Race-Based Hostile Work Environment Claim Sufficiently Alleged Against Walmart et al Under 42 U.S.C. § 1981

In a recent case, Rubert v. Daniel King, et al, 2020 WL 5751513 (SDNY Sept. 25, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s hostile work environment claim asserted under 42 U.S.C. § 1981.

After summarizing the relevant law, the court applied it to the facts:

Here, Plaintiff’s hostile work environment claims survive the instant Motion for several reasons. First, the Court notes that whether “conduct is not severe or pervasive enough to successfully state a claim for hostile work environment under § 1981 … is a factual question that is generally inappropriate for the Court to determine on a motion to dismiss.” Amaya, 295 F. Supp. 3d at 224; see also Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007) (explaining that “whether a particular work environment is objectively hostile is necessarily a fact-intensive inquiry”).

Second, while Plaintiff’s Amended Complaint alleges only a single specific incident where King called him a “spic,” (Am. Compl. 8), Plaintiff expands on this allegation in his subsequent filings, explaining that King used the word “spic” over a prolonged period of time, (Pl.’s Mem. ¶ 6), and called him a “ ‘spic’ not once but several times,” (Pl.’s Sur-Reply ¶ 6). To be sure, “[f]or racist comments, slurs, and jokes to constitute a hostile work environment,” there must be “a steady barrage of opprobrious racial comments” rather than “a few isolated incidents of racial enmity.” See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (citation and quotation marks omitted); see also McDowell v. North Shore-Long Island Jewish Health Sys., Inc., 788 F. Supp. 2d 78, 82 (E.D.N.Y. 2011) (explaining that “stray remarks” from coworkers do not amount to a hostile work environment under § 1981 (quotation omitted)). However, in light of Plaintiff’s allegation that King’s use of slurs was prolonged, the Court cannot determine as a matter of law that such slurs did not amount to “a steady barrage.” Schwapp, 118 F.3d at 110. After all, whether racial slurs constitute a hostile work environment typically depends upon the “quantity, frequency, and severity of those slurs.” Id. at 110–11 (quotation marks omitted).

Third, Plaintiff has alleged offensive conduct beyond King’s use of racial slurs that may have contributed to the hostile environment. For example, Plaintiff alleges that King spread false allegations about him at work, and used “his position as a security guard” to “harass[ ] and “stalk[ ]” Plaintiff, “watching [Plaintiff] through the cameras, sending [him] text messages and basically tormenting [him].” (Am. Compl. 9.) Standing alone, these allegations do not suggest racially motivated harassment. However, when combined with allegations that King repeatedly used ethnic slurs in referring to Plaintiff, Plaintiff is entitled to the inference that King’s other offensive conduct was motivated, at least in part, by racial animus. See Rasmy v. Marriott Int’l, Inc., 952 F.3d 379, 388 (2d Cir. 2020) (“Our case law is clear that when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.”); Pucino v. Verizon Wireless Commc’ns, Inc., 618 F.3d 112, 118 (2d. Cir 2010) (“A plaintiff may rely on incidents of sex-based abuse to show that other ostensibly sex-neutral conduct was, in fact, sex-based.” (citation omitted)); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547–48 (2d Cir. 2010) (“Circumstantial evidence that facially sex-neutral incidents were part of a pattern of discrimination on the basis of gender may consist of evidence that the same individual engaged in multiple acts of harassment, some overtly sexual and some not.” (citation and quotation marks omitted)).9 Of course, Walmart urges the Court to draw the opposite inference: that Plaintiff’s allegations must be “taken within the context of King and Plaintiff’s feud over Plaintiff’s wife,” and thus that King’s conduct should be understood as the product of a personal feud rather than King’s racial animus. (Def.’s Reply 6.) However, at this stage, the Court must draw all inferences in Plaintiff’s favor, not Walmart’s. Moreover, parsing the possible causes of King’s conduct is a fact-dependent inquiry ill-suited to decision at this stage of the proceedings. See Patane, 508 F.3d at 114 (vacating and remanding because a district court made fact-dependent judgments regarding a hostile work environment claims on a motion to dismiss).

As to the issue of imputing liability, the court noted that “Walmart has advanced no arguments regarding the extent (or lack thereof) of its own involvement in and liability for King’s conduct,” as well as the unsettled law in this area.

Plaintiff “alleged that he complained about King’s conduct to two of his Walmart supervisors, and that they failed to take any action in response;” while plaintiff did not allege that these supervisors were Walmart policymakers or acted pursuant to Walmart policy, [w]hether King’s conduct is attributable to Walmart thus turns on the precise legal standards by which an employee’s discrimination can be imputed to his employer under § 1981, particularly in the aftermath of” the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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