auth. of N.Y. & N.J., 488 Fed. Appx 530 (2d Cir. 2012). Similarly, Gjeci’s glares at Bautista do not rise above the level of mere “petty slights and trivial inconveniences,” which are not prohibited under Title VII. Lenart v. Coach Inc., 131 F. Supp. 3d 61, 69 (S.D.N.Y. 2015) (quoting Nelson v. HSBC Bank USA, 87 A.D.3d 995, 929 (2d Dep’t 2011)). Thus, Bautista’s claims that Gjeci avoided speaking to him, glared at him, failed to fully discuss his job responsibilities with him, and assigned him menial tasks outside of his job description, do not make out a hostile work environment claim.
Additionally, even were Bautista able to establish such “severe or pervasive behavior as to have altered the conditions of [his] employment,” he would still need to provide evidence that such environment was created “because of” his protected characteristics. Robinson v. Harvard Prot. Serv., 495 Fed. Appx. 140, 141 (2d Cir. 2012). Although Bautista does claim “upon information and belief … Gjeci wanted the doorman/concierge positions to be filled with other Albanian males,” it is well established that “[a] complaint must at least contain enough factual allegations that are not made upon information and belief to ‘raise a right to relief above the speculative level.’ ” Gilford v. NYS Off. Of Mental Health, No. 17 Civ. 8033 (JPO), 2019 WL 1113306, at *6 (S.D.N.Y. Mar. 11, 2019) (quoting Twombly, 550 U.S. at 555). As in Karunakaran v. Borough of Manhattan Cmty. College, Bautista “attributes discriminatory animus to the Defendants almost exclusively through the use of statements made upon information and belief, without additional factual allegations to support those statements.” Karunakaran v. Borough of Manhattan Cmty. College, No. 18 Civ. 10723 (ER), 2021 WL 535490, at *5 (S.D.N.Y. Feb. 12, 2021). Because of this, Bautista fails to properly connect his experiences at work to his protected characteristics. Therefore, Claims II, IV, and VI fail and are dismissed.
The court additionally held that plaintiff likewise failed to make out a hostile work environment claim under the more expansive New York City Human Rights Law, since plaintiff “fails to allege either direct or comparator evidence that would support a finding of differential treatment based, at least in part, on his protected status.”