“Monkey” Comments Cited in Decision Denying Summary Judgment on Race-Based Hostile Work Environment Claim

In Sylla v. New York City Department of Education et al, 18-CV-6524 (RPK) (MMH), 2023 WL 2667072 (E.D.N.Y. March 28, 2023), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim.

In this case, plaintiff alleged that a co-worker repeatedly called him “mono”, which is Spanish for monkey.

After summarizing the “black letter” law, the court applied it to the facts as follows:

Viewing the record in the light most favorable to plaintiff, as required at the summary judgment stage, a factfinder could determine that Martinez subjected plaintiff to consistent racial harassment over the course of seven years by regularly calling plaintiff “mono” and, on one occasion, placing a banana peel in plaintiff’s mop pail. Plaintiff stated that the verbal abuse he suffered was frequent—albeit in testimony that is somewhat general—by stating Martinez’s verbal abuse occurred every time that plaintiff worked with Martinez from 2009 through 2016, and describing the regularity as “all the time.” Sylla Depo. 132–34. To be sure, plaintiff has made other statements that call the pervasiveness of this abuse into some question. Plaintiff acknowledged that he worked with Martinez only during school-vacation periods and not during the regular school year, for example. Id. 131–32. But a jury crediting plaintiff’s description of the frequency of the alleged abuse could find that Martinez subjected plaintiff to persistent racist name-calling. See Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 119–20 (2d Cir. 2010) (noting decision holding that a jury could “find pervasive harassment” by crediting a plaintiff’s “general allegations of constant abuse … even in the absence of specific details about each incident” and stating that “a plaintiff, to prevail, need not recount each and every instance of abuse to show pervasiveness”).

Based on this pervasiveness, a jury could further conclude that even if “each incident on its own may not have been particularly severe,” Martinez’s use of racial slurs was frequent enough to “alter the working conditions of a reasonable employee.” Terry v. Ashcroft, 336 F.3d 128, 149 (2d Cir. 2003) (citation and quotation marks omitted); see, e.g., Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 439 (2d Cir. 1999) (finding summary judgment inappropriate in a case involving at least seven instances of derogatory racial comments by coworkers and supervisors over three and a half years of employment), overruled on other grounds by Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997) (finding summary judgment inappropriate in case involving twelve incidents of alleged racial harassment, only some of which occurred during plaintiff’s employment); Lumhoo v. Home Depot USA, Inc., 229 F. Supp. 2d 121, 154–56 (E.D.N.Y. 2002) (denying defendant summary judgment against an African American plaintiff’s hostile-work-environment claim when racial slurs were commonly used in the workplace).

The court concluded that, since defendants failed to establish that no reasonable jury could find the use of racial slurs altered the conditions of plaintiff’s employment, summary judgment was not warranted on plaintiff’s Title VII hostile work environment claim.

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