Hostile Work Environment Claim Survives Dismissal

In Rosas v. Balter Sales Co., Inc. et al, 12-CV-6557, 2018 WL 3199253 (S.D.N.Y. June 29, 2018), the court, inter alia, upheld a jury verdict – i.e., denied defendants’ motion for judgment as a matter of law under Fed. R. Civ. P. 50 – in plaintiff’s favor on his race-based hostile work environment claim.[1]The court also denied defendants’ motion for judgment as a matter of law on plaintiff’s discriminatory discharge and battery claims, but remitted jury awards for emotional distress from $800,000 to $180,000 and punitive damages from $1.4 million to $700,000. I discuss the court’s evaluation of plaintiff’s discharge claim here.

Here is the legal standard, as summarized by the court:

To state a hostile work environment claim under [42 U.S.C.] § 1981, a plaintiff must demonstrate that the complained of conduct: “(1) is objectively severe or pervasive; (2) creates an environment that the plaintiff herself subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s [protected status].” Goins v. Bridgeport Hosp., 555 Fed.Appx. 70, 71–72 (2d Cir. 2014) (summary order). In determining whether a work environment is objectively hostile or abusive, courts must review the totality of the circumstances, evaluating such factors as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010) (internal quotation marks and emphasis omitted). “The Second Circuit has held that ‘isolated instances of harassment ordinarily do not rise’ to the level of ‘objective hostility’; rather, a plaintiff must demonstrate either a single incident that was ‘extraordinarily severe’ or a series of incidents that were ‘sufficiently continuous and concerted.

Applying the law, the court explained:

Plaintiff presented evidence at trial that Marc Balter repeatedly harassed Plaintiff based on his Hispanic heritage such that a reasonable jury could find that Plaintiff was subjected to a hostile work environment. Plaintiff testified that Marc Balter often made fun of his accent and/or mimicked a Spanish accent during their interactions. (Tr. 82:7-13; 84:10-22.) Plaintiff testified that this happened three or four times a week for the duration of his employment. (Tr. 83:4-10.) William Rivera, one of Plaintiff’s co-workers, corroborated this testimony, stating that Marc Balter spoke to Plaintiff in a mock Spanish accent “a lot of times.” (Tr. 470:1-7.) Marc Balter spoke to other Hispanic employees using a similarly demeaning accent. (Tr. 85:3-14). Marc Balter’s conduct made Plaintiff feel humiliated and insulted. (Tr. 82:17-23; 84:20-22.) Plaintiff and other employees also testified that Marc Balter used other offensive and derogatory phrases, including telling Plaintiff that he had a “Latin attitude,” (Tr. 92:4-8), and calling minority employees “spic” and “nigger,” (Tr. 459:1-10; 526:6-17).

While the above acts and remarks may not be considered sufficiently severe if made in insolation [sic], the frequent mimicking of a Spanish or Latin accent and repeated use of derogatory words and phrases was sufficiently pervasive to create an objectively hostile work environment. See Kouakou, 920 F. Supp. 2d at 402 (noting that discrimination must be either severe or pervasive). In addition, several of Plaintiff’s co-workers generally testified that they perceived Marc Balter as treating white employees more favorably than minority employees. (Tr. 86:16-17; 400:17-401:3; 639:7-13.) While such allegations may not be specific enough to support a claim of disparate treatment on their own, a reasonable jury could find that those employees’ perceptions corroborate Plaintiff’s experience of a discriminatory workplace.

The court therefore denied defendants’ motion for judgment on the pleadings with respect to plaintiff’s hostile work environment claim.

1 The court also denied defendants’ motion for judgment as a matter of law on plaintiff’s discriminatory discharge and battery claims, but remitted jury awards for emotional distress from $800,000 to $180,000 and punitive damages from $1.4 million to $700,000. I discuss the court’s evaluation of plaintiff’s discharge claim here.
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