2d Circuit Affirms Dismissal of Black Police Officer’s Race-Based Discrimination & Hostile Work Environment Claims

In Hanks v. City of Syracuse, 2023 WL 8889764 (2d Cir. Dec. 26, 2023), the U.S. Court of Appeals for the Second Circuit, inter alia, affirmed the dismissal of plaintiff’s race discrimination and hostile work environment claims asserted under Title VII of the Civil Rights Act of 1964.

The court summarized plaintiff’s allegations as follows:

In his complaint, Hanks – who is Black – alleges that he sought a temporary but coveted assignment to the Gun Violence Taskforce (the “GVTF”) in hopes that it would advance his career. He further alleges that, after learning of his nomination to the task force, officers in the GVTF – all of whom were white – prepared a memorandum at their supervisor’s direction that raised concerns about Hanks’s candidacy. The memo detailed several incidents and social media posts where Hanks had purportedly affiliated with “gang members and convicted criminals,” and referred to several videos Hanks had posted on social media that depicted him in uniform while listening to “a rap song” and using vulgar and explicit language. J. App’x at 81. The memo also indicated that these videos had been forwarded to a deputy chief in the department. Upon learning of the memo, Hanks filed a notice of claim with the Equal Employment Opportunity Commission (“EEOC”), asserting that the memo was a racially motivated attempt to undermine his candidacy. Nine days later, Hanks received a written reprimand from the Chief of Police’s office regarding his social media posts – a rebuke that Hanks claims was retaliation for his EEOC complaint. After the EEOC issued Hanks a right-to-sue letter, he filed suit under various federal and state statutes, alleging that the City, several of its police chiefs, and the officers involved in the GVTF memo discriminated and retaliated against him.

The court held that the memo gave rise to neither claims of discrimination, nor hostile work environment, based on plaintiff’s race.

As to discrimination, the court explained:

Hanks’s claims fail for two reasons. First, Hanks does not plausibly allege that the memo reflected discriminatory intent. He principally relies on a “stereotype” theory of discrimination, Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119 (2d Cir. 2004), contending that the memo invoked racist stereotypes when it raised concerns about Hanks’s affiliations with gang members and his social media posts featuring explicit language and rap music.2 But when courts find discriminatory intent based on stereotyped remarks, it is generally because those remarks make invidious generalizations about the protected class. See, e.g., Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200 (2d Cir. 2017) (finding plausible discriminatory intent where a supervisor explicitly stated that an openly gay plaintiff “must have AIDS” because he was “effeminate and gay” (alterations omitted)); Sassaman v. Gamache, 566 F.3d 307, 312 (2d Cir. 2009) (concluding that “a reasonable jury could construe [the statement ‘you probably did what the accuser said you did because you’re male’] as an invidious sex stereotype”).

Here, the GVTF memo did not rely on such “ethnically degrading” or “invidious” generalizations. Littlejohn, 795 F.3d at 312; see also Weinstock v. Columbia Univ., 224 F.3d 33, 44 (2d Cir. 2000) (rejecting discrimination claim alleging that words like “nice” and “nurturing” reflected gender stereotypes); Williams v. Time Warner Inc., 440 F. App’x 7, 9 (2d Cir. 2011) (using context to conclude that the phrase “up in his face” did not “plausibly suggest … a racial sub-text”). Rather, the memo documented specific incidents in which Hanks was individually involved that, if believed, could reasonably lead the police department to question his suitability for membership in a gang task force. For instance, the memo expressed concern that Hanks was tagged in a known gang member’s post asking Hanks to “[c]ome pick up [his shirt]” and that Hanks’s social media accounts featured other posts where “gang members were … asking [him] questions about police[-]related topics.” J. App’x at 82. It also documented incidents where Hanks was allegedly present at the scene of a shooting while off-duty and was in a car that was pulled over along with suspected gang members who were drinking. See id. The memo further detailed several other social media posts that potentially violated “the department’s code of conduct,” id., including a video where Hanks “identified himself as a police officer” and used explicit language, as well as other clips – for which Hanks was later disciplined – that depicted “Hanks in uniform” with an explicit “rap song” playing in the background, id. at 81. Because these complaints were neutral and individual – not invidious and general – critiques of Hanks’s “performance,” Littlejohn, 795 F.3d at 312, we cannot say that they plausibly support an inference of discrimination by stereotype, Christiansen, 852 F.3d at 201.3

But even if it could be argued that Hanks pleaded sufficient facts to establish discriminatory intent on the part of the memo writers, his claims would still fail because he did not plausibly allege that he suffered an adverse employment action because of the memo. Vega, 801 F.3d at 85 (stressing that a causal connection is required). Indeed, Hanks’s complaint never asserts whether, when, or why he was denied the GVTF assignment, much less that supervisors did so because of the memo. Instead, Hanks makes various accusations that the GVTF officers and its supervisors “sought to derail his promotion,” J. App’x at 20, and “conspired to deprive [Hanks] of his rightful advancement within the Police Department,” id. at 32; see also id. at 19–20, 25. But while Hanks conclusorily asserts that his promotion was “prevent[ed]” or “denied” as a result of the memo, id. at 19, 37, he fails to indicate when that happened, who was involved in the purported denial, and whether the memo played any role in the decision. Without allegations tying the memo to the denial, Hanks cannot plausibly claim that the allegedly discriminatory remarks in the memo played a “motivating factor” in the adverse employment action.

It further held that plaintiff failed to allege a hostile work environment, noting – in addition to the memo’s failure to create a plausible inference of discriminatory intent – that plaintiff’s “generalized allegations of discrimination within the department, such as his characterization of the police force’s ‘long-standing discriminatory employment policies’ and the ‘pressur[e]’ it put on Black officers “to engage in excessive force against African American citizens,’ are wholly “conclusory” and woefully short on details.” [Citation omitted.]

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