Race-Based Hostile Work Environment Claim Survives Summary Judgment; Offensive Music Played

In Lockett v. Target Corporation, 3:20-CV-00191 (SVN), 2022 WL 17127292 (D.Conn. Nov. 22, 2022), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.

After summarizing the applicable “black letter” law regarding a hostile work environment claim, the court applied it to the facts:

The Court concludes that there are genuine issues of material fact as to Plaintiff’s hostile work environment claim that render summary judgment inappropriate. Plaintiff’s hostile work environment claim focuses on the following occurrences. First, Plaintiff alleges that, beginning in August of 2017—on the day Defendant promoted Sanders to the Receiver position—and lasting until the day Plaintiff left her employment with Defendant, Sanders and other employees were permitted to play music on a speaker that contained several derogatory terms, including racist and sexist language. ECF No. 94 at 2. Plaintiff alleges that Nunes, her supervisor, did not prevent the music from being played, and that Hill was present when the music was played. Id.; Ex. L to Def.’s Mot. at 10. Second, Plaintiff claims that a sign that read “spook,” which Plaintiff argues is a derogatory term for African Americans, was placed in an area where Plaintiff and other team members could easily see it. ECF No. 94 at 2. Third, Plaintiff alleges that on her last day of employment for Defendant, she was forced to work alone, witnessed Sanders rant about being labeled a racist, and found a banana at the ship-to-store workstation, where she was stationed that day.3 Id. at 3. In connection with her hostile work environment claim, Plaintiff also generally discusses Defendant’s failure to promote her to the Receiver position, microaggressions exhibited by Defendant’s Store Team Leader, Kyle Wilhelmy, and the inappropriate language (“my negro” and “whitey”) used by Hill and Stevens.

The Court first finds that there are genuine issues of material fact as to whether the conduct Plaintiff complains of was objectively “severe or pervasive enough that a reasonable person would find it hostile or abusive,” see Raspardo, 770 F.3d at 114. At the outset, the Court notes that many of the incidents upon which Plaintiff relies—the spook sign, the inappropriate language between Hill and Stevens, and the banana at her workstation—are isolated in nature, and likely would not constitute a hostile work environment, either each standing alone or even in combination. Even assuming all of these incidents were racially motivated, the Second Circuit has held that, when a plaintiff claims that she was subjected to a hostile work environment based on “racist comments, slurs, and jokes,” she must show “more than a few isolated incidents of racial enmity.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citation omitted). In other words, “[i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Id. (citation omitted) (alteration in original). Therefore, whether racial slurs or incidents constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs or incidents, “considered cumulatively in order to obtain a realistic view of the work environment.” Id. at 110–11 (internal citations and quotation marks omitted). Setting aside Plaintiff’s evidence of the backroom music, Plaintiff’s evidence of other episodic racially offensive conduct—including that Hill and Stevens referred to each other using racially insensitive terms over walkie talkies and that a sign with the word “spook,” which Plaintiff argues is a racial epithet, and a banana were displayed and placed, respectively, in her workspace—likely would not be pervasive and severe enough to establish that Plaintiff endured a hostile work environment.

But Plaintiff’s evidence concerning the offensive music Sanders and other team members played on speakers in the backroom of Defendant’s Waterbury store creates genuine questions of material fact regarding the pervasiveness and severity of the offensive conduct, particularly when considered alongside the other incidents discussed above. Plaintiff has testified—and Defendant does not appear to dispute—that the music contained racist, xenophobic, and misogynistic language. Courts in this circuit have found that, under certain circumstances, a plaintiff’s evidence that other employees played racially or sexually offensive music can help to establish that the plaintiff endured a hostile work environment. See Peterson v. City of Rochester, No. 06-CV-6003, 2010 WL 1408013, at *7 (W.D.N.Y. Mar. 31, 2010) (denying defendant’s motion for summary judgment where, among other things, plaintiff’s co-workers “repeatedly playing lewd and racially loaded rap music outside her office door”); Legg v. Ulster Cnty., No. 1:09-CV-550 (FJS), 2022 WL 2526250, at *4 (N.D.N.Y. June 17, 2022) (noting that district court had denied summary judgment based, in part, on evidence that co-workers and supervisors played sexually offensive music).

Here, genuine issues of fact exist as to when employees began playing the offensive music in Defendant’s backroom and how often it was played, which are material to the severity and pervasiveness of the hostile conduct Plaintiff alleges. Plaintiff contends Sanders began playing the offensive music on the day he was promoted to the Receiver position. ECF No. 86 at 2. Additionally, Defendant has submitted evidence of notes Simonett took after a conversation with Plaintiff indicating that Plaintiff reported that the music was “played on a regular basis.” ECF No. 78-2 at 26. But questions of fact remain as to how frequently, and over what period of time, the offensive music was played, which bear on whether Plaintiff suffered a hostile work environment. Accordingly, the Court will decline Defendant’s request to grant summary judgment on the ground that Plaintiff’s work environment was not objectively hostile.4 See Rasmy, 952 F.3d at 390 (recognizing that a determination of the “overall severity and pervasiveness of discriminatory conduct” is “bound to raise factual disputes that likely will not be proper for resolution at the summary judgment stage”).

