Court Dismisses Race Discrimination/Hostile Work Environment Claim; “N-Word” Evidence Was Inadmissible Hearsay

In Alex v. Gen. Elec. Co., No. 12-cv-1021, 2016 WL 1057042 (N.D.N.Y. Mar. 14, 2016), the court dismissed plaintiff’s race-based hostile work environment claim.

From the decision:

Plaintiff’s deposition testimony that one or more unidentified co-workers told Plaintiff that Defendant Lanoue had referred to Plaintiff as “N—–” (behind her back) is inadmissible. Specifically, the alleged statements by one or more unidentified co-workers is hearsay under Fed. R. Evid. 801(a)–(c), and is not admissible as a statement by a party or a party’s employee on a matter within the scope of the employment relationship while it existed, under Fed. R. Evid. 801(d)(2)(A),(D). …

The closest Plaintiff comes to adducing admissible evidence is through the affidavit of Carol Adams. While certain paragraphs of that affidavit come close to stating that Ms. Adams personally heard Defendant Lanoue refer to Plaintiff as “N—–,” they fall conspicuously short of stating that fact. Rather, Ms. Adams states she personally heard Defendant Lanoue refer to Plaintiff as “Black [b]itch.” Of course, the term “Black bitch,” while deplorable, is not the term that one or more co-workers allegedly told Plaintiff that Defendant Lanoue was using to refer to African-Americans, which (again) was “N—–.” …

In one sense, this disparity is immaterial because the term “Black bitch,” like the term “N—–,” is racial in nature. … In another sense, however, the disparity is highly material because Plaintiff testified at her deposition that her Amended Complaint contains each and every allegation against Defendant Lanoue that supports her claim for a hostile work environment based on race. The first time that Plaintiff asserted the “Black bitch” allegation was five months after Plaintiff’s deposition … and the close of discovery[.]

The court also noted that “Plaintiff offers no explanation for her failure to assert her ‘Black bitch’ allegation before July 6, 2015” and that in any event “this evidence is of relatively modest importance, because the term ‘Black bitch,’ while deplorable, is less tinged with racism than is the term ‘N—–.’”

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