Offensive “Aunt Jemima” Halloween Costume Supports Hostile Work Environment/Race Discrimination Claim

In Scott-Iverson v. Independent Health Ass’n., 13-cv-0451 (W.D.N.Y. July 7, 2014), the court adopted a report and recommendation that plaintiff’s race- and sex-based hostile work environment claims may proceed.

Plaintiff alleged, among other things, that:

In approximately October 1999, [the Defendant] held an employee appreciation day around Halloween and [one of Plaintiff’s co-workers] dressed up as “Aunt [Jemima],” an offensive racial stereotype of the antebellum American South. This offensive, racist display was made in the presence of Plaintiff. …

On numerous occasions from approximately 2002 to 2012, [Plaintiff’s co-worker, J.M.] routinely played a video clip form the 1974 movie “Blazing Saddles” on his computer. The clip he played over and over was a scene in which the protagonists, the white deputy, played by Gene Wilder and the African–American Sheriff, played by Clevon Little, were hiding from members of the Ku Klux Klan. The Sheriff then came out of hiding and called out, “hey, where are all the white women at?” [Ed.: video clip] This offensive, racist display was made in the presence of Plaintiff…. No remedial action was taken when a complaint was made.

Defendant asserted that plaintiff’s allegations were time-barred, and that most of plaintiff’s allegations were not administratively exhausted.

The court observed:

Of the numerous factual allegations recounted above, only one—the Blazing Saddles allegation contained in ¶ 36 of Plaintiff’s complaint—occurred after June 29, 2011 and was also expressly exhausted in Plaintiff’s NYSDHR complaint. The Defendant is therefore correct that the remainder of Plaintiff’s factual allegations, if alleged as discrete acts of discrimination, would be timebarred and/or unexhausted and would accordingly be subject to dismissal.

This did not end the inquiry, however:

However, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court clarified that in cases alleging a hostile work environment, such as this one, an employee must timely exhaust only one of the acts that constitute a hostile work environment claim. According to Morgan, “[g]iven . . . that the incidents constituting a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim. In order for the charge to be timely, the employee need only file a charge within . . . 300 days of any act that is part of the hostile work environment.” Thus, as the Second Circuit has noted, “[u]nder Morgan, a sexually [or racially] offensive incident within the limitations period permits consideration of an incident preceding the limitations period only if the incidents are sufficiently related. `It does not matter whether nothing occurred within the intervening . . . days so long as each act is part of the whole.

Thus, the relevant inquiry under Morgan is whether the timely administrative charge is “sufficiently related” to the otherwise untimely factual allegations in Plaintiff’s complaint. That is, if the untimely allegations are sufficiently related to the timely allegation, the untimely allegations may be considered as part of a cause of action alleging a hostile work environment. As should be obvious, a Morgan analysis is not amenable to hard-and-fast rules. Instead, as the Second Circuit observed in McGullam, Morgan “requires courts to make an individualized assessment of whether incidents and episodes are related. Morgan . . . does not limit the relevant criteria, or set out factors or prongs.” McGullam, 609 F.3d at 77. However, in a helpful concurrence, Judge Calabresi identified several factors that courts “have attempted to identify. . . . that should guide the Morgan `relatedness’ inquiry.” Id. at 81 (Calabresi, J., concurring). Although the list of factors is, of course, not exhaustive, courts have considered whether “pre- and post-limitations period incidents” were “separated by an intervening action by the employer,” e.g., whether the employee was transferred; whether the incidents “were of a different nature”; and whether the incidents “were separated by a significant amount of time.” Id. at 81.

In holding that plaintiff’s hostile work environment claim was not time barred, the court ruled:

[T]he pre-limitations period allegations in Plaintiff’s complaint are sufficiently related to the post-limitations period allegation and, therefore, may be considered as part of Plaintiff’s hostile work environment claims. The most significant factor leading the Court to this conclusion is that the pre-limitations allegations [including the “Aunt Jemima Halloween incident] are all generally of the same nature as the post-limitations Blazing Saddles allegation. That is, like the Blazing Saddles allegation, a number of the pre-limitations allegations involve comments and acts that turn on offensive stereotypes about African–Americans in general and African–American women in particular.

The Court recognizes, as the Defendant has noted, that some of the predicate acts for Plaintiff’s hostile work environment claims stretch back to 1999. However, the allegations continue over the next 13 years and are regular enough to conclude, at least at this juncture, that they may have been part of the same pattern of discrimination alleged in Plaintiff’s timely administrative charge. The fact that there may be gaps of several years between some allegations is not necessarily fatal; an “incident-free interval does not preclude relatedness,” although it may “render[] less plausible” the possibility that several comments or acts are related. McGullam, 609 F.3d at 78. However, as is the case here, where the purportedly disparate acts are numerous and of the same nature, the “incident-free interval[s]” do not undermine Plaintiff’s claim. This is particularly true where one of Plaintiff’s allegations—the Blazing Saddles allegation—is alleged to have occurred on “numerous occasions from approximately 2002 to 2012.” Dkt. No. 1 ¶ 36. On a motion to dismiss, the Court must draw reasonable inferences in Plaintiff’s favor. Particularly given the severity and regularity of the other comments and acts that Plaintiff alleges, Plaintiff is entitled, at this stage of the litigation, to the reasonable inference that the Blazing Saddles video was played with sufficient frequency to support a cause of action for hostile work environment. The Court therefore concludes that Plaintiff’s pre-limitations period allegations are sufficiently related to her post-limitations period allegation to state a cause of action for hostile work environment in violation of Title VII.

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