Hostile Work Environment Claim Dismissed Against NYC Dept of Education; “Acting Coldly” Plus Negative Performance Evaluations Insufficient

In Rivera v. NYC Department of Education, 2020 WL 7496282 (S.D.N.Y. Dec. 21, 2020), the court, inter alia, dismissed plaintiff’s hostile work environment claim.

From the decision:

Focusing on the timely allegations, the only non-conclusory allegations in this category are that Fanning “acted very coldly” towards Plaintiff and that Plaintiff received negative performance evaluations for discriminatory and/or retaliatory reasons. (Compl. ¶¶ 98, 105). These allegations do not plausibly allege that “the workplace [was] permeated with discriminatory intimidation, ridicule, and insult.” Littlejohn, 795 F.3d at 320. Indeed, the events alleged — considered individually or in tandem — are not sufficiently continuous, severe, or disruptive to show that Defendant subjected Plaintiff to a hostile work environment. Id.; see also, e.g., Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (summary order) (concluding that no hostile work environment existed even though “defendants wrongly excluded [plaintiff] from meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily imposed duties outside of her responsibilities, threw books, and sent rude emails to her”); Davis-Molinia v. Port Auth. of N.Y. & N.J., No. 08 Civ. 7586 (GBD), 2011 WL 4000997, at *11 (S.D.N.Y., Aug. 19, 2011) (finding that “diminished [job] responsibilities,” “exclu[sion] from staff meetings,” deliberate “avoid[ance],” “yell[ing] and talk[ing] down to,” and an increased workload of menial tasks, among other factors, was not enough to show that defendants’ conduct was sufficiently severe or pervasive), aff’d, 488 F. App’x 530 (2d Cir. 2012) (summary order). For example, Plaintiff does not explain why Fanning’s behavior of acting “coldly” towards Plaintiff rises to the level of pervasive or severe harassment necessary to establish a hostile work environment claim. Accord Mohan v. City of New York, No. 17 Civ. 3820 (KPF), 2018 WL 3711821, at *14 (S.D.N.Y. Aug. 3, 2018) (finding that allegation of Defendant’s “very unsettling” behavior towards Plaintiff was insufficient to establish connection between alleged conduct and the creation of a hostile work environment). Additionally, Plaintiff does not explain how negative performance evaluations in the 2018-2019 school year support his claims of a hostile work environment. See Plahutnik v. Daikin Am., Inc., 912 F. Supp. 2d 96, 106 (S.D.N.Y. 2012) (“[E]xcessive criticism is generally insufficient to support a claim of a pervasive or severe hostile work environment[.]” (citing Fleming, 371 F. App’x at 119)).

Based on this, the court held that plaintiff failed to allege a hostile work environment, and therefore to the extent his claims for race discrimination, national origin discrimination, and retaliation are premised on a hostile work environment, those claims fail.

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