where such dismissal was "plainly taken in response to
plaintiff's frequent and well-documented infractions"). And when
plaintiff is fired by someone different than those to whom she
has complained, after a sustained period of reported incidents
with co-workers, the chain of causation is broken. Kodengada v.
I.B.M. Corp., 88 F. Supp.2d 236, 245 (S.D.N.Y. 2000).
Moreover, even assuming plaintiffs can make out their prima
facie case for retaliatory discrimination, for the reasons
discussed above, there is still no reason to believe that their
termination was pretextual. Again, a discharge based on a series
of complaints from co-workers, whether the complaints were
accurate or not, is not prohibited by Title VII, particularly
where the complaints are as amply documented as they are here.
See Brady, 91 F. Supp.2d at 512-13; Clerge, 1999 WL 239688, at
*5. As a result, plaintiffs' retaliation claims against the Salon
must be dismissed as well.
C. Hostile Work Environment
An employer will also be liable under Title VII for permitting
a discriminatory hostile work environment, that is, a "workplace
[that is] permeated with discriminatory intimidation, ridicule,
and insult . . . sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal
references omitted). See also Richardson, 180 F.3d at 436. "The
incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive." Perry
v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997). "Conduct
that is `merely offensive, unprofessional or childish is not
discriminatory conduct proscribed by Title VII.'" Ricks, 92
F. Supp.2d at 345 (quoting Cosgrove v. Federal Home Loan Bank of
N Y, No. 90 Civ. 6455, 1999 WL 163218, at *20 (S.D.N.Y. Mar.
23, 1999)). See also Schwapp v. Town of Avon, 118 F.3d 106, 110
(2d Cir. 1997) ("Instead of sporadic racial slurs, there must be
a steady barrage of opprobrious racial comments.").
"Isolated instances of harassment ordinarily do not rise to
this level." Cruz, 202 F.3d at 570 (citing Kotcher v. Rosa &
Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992)).
"Rather, the plaintiff must demonstrate either that a single
incident was extraordinarily severe, or that a series of
incidents were `sufficiently continuous and concerted' to have
altered the conditions of her working environment." Id.
(quoting Perry, 115 F.3d at 149) (internal citations omitted).
Where the acts alleged against defendants are merely offensive,
rather than physically threatening, humiliating, or hampering to
plaintiff's job performance, summary judgment is properly
granted. Id.; Brennan v. Metro. Opera Ass'n, Inc.,
192 F.3d 310, 319 (2d Cir. 1999).
Factors to be considered when determining whether an
environment is hostile or abusive include: (1) the frequency of
the discriminatory conduct; (2) its severity; (3) whether it is
physically threatening or humiliating, or a mere offensive
utterance; (4) whether it unreasonably interferes with an
employee's work performance; and (5) what psychological harm, if
any, resulted. Harris, 510 U.S. at 23, 114 S.Ct. 367;
Richardson, 180 F.3d at 437. See also Schwapp, 118 F.3d at
110-11. This evaluation must be made in light of "whether a
reasonable person who is the target of discrimination would find
the working conditions so severe or pervasive as to alter the
terms and conditions of employment for the worse." Richardson,
180 F.3d at 436 (rejecting the use of the perspective of the
particular ethnic or gender group, "e.g., a `reasonable
African-American' or a `reasonable Jew'").
As with a Title VII claim alleging a discriminatory adverse
employment decision, a plaintiff in a hostile environment case
must demonstrate that there are circumstances
giving rise to an inference of discriminatory intent behind the
abusive conduct. See Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). A
plaintiff need not be the direct target of the discriminatory
harassment, or a member of the protected group specifically
subjected to offensive remarks and behavior as long as the
challenged conduct "contribute[d] to the overall hostility of the
working environment for a minority employee." Cruz, 202 F.3d at
570 (citing Schwapp, 118 F.3d at 111-12).
