In Bernardi v. New York State Department of Corrections and Community Supervision, 2023 WL 3230558 (S.D.N.Y. May 3, 2023), the court, inter alia, granted defendants’ motion for summary judgment on plaintiff’s race- and national-origin based hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
At his deposition, Plaintiff testified that after the settlement in February 2015, only Anthony Mangione uttered ethnic slurs against him. (Dkt. 76-1 at 113.)7 Plaintiff identified two such instances in the complaint he filed with DSA Wojnar on October 4th. (Dkt. 76-9 at 2.) These include an incident that occurred on September 28th wherein Plaintiff claims that Mr. Mangione lodged abusive language and racist comments at Plaintiff. (Dkt. 76-9 at 2.) Plaintiff also identifies another incident that occurred on October 4th wherein Plaintiff alleges that Mr. Mangione screamed “fuck you Italian” at Plaintiff, as well as some additional language. (Id.) In connection with the events of October 4th, Plaintiff submitted a Diversity Management Complaint Form on November 3, 2017. (Dkt. 76-14 at 2.) In the complaint, he indicates that a “few times” Mr. Mangione had told him to “go back to Italy[.]” (Dkt. 76-14 at 8.) Plaintiff does not specify when Mr. Mangione made these statements. Plaintiff identified another incident on April 9, 2018, in which Mr. Mangione bumped into him and called him a “piece of shitt [sic]”. (Dkt. 76-15 at 2.) Beyond these incidents, Plaintiff does not identify any further instances after the February 2015 settlement where an individual at DOCCS uttered an ethnic slur against him.8
In examining the totality of the circumstances, I conclude that these incidents are not enough to establish a hostile working environment. Plaintiff first fails to show that the discriminatory conduct was frequent. Since his settlement in February 2015, Plaintiff only alleges three specific incidents and a few other times in which he was told to go back to Italy. Given that this discriminatory conduct took place over the course of three years, this Court would be hard pressed to conclude that a reasonable jury could find that the discriminatory conduct was frequent, as opposed to episodic. See Chukwuka v. City of New York, 513 F. App’x 34, 36 (2d Cir. 2013) (finding that three events over the course of a year did not support a finding of hostile work environment). Although these alleged incidents may have been “offensive and inappropriate, they are sufficiently isolated and discrete that a trier of fact could not reasonably conclude that they pervaded the plaintiff’s work environment.” Carter v. New York, 151 F. App’x 40, 41 (2d Cir. 2005). Further, the incidents taken together are not severe, and no single incident alone is severe enough to support a finding of a hostile work environment. This is particularly true in the context of the DOCCS environment, where Plaintiff himself testified that the environment included comments and jokes and that he participated in this environment. See Perry v. Slensby, 815 F. App’x 608, 611 (2d Cir. 2020) (“In this context, [defendant’s] conduct and comments were not so humiliating as to take them outside the run-of-the-mill, if unpleasant, vulgarity present in this workplace.”); see also Daeisadeghi, 794 F. App’x at 64 (“Title VII does not set forth a general civility code for the American workplace, and simple teasing or offhand comments will not amount to discriminatory changes in the terms and conditions of employment[.]” (internal citations, quotation marks, and alterations omitted)). Finally, Plaintiff fails to identify any evidence that indicates that these incidents interfered with his employment. See Willaims v. Geiger, 447 F. Supp. 3d 68, 85-86 (S.D.N.Y. 2020) (noting plaintiff’s failure to identify evidence that incidents interfered with work).
Based on this, the court concluded that no reasonable juror could find that a hostile work environment existed as to plaintiff, warranting summary judgment in defendants’ favor.