Hostile Work Environment Claim Survives Dismissal

In Smith v. The City of New York, 16-cv-9244, 2018 WL 3392872 (S.D.N.Y. July 12, 2018), the court, inter alia, held that plaintiff sufficiently alleged a hostile work environment under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the New York State Human Rights Law and the NYC Human Rights Law.

As part of plaintiff’s claim, she cited various notes she received that criticized her work performance.

From the decision:

The plaintiff alleges that she received informal notes from[] SPAA [Senior Police Administrative Aide] Thompson that were posted on a public board near the plaintiff’s work area. Am. Compl. ¶ 7. From February 2015 to August 2016, the notes appeared at least once per week and sometimes more often. Id. The plaintiff alleges that she witnessed her co-workers reading the notes and “then talking amongst themselves.” Id. The plaintiff also alleges that she was issued three minor violations and two command disciplines between February 2016 and August 2016. Id. at 31, 34, 40, 43. Generally, the plaintiff alleges that she was “subject to SPAA Thompson’s negative behavior for well over a year.” Id. at 9.

*9 While the alleged campaign against the plaintiff was not overtly hostile based on the plaintiff’s race or age, a plaintiff may rely on seemingly neutral hostile incidents to support a hostile work environment claim where she has shown that other incidents were race or sex based. See Cristofaro v. Lake Shore Cent. Sch. Dist., 473 F. App’x 28, 30 (2d Cir. 2012) (summary order) (“While facially neutral incidents may be considered ‘among the ‘totality of the circumstances’ … in any hostile work environment claim,” there must be a “circumstantial or other basis for inferring that incidents sex-neutral on their face were in fact discriminatory.” (citing Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002))); Figueroa v. City of New York, 118 F. App’x 524, 526 (2d Cir. 2004) (summary order) (“With respect to the offensive but gender-neutral conduct Figueroa pointed to, she offered only the conclusory statement that the harassment occurred because she is a woman. She failed to adduce evidence sufficient to link these acts to her gender or to the perpetrators’ gender-based animus.”).

As described above, the plaintiff has alleged sufficient factual circumstances to support an inference that the campaign against her was motivated by her race or age. Whether those inferences are correct cannot be decided on a motion to dismiss.

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