Second Circuit: No Hostile Work Environment Where Black Woman and White Male Were Subjected to Similar Treatment

In Gordon v. City of New York, 14-545-cv (2d Cir. 2015), the Second Circuit affirmed, in a summary order, the dismissal of plaintiffs’ First Amendment retaliation and hostile work environment claims.

The facts, as summarized by the court:

While working as emergency medical technicians (“EMTs”) for the New York City Fire Department (“FDNY”), plaintiffs Tomeko Gordon and William Murawski were violently assaulted by defendant William Rodriguez, a fellow EMT. Gordon reported this assault to the police. Gordon and Murawski, both seriously injured, missed approximately six weeks of work following the incident. Shortly after plaintiffs returned to work, Rodriguez committed suicide. In the months that followed, Gordon and Murawski allege, they were ridiculed, ostracized, and blamed for Rodriguez’s suicide by their co-workers.

Initially the court held that the “speech” at issue here – the report to the police – “did not address a matter of public concern and was therefore not protected speech that could form the basis of a First Amendment retaliation claim.”

As to plaintiffs hostile work environment claims:

The gravamen of the complaint is that Gordon and Murawski were “made to feel responsible for Rodriguez’s suicide” and taunted by co-workers “because [Gordon] reported Rodriguez’s violent attack to police.” The complaint contains no plausible allegation that the behavior of plaintiffs’ co-workers was additionally motivated by racial and gender animus. Moreover, that both plaintiffs were subjected to similar treatment while Gordon is a black woman and Murawski is a white man undermines both of their hostile work environment claims. See Brown v. Henderson, 257 F.3d 246, 254 (2d Cir. 2001) (“[I]n the absence of evidence suggesting that a plaintiff’s sex was relevant, the fact that both male and female employees are treated similarly, if badly, does give rise to the inference that their mistreatment shared a common cause that was unrelated to their sex.”). (Emphasis added.)

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