Threat to “Hang” Plaintiff Insufficient to State Hostile Work Environment Claim

In Tekle v. Wegmans Food Markets, Inc., No. 15-CV-6386, 2015 WL 8485273 (W.D.N.Y. Dec. 9, 2015), the court granted defendant’s motion under FRCP 12(b)(6) to dismiss plaintiff’s race discrimination, hostile work environment, and retaliation claims.

This case illustrates that even arguably “disturbing and arguably race-based” incidents are not necessarily enough to establish violations of the anti-discrimination laws.

As for plaintiff’s hostile work environment claim, the court explained:

Plaintiff contends that he was the victim of the allegedly racial threat that he was going to be hanged by [co-worker] Dziuba if he opened up a chained off section of the Wegmans warehouse. Plaintiff further alleges that he reported this harassment to supervisors or managers who failed to respond apart from listening to his complaint. Plaintiff then attempts to establish a pattern of racially-hostile conduct by listing three undated incidents of harassment against three other African-American employees. However, there is no indication of how or when plaintiff became aware of these other incidents or whether they had any impact on his perception of Dziuba’s September 2012 comment. Moreover, plaintiff’s allegation that defendant provided no reasonable avenue of complaint or did nothing about Dziuba’s harassment is belied by the complaint itself, which states that defendant held more than one meeting with plaintiff and Dziuba to address the issue.

To sustain a hostile work environment claim of race discrimination, plaintiff must allege that the harassment was so severe or pervasive that it created an objectively hostile or abusive work environment[, that which] a reasonable person would find hostile or abusive, and that he subjectively perceive the environment to be abusive. If the conduct alleged by plaintiff is not sufficiently severe or pervasive to alter the conditions of [his] employment, no Title VII violation has occurred. It is clear that Dziuba’s stray comment to plaintiff, taken alone, is insufficient to plausibly establish a discrimination claim.

Although all four incidents alleged in the complaint are disturbing and arguably race-based, they fail to rise to the required level of an adverse employment action for purposes of Title VII. For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity. … Contrary to defendant’s contention, the fact that plaintiff learned second-hand of racially derogatory comments made by fellow employees can contribute to a hostile work environment and be therefore relevant to his claim. However, considering the totality of the circumstances alleged, including the frequency and severity of the alleged discriminatory conduct and whether it altered the conditions of plaintiff’s employment, the Court finds that plaintiff has failed to set forth a hostile work environment claim sufficient to withstand a Rule 12(b)(6) motion to dismiss.

The court also dismissed plaintiff’s disparate treatment claim (on the ground that plaintiff “fails to allege that he was treated differently than others similarly situated because of his race”) and plaintiff’s retaliation claim (on the ground that he “failed to assert a causal connection between the filing of his NYSDHR complaint and any adverse employment action”).

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