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Bright v. Coca Cola Refreshements Usa, Inc.

United States District Court, E.D. New York

November 3, 2014



BRIAN M. COGAN, District Judge.

Plaintiffs Kishia Bright, Guillermo Nunez, Isaac Olabanjo, Johnny Small, Dave Vilceus, Sandra Walker, and Diane Worrell are among the sixteen plaintiffs who brought this employment discrimination action under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et. seq. ("CHRL"), in state court on January 3, 2012. Defendant removed the case to this Court on the basis of diversity jurisdiction. The claims of the other nine plaintiffs have been dismissed either by stipulation or grant of summary judgment to defendant.

Defendant has moved for summary judgment to dismiss the remaining plaintiffs' claims. The facts relevant to each plaintiff's claim will be set forth in the discussion of that claim. I have of course construed the record most favorably for each plaintiff, see Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 108 (2d Cir. 2013), except as to the inadmissible evidence that each has offered. See ITC Ltd. v. Punchgini, Inc., 482 F.3d 135, 151 (2d Cir. 2007) ("[C]onclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment.").


I. Racial Discrimination

Discrimination claims under the SHRL are analyzed the same way they would be analyzed under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2006). See Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011). This is the familiar test under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). To make out a prima facie case, a plaintiff must show that (1) he belongs to a protected class; (2) he was qualified for his job; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See Adams v. City of N.Y., 837 F.Supp.2d 108, 119-120 (E.D.N.Y. 2011).

The plaintiff's burden of making this showing is de minimis. See Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006). An applicant is qualified for a position if he meets the specific criteria required by his employer. See Thornley v. Penton Publ'g, Inc., 104 F.3d 26, 29 (2d Cir. 1997). A plaintiff endures an adverse employment action whenever "he or she endures a materially adverse change in the terms and conditions of employment... which is more disruptive than a mere inconvenience or an alteration of job responsibilities." Joseph, 465 F.3d at 90 (quotations and citations omitted). An inference of discrimination arises if "the employer treated plaintiff less favorably than a similarly situated employee outside his protected group." Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).

If a plaintiff makes his or her prima facie case, the burden shifts to the defendant to provide a non-discriminatory reason for its actions against the plaintiff. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). If such a reason is articulated, the burden shifts back to the plaintiff, who must produce sufficient evidence for a reasonable fact-finder to believe that the defendant's proffered reason is mere pretext for actual discrimination. Id.

A discrimination claim under the CHRL must be reviewed independently and more liberally than its federal and state counterparts. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009). The city statute does not require an adverse employment action; a plaintiff must only provide evidence he or she was treated "less well" than other employees based on his or her protected status. See Zambrano-Lamhaouhi v. N.Y.C. Bd. of Educ., 866 F.Supp.2d 147, 160 (E.D.N.Y. 2011). However, a moving defendant is entitled to summary judgment if it can show, as an affirmative defense, that a reasonable jury could not interpret the alleged discrimination as anything more than "petty slights or trivial inconveniences." Mihalik, 715 F.3d at 114.

"[A] plaintiff's discrimination claims under... the NYCHRL are subject to the burdenshifting analysis applied to discrimination claims under Title VII." Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir. 2010).

II. Hostile Work Environment

To prevail on a hostile work environment claim under the SHRL, a plaintiff must provide evidence "(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [his or] her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003), abrogated on other grounds by Vance v. Ball State Univ., ___ U.S. ___, 133 S.Ct. 2434 (2013). The analytical framework for this test is the same under Title VII and the SHRL. Van Zant v. KLM Royal Dutch Airways, 80 F.3d 708, 714 (2d Cir. 1996).

Under the CHRL's more liberal standard, a plaintiff must "show that her employer treated her less well than other similarly situated employees, at least in part for discriminatory reasons." Fenner v. News Corp., No. 09 Civ. 09832, 2013 WL 6244156, at *13 (S.D.N.Y. Dec. 2, 2013); see also Mihalik, 715 F.3d at 114. A claim under CHRL should be dismissed if the plaintiff does not allege behavior by the defendant that "cannot be said to fall within the broad range of conduct that falls between severe and pervasive on the one hand and a petty slight or trivial inconvenience on the other." Hernandez v. Kaisman, 103 A.D.3d 106, 114-15, 957 N.Y.S.2d 53 (1st Dep't 2012) (quotations and citations omitted).

A plaintiff may support a hostile work environment claim with incidents that he or she did not personally witness or hear. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000). However, "statements reported to the plaintiffs and not supported by affidavits [may be] inadmissible hearsay." Id. at 71; see also Howley v. Town of Stratford, 217 F.3d 141, 154-55 (2d Cir. 2000) (finding that plaintiff's testimony that other coworkers told her of certain harassing statements by supervisor likely inadmissible to prove that the statements were made, although the testimony of those coworkers might be admissible).

III. Retaliation

Retaliation claims under the SHRL are also analyzed under the three-step, burden-shifting McDonnell Douglas framework. See 411 U.S. 792, 93 S.Ct. 1817. A plaintiff must first establish a prima facie case of retaliation by demonstrating that "(1) he engaged in protected participation or opposition under Title VII... (2) that the employer was aware of this activity, (3) that the employer took adverse action against the plaintiff, and (4) that a causal connection exists between the protected activity and the adverse action." Kessler v. Westchester Cnty. Dep't of Social Servs., 461 F.3d 199, 205-06 (2d Cir. 2006) (citations omitted).

In determining whether a plaintiff has satisfied this initial burden, the Court's role in evaluating a summary judgment motion is "to determine only whether proffered admissible evidence would be sufficient to permit a rational finder of fact to infer a retaliatory motive." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). If the plaintiff satisfies his burden, the defendant must articulate a legitimate, non-retaliatory reason for the employment action, and if it does the burden shifts back to the plaintiff to demonstrate by competent evidence that the reason proffered by the defendant was pretext for a retaliatory animus based upon the protected activity. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 173 (2d Cir. 2006).

To support a retaliation claim under the SHRL, an action must be "materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405 (2006) (quotations and citations omitted). Such a determination is objective. Millea v. Metro N. R.R. Co., 658 F.3d 154, 165 (2d Cir. 2011) (quoting Burlington, 548 U.S. at 68). This standard is intended to distinguish "significant from trivial harms" to ensure that statutes such as the SHRL do not create "a general civility code for the American workplace." Id. Pursuant to Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), retaliation must be a "but-for" cause of the adverse action, but not necessarily the only cause. A plaintiff needs to prove "only that the adverse action would not have occurred in the absence of the retaliatory motive." Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845-46 (2d Cir. 2013).

Under the CHRL, the same burden-shifting approach applies, but the employer's conduct need not be a materially adverse action; it only needs to be "reasonably likely to deter a person from engaging in protected activity." Sotomayor v. City of New York, 862 F.Supp.2d 226, 262 (E.D.N.Y. 2012), aff'd, 713 F.3d 163 (2d Cir. 2013) (quotations and citations omitted).

IV. Statute of Limitations

The statute of limitations for both the SHRL and CHRL is three years from the date the claim accrued. See N.Y. Exec. Law § 296; N.Y.C. Admin. Code § 8-502(d). As noted, this case was filed on January 3, 2012; therefore, claims that accrued before January 3, 2009 will be barred by the statute of limitations absent an applicable exception. The relevant exception for present purposes is the continuing violation doctrine.

"The continuing-violation exception extends the limitations period for all claims of discriminatory acts committed under [an ongoing policy of discrimination] even if those acts, standing alone, would have been barred by the statute of limitations.'" Annis v. County of Westchester, 136 F.3d 239, 245-46 (2d Cir. 1998). "[T]he continuing violation doctrine is heavily disfavored in the Second Circuit and courts have been loath to apply it absent a showing of compelling circumstances." Trinidad v. New York City Dept. of Correction, 423 F.Supp.2d 151, 165 n.11 (S.D.N.Y. 2006) (quotations omitted).

It is well-established that the "continuing violation" doctrine cannot save untimely claims for discrete discriminatory acts, even where those discrete acts are related to acts within the limitations period - "termination, failure to promote, denial of transfer, or refusal to hire" are prototypical examples. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061 (2002). Even for a hostile work environment claim, a plaintiff must show both that an incident of harassment occurred within the limitations period, and that this timely incident was "part of the same actionable hostile work environment practice" as the untimely incidents. See McGullam v. Cedar Graphics, 609 F.3d 70, 76 (2d Cir. 2010). The inquiry into whether timely and untimely acts are sufficiently related to invoke the continuing violation doctrine is flexible and fact-specific. See id. Incidents that involve different perpetrators, actions, or targets, or are temporally distant from one another, may be insufficiently related. See id. at 78. Conversely, sufficient "relatedness" may be found where the timely and untimely incidents involve "the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers." Morgan, 536 U.S. at 120-21.

"New York courts have held that the pre-Morgan, more generous continuing violations doctrine continues to apply to discrete acts of employment discrimination under NYCHRL." Dimitracopoulos v. City of New York, No. 14 Civ. 674, 2014 WL 2547586, at *7 (E.D.N.Y. June 4, 2014) (citing Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27, 35 (1st Dep't 2009)). But although "[t]ime-barred discrete acts can be considered timely, " a plaintiff must still show that "specific and related instances of discrimination [were] permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Dimitracopoulos, 2014 WL 2547586, at *7 (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001)). For example, discrete discriminatory acts perpetrated by different individuals may still be insufficient to invoke the continuing violation doctrine even under the more liberal CHRL standard. Dimitracopoulos, 2014 WL 2547586, at *7-8.

Nearly all of the plaintiffs in this action bring at least some claims that are, on their face, time-barred, and plaintiffs therefore invoke the "continuing violation" doctrine to attempt to save their time-barred claims.[1]


At the outset, I note a problem that pervades the entirety of plaintiffs' opposition to summary judgment. Each of the plaintiffs in this action was deposed. Each of the plaintiffs was asked, at their deposition, whether they had identified all the incidents underlying their claims of racial discrimination, hostile work environment, and/or retaliation, as relevant to each individual plaintiff's claims. Each plaintiff responded that they had.

Nevertheless, in opposing summary judgment, many of the plaintiffs have submitted affidavits in which they have suddenly and conveniently recalled additional incidents that support their claims. And it is not just one or two incidents - one plaintiff, Sandra Walker, added twelve additional incidents that she argues support her hostile work environment claim.[2]

"[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dept. of Corrections, 84 F.3d 614, 619 (2d Cir. 1996); see also O'Leary v. City of New York, 938 F.Supp.2d 410, 413 n.1 (E.D.N.Y. Apr. 11, 2013); Shabazz v. Pico, 994 F.Supp. 460, 470 (S.D.N.Y. 1998) (Sotomayor, D.J.).

A defendant in an employment discrimination case must be able to ask a witness specific questions about incidents that she recalls at her deposition, and then to close the circle on that information by asking, "are there any other incidents?" If the party cannot rely on a negative answer to that question in making its motion for summary judgment, then its ability to move for summary judgment based on the record as developed would be unfairly compromised. See Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact."). It was up to plaintiffs' lawyer to prepare their witnesses for deposition so that each of their recollections would be sufficient to describe the incidents that supported each of their cases, and in the event a plaintiff suffered a lapse of memory during the deposition, to examine that plaintiff at the deposition to refresh her recollection.

Waiting until plaintiffs have read or been briefed as to defendant's summary judgment motion before they "remember" what happened is not permitted. Plaintiffs cannot testify in deposition that they have identified all of the facts underlying their claims, and then submit an affidavit in which they happen to recollect other key facts. I will not consider any facts that plaintiffs have added to their claims by affidavit in contradiction to their depositions.

I. Diane Worrell

Plaintiff Diane Worrell ("Worrell") is an African-American currently employed at defendant's Maspeth Production facility as a "Production Associate." She has been employed in this capacity since 2001. Worrell alleges that on the basis of her race she was discriminated against by being assigned cleanup duty, which to her was an undesirable task. Worrell also claims she was subjected to a hostile work environment.

A. Racial Discrimination Claims

1. Facts

Worrell claims that two of her supervisors, Kevin Masters and Andy Elhrich, racially discriminated against her by assigning her to cleanup duty. Elhrich last worked at the Maspeth facility in 2007 and Worrell has had no contact with him since 2003. Worrell has also not had any interaction with Masters since 2003 and it is undisputed that he has not discriminated against her since then. Worrell never reported Masters to anyone about placing her on cleanup duty.

Manager Patrick Dixon testified that White Production Assistants have also performed cleanup, although Worrell says she never saw them assigned. Furthermore, any work assignments given to a Production Associate on any given day do not affect the Production Associate's title, rate of pay, or hours. Worrell states that while working at the Maspeth facility, she was assigned to work cleanup as recently as 2005, although defendant states that the last time she performed cleanup duty was in 2003. Over the past four years she has been assigned to work as a labeler operator as well as a filler operator.

2. Analysis

Worrell invokes the continuing violation doctrine in an attempt to avoid the statute of limitations as to her claim of racially discriminatory job assignments - given that the last allegedly discriminatory assignment was in 2005 (defendant argues it was 2003), the statute of limitations would otherwise have expired in 2008 at the latest. However, as noted, there is extensive case law holding that discrete discriminatory acts, separately actionable, are not subject to that doctrine. See, e.g., Morgan, 536 at 114; Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 157 (2d Cir. 2012); Thomas v. N.Y.C. Dep't of Educ., 938 F.Supp.2d 334, 348 (E.D.N.Y. 2013). "[D]enial of preferred job assignments" is a prototypical example of a discrete act that is not subject to the continuing violation doctrine. See, e.g., Benson v. N. Shore-Long Island Jewish Health Sys., 482 F.Supp.2d 320, 329-330 (E.D.N.Y. 2007).

Worrell's claim for discriminatory job assignments is barred even under the more liberal CHRL continuing violation doctrine. She points to no claim of a discriminatory clean up assignment that occurred after 2009 that could anchor her untimely claims within the statute of limitations, and she has had no contact with the individuals who allegedly discriminated against her since well before 2009.

Even if not time-barred, Worrell's racial discrimination claim is substantively deficient. "[A]llegations of... unfair work assignments, without more, do not amount to adverse employment actions' because they are not materially adverse changes in the terms or conditions of [the plaintiff's] employment." Hubbard v. Port Auth. of N.Y. & N. J., No. 05 Civ. 4396, 2008 WL 464694, at *11 (S.D.N.Y. Feb. 20, 2008). Worrell admitted that her pay, title, and hours did not change during the alleged discrimination. Thus, there is no way to construe her assignment to less desirable tasks as an adverse employment action.

Further, when asked for evidence supporting her claim that she received these assignments because of her race, Worrell pointed only to her subjective belief that she was discriminated against. But her feelings are not evidence of discrimination. See Cajamarca v. Regal Entm't Grp., 863 F.Supp.2d 237, 241 n.1 (E.D.N.Y. 2012) ("[F]eelings and perceptions of being discriminated against are not evidence of discrimination."). Meanwhile, defendant has specifically identified, by name, five White employees who were also assigned to clean up work. The fact that Worrell claims not to have seen these workers perform cleanup is not admissible evidence sufficient to create a disputed issue of material fact; she does not have personal knowledge sufficient to dispute defendant's evidence. Worrell has not met even the de minimus burden of demonstrating a prima facie case under the SHRL.

Neither has Worrell provided evidence that supports her claim that she was treated "less well" or that would give rise to an inference of discrimination under the CHRL. Again, the only evidence she provides is that she did not see any White workers perform cleanup and her subjective belief that her supervisors assigned her to cleanup because of her race. But an absence of knowledge is insufficient to create a material issue of fact concerning whether she was treated less well on the basis of race; Worrell had to provide admissible evidence in support of her claim. See Risco v. McHugh, 868 F.Supp.2d 75, 98-99 (S.D.N.Y. 2012). In any event, defendant had a legitimate reason to assign Worrell to cleanup: such work was within her job description.

Because Worrell's racial discrimination claim is time-barred and substantively deficient under both statutes, summary judgment is granted to defendant.

B. Hostile Work Environment Claim

1. Facts

Worrell also alleges that she was subjected to a hostile work environment based on race discrimination. Most of her evidence is from long before 2009.

Specifically, she states that co-plaintiff Sandra Walker told Worrell that coworker Steve Harris, who is White, called Walker an "aunt jemima mammy" in 2002. Worrell heard Maintenance Supervisor Vito Cavarella, who is White, call coworker Yvette Butler a "moron" or "idiot" in 2003. She heard Production Associate Angela Ponticello, who is White, call Butler a n____r once in 2004, but Ponticello was fired in 2006 and since then Worrell has not personally heard anyone else use the word at defendant's facility. Coworker Phil McCauley, who is White, wore a confederate flag bandana to work one day in 2003, but he was told to remove it by Supervisor Ehlrich and a disciplinary memorandum noting this was placed in McCauley's personnel file.

Worrell also overheard Production Associate Marcello Ocello, who is White, make a comment about President Obama giving out Kentucky Fried Chicken coupons in 2008, but she never reported this to her superiors until this lawsuit. Once this lawsuit was filed, defendant investigated this incident found Worrell's allegation to be unsubstantiated. Finally, she was told in 2012 by Dave Vilceus that coworker Paul Bergen repeatedly used the "n" word, although she does not know when Bergen said this and he has not been employed by defendant since 2008.

Since 2009, Worrell has heard coworkers Dave Vilceus, Sandra Walker, and Franklin Auld complain about their work environment. Worrell also heard from a coworker that Production Associate Dorwyn Lewis, who is Black, threatened to blow up Sandra Walker's house, but Worrell never reported this to defendant. Worrell overheard Production Associate Joe Rosalia, who is White, ask Vilceus why he was not sitting at the "Haitian table, " but never reported this either. In July 2011, someone went into the men's bathroom and saw a note stating "n____rs must die;" Worrell's co-plaintiff Vilceus told her of this, although it is not clear when he did so. In 2011, Worrell was told by co-plaintiff Guillermo Nunez that Lewis had threatened to crush his bones.

Worrell also attempts to add several additional facts to her hostile work environment claim by affidavit. Worrell was asked at her deposition whether she had identified all the offensive comments or actions of which she was aware, and stated that she had. I therefore will not consider her attempt to contradict her testimony by affidavit.

2. Analysis

Worrell again attempts to use the continuing violation doctrine to include otherwise untimely incidents in her hostile work environment claim. However, the only apparent connection between the timely and untimely incidents is that some coworkers used the word n____r before 2009, and the racist note found in the bathroom used the same vile slur. That is insufficient to demonstrate that the untimely and timely incidents were part of the same hostile work environment.

The untimely incidents include racial slurs made by a coworker, Angela Ponticello, in 2004, which Worrell overheard herself. But this was seven years prior to the note being found. It is not plausible that Ponticello's use of the word was related to a note found in a bathroom in 2011. See McGullam, 609 F.3d at 77-78 (finding that offensive comments plaintiff heard in different departments of her office a year apart were not sufficiently related to apply the continuing violation doctrine). Indeed, it is undisputed that Ponticello was fired in 2006, years before the note was found.

As for Bergen's comments, Worrell has provided no admissible evidence that they were made. Worrell states that she was told by Vilceus about Bergen's use of the slur. Vilceus did not mention Bergen's comments at his own deposition. Instead, Vilceus submitