In Cadet v. Alliance Nursing Staffing of New York, Inc., No. 21 Civ. 3994, 2022 WL 4584246 (S.D.N.Y. Sept. 29, 2022), the court, inter alia, held that plaintiff – a former home health aide – sufficiently alleged a race-based hostile work environment under 42 U.S.C. § 1981 and the New York City Human Rights Law.
Plaintiff’s hostile work environment claim arises from the alleged racially-discriminatory conduct by a client of defendant named Schwartz.
Initially, the court held that plaintiff’s allegations were sufficient to demonstrate that defendant had knowledge of Schwartz’s behavior, and thus that liability may be imputed to it. It squarely rejected defendant’s “theory that an employer can escape liability for a workplace it knows to be hostile so long as the employer (i) allows the employee to leave the premises when the discriminatory conduct recurs and (ii) expresses regret after the incident” since “[t]hat theory, if adopted, would turn the hostile work environment construct on its head.”
Turning to the issue of whether Schwartz’s conduct toward plaintiff on a single day may constitute a hostile work environment, the court explained:
The Court easily finds that what Plaintiff describes suffices as “extraordinarily severe.” In fact, the Court is dismayed to see Alliance suggest otherwise. Defendant disaggregates the January 24, 2019 incident into 10 separate events as if they were snapshots, and then states that only a few comments made by Schwartz “arguably can be linked to race.” (Def. Br. 18). This conceptualization of what happened to Plaintiff is both naïve and myopic. It is naïve, because it fails to credit certain of Schwartz’s statements as racially-motivated, despite Plaintiff pleading that she faced starkly different treatment as compared to the white caregiver from the moment she entered Schwartz’s apartment. (See, e.g., Compl. ¶¶ 43-44). Schwartz then proceeded to make a series of comments, including, but not limited to, that Plaintiff looked like a “little girl” (id. at ¶ 48), that she was “hideous” (id. at ¶ 50), and that she did not like Plaintiff or “other aides like” her (id. at ¶ 52). This verbal barrage was followed by a false 911 call and an attempted assault. (Id. at ¶¶ 56-60). The Supreme Court itself has noted that, while “it is true [a] disputed word will not always be evidence of racial animus, it does not follow that [a] term, standing alone, is always benign. The speaker’s meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006); see also Brockman v. NAES Corp., No. 19 Civ. 6 (JAM), 2021 WL 863471, at *4 (D. Conn. Mar. 8, 2021) (finding that “[a] jury could reasonably (and easily) conclude” that supervisor’s comments were “racist code words”). At this stage in a litigation, where the Court is to draw “all reasonable inferences in Plaintiff[’s] favor” and “assume all well-pleaded factual allegations to be true,” the Court will not deem any of Schwartz’s conduct to be “benign” in light of her attitude and actions toward Plaintiff. Faber, 648 F.3d at 104 (internal quotation marks omitted).
Defendant’s approach is also myopic, as it runs contrary to the Second Circuit’s instruction to take account of all of the relevant complained-of conduct. See, e.g., Littlejohn, 795 F.3d at 321 (analyzing all of plaintiff’s allegations related to hostile work environment together); Philbert v. City of New York, No. 21 Civ. 3119 (PAE), 2022 WL 94574, at *18 (S.D.N.Y. Jan. 7, 2022) (“[A] court must consider the totality of the circumstances[.]” (internal quotation marks omitted)); Love v. Premier Util. Servs., LLC, 186 F. Supp. 3d 248, 253 (E.D.N.Y. 2016) (same). Schwartz’s assault alone surpasses the threshold for conduct that is “extraordinarily severe.” See, e.g., Patterson, 375 F.3d at 230 (“Although a single incident ordinarily will not give rise to a cognizable claim for hostile work environment, this alleged event included not only racial remarks but also a physical assault[.]”); Fitzgerald v. We Co., No. 20 Civ. 5260 (AT), 2022 WL 952963, at *4 (S.D.N.Y. Mar. 30, 2022) (“[C]ourts have found that a single instance of sexual assault qualifies as ‘extraordinarily severe’ for purposes of establishing a hostile work environment claim.” (citing Domingues v. Barton Chevrolet Cadillac, No. 18 Civ. 7772 (PMH), 2021 WL 637016, at *4-5 (S.D.N.Y. Feb. 17, 2021)). That the assault was accompanied by various racially-motivated remarks and a false 911 call only bolsters Plaintiff’s claim.
[Cleaned up.]
The court concluded its analysis by distinguishing cases cited by defendant, noting that here, unlike in the cited cases, plaintiff “alleges severe and outrageous conduct, including a false 911 call and a physical assault” and that while “she was doubtless aware that she may face difficult circumstances at work due to her patients’ disabilities, the law does not require that someone in Plaintiff’s field of work face such hostility.”