In Loiseau et al v. Bozzuto’s Inc. et al, No. CV 3:22-CV-01485 (JCH), 2025 WL 3295434 (D. Conn. Nov. 25, 2025), the court, inter alia, denied defendants’ motion for summary judgment on plaintiffs’ race-based hostile work environment claims.
The court summarized the black-letter law as follows:
To prevail on a hostile work environment claim under either section 1981 or Title VII,9 a plaintiff must prove “(1) harassment that was sufficiently severe or pervasive to alter the conditions of her employment, creating an abusive working environment, and (2) a sufficient basis for imputing the conduct that created the hostile environment to her employer.” Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001).
With respect to the first prong, what constitutes severe and pervasive is both objective and subjective: “the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir. 2015). “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “Courts review the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 79 (2d Cir. 2010) (internal citations omitted). “Although a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, a single instance can suffice when it is sufficiently egregious.” Ferris, 277 F.3d at 136. “For racist comments, slurs, and jokes to constitute a hostile work environment, there [generally] must be more than a few isolated incidents of racial enmity.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997).
With respect to the second prong, there are two theories by which conduct can be imputed to the employer. The first is strict vicarious liability where the supervisor created the hostile work environment. Wiercinski v. Mangia 57, Inc., 787 F.3d 106, 113 (2d Cir. 2015). Second, through negligence whereby a co-worker, who is not a supervisor, created the hostile working conditions and the employer, upon learning of the conduct, fails to rectify it. Bentley v. AutoZoners, LLC, 935 F.3d 76, 91-92 (2d Cir. 2019).
Against claims of a hostile work environment, an employer may invoke the Faragher/Ellerth affirmative defense whereby a defendant shows that: (1) the employer exercised reasonable care in preventing and promptly correcting the harassing behavior; and (2) the plaintiff unreasonably failed to avail themselves of any preventive or corrective opportunities by the employer or otherwise avoid the harm. Ferraro v. Kellwood Co, 440 F.3d 96, 101 (2d Cir. 2006); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). The employer may only raise the defense where one of two further elements is met: “either (1) the employee’s supervisor took no ‘tangible employment action,’ which involves an official company act, against the employee; or (2) any tangible employment action taken against the employee was not part of the supervisor’s discriminatory harassment.”
The court then proceeded to apply these principles to the claims of each plaintiff.
For example, as to plaintiff Loiseau, the court explained:
Mr. Loiseau’s hostile work environment claim turns in part on the June 18, 2021 incident involving his co-worker Mr. Voloshin wherein Mr. Loiseau claims Mr. Voloshin spit on his forklift and called him a “fucking [n-word].” See, supra, Part II.A.2.a. Defendants assert that this “lone allegation of a discriminatory incident,” which Bozzuto’s HR thereafter investigated, is insufficient to show severe and pervasive conduct as required by a hostile work environment claim. Defs.’ Mem. at 28. In addition, defendants assert that, along with Mr. Loiseau’s failure to show severe and pervasive harassment, Mr. Loiseau has also failed to establish “that a specific basis exists for imputing the objectionable conduct to the employer.” Id. at 31-32. Defendants point to their Anti-Harassment Policy, which they argue Mr. Loiseau invoked, as the “reasonable avenue for complaint,” which shields Bozzuto’s from liability for Mr. Voloshin’s conduct. Id. at 32.
With respect to defendants’ first contention, the court evaluates whether a triable issue of fact exists as to whether a single incident can qualify as severe or pervasive. Ordinarily, an isolated incident of harassment is insufficient to establish a hostile work environment claim unless extraordinarily severe. Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000). However, there is no magic number of harassing episodes below which a plaintiff fails as a matter of law to state a claim. Id. at 154.
Whether racial slurs constitute a hostile work environment turns in part on “the quantity, frequency, and severity of those slurs.” Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (quoting Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir.1994)). The Second Circuit has found that, in the supervisor-subordinate context specifically, isolated use of the n-word does not foreclose a hostile work environment claim as a matter of law. Daniel v. T & M Prot. Res., LLC, 689 F. App’x 1, 2 (2d Cir. 2017); see also Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (stating in dicta that “no single act” can more quickly transform the nature of a work environment than the use of the n-word by a supervisor). The court declines to draw a sharp distinction between use of that term by a supervisor and use of that term by a colleague in determining the legal sufficiency of the conduct.Mr. Loiseau, in his resignation email, wrote that he “felt afraid,” and “sick to [his] stomach” after the alleged confrontation with Mr. Voloshin. Plfs.’ Exh. K. He goes on to say that, following the Voloshin incident, he feels he is “walking on eggshells everyday” and does “not feel comfortable.” Id. Isolated incidents must ordinarily be severe to form the basis of a hostile work environment claim. A triable issue of fact exists as to whether being called the n-word, one of the most unambiguously racist and hideous words in the American English lexicon, constitutes sufficient severity to establish the existence of a hostile work environment. This is especially so given the subjective physical and emotional response Mr. Loiseau experienced, where he alleges having felt fear, discomfort, and physical illness as a result of the episode. Indeed, whether an incident is adequately severe to create an objectively hostile work environment and whether the plaintiff subjectively perceived it as hostile are ultimately questions for the factfinder. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 227 (2d Cir. 2004).
With respect to defendants’ second contention, that Mr. Loiseau failed to establish that the defendants are liable through their own negligence for Mr. Voloshin’s acts, the court also determines that there is a triable issue of fact. Defendants are liable for Mr. Voloshin’s conduct if they “either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.” Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 460 (S.D.N.Y.2013), (internal quotation marks omitted), aff’d sub nom Dabney v. Bed Bath & Beyond, 588 Fed.Appx. 15 (2d Cir.2014). The relevant inquiry is whether there was any reasonable avenue for complaint to report the harassing behavior. Duch v. Jakubek, 588 F.3d 757, 762-63 (2d Cir. 2009).
The parties dispute whether the complaint procedure available at Bozzuto’s was reasonable. Plaintiffs contest that “the only avenue for reporting race-based misconduct by a White employee is to Bozzuto’s predominantly White members of management and HR who frequently discount Black employees’ complaints,” see, e.g., Plfs.’ Exh. L (indicating that Mr. Hebron believed there was “nobody to complain to” given that his concerns were about White managers) and, that even where Mr. Loiseau complained of Mr. Voloshin’s conduct, Bozzuto’s did not properly investigate or redress the incident. Opposition at 30. During its investigation of the incident involving Mr. Voloshin, Bozzuto’s did not interview Mr. Hebron, who allegedly witnessed the altercation. Defendants’ Reply to Plaintiffs’ Additional Material Facts at ¶ 26. Defendants, on the other hand, point to the existence of the Anti-Harassment Policy and the underlying complaint procedure as evidence of the existence of a reasonable avenue for complaint. In light of the above, the adequacy of the existing avenue, including whether employees felt that their complaints would be properly heard and promptly (and adequately) investigated without fear of reprisal, remains a triable issue of fact, even given the existence of the Anti-Harassment Policy complaint procedure.
Based on this, the court held that Mr. Loiseau’s hostile work environment claim survives summary judgment.