Co-Worker’s Use of Racial Slur Did Not Support Hostile Work Environment Claim; Timing of Outsourcing Decision Resulted in Dismissal of Retaliation Claim

A recent Second Circuit decision, Albert-Roberts v. GGG Construction (Summary Order), illustrates that the workplace utterance of even the most arguably vile racial slur (“nigger”) is not necessarily sufficient to support a hostile work environment claim.

Plaintiff, who was employed by GGG as a part-time, nighttime office cleaner, alleged that she was subjected to a hostile work environment through the conduct of a co-worker, including the co-worker’s use of the word “nigger” to plaintiff’s husband outside plaintiff’s presence.

The Second Circuit affirmed the district court’s 2012 dismissal of plaintiff’s hostile work environment and retaliation claims.

Hostile Work Environment

The Second Circuit affirmed the dismissal of plaintiff’s hostile work environment claim under 42 U.S.C. 1981:

In considering a motion for summary judgment, the district court properly required Albert–Roberts to adduce admissible evidence showing that her workplace was so permeated with discriminatory intimidation, ridicule, and insult [as] to alter the conditions of [her] employment. Absent such a showing, it correctly concluded that the plaintiff had not made out a prima facie case of a hostile work environment, because her allegations do not rise to the level of frequency or severity necessary to established such a claim.

The court rejected plaintiff’s argument that the single use of the slur was sufficiently “severe” to survive summary judgment:

Although ordinarily a race-based hostile work environment claim must involve “more than a few isolated incidents of racial enmity a hostile work environment can also be established through evidence of a single incident of harassment that is extraordinarily severe. That is not the case here.

Plaintiff relied on La Grande v. DeCrescente Distributing Co., 370 F. App’x 206 (2010), but in that case the court found that “allegations of four instances of a company manager calling the plaintiff a ‘nigger,’ coupled with threats of physical violence and other racial slurs, were sufficient to survive a motion to dismiss.” Plaintiff’s allegations did not rise to that level.

Though the facts, viewed in their entirety, did not give rise to a hostile work environment in this case, the court acknowledged that there may be circumstances where a single use of the word “nigger” would rise to the level of a hostile work environment.

Retaliation

The Second Circuit also affirmed the dismissal of plaintiff’s Section 1981 retaliation claim.

The court assumed that plaintiff established a prima facie case of retaliation, since she complained about the racial remark in September 2009 and was fired approximately one month later.

However, plaintiff failed to establish that the proffered reason for her termination (the decision to outsource plaintiff’s job) was pretextual:

The District Court was correct to dismiss plaintiff’s retaliation claims, because her arguments of pretext are belied by the record. [LLC member] Drucker testified at his deposition that he had decided to “outsource” the cleaning “months before,” and produced proposals from different outsourcing companies. Although he had initially anticipated hiring a new cleaning service beginning in January 2010, he choose to outsource earlier after Albert–Roberts was in a car accident on October 19, 2009, and was unable to work. Drucker outsourced the cleaning staff—and terminated plaintiff—the next day. Albert–Roberts has offered nothing aside from her own conclusory affidavit to rebut his testimony. In fact, in her EEOC complaint, she acknowledge the planned outsourcing: “[I]t has been shown that the cleaning crew will be replace[d] with an outsource company. The potential bidders came from a visit two times.”

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