Hostile Work Environment Claim, Based on Anti-Semitic Comments, Survives Dismissal

In Kaplan v. New York State Department of Labor, 2019 WL 3252911 (S.D.N.Y. July 19, 2019), a case involving claims of discrimination based on religion, the court, inter alia, denied defendants’ motion to dismiss plaintiff’s federal claims.[1]The court dismissed plaintiff’s state law discrimination claims under Fed. R. Civ. P. 12(b)(1) on Eleventh Amendment (sovereign immunity) grounds.

From the decision:

Plaintiff argues that Pichardo’s anti-Semitic statements, “misogynistic rants,” and refusal to follow Plaintiff’s instructions and orders, taken together, meet the standard set by the courts for a hostile work environment under Title VII. … While Kaplan “personally overheard” Pichardo talk about “Jewing someone down,” he also became aware of “incessant anti-Semitic comments [made] out[side] of his presence” by Pichardo. … Furthermore, Plaintiff states that he had received a letter from DOL confirming that Pichardo had engaged in anti-Semitic behavior, but nonetheless declining to discipline him. … Plaintiff states that these facts demonstrate that he faced conduct severe or pervasive enough that a reasonable person would find it hostile or abusive …, and there is a basis for imputing this conduct to DOL[.]

The State Defendants respond that Plaintiff “fails to allege the kind of severe and pervasive harassment necessary to establish a hostile work environment.” … In this regard, they rest much of their argument on the allegation that Plaintiff only heard one anti-Semitic comment. … However, Plaintiff specifically alleges that Pichardo made numerous other anti-Semitic comments to other employees outside Plaintiff’s presence. … In other words, while Plaintiff only alleges one comment that he heard, he alleges many other, equally egregious comments made outside of his presence of which he became aware. (Id.). The Court finds that Plaintiff has adequately alleged that Pichardo “engage[d] in a steady barrage of opprobrious racial comments.” … Accepting the allegations against Pichardo as true, the Court concludes that they could state a claim for a hostile work environment.

The court also rejected defendants’ argument that the alleged comments cannot be imputed to the defendant, explaining:

Accepting the well-pleaded allegations of the Amended Complaint, Plaintiff reported the misconduct to his superiors, who declined to remedy the situation. (Am. Compl. ¶ 40). To impute liability to an employer, Plaintiff must allege that “(i) someone had actual or constructive knowledge of the harassment, (ii) the knowledge of this individual can be imputed to the employer, and (iii) the employer’s response, in light of that knowledge, was unreasonable.” Duch v. Jakubek, 588 F.3d 757, 763 (2d Cir. 2009). The State Defendants do not dispute the first or second of these elements, and accepting Plaintiff’s representations as true, the third element is satisfied. Plaintiff has stated that DOL informed him that Pichardo’s anti-Semitic conduct was not a basis for corrective action. (Am. Compl. ¶ 40). The Court concludes that such a response, assuming the truth of Pichardo’s continuous anti-Semitic comments, would be unreasonable.

Based on this, the court concluded that “Plaintiff has adequately stated that a hostile work environment existed and can be imputed to Defendant” and, therefore, plaintiff’s hostile work environment survives dismissal.

1 The court dismissed plaintiff’s state law discrimination claims under Fed. R. Civ. P. 12(b)(1) on Eleventh Amendment (sovereign immunity) grounds.
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