In Litten v. GM Components Holdings, LLC, 2022 WL 706971 (W.D.N.Y. March 9, 2022), the court, inter alia, dismissed plaintiff’s hostile work environment claim – based on her status as a Native American – asserted under Title VII of the Civil Rights Act of 1964.
This case is, unfortunately, yet another that serves as an example that workplace conduct that might be considered, in the lay sense, as “hostile” does not necessarily give rise to an actionable “hostile work environment” claim.
The court summarized plaintiff’s argument, in part, as follows:
Litten argues that she was subjected to a hostile work environment when Palmer threw metal at her and called her a “dirty Indian” in 2016 and called her an “old, stupid thief” and sprayed items she had touched in 2017, when human resources manager Gilbert became angry with Litten when she complained about Palmer, and when GM engaged in “unsubstantiated fault finding” against her and held her accountable for actions she never committed. (Docket No. 40 at p. 16.)
After summarizing the “black letter” law as to this claim, the court proceeded to apply it to the facts of the case:
Viewing the record and drawing all inferences in Litten’s favor, this Court finds insufficient evidence from which a reasonable jury could find that she was subjected to severe and pervasive conditions that altered her work environment.
Litten’s argument that Gilbert’s treatment of her was part of a hostile work environment fails because she does not contest GM’s assertion that “Litten testified that Gilbert was always courteous in his dealings with [her]” and she provides no other admissible evidence regarding his conduct. (Id., ¶ 26.)
The conduct by Palmer of which Litten complains—one incident of being called a “dirty Indian” in 2016, one incident of being called an “old stupid thief” in 2017, Palmer’s spraying items Litten had touched, and one incident of having metal thrown toward her, but not hitting her—does not meet the applicable high standard. The comments amount to “the sporadic use of abusive language,” Faragher, 524 U.S. at 788, and the “old, stupid thief” comment and the metal-throwing are both facially race-neutral. Only Palmer’s spraying of items Litten had touched, after calling her a “dirty Indian,” could possibly rise to the level of “severe” conduct. But Litten does not offer any evidence of the frequency of this conduct or that it physically threatened or humiliated her. Nor does she claim that it unreasonably interfered with her work performance. Harris, 510 U.S. at 23. This Court finds that Palmer’s spraying of items Litten had touched, while highly offensive in light of her having called Litten a “dirty Indian,” does not rise to the level of severity required for this prong.
Even if this conduct did rise to the level of “severe,” because Palmer’s comments and actions represent actions by a co-worker, Litten’s claim can survive only if GM “failed to provide a reasonable avenue for complaint” or “knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” Duch, 588 F.3d at 762. Here, GM asserts, and Litten admits, that “GM investigated [her] complaint,” conducted an interview with the alleged perpetrators, held a meeting regarding interpersonal issues among the employees, and disciplined Palmer, Lajoie, and Smidl in connection with GM’s investigation. (Docket No. 40-1, ¶¶ 30-37.)
Finally, even if Litten’s 5-day suspension by GM in 2018 did amount to “unsubstantiated fault finding,” Litten brings forth no evidence from which a reasonable jury could conclude that this discipline was related to her status as a Native American. It therefore does not qualify as a discriminatory incident such as is envisioned by the hostile work environment theory.
Accordingly, the court concluded that “[b]ecause a reasonable jury could not find that Litten’s workplace was permeated with severe or pervasive discriminatory incidents, nor that a specific basis exists for imputing that environment to GM, GM is entitled to summary judgment on Litten’s hostile work environment claim.”