In Moore v. Uncle Giuseppe’s Marketplace et al, 22-cv-544 (BMC), 2024 WL 4350691 (E.D.N.Y. Sept. 30, 2024), the court, inter alia, dismissed plaintiff’s race-based hostile work environment claim asserted under 42 USC § 1981.
From the decision:
I will assume arguendo, as some district courts within this Circuit have suggested, that “severe and pervasive” may mean “severe or pervasive” so that if a single discriminatory comment is so far beyond even the rough-and-tumble language of the workplace that federal civil rights law simply will not tolerate it, then the single remark may give rise to a hostile work environment. See Dash v. Bd. of Educ. of City School Dist. of N.Y., 238 F. Supp. 3d 375, 385-86 (E.D.N.Y. March 3, 2017). The record shows clearly that Kanter’s utterance had the requisite subjective impact on plaintiff, terrifying her. As far as objective assessment, it is obvious that the racism-laden history of “lynching” is precisely what motivated Kanter to utter the question within plaintiff’s hearing. Moreover, unlike his earlier disparaging remarks about black protests, his implication that his parents used racist language to describe black people, and discriminatory treatment of black drivers by police officers (none of which he had a problem with), this one was directed personally at plaintiff. It was an invitation, joking or not, said to a group of non-black employees suggesting violence towards plaintiff in a manner that had historically been directed at blacks.4
However, plaintiff’s case is lacking one crucial element. She has shown that the remark was “hostile” and that it was made at “work,” but because Uncle Giuseppe came down on Kanter like the wrath of God, there was no “environment.” In all of the cases where courts allowed the possibility that a single outrageous remark could constitute a hostile work environment (in fact, those cases are usually dictum, as the outrageous comments in those cases were repeated), the plaintiff had to labor under the ongoing gaze of or additional improper remarks by the coworker or supervisor who had made the remarks for a protracted time. See Cadet v. Alliance Nursing Staffing of N.Y., Inc., 632 F. Supp. 3d 202, 232 (S.D.N.Y. 2022). Here, Uncle Giuseppe’s response was so fast that it had Kanter fired the day after it interviewed him, which was two days after it interviewed plaintiff, which was two or three days after the incident.
Plaintiff complains there are issues of fact as to whether Uncle Giuseppe acted quickly enough, but I see no way a reasonable jury could find that it had a duty to have acted sooner. The incident occurred late in the afternoon on Saturday, August 8, plaintiff’s complaint hit Human Resources on August 9, and HR started its investigation on the first business day after plaintiff’s report, on Monday, August 10. Uncle Giuseppe could hardly fire Kanter until it had debriefed plaintiff and Kanter – it debriefed plaintiff while she was on vacation on August 11; Kanter on August 13; and it then fired Kanter on August 14. To the extent plaintiff is contending that Uncle Giuseppe should have fired Kanter immediately upon hearing her report, that is simply not reasonable. Even boors should be given a prompt opportunity to have their story heard.
The court concluded that “[a]t most, plaintiff is arguing that she endured unnecessary suffering because she and Kanter both showed up at work on August 9, when Kanter gave his insincere apology, and plaintiff did not expect that” and that if it is “going to extend the reach of § 1981 to allow a single, albeit severe, racist comment to constitute a hostile work environment, then the environment must extend more than one work shift, lest the employer become little more than an insurer for the conduct of its employees.”