In this case,*fn18 plaintiffs' allegations against McKay and
Zolcinski simply do not rise to the level of a racially hostile
working environment as defined by Title VII. "Title VII requires
more than a merely `episodic pattern' of offensive discriminatory
conduct." Ricks, 92 F. Supp.2d at 348 (quoting Lopez v. S.B.
Thomas, Inc., 831 F.2d 1184, 1189 (2d Cir. 1987) and citing
Shabat v. Blue Cross Blue Shield of the Rochester Area,
925 F. Supp. 977, 982-83 (W.D.N.Y. 1996)). The verbal incidents
alleged against McKay and Zolcinski are nonspecific and, at best,
episodic in nature rather than pervasive. See Arroyo v. WestLB
Admin., Inc., 54 F. Supp.2d 224, 229-30 (S.D.N.Y. 1999)
(citations omitted). "Casual comments, or accidental or sporadic
conversation, will not trigger  relief pursuant to the
statute." Id. (quoting Snell v. Suffolk County,
782 F.2d 1094, 1103 (2d Cir. 1986)).
Plaintiffs have not offered sufficient facts for any reasonable
jury to begin to gauge how frequently the allegedly
discriminatory conduct occurred. As in Barua, 1998 WL 915892,
at *4, "the evidence that plaintiff[s] proffer . . . is so devoid
of particularization that, after excluding the wholly conclusory
assertions, there remains competent admissible evidence of only a
very few incidents of [arguably] racial slurs — far from
sufficient." They do not allege that they were physically
threatened and provide no concrete or expert evidence of
psychological harm or witnesses to the alleged incidents that
could attest to plaintiffs' level of humiliation. See Wilson v.
Consolidated Edison Co. of New York, No. 96 Civ. 7546, 2000 WL
335733, *6 (S.D.N.Y. Mar. 30, 2000) (awarding summary judgment
where plaintiff failed to describe "how he was harmed or how his
alleged hostile work environment interfered with his work
performance"). "[G]eneralized feelings of discomfort [fall] well
short of the proof required to show a hostile work environment."
Williams v. County of Westchester, 171 F.3d 98, 101-02 (2d Cir.
Moreover, defendants' alleged use of the phrases "street
person," "break up the gang" and "you people" cannot be deemed
inherently racially offensive without greater specificity as to
the context of their usage. See Cruz, 202 F.3d at 570
("Determining whether workplace harassment was severe or
pervasive enough to be actionable depends on the totality of the
circumstances."); Clerge, 1999 WL 239688, at *3 (finding
generalized allegations that supervisors had referred to
plaintiff as "boy" were insufficient, without more, to support
hostile work environment claim).*fn19 Here, there are no
allegations that anyone in defendants' employ other than the
plaintiffs themselves used an "unambiguously racial epithet."
See generally Richardson, 180 F.3d at 439. As the Supreme Court
has stated, the "mere utterance of an . . . epithet which
engenders offensive feelings in an employee does not sufficiently
affect the conditions of employment to implicate Title VII."
Harris, 510 U.S. at 21, 114 S.Ct. 367. "[A]llegations of
isolated encounters that were not definitively discriminatory do
not amount to severe and pervasive conduct." Wilson, 2000 WL
335733, at *6.
Plaintiffs' charge that McKay and Zolcinski made "false
accusations" against the plaintiffs are also insufficient to
create the inference of a hostile working environment. "Though
plaintiffs may have endured hostility at the hands of their
supervisors, the record shows at most that such hostility was
based on non-racial grounds," such as the litany of complaints
against them by their co-workers. Brady, 91 F. Supp.2d at
508-09. See also Ricks, 92 F. Supp.2d at 348; Arroyo, 54
F. Supp.2d at 231. Plaintiffs must set forth "direct comparative
evidence" to show how their supervisors treated them
discriminatorily vis à vis those outside their protected
group. See Oncale, 523 U.S. at 80-81, 118 S.Ct. 998. Here,
plaintiffs have provided no such evidence beyond their own
conclusory allegations to dispute the complaints against them.
