In Berrie v. Board of Education of Port Chester-Rye Union Free School District, 2018 WL 4462587 (2d Cir. Sept. 18, 2018) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s race discrimination/hostile work environment claims. This case illustrates how courts apply the “severe or pervasive” standard when evaluating hostile work environment claims. Here, unfortunately, plaintiff loses.
The court cited the well-known hostile work environment standard:
[T]o establish a hostile work environment claim … a plaintiff must … show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 (2d Cir. 2014) (internal quotation marks omitted). This mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.” Id. at 20, 23 (internal quotation marks and alterations omitted).
“[A] hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct.” Dawson v. Cty. of Westchester, 373 F.3d 265, 274 (2d Cir. 2004). Thus, we “examine the totality of the circumstances, including: 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 the victim’s job performance.” Rivera, 743 F.3d at 20 (internal quotation marks and alterations omitted). The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.” Raspardo v. Carlone, 770 F.3d 97, 114 (2d Cir. 2014). Although “[f]acially neutral incidents may be included” in evaluating the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory.
The court then proceeded to apply the law to the facts.
After evaluating and discounting certain of plaintiff’s allegations that were, e.g., not shown to be done intentionally or out of racial animus (striking plaintiff in the head with a ball) and not reasonably attributed to any of the defendants (urine in plaintiff’s coffee pot) (!), the court held that the remaining “eleven incidents over a five-year period that even arguably support Berrie’s hostile work environment claims,” even if assumed to be racially motivated, was “not ‘severe or pervasive’ enough to create an “environment [that] would reasonably be perceived, and is perceived, as hostile or abusive.”