In Johnson v. Frida’s Bakery, Inc., et al, 19-CV-1613, 2020 WL 1904061 (N.D.N.Y. April 17, 2020), the court, inter alia, recommended the dismissal of plaintiff’s hostile work environment claim asserted under Title VII of the Civil Rights Act of 1964.
As to the merits of plaintiff’s Title VII claim, the court explained:
[T]o state a claim for race-based hostile work environment under Title VII, a plaintiff must show that a defendant’s conduct (1) was “objectively severe or pervasive,” (2) created an environment that was “subjectively perceive[d] as hostile or abusive,” and (3) “created such an environment because of the plaintiff’s [protected characteristic].” Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F. Supp. 3d 763, 780 (S.D.N.Y. 2019) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). Here, even affording the complaint the most generous reading possible, any potential Title VII hostile work environment claim against Frida’s must be dismissed because plaintiff has failed to “demonstrate that the [challenged] conduct occurred because of [his] protected characteristic.” Hussey v. New York State Dep’t of Law/Office of Atty. Gen., 933 F. Supp. 2d 399, 412 (E.D.N.Y. 2013) (internal quotation marks and citation omitted); see Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (“[i]t is axiomatic that that mistreatment at work … is actionable under Title VII only when it occurs because of an employee’s … protected characteristic.” (internal quotation marks and citation omitted)). Plaintiff’s claims are all premised on Hernandez allegedly directing racial slurs about African Americans toward him and threatening to engage in, and actually engaging in, acts of physical violence against him. See Compl. at 4. However, neither the complaint nor any other of plaintiff’s submissions allege that plaintiff is, himself, African American, or a member of any racial minority group. See generally id. Thus, the complaint, which is devoid of facts from which the Court can draw the plausible inference that the specific occurrences complained of were the result of plaintiff’s race, fails to sufficiently allege a cause of action for hostile work environment pursuant to Title VII.
The court also noted that it was not clear that plaintiff’s complaint satisfied the statutory prerequisites of filing a federal lawsuit under Title VII – namely, that he timely filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission and filed this lawsuit within 90 days of receipt of a “right to sue” letter from the EEOC.