In Massie v. Metro. Museum of Art, No. 11-CV-9549 JPO, 2015 WL 3833839 (S.D.N.Y. June 22, 2015), the Southern District of New York reiterated that, when asserting a hostile work environment claim,
[a] plaintiff need not show that the incidents rendered the work environment “unendurable” or “intolerable,” but she must, to survive a motion for summary judgment, show either that a single incident of harassment was “extraordinarily severe” or that a set of incidents was “sufficiently continuous and concerted to have altered the conditions of her working environment.”
In this case, plaintiff asserted that his supervisor called him a “fucking stupid black bastard” and then, 9 days later, referred to him as a “real black bastard child.”
The court granted defendant’s motion for summary judgment on plaintiff’s race-based hostile work environment claim. Judge Oetken explained:
These incidents, viewed in the totality of the circumstances, are not sufficient to give rise to a conclusion that Massie’s work environment was permeated with discrimination or that the conditions of Massie’s employment were thereby altered. The alleged derogatory and racist comments are, while not physically threatening, severe. But, relatively speaking, the incidents were isolated; they did not occur with frequency or over a particularly lengthy period of time. And even if Ortega’s comments were offensive and humiliating, as they are alleged to be, Massie has also failed to submit evidence on the motion upon which a reasonable trier of fact could conclude that the incidents “work[ed] a transformation of [his] workplace.” (Emphasis added.)
Although the court dismissed plaintiff’s case, it noted that even if it were true that the allegedly discriminatory comment was not made to plaintiff’s face, such comments may – though not here – support a hostile work environment claim.
Specifically, the court cited the Second Circuit’s decision in Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir.2000) for the proposition that
the mere fact that the plaintiff was not present when a racially derogatory comment was made will not render that comment irrelevant to his hostile work environment claim because the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment.
The court also dismissed plaintiff’s discriminatory discharge claim, finding that evidence that plaintiff on two occasions cursed at museum patrons constituted a “legitimate and nondiscriminatory reason” for plaintiff’s termination, which plaintiff was unable to show was pretextual. That is, plaintiff failed “to raise a genuine issue of material fact as to whether his termination was in fact motivated by animus towards his membership in a protected class.”