In Acque v. Xavier Becerra, Secretary of the U.S. Department of Health and Human Services, 2023 WL 4365307 (D.N.M. July 6, 2023), the court, inter alia, granted defendant’s motion for summary judgment on plaintiff’s hostile work environment claim.
From the decision:
Plaintiff has failed to produce evidence from which a rational jury could infer that she was targeted for harassment because of her race or national origin. The incidents she alleges—Ms. Silva’s raising her voice and then issuing the January 29, 2016 reprimand letter; Ms. Silva’s nicer treatment of Navajo employees and calling one employee “Sunshine”; the “witching” comment; accusations of micromanaging; building a wall, and other purported incidents—do not rise to the level of conduct that the Tenth Circuit has held creates a genuine issue of material fact as to severity or pervasiveness of race- or national origin-based harassment. [Cleaned up.]
As examples the court cited the cases of Ford v. Jackson Nat’l Life Ins. Co., 45 F.4th 1202 (10th Cir. 2022) (holding that multiple and continual racial stereotyping comments and calling the plaintiff “black bitch” and the use of the n-word, along with the employer’s poor response in addressing the plaintiff’s complaints, was sufficient evidence for the jury to decide whether the plaintiff was subjected to a racially hostile work environment), Hernandez v. Valley View Hosp. Ass’n, 684 F.3d 950 (10th Cir. 2012) (holding that at least a dozen “racially offensive comments and jokes” made over fourteen months about the plaintiff and her family and the plaintiff’s “prompt and frequent” complaints to supervisors about those comments was sufficient evidence to survive summary judgment), and Herrera v. Lufkin Indus., Inc., 474 F.3d 675 (10th Cir. 2007) (holding that racial harassment spanning four years, including racist comments about the plaintiff’s ethnicity that were made every two to three days, raised a jury question about whether the plaintiff was subjected to pervasive race-based hostility).