Race-Based Hostile Work Environment Claim Properly Dismissed; Alleged 12 Incidents Over 3 Years Insufficient

In Miller v. New York State Police et al, 2022 WL 1133010 (2d Cir. April 18, 2022), the U.S. Court of Appeals for the Second Circuit, inter alia, affirmed the lower court’s dismissal (on summary judgment) of plaintiff’s race-based hostile work environment claim.

After summarizing the well-established black-letter law of hostile work environment claims, the court applied it to the facts:

In support of his claims, Miller pointed to at least twelve incidents over a period of three years wherein Kendall, in Miller’s presence, allegedly repeated the statements of colleagues or witnesses containing racial slurs, called particular African Americans “animals” or “savages,” used a mocking or minstrelsy voice, showed Miller an online video making fun of an African American woman, used the word “nigga” in a Facebook post under a fictitious name as part of an undercover investigation, and remarked that a suspect’s African American sister “had a great body for monkey sex.” J. App’x at 65–66, 474, 890, 1017.

Miller argues that the district court improperly failed to view the twelve alleged workplace incidents in their totality, instead analyzing the incidents individually or dividing them into several categories. However, the district court was aware of the “totality of the circumstances” requirement, which was cited in the Magistrate Judge’s Report. While the Report organizes its detailed discussion of the twelve alleged incidents into several categories, this alone does not indicate the district court failed to consider them in their totality. It does not appear to be the same kind of piecemeal analysis at issue in cases cited by Miller, where district courts ignored or failed to adequately consider incidents that were not facially discriminatory, see Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014); Kaytor v. Elec. Boat Corp., 609 F.3d 537, 548 (2d Cir. 2010), or rejected a claim because the alleged incidents were episodic rather than continuous, see Redd v. N.Y. Div. of Parole, 678 F.3d 166, 180 (2d Cir. 2012).

Miller further argues that he met his prima facie burden as to the existence of a hostile work environment by establishing that racial epithets were used in the workplace generally, irrespective of whether such epithets were directed specifically at him. To be sure, this Court recognizes the special power that a supervisor’s use of a racial epithet has in creating a hostile work environment. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012). And while a plaintiff must usually show “more than a few isolated incidents of racial enmity,” we have recognized the caveat that “a hostile work environment can also be established through evidence of a single incident of harassment that is extraordinarily severe.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 724 (2d Cir. 2010) (internal citations and quotation marks omitted). Beyond this caveat, however, the standard articulated in Schwapp v. Town of Avon still applies and, viewing the facts in the light most favorable to him, Miller does not make out a case for hostile work environment under that standard. See Albert-Roberts v. GGG Constr., LLC, 542 F. App’x 62, 64 (2d Cir. 2013) (rejecting plaintiff’s argument “that the single use of the word ‘nigger’ is so severe as to make out a prima facie case and survive summary judgment”).

The court’s conclusion that plaintiff failed to establish a prima facie case of hostile work environment effectively ended the case. However, the court proceeded to determine that, even if plaintiff had made out such a case, defendants would still be entitled to summary judgment under the so-called Faragher-Ellerth defense since (in sum) plaintiff failed to show that he took advantage of defendant’s preventive or corrective opportunities.

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