Alleged “Racist Graffiti” Held Insufficient to Make Out Hostile Work Environment Claim, Court Rules

In Duff v. Pristine Services, 2021 WL 663981 (SDNY Feb. 19, 2021), the court, inter alia, dismissed plaintiff’s complaint alleging a race-based hostile work environment.

As to whether the alleged conduct was sufficiently “hostile”, the court explained:

Duff’s hostile workplace claim appears to be premised on a single incident, in which he found the three pieces of offensive graffiti on the wall of a men’s bathroom on the job site, at least one of which was clearly derogatory and/or threatening to African Americans. FAC ¶¶ 47–49.6 The Second Circuit has held that as a general matter, “[f]or racist comments, slurs, and jokes to constitute a hostile work environment … there must be more than a few isolated incidents of racial enmity.’ ” Aulicino, 580 F.3d at 83 (quoting Schwapp v. Town of Avon, 118 F.3d 106, 110–11 (2d Cir. 1997)). Although “a single act can create a hostile work environment if it in fact works a transformation of the plaintiff’s workplace,” Feingold v. N.Y., 366 F.3d 138, 150 (2d Cir. 2004) (internal quotation marks omitted) (alterations adopted), that single act must be “extraordinarily severe,” to sustain a claim, Alfano, 294 F.3d at 374. Comparing the facts alleged here to those presented in cases in which they were found to be “extraordinarily severe,” the Court concludes that this bar has not been met. See, e.g., Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001) (holding that single instance of drugging and raping a co-worker created a hostile work environment). Duff’s single allegation of graffiti thus does not suffice to sustain his hostile workplace claim.

In his memorandum of law in opposition to Pristine’s motion to dismiss, Duff cites cases in which courts concluded that the plaintiff plausibly pled a hostile work environment with evidence of “anonymous harassment, such as racist graffiti.” Pristine Opp. at 16–18 (citing eleven cases, the majority of which are from outside the Second Circuit). Yet the Court finds these comparisons unavailing, for in each of the cases cited, the plaintiff pled additional incidents of harassment that Duff has failed to plead here. See, e.g., Petrosino v. Bell Atl., 385 F.3d 210, 214 (2d Cir. 2004) (plaintiff presented evidence of “persistent sexually offensive remarks and sexual graffiti” as well as “specific comments or actions towards” her); Wills v. Key Food Stores Co-Op, Inc., No 95-CV-5333 (SJ), 1997 U.S. Dist. LEXIS 21653, 1997 WL 168590, *4 (E.D.N.Y. Apr. 9, 1997) (African American plaintiff’s colleagues “constantly” referred to him using racial epithets); see also Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144–46 (10th Cir. 2008) (plaintiff witnessed both anonymous bathroom graffiti and the display of a noose).

The court further explained that even if it were to conclude that plaintiff sufficiently pled a hostile workplace, his claim would still fail because he alleged no facts demonstrating that defendant “was negligent in controlling working conditions.”

Specifically, while plaintiff asserted that the graffiti “was never corrected or dealt with by management” even though defendant was “aware or should have been made aware of the signs”, he pled “no facts to support this conclusory statement.” The court further noted that plaintiff conceded that he never reported the graffiti to his employer, and did not contend that anyone else reported the graffiti to defendant.

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