In Banks v. McGlynn, Hays & Co., Inc., No. 1:19-cv-05727 (JLR) (RWL), 2024 WL 689145 (S.D.N.Y. Feb. 20, 2024), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s race-based hostile work environment claim asserted under 42 U.S.C. § 1981.
From the decision:
Plaintiff points to the text message, the music event, and the car comment as undisputed evidence that “Mr. Banks suffered a hostile and abusive work environment.” Banks Opp. at 1, 11-13. However, even viewed in the light most favorable to the Plaintiff, and even considering the rigger comment as well, Plaintiff fails to prove behavior “so extraordinarily severe to have altered the conditions of his working environment.” Cunningham, 2020 WL 916964, at *6 (brackets, ellipsis, and citation omitted). Plaintiff has not presented any evidence that he was actually called a “rigger,” let alone in a way that meant the “n-word” as opposed to the word being used as a description of the jobs of riggers at McGlynn. Nor has Plaintiff provided any evidence to refute Donniacuo’s testimony that his “Thank my N” text to Plaintiff meant “Thank my [ma]N” and that he mistyped it, rather than “Thank my [n-word].” Indeed, Plaintiff has not even provided testimony or a declaration that he interpreted the text in such a manner. In contrast, Donniacuo’s undisputed statement calling a car a “[n-word] car” was wholly unacceptable, and his comment about how certain music was “Black” music was not appropriate workplace conversation. But these comments made by Donniacuo – a low-level, non-supervisory coworker – are not sufficiently severe or pervasive to cause a hostile environment.
After citing comparable cases, the court concluded that “viewing all of the alleged conduct as a whole, in the light most favorable to Plaintiff, Plaintiff has not shown a hostile environment claim under Section 1981 as a matter of law.”