In King v. Aramark Services Inc., No. 22-1237, 2024 WL 1188985 (2d Cir. March 20, 2024), the court, inter alia, vacated the summary judgment dismissal of plaintiff’s claim of sex-based hostile work environment asserted under Title VII of the Civil Rights Act of 1964.
This decision discusses and applies the “continuing violation doctrine”, which operates as an exception to the general rule that (in New York) a charge of discrimination is only timely if it is filed with the EEOC within 300 days after the “unlawful employment practice occurred.”
The Second Circuit held – apparently as a matter of first impression – that “[a] A discrete discriminatory act, such as termination, within the limitations period may not only support a claim for damages, it may also render a hostile work environment claim timely if it is shown to be part of the course of discriminatory conduct that underlies the hostile work environment claim.” [Emphasis in original.]
The court continued:
Our holding is consistent with how hostile environment claims work. As noted above, an employer can create a hostile environment through a series of discriminatory occurrences that transpire over days and years. Discrete acts like a promotion denial, though untimely for purposes of a separate discrete act claim for damages, can nevertheless help a plaintiff prove a hostile environment claim. Morgan, 536 U.S. at 113, 122 S.Ct. 2061. That’s because a hostile environment is formed and shaped by an assemblage of discriminatory acts—including acts that might also support a discrete-act discrimination claim if timely filed. That’s true whether the discrete acts that are part of a discriminatory course of conduct occur within the limitations period or without. There’s no exception to the continuing violation doctrine for timely acts that are also discrete acts that could support separate claims for damages.
We emphasize one limitation to our holding: The continuing violation doctrine allows a Title VII plaintiff to rely on a discrete act to render a hostile environment claim timely only if the plaintiff establishes that the discrete act was part of the ongoing, discriminatory practice that created a hostile work environment. See Patterson, 375 F.3d at 220. An unrelated discrete act, different in kind from the conduct giving rise to the hostile environment, does not trigger the continuing violation doctrine. …
Here, to establish a timely hostile environment claim, King must show a qualifying act no earlier than September 20, 2017.4 King has identified two instances of ongoing hostile conduct that fall within the limitations period—Thomas’s involvement in an HR investigation and his firing of King.
With respect to the first, the time period between King’s call to the employee hotline and her termination two days later fell within the limitations period. On September 18, 2017 (which fell outside the limitations period), King met with Thomas and an HR representative to discuss how she could improve her performance. Instead of exploring this matter, Thomas told King that she was under investigation for her purported reimbursement violation. King called Aramark’s employee hotline the next day (which fell within the limitations period), and two days after that, Aramark fired King.
The record reflects that during the limitations period, nobody interviewed King or any other witnesses besides Thomas. The investigation report also relied heavily on Thomas’s version of events. If a jury credits this evidence, it could find that Thomas misdirected the HR investigation. And, given that Thomas had fabricated performance issues outside the limitations period, kept a “legal file” on King since at least 2016, and had a termination letter prepared before the events giving rise to King’s termination, a reasonable jury could infer that Thomas’s interference was a continuation of his hostile treatment of King. Therefore, Thomas’s interference, which fell within the limitations period, made King’s hostile work environment claim timely.
For similar reasons, on this record, a jury could conclude that King’s termination was part of an ongoing discriminatory pattern or practice of sex-based harassment. As we said above, a discrete act that contributes to a hostile work environment and falls within the limitations period allows a factfinder to consider “the entire time period of the hostile environment … for the purposes of determining liability.” Patterson, 375 F.3d at 220. Here, a reasonable jury viewing the facts in the light most favorable to King could find that Thomas played a decisive role in King’s termination. A jury could also find Thomas’s decisive role contributed to his long-running enterprise of subjecting King to a pervasive, hostile work environment. Thus, unlike Patterson, this record includes some evidence that King’s firing was part of the same discriminatory pattern or practice of mistreatment from Thomas that underlay her hostile work environment claim. Cf. McGullam v. Cedar Graphics, 609 F.3d 70, 78 (2d Cir. 2010) (noting that the same harassing acts by the same harasser are more likely to be part of the same actionable hostile environment claim).
Based on this, the court conclude that plaintiff “can therefore avail herself of the continuing violation doctrine, and her sex-based hostile work environment claim is not time-barred” and that the lower court erred when it granted summary judgment for defendant.