In Garrison v. American Sugar Refining, Inc. et al, 21 CV 10917 (VB), 2022 WL 17850891 (S.D.N.Y. Dec. 22, 2022), the court held that plaintiff sufficiently alleged a race-based hostile work environment claim against defendants under the New York State Human Rights Law, but not under federal law (Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981).
From the decision:
Here, plaintiff’s allegations, viewed as a whole, cannot be characterized as objectively “severe” or “pervasive” enough to state a hostile work environment claim under Title VII or Section 1981. However, they are sufficient to state a claim under the NYSHRL.
The allegations underlying plaintiff’s hostile work environment claim can be summarized as follows: Angone scrutinized and criticized plaintiff’s work far more than non-African American employees; Angone disparaged plaintiff as “lazy” and a “bad worker” (Am. Compl. ¶ 123); Angone refused to answer plaintiff’s work-related questions, even though he would answer the questions of non-African American employees; and Angone made several racist statements.
These allegations are not objectively severe or pervasive enough to state a hostile work environment claim under Title VII or Section 1981. See Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (summary order) (no hostile work environment when defendants “wrongly excluded [plaintiff] from meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to her” and one defendant made an isolated racist comment).
However, plaintiff has sufficiently stated a claim under the more lenient NYSHRL standard. The factual allegations, which the Court must accept as true, plausibly show plaintiff “has been treated less well than other employees because” he is African American. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d at 110. Although Angone’s racist comments toward others might not be actionable here, see Gold v. Titlevest Agency LLC, 2020 WL 2835570, at *9 (S.D.N.Y. June 1, 2020), they nonetheless support an inference that Angone treated plaintiff poorly because of his race. See Howley v. Town of Stratford, 217 F.3d 141, 155–56 (2d Cir. 2000) (factfinder could reasonably infer facially sex-neutral incidents were sex-based when the perpetrator previously made sexually derogatory statements). Finally, although an employer may avoid liability when “the conduct complained of consists of nothing more than … petty slights and trivial inconveniences,” that is an affirmative defense for which defendants bear the burden of proof. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d at 111.
Accordingly, plaintiff’s hostile work environment claim under the NYSHRL shall proceed. However, his hostile work environment claims under Title VII and Section 1981 must be dismissed.