See Clerge, 1999 WL 239688, at *4 (granting summary judgment in
a racial discrimination case where plaintiff "rest[ed] upon mere
allegations and denials" to rebut charges of his poor
performance). As in Kodengada, 88 F. Supp.2d at 243, it is more
likely that the hostility plaintiffs encountered "largely
reflected a clash of personalities rather than discriminatory
Accordingly, summary judgment must be granted for the
defendants on plaintiffs' hostile work environment claim.
D. Plaintiffs' § 1981 Claim
Plaintiffs also bring claims under 42 U.S.C. § 1981, alleging
that defendants deprived them of their federally protected right
to contract. To establish a § 1981 claim, a plaintiff must show:
(1) that she is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) that
the discrimination concerned one or more of the activities
enumerated in § 1981. Lauture v. I.B.M. Corp., 216 F.3d 258,
261 (2d Cir. 2000). The Second Circuit has recently held that
claims of workplace discrimination by an at-will employee do
constitute such activity protected by § 1981. Id. at 262-63.
See also Equal Employment Opportunity Commission v. Die
Fliedermaus, L.L.C., 77 F. Supp.2d 460, 469-70 (S.D.N.Y. 1999).
In this case, however, plaintiffs' claims under § 1981 are
dismissed because, just as they have failed to create a triable
issue of fact with respect to their Title VII claims, so have
they failed to do with respect to their § 1981 claims. See
Ricks, 92 F. Supp.2d at 349; Humphrey v. Council of Jewish
Federations, 901 F. Supp. 703, 710-11 (S.D.N.Y. 1995).
E. Lydia Griffin's Retaliation Claim Against Origins
Finally, Lydia Griffin alleges that her dismissal from Origins
was ordered in retaliation for her complaints against the staff
at the Salon. Like her retaliation claim discussed, supra, this
claim does not survive analysis. Initially, Griffin cannot make
out her prima facie case because, as above, she has not
produced sufficient evidence to demonstrate a reasonable "nexus
between the protected activity and the adverse
action taken." See Wanamaker, 108 F.3d at 465. Griffin's proof
of retaliatory dismissal rests on two allegations: (1) Origins is
affiliated with Estée Lauder, and (2) her immediate supervisor,
Bruner, would not corroborate her claim that she disclosed the
reason she had been previously terminated from the Salon. L.
Griffin Aff. ¶ 8. These claims amount to nothing more than
conclusory allegations. Plaintiff must allege more than a mere
corporate affiliation to create an inference that Origins' staff
were aware of her protected activity at the Salon, let alone that
they engaged in retaliation for it. See, e.g., Kodengada, 88
F. Supp.2d at 245 (requiring more direct evidence of a connection
between the protected activity and the decision-maker of the
In addition, plaintiff falls far short of meeting her burden of
creating a genuine issue if material fact with respect to
Origins's asserted reason for her firing. Whether or not she
described problems she had endured at the Salon during her job
interview, Griffin clearly provided a misleading "reason for
leaving" her job at the Salon on her written application. See
Bruner Dec. Ex. A. Under the very terms of the application,
omissions from the document constituted permissible grounds for
dismissal. Moreover, once Origins' management learned of the
history of complaints against Griffin, they were within their
rights to limit their own exposure to personnel trouble as well
as possible Title VII liability for any future acts on the part
of Griffin. As stated before, plaintiff cannot overcome
well-documented reasons for her dismissal through sheer surmise
and conjecture. See Goenaga v. March of Dimes Birth Defects
Found., 51 F.3d 14, 18 (1995); Ricks, 92 F. Supp.2d at 347;
Clerge, 1999 WL 239688, at *5. As a result, Griffin's
retaliation claim against Origins must fail as well.
For the foregoing reasons, defendants' motion for summary
judgment is granted. The Clerk of the Court is directed to enter
judgment for the defendants and close the above-captioned case.
IT IS SO ORDERED.