In Drake v. City of Amsterdam Police Department et al, 2024 WL 3969002 (N.D.N.Y. August 28, 2024), the court, inter alia, dismissed plaintiff’s claims of race-based hostile work environment asserted under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.
After summarizing the “black letter law” applicable to these claims, the court applied it to the facts as follows:
Upon review, plaintiff has satisfied the subjective component of his racially hostile work environment claims. If plaintiff testified consistent with his declaration, he would be able to establish that he subjectively perceived the department to be permeated with racially charged abuse and discrimination that he found to be offensive and distressing. But even viewed in the light most favorable to him, no reasonable fact-finder could hear plaintiff’s version of events—at least the non-conclusory versions that he has offered in support of his motion, relied on to oppose either of defendants’ motions, or highlighted in his cross-motion and opposition papers—and conclude that plaintiff has satisfied the objective component of this kind of claim.
The objective component of a hostile work environment claim depends on the “totality of the circumstances,” which includes: (1) the frequency of the conduct; (2) its severity; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s work performance. Harris, 510 U.S. at 23. Notably, this “totality of the circumstances” includes events that might be time-barred as discrete claims. See, e.g., Hampton v. Wilkie, 554 F. Supp. 3d 512, 521 (E.D.N.Y. 2021) (“Hostile work environment claims fall under the ‘continuing violation’ exception to the timeliness requirement.”).
The problem for plaintiff is that if you strip away the conjecture and excise the legal conclusions, what remains are a series of poorly described episodes or incidents—spread out across most of the length of plaintiff’s nearly 12-year tenure—that reference mostly unnamed actors in fairly general terms.
To be sure, plaintiff viewed events as offensive (e.g., the references to the “Drake rules,” unnamed officers or employees sometimes calling him “hot chocolate” or a “show piece,” or the incident where non-party DiCaprio threatened plaintiff with discipline for wearing certain boots), but these episodes were far from sufficiently severe or pervasive when compared to existing precedent in this area of law. Compare, e.g., Wheeler v. Praxair Surface Techs., Inc., 694 F. Supp. 3d 432, 453 (S.D.N.Y. 2023) (applying Title VII standard to reject pre-amendment NYSHRL version of this claim), with Banks, 81 F.4th at 265 (summarizing racially offensive workplace setting that included nooses, Confederate flags, racially offensive material, and explicit racial slurs).
Based on this, the court concluded that the City defendants and the PBA defendants are both entitled to summary judgment on plaintiff’s claims for a hostile work environment under § 1981 and Title VII.