Next, genuine disputes of material fact remain with respect to whether Plaintiff subjectively perceived her work environment to be hostile, see Raspardo, 770 F.3d at 114. While Defendant has submitted evidence of Plaintiff’s statements that she did not leave her employment for Defendant “with a bad taste in [her] mouth” and that she was “in no way thin-skinned,” see ECF No. 78-1 at 41 (citing, in part, Lockett Depo. at 159:2–159:10); ECF No. 78-2 at 27, the record also reflects that Plaintiff complained to Simonett about the music being played in the backroom and described the music as “racist,” “xenophobic,” “profane,” “misogynistic,” and “violent,” ECF No. 78-2 at 27, 66; Lockett Depo. at 149:13–149:19. Accordingly, a reasonable jury could find that Plaintiff subjectively perceived her work environment to be hostile or abusive, and summary judgment with respect to this issue is unwarranted.

The Court is unconvinced by Defendant’s argument that Plaintiff has not shown that any hostility occurred because of her race. The Court acknowledges that, at oral argument, Plaintiff conceded that she has no evidence to rebut Defendant’s representations that the “spook” sign was displayed as a joke between two other employees.5 See Pl.’s Resp. to Def.’s R. 56(a)1 St. ¶ 56. Plaintiff likewise conceded that she has failed to offer evidence indicating that offensive music was played because of Plaintiff’s race, or that the banana was placed at the shared workstation she was using because of her race, see id. ¶¶ 62, 64. But, upon review of the Second Circuit’s decisions on this issue, it is clear that Plaintiff does not need to establish precisely that Sanders and the other team members played the music because she is African American, or that the other incidents were directed at Plaintiff because of her race. Rather, the question is whether the conduct created an environment hostile to Plaintiff because she is African American. See Brown, 257 F.3d at 252. Indeed, the Second Circuit has held that a plaintiff can establish a hostile work environment claim even if the offensive conduct is not directed at her and would likely have occurred irrespective of the plaintiff’s presence in the workplace. See Petrosino, 385 F.3d at 222 (“The fact that much of this offensive material was not directed specifically at Petrosino—indeed, her male co-workers would likely have traded sexual insults every morning and defaced terminal boxes with sexual graffiti regardless of Petrosino’s presence in the [Installation and Repairs] department—does not, as a matter of law, preclude a jury from finding that the conduct subjected Petrosino to a hostile work environment based on her sex.”). See also Schwapp, 118 F.3d at 111 (“a racial epithet need not be directed at a plaintiff in order to contribute to a hostile work environment”); Rasmy, 952 F.3d at 389 (noting that “conduct not directly targeted at or spoken to an individual but purposefully taking place in his presence can nevertheless transform his work environment into a hostile or abusive one”).

What Plaintiff must show is that the environment was not “equally harsh” for those in a protected class as for those outside of that class. Brennan, 192 F.3d at 318. Viewed in the light most favorable to Plaintiff, the record in this case offers support for the proposition that Sanders, a Caucasian employee, and other employees repeatedly played music containing offensive terms, including the “n” word, in Plaintiff’s presence. A reasonable jury could find this conduct “more demeaning” of African Americans than of others, even if the music was not specifically directed at Plaintiff because she is African American. See Petrosino, 385 F.3d at 222. Additionally, viewing the record as a whole in the light most favorable to Plaintiff, a reasonable jury could find that the employees played the offensive music, placed the spook sign and banana in Plaintiff’s workspace, and spoke to each other using racially offensive terms either due to a “general hostility to the presence of” African Americans in the workplace or as circumstantial evidence of discrimination.6 See Tassy v. Buttigieg, 51 F.4th 521, 533 (2d Cir. 2022) (noting that the causal element of a hostile work environment claim may be proven either by direct evidence of race-specific and derogatory terms “as to make it clear that the harasser is motivated by general hostility to the presence of individuals of a particular race in the workplace, or by offering some circumstantial or other basis for inferring that incidents race-neutral on their face were in fact discriminatory” (cleaned up) (quoting Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 117–18 (2d Cir. 2010)). Questions about subjective intent—including, here, the motivation of Sanders and other employees in playing the music and engaging in the other activity at issue—“can rarely be decided by summary judgment.” See United States v. City of New York, 717 F.3d 72, 82 (2d Cir. 2013). Accordingly, the Court will not grant summary judgment on the ground that Plaintiff has not shown that any hostility occurred because of her race.

The court next determined that there was a basis for imputing the racially offensive conduct to defendant.

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