In Tassy v. Peter Buttigieg, U.S. Secretary of Transportation, 2021 WL 1964549 (E.D.N.Y. May 17, 2021), the court, inter alia, dismissed plaintiff’s claims that he suffered a hostile work environment because of his race, color, and national origin.
After concluding that plaintiff did not allege conduct that was sufficiently “severe or pervasive”, it continued:
Here, the record does not support a reasonable inference that the mistreatment occurred because of a protected characteristic. There were no explicit comments regarding plaintiff’s national origin, and the only arguable mention of race occurred when Anderson pointed to his arm. Although this evidence is probative, it would not, standing alone, allow a reasonable jury to conclude that the subsequent conduct occurred because of a protected characteristic. Plaintiff does not name any other comment from any of his years at Farmingdale that mentioned his race.
To be sure, plaintiff can rely on “facially neutral incidents” to help create the necessary quantum of proof. Alfano, 294 F.3d at 377. But plaintiff must first “establish[ ] a basis from which a reasonable fact-finder could infer that those incidents were infected by discriminatory animus.” Id. The basis in this case is lacking. For instance, Melcer may have “berated” and “derail[ed]” plaintiff, but plaintiff admits that he was “very gruff” to “many people” in the office. Plaintiff even recalled that Melcer “went crazy on” a white inspector, yelling “F this” and “F that” so loudly that plaintiff could hear it across the office. Later, a union representative told plaintiff, “Melcer was rough on me as well.”
The same held true for the other trainers. Although plaintiff casts Rachiele as a “rough” individual, plaintiff admits that Rachiele “was generally ‘rough’ on people.” Likewise, plaintiff complains that Rose never took him out for training, but he only “believes” that Rose trained a white ASI – he lacks any evidence that the training occurred. Cf. Brown v. Henderson, 257 F.3d 246, 254 (stating that the fact that men and women were “treated similarly, if badly,” would undermine an inference of sex discrimination).
The court also held that the record did not establish that the trainers treated all workers badly, but plaintiff worse, noting that “[a]lthough plaintiff stresses that he ‘strongly believe[s]’ that the rough treatment occurred because of his background, it is not his belief that matters – it is the evidence on which that belief is based.”
That evidence, held the court, was lacking, leading it to conclude that the “facts do not provide the quantum of proof necessary to support a reasonable inference that the mistreatment occurred because of plaintiff’s background” and that “[o]n this record, no reasonable jury could find that plaintiff established the elements of a hostile work environment claim.”