The opinion of the court was delivered by: Robert L. Carter, District Judge:
Defendant New York City Housing Authority ("NYCHA") moves pursuant to
Rule 12(b)(6), F.R. Civ. P., to dismiss the claim of a hostile work
environment contained in plaintiffs Gregory Williams and Leroy Williams'
complaint. Plaintiffs oppose this motion.
In considering a motion to dismiss, the court must accept all of the
plaintiffs' allegations as true. See Tarshis v. Riese Organization,
211 F.3d 30, 35 (2d Cir. 2000). Plaintiffs are both African-Americans who
were employed at all relevant times as caretakers at the housing project
known as Fort Independence Houses. (Compl. ¶¶ 4, 5, 10.) On March 17,
1997, Gregory Williams entered the office of his supervisor, Kevin
Burns, to turn in a leave of absence form and discuss a paycheck.
(Compl. ¶¶ 13, 17.) Gregory Williams noticed a noose hanging on the
wall behind Burns's desk and then left the office without speaking to
him. (Compl. ¶ 17.)
Gregory Williams, and several co-workers, later confirmed that the
noose remained on display in Burns's office. (Compl. ¶¶ 18, 20.) In
the afternoon of the following day, March 18, 1997, Leroy Williams
entered Burns's office and also noticed the noose. (Compl. ¶ 23.) The
following morning, March 19, 1997, Gregory Williams went to Burns's
office and asked Burns why the noose was hanging on the wall. (Compl.
¶ 29.)Burns, visibly uncomfortable in the face of the confrontation,
immediately removed the noose and stated: "you know I'm not like that,"
adding, "It was a joke," and "I apologize if it offended you." (Compl.
Plaintiffs filed charges of employment discrimination based upon race
and retaliation with the United States Equal Employment Opportunity
Commission (hereinafter "EEOC") on or about November 18, 1997. (Compl.
¶ 7.) On December 7, 2000, plaintiff received a "Notice of Right to
Sue" from the United States Department of Justice, Civil Rights
Division. (Compl. ¶ 9.) Thereafter, plaintiffs filed this complaint
with the court on March 2, 2001, alleging violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The complaint
contains two causes of action. First, plaintiffs contend that the
defendant subjected them to a hostile work environment. Second,
plaintiffs assert that they suffered retaliation for complaining of the
allegedly discriminatory treatment. Defendant is seeking dismissal in
this motion of the hostile work environment claim.
A motion to dismiss will be granted only when "it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). The court must "draw inferences from [the allegations in the
complaint] in the light most favorable to plaintiff, and construe the
complaint liberally." Tarshis, 211 F.3d at 35 (citation omitted).
Defendant therefore bears a heavy burden in supporting its motion.
To demonstrate a hostile work environment actionable under Title VII,
the workplace must be "permeated with `discriminatory intimidation,
ridicule and insult', that is `sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working
environment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)
(quoting Mentor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67
(1986)). The United States Supreme Court in Harris indicated that there
is no precise test for determining whether conduct is severe or pervasive
enough to constitute a hostile work environment but indicated that
certain guideposts include "the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance." Id. at 23. The employment environment must
be abusive both objectively and subjectively. See id. at 21.
In addition, plaintiffs must demonstrate "that a specific basis exists
for imputing the conduct that created the hostile environment to the
employer." Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997)
(quotation omitted). Hostile work environments are generally imputed to
the employer unless the employer can demonstrate that it took appropriate
action to remedy the situation. See Wiley v. Citibank, N.A., 98 Civ. 1139
(DAB), 2001 WL 357322, at *5 (S.D.N.Y. Mar. 31, 2001) (Batts, J.) (citing
Kracunas v. Iona College, 119 F.3d 80, 89 (2d Cir. 1997)).
In this case, the conduct which demonstrates racial animus was the
of the noose in the supervisors' office.*fn1 The issue therefore
is whether this conduct is severe or pervasive enough to alter the
conditions of the plaintiffs' employment. There is no magical formula in
this determination, nor is there a specific minimum "number of incidents
below which a plaintiff fails as a matter of law to state a claim."
Richardson v. New York State Dep't of Corr. Services, 180 F.3d 426, 439
(2d Cir. 1999) (quotation omitted). Generally, however, as the conduct in
question becomes more severe, fewer occurrences are necessary to create a
hostile work environment. Thus, while a single racist remark will usually
not support a hostile environment claim, see, e.g., Harris, 510 U.S. at
21, a single physical assault would, see, e.g., Tomka v. Seiler,
66 F.3d 1295, 1305 (2d Cir. 1995), abrogated on other grounds by
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998). These examples,
while illustrative of the boundaries of the spectrum of racist conduct,
provide little practical guidance in a case, like this, where the conduct
falls somewhere between those extremes. The Second Circuit has offered
additional guidance, noting that while a single incident must be
"extraordinarily severe" to create a hostile work environment, see Cruz
v. Coach Stores Inc., 202 F.3d 560, 570 (2d Cir. 2000), it need not
involve actual or threatened physical assault, see Richardson, 180 F.3d
at 440. The courts' failure to enunciate regimented standards is
deliberate and is required to ensure adequate flexibility to promote
Title VII's broad remedial purpose. See Daniels v. Essex Group Inc.,
937 F.2d 1264, 1271 (7th Cir. 1991)
Plaintiffs have satisfied their burden of alleging that the display of
the noose subjectively altered the conditions of their employment. See
Compl. ¶¶ 19, 21, 25, 49. To substantiate their claim, they must also
allege facts that, if proven true, would demonstrate that their
perception of the workplace was objectively reasonable. The Second Circuit
has noted that the placement of a noose in the workplace can reasonably
be perceived as racially hostile conduct. See Snell v. Suffolk County,
782 F.2d 1094, 1098 (2d Cir. 1986). The question remains, however,
whether the conduct in this case was sufficiently pervasive or severe to
create a hostile work environment.
Whether the display of the noose constitutes pervasive conduct is a
complicated issue. This is the only racist act alleged in the complaint.
However, the noose was prominently displayed for at least three days and
presumably was viewed by everyone who entered the supervisors' office.
Furthermore, it was only removed after one of the plaintiffs complained.
The implication ...