In Crump v. City of New York, No. 155802/2013, 2024 WL 4957329 (N.Y. Sup Ct, New York County Nov. 30, 2024), the court, inter alia, dismissed plaintiff’s hostile work environment claims asserted under the New York State and City Human Rights Laws.
From the decision:
Defendants have demonstrated that the conduct at issue was not so severe and pervasive so as to permeate the workplace with discrimination or alter the conditions of plaintiff’s employment (see Reichman, 179 AD3d at 1118; Chin v New York City Hous. Auth., 106 AD3d 443, 444-445 [1st Dept 2013], lv denied 22 NY3d 861 [2014]; Silvis, 95 AD3d at 665). A hostile work environment claim must be grounded in repeated conduct (Blackman v Metropolitan Tr. Auth., 206 AD3d 602, 605 [2d Dept 2022]; see also Brennan v Metropolitan Opera Assn., 192 F3d 310, 318 [2d Cir 1999] [“a plaintiff must still prove that the incidents were ‘sufficiently continuous and concerted’ to be considered pervasive”] [citation omitted]). Plaintiff identified the telephone call with Gibbons and the two cancelled meetings with Pulaski as the objectionable conduct underlying his hostile work environment claims (NYSCEF Doc No. 39 at 116). These discrete episodes hardly qualify as repeated conduct for purposes of the NYSHRL (see Blackman, 206 AD3d at 605).
“[M]aking fun of an employee’s accent is offensive and inappropriate, and may cause a decidedly unpleasant work environment” (Hanna v New York Hotel Trades Council & Hotel Assn. of NY City Health Ctr., Inc., 18 Misc 3d 436, 444 [Sup Ct, NY County 2007]). Here, plaintiff’s testimony that Quilty, Blake, Hull and Kiln “sometimes” joked about his accent fails to establish the type of relentless, repeat conduct necessary to sustain a hostile work environment claim (see Zheng-Smith v Nassau Health Care Corp., 2021 WL 4097316, *3, 2021 US App LEXIS 27084, *7 [2d Cir, Sept. 9, 2021], cert denied 142 S Ct 1675 [2022] [the plaintiff failed to demonstrate that a supervisor’s ridicule or mocking of her accent was sufficiently severe and pervasive]; Tolbert v Smith, 790 F3d 427, 439 [2d Cir 2015] [no showing that the remarks constituted “ ‘a steady barrage of opprobrious racial comments’ ”] [citation omitted]; Benn v City of New York, 2011 WL 839495, *10, 2011 US Dist LEXIS 22226, *27-28 [ED NY, Feb. 28, 2011, No. 07-CV-326 (NGG) (JMA)], affd 482 Fed Appx 637 [2d Cir 2012] [episodic rather than continuous comments on the plaintiff’s accent insufficient to sustain a hostile work environment claim]; but see Hribovsek v United Cerebral Palsy of N.Y. City, 223 AD3d 618, 621 [1st Dept 2024] [defendant “mocked plaintiff’s accent on a weekly basis, including in the presence of her coworkers, claimed she did not understand plaintiff, and offered to educate plaintiff on how to speak English”]). Plaintiff could not pinpoint when the allegedly disparaging remarks were made, stating only that “I guess it depends on their moods, or whatever the day may be” (NYSCEF Doc No. 39 at 101-102). “[O]nly occasional incidents and remarks … [without] cit[ing] specifics as to the manner, frequency or context of the alleged conduct” are not enough to support a hostile work environment claim (Hanna, 18 Misc 3d at 444). Additionally, there is no competent evidence that the inappropriate comments unreasonably interfered with plaintiff’s work performance (see e.g Daeisadeghi v Equinox Great Neck, Inc., 794 Fed Appx 61, 64 [2d Cir 2019]). And while an employer who condones such behavior may be liable, plaintiff has not tendered any admissible evidence demonstrating that he reported those comments to his supervisors or that his supervisors were aware of and approved such conduct (see Forrest, 3 NY3d at 311-312 [no evidence that the defendant “knew of, let alone condoned or acquiesced in, the epithets”]). Last, plaintiff claims he was singled out for discipline for insignificant, minor violations, but he has not presented any evidence that such actions were taken because of his membership in a protected class (see Pitter-Green, 223 AD3d at 578-579). The fifth cause of action for a hostile work environment under the NYSHRL is dismissed.
Under the NYCHRL, a single comment may be sufficient for a hostile work environment claim, provided the comment “is made in circumstances where such comment or incident would signal views about the role of … people [sharing the plaintiff’s protected characteristic] in the workplace” (Biggan v City of New York, 192 AD3d 498, 499 [1st Dept 2021]). Kiln’s remark telling plaintiff to “control your Jamaican boy from committing so much crime here” (NYSCEF Doc No. 39 at 101) constitutes such an isolated circumstance (see Pitter-Green, 223 AD3d at 579), but it does not reflect Kiln’s view of a person sharing the plaintiff’s protected characteristics in the workplace (compare Golston-Green, 184 AD3d at 43 [police captain’s comment that “he did not ‘like women on this job because they have babies,’ plainly expresses a view of the role of women in the workplace”]). Furthermore, the other comments amount to nothing more than petty slights and trivial inconveniences and are not actionable (see Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 26 [1st Dept 2014]). Therefore, the tenth cause of action for a hostile work environment under the NYCHRL is dismissed.
The court did, however, deny defendant’s motion for summary judgment as to plaintiff’s retaliation claim, finding that the close temporal proximity between the filing of plaintiff’s complaint (i.e., protected activity) and the cancelling plaintiff’s vacation and the decision requesting new charges and specifications (adverse employment actions).