In Soto v. Vanguard Construction and Development Company, Inc., 23 Civ. 6044 (JPC), 2024 WL 4289106 (S.D.N.Y. Sept. 25, 2024), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s claim of race-based hostile work environment asserted under Title VII of the Civil Rights Act of 1964.
This decision illustrates the boundaries of what allegations are, and are not, sufficient to make out a Title VII hostile work environment claim.
From the decision:
Three incidents underpin Soto’s claim of race- and ethnicity-based hostile work environment: (1) Finley’s mistreatment of two Hispanic carpenters from a different company, Compl. ¶¶ 44-46; (2) Finley’s ranting about immigrants in Soto’s presence in response to poor caulking, id. ¶¶ 49-55; and (3) Finley’s statement to two Hispanic employees, while Soto was out from work, that they should speak English, id. ¶¶ 57-59. According to Soto, these three incidents show that “the hostile work environment was sufficiently severe and/or pervasive to alter the conditions of [Soto]’s employment as it compelled [Soto] to both intervene on behalf of the Hispanics … and to file a complaint with Defendant Vanguard.” Opp. to Vanguard & Strauss at 9.
Title VII demands more than what Soto alleges in the Complaint. The incidents that Soto describes, even fully credited, are not “sufficiently continuous and concerted to have altered the conditions of [his] working environment,” Alfano, 294 F.3d at 374 (internal quotation marks omitted), and therefore not enough to plausibly allege a hostile work environment. The three aforementioned instances allegedly occurred between December 23, 2020, and January 6, 2021. See Compl. ¶¶ 56-58, 62. But Soto worked only two of the fourteen days during that time period, and the Complaint does not indicate how long, of his sixteen years at Vanguard, Soto worked under Finley. What is more, in none of these incidents was the complained of conduct directed toward Soto. In fact, Finley’s alleged conduct during the first incident was not even directed towards a Vanguard employee. See Compl. ¶¶ 44-46. Although “evidence of harassment directed at other co-workers can be relevant to an employee’s own claim of hostile work environment discrimination,” Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir. 2001), they are “less supportive” than evidence of discrimination directed toward the employee himself, Sykes v. Rachmuth, No. 22 Civ. 3989 (JPC), 2023 WL 2752865, at *9 (S.D.N.Y. Mar. 31, 2023) (internal quotation marks omitted).
To be sure, Finley is alleged to have once “act[ed] in a physically threatening manner” towards a pair of Hispanic carpenters and to have “thr[own] their personal items on the ground”—conduct which Soto says was not directed toward “non-Hispanic employees within the same vicinity.” Compl. ¶¶ 44-45, 48. But Soto did not feel threatened enough to be deterred from intervening, id. ¶ 47—which cuts against the severity of the interaction. And in the other two incidents, the alleged conduct is closer to “stray remarks” that courts have deemed insufficient to support a claim of relief. Matthew, 2022 WL 4626511, at *9; see, e.g., Augustin v. The Yale Club of New York City, 274 F. App’x 76, 77 (2d Cir. 2008) (“[E]pisodes of name-calling, inappropriate behavior by a supervisor, and other perceived slights … do not constitute a hostile work environment even if taken as true.”); Fletcher v. ABM Bldg. Value, No. 14 Civ. 4712 (NRB), 2018 WL 1801310, at *23 (S.D.N.Y. Mar. 28, 2018) (collecting cases which “establish[ ] that sporadic comments, slurs, and jokes” are insufficient to establish a hostile work environment), aff’d, 775 F. App’x 8 (2d Cir. 2019). “For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (alteration adopted and internal quotation marks and citations omitted). Finley’s two alleged racially charged comments are a far cry from a “steady barrage of opprobrious racial comments.” Id. They are “isolated incidents of offensive conduct” that “will not support a claim of discriminatory harassment.” Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004).
Soto’s allegations of discriminatory conduct directed at some employees and some non-employees do not plausibly amount to an objectively hostile work environment. No single incident is “extraordinarily severe,” and the combination of the three incidents did not transform Soto’s workplace into one “permeated with ‘discriminatory intimidation, ridicule, and insult.’ ” Moore, 2021 WL 4523503, at *5 (quoting Harris, 510 U.S. at 21).
Based on the foregoing, the court concluded that plaintiff “has not sufficiently alleged non-conclusory facts to support his race- and ethnicity-based hostile work environment claim under Title VII.”
Having reached this conclusion as to plaintiff’s federal (Title VII) claim, it declined to exercise supplemental jurisdiction over plaintiff’s claims under the (more “lenient”) New York State and City Human Rights Laws.
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In addition to being instructive as to the application of the black-letter law, this decision is also instructive on the pros and cons of proceeding in federal court as opposed to state court. While federal court typically involves faster timeframes – due, arguably, to less populated dockets – there is a risk that the court (as it did here) will dismiss the federal claim while declining to exercise jurisdiction over the state and city law claims. This means that whatever time is gained may be lost due to the delay of needing to commence the action, anew, in state court.