In Diaz v. Poly Prep Day School, 2022 WL 2803259 (E.D.N.Y. July 18, 2022), the court, inter alia, granted defendant’s motion to dismiss plaintiff’s claims of hostile work environment under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
From the decision:
Plaintiff has failed to allege any facts that plausibly demonstrate even a single race-based incident. She therefore attempts to buttress her hostile work environment claims by relying upon various incidents that plaintiff contends were directed at her because of her race, but which on their face are racially neutral.
But plaintiff’s allegations cannot support a hostile work environment claim. Although actions that are racially neutral on their face can be considered in assessing the totality of the circumstances for a hostile work environment claim, there must be “some circumstantial or other basis for inferring that [such] incidents … were in fact discriminatory.” Alfano, 294 F.3d at 378. Here, there is no such basis. See Parekh v. Swissport Cargo Serv., Inc., No. 08-cv-01994, 2009 WL 290465, at *5 (E.D.N.Y. Feb. 5, 2009) (complaints concerning unfair disciplinary actions and workplace assignments did not contain suggestion of hostility or offensiveness, nor that they were engaged in because of plaintiff’s race).
Moreover, none of the incidents about which plaintiff complains are sufficiently severe or pervasive that they create a hostile work environment. This is because “Title VII does not establish a general civility code for the American workplace.” Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004). Taken together, plaintiff’s allegations – which are devoid of supporting facts indicating their frequency or effect on her work performance – cannot support a finding of a hostile work environment that is so severe or pervasive as to have altered the conditions of her employment under Title VII. See Fleming v. MaxMara USA, Inc., 371 F. App’x 115, 119 (2d Cir. 2010) (no hostile work environment when supervisor wrongly excluded plaintiff from meetings, excessively criticized plaintiff’s work, refused to answer work-related questions, imposed duties outside plaintiff’s responsibilities, threw books, and sent insulting e-mails). Even the cases that plaintiff cites evidence mistreatment that is much more egregious and pervasive than what she alleges here. See Raniola v. Bratton, 243 F.3d 610, 622–23 (2d Cir. 2001) (a coworker wrote “c–t” across plaintiff’s name on the police ledger and her supervisor threatened to shoot her in the “f—ing head”, made derogatory comments, gave unfair and undesirable assignments, falsely disciplined her and put her a “hit list” for termination); Levitant v. City of New York Hum. Res. Admin., 625 F. Supp. 2d 85, 98–101 (E.D.N.Y. 2008) (supervisors repeatedly commented on plaintiff’s race and national origin, telling him Russians should drink toilet water, physically assaulting and threatening him, mocking his Russian accent, and forbidding him from speaking Russian in the workplace).
This decision, like many others, teaches that absent evidence linking plaintiff’s protected class(es) to the alleged hostility, there will be no claim.