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August 1, 2001


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. ¶¶ 29-31.)

March 25, 1997, Gregory Williams filed a formal complaint regarding the noose at the NYCHA Office of Equal Opportunity ("OEO"). (Compl. ¶ 33.) Leroy Williams signed a witness statement the following day to be attached to the complaint. Id. Plaintiffs contend that their complaint was not seriously investigated by the OEO. (Compl. ¶ 38.) They also allege that their supervisors began to enforce workplace rules more strictly against the plaintiffs than they had before the complaint was filed and that following their complaint, they were treated differently than other workers. (Compl. ¶¶ 39, 40.) For example, plaintiffs' radios were confiscated while other employees simply were asked not to play theirs. (Compl. ¶ 40.)

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 display 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 ...

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