In Moy v. Napoli Shkolnik, PLLC et al, 23 Civ. 3788 (DEH), 2024 WL 3498131 (S.D.N.Y. July 22, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s – a Chinese American woman – claims of hostile work environment under the New York State and City Human Rights Laws (but not under 42 U.S.C. § 1981).
As to plaintiff’s section 1981 (federal) claim, the court explained that this claim fails because plaintiff cannot satisfy its “severe or pervasive” standard:
In considering the totality of the circumstances, the Court concludes that the Amended Complaint does not allege facts to allow a jury to find “that [Moy] was subjected to conduct that was sufficiently severe or pervasive, either in isolation or when viewed as a whole, to create a hostile work environment.” Davis-Molinia v. Port Auth. of N. Y. & N. J., No. 08 Civ. 7584, 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 19, 2011), aff’d, 488 F. App’x 530 (2d Cir. 2012). Moy therefore fails at the threshold to allege a Section 1981 hostile work environment claim.
Purportedly in support of her claim, Moy lists anecdotes about firm employees belonging to various protected groups who left the firm or were terminated. Am. Compl. ¶¶ 78-89; see also Pl.’s Mem. of L. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”) 14, ECF No. 28 (asserting “the disparate treatment of Black and Brown employees as well as the disparate treatment of other employees identified as minorities”). Moy notes other incidents in which she felt “offended” or “disregarded” at the firm. Am. Compl. ¶¶ 42, 53. In her opposition brief, Moy additionally argues that “the disparate treatment of Plaintiff herself, [including] the alteration of her work conditions [presumably in reference to her exclusion from the organizational chart and from meetings and opportunities],” and “the alteration of the terms of her employment, [presumably in reference to being assigned a supervising attorney role]” constitute a hostile work environment. See Pl.’s Opp’n 14.
The Court, however, is aware of no caselaw supporting Moy’s argument that the actions she points to, taken together or in isolation, constitute severe or pervasive discriminatory conduct under the federal standard. On the contrary, where courts in this Circuit have addressed similar allegations, they have concluded that they are insufficient to allege a federal hostile work environment claim.8 See, e.g., Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (holding that plaintiff’s allegations “that defendants wrongly excluded her from meetings … [and] refused to answer work-related questions … did not support a finding of hostile work environment”); Davis-Molinia, 2011 WL 4000997, at *11 (finding that “exclu[sion] from staff meetings,” “deliberate avoid[ance],” yell[ing] and talk[ing] down to” was not enough to show that defendant’s conduct constituted a hostile work environment); Littlejohn, 795 F.3d at 321 (concluding that general hostility directed at plaintiff was insufficient to allege a hostile work environment).
Accordingly, even construing Moy’s pleadings in the light most favorable to her, Moy’s federal hostile work environment claim cannot survive. It is therefore dismissed.
The court reached the opposite conclusion, however, on plaintiff’s state and city law claims, which do not require that the alleged harassment be “severe or pervasive” to be actionable. Rather, under those statutes, a plaintiff must allege “unequal treatment based on membership in a protected class.”
Furthermore, since the city law “does not differentiate between discrimination and hostile work environment claims,” it performed the same analysis on plaintiff’s hostile work environment claims as it does on her discrimination claims.” it thus concluded that plaintiff “plausibly alleges that she was treated ‘less well’ than other employees based on her race, color, national origin, and gender—and that this is sufficient to plead her state and city hostile work environment claims.”