In James v. Borough of Manhattan Community College et al, 20-cv-10565, 2021 WL 5567848 (S.D.N.Y. Nov. 29, 2021), the court, inter alia, dismissed plaintiff’s claims of a race- and age-based hostile work environment.
This case aptly illustrates that a “work environment” that might be “hostile” in the ordinary sense is not necessarily a “hostile work environment” within the meaning of the anti-discrimination statutes, such as (as relevant here) Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act.
From the decision:
Plaintiff’s complaint is devoid of specific factual allegations that could make out a severe and persuasive pattern of conduct. She alleges that Kolbusz-Kijne “has encouraged a climate of fear among employees,” but does not allege any specific facts as to how Kolbusz-Kijne did so. Dkt. No. 2-3 ¶ 25. This amounts to a conclusory statement, which cannot be taken as true when resolving a motion to dismiss. Twombly, 550 U.S. at 555; Ardigo v. J. Christopher Cap., LLC, 2013 WL 1195117, at *4 (S.D.N.Y. Mar. 25, 2013) (finding that conclusory allegation of “repeated, offensive, harassing comments” cannot support a hostile work environment claim (citing Iqbal, 556 U.S. at 678)). Plaintiff does not cite any specific incident, in her presence or otherwise, that would provide the basis for an objective finding that any activity was severe or pervasive enough to support a hostile work environment claim. Her allegations are simply that Kolbusz-Kijne gives preferential treatment to “staffers who distributed numerous invitations to department ‘Happy Hours’ ” and that there was an incident where an African-American colleague was “verbally berated” by two white male adjunct lecturers for filing an EEOC complaint. Dkt. No. 2-3 ¶ 25; Dkt. No. 26 at 3. This represents “at most ‘isolated and sporadic incidents, [which are] generally insufficient to establish a hostile work environment claim.’ ” Mohan v. City of New York, 2018 WL 3711821, at *15 (S.D.N.Y. Aug. 3, 2018) (quoting Plahutnik v. Daikin America, Inc., 912 F. Supp. 2d 96, 106 (modification in original)).
Even if Plaintiff had provided sufficient factual support for her allegation that Kolbusz-Kijne “has encouraged a climate of fear among employees,” or if her other allegations met the severity or pervasiveness standard, she never asserts that she herself experienced fear or subjectively perceived the conduct as hostile or abusive. Dkt. No. 2-3 ¶ 25; see also Krasner v. HSH Nordbank AG, 680 F. Supp. 2d 502, 513 (S.D.N.Y. 2010) (stating that a hostile work environment “is [not] something that exists in some absolute way, like poisonous chemicals in the air, affecting everyone who comes in contact with it”) (Lynch, J. sitting by designation). Without any allegation that Plaintiff was affected by the conduct she cites, she cannot satisfy the requirement that the conduct “created an environment that the plaintiff subjectively perceived as hostile or abusive.” Sherman, 2020 WL 2136227, at *5; see also Smeraldo v. City of Jamestown, 512 F. App’x 32, 36 (2d Cir. 2013) (summary order) (affirming a grant of summary judgment for defendant where plaintiff did not state how the alleged hostile work environment affected him); Alexander v. City of New York, 2004 WL 1907432, at *18 (S.D.N.Y. Aug. 25, 2004) (finding that a “a generalized allegation of stigma with no accompanying evidence that plaintiff was personally affected by any such stigma, is not evidence of an alteration of plaintiff’s working conditions sufficient to establish a hostile work environment”).
Moreover, as to the Spring 2019 incident, a plaintiff need not be present when a racially derogatory comment is made for that comment to contribute to a hostile work environment because “the fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment.” Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 2000); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000); Cruz v. Coach Stores, Inc., 202 F.3d 560, 571 (2d Cir. 2000); United States v. New York City Dep’t of Educ., 407 F. Supp. 3d 365, 400 (S.D.N.Y. 2018). However, it is also the case that a single comment made outside plaintiff’s presence and of which she was not aware at the time cannot make out the “subjective” component of a hostile work environment claim. Harge v. City of New York, 2021 WL 3855305, at *17 (S.D.N.Y. Aug. 26, 2021) (“ ‘[R]emarks made outside a plaintiff’s presence can be relevant to a hostile work environment claim,’ but this is true only when those remarks contribute to the Plaintiff’s own experience at the workplace.”) (quoting Leibovitz v. New York City Transit Authority, 252 F.3d 179, 190 (2d Cir. 2001)); Donahue v. Asia TV USA Ltd., 208 F. Supp. 3d 505, 516 (S.D.N.Y. 2016) (“[I]t is … the law that a plaintiff does not have a viable hostile work environment claim where that plaintiff is not the target of harassment, is not present for any harassment, and has no knowledge of the harassment while it is ongoing.”).
Furthermore, Plaintiff also does not allege any connection between her protected characteristics and her allegations that Kolbusz-Kijne gave preferential treatment to employees who encouraged attendance at happy hours, that Kolbusz-Kijne created of a climate of fear, and that white colleagues berated a black colleague over an EEOC complaint, as required to sustain a hostile work environment claim. Krasner v. HSH Nordbank AG, 680 F. Supp. 2d at 513 (“Title VII does not prohibit employers from maintaining nasty, unpleasant workplaces … [r]ather, it prohibits employers from discriminating against an employee (including by subjecting him or her to hostile working conditions) because of such individual’s [protected characteristic]. The prohibited causal factor requirement thus flows directly from the text of Title VII, and from the very essence of its nature as an anti-discrimination law.”). Plaintiff fails to allege a connection between the allegedly hostile conduct and Plaintiff’s protected characteristics. See Brennan v. Metropolitan Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999) (“[A]n environment which is equally harsh for both men and women or for both young and old does not constitute a hostile working environment under the civil rights statutes.”); Sherman, 2020 WL 2136227, at *6 (S.D.N.Y. May 5, 2020) (holding that “[p]laintiff … must be the target of the hostile work environment and subjected to the hostility because of membership in a protected class”).
The court concluded its analysis of this issue by noting that “[a]lthough it is possible for a member of a protected class to experience a more hostile environment than those outside of their protected class while being subject to the same treatment, Plaintiff does not provide sufficient detail to make such a showing.” In support, it cited case law for the proposition that “[t]he mere fact that all employees are exposed to the same offensive circumstances on the job site, however, does not mean that, as a matter of law, their work conditions are necessarily equally harsh.” [Cleaned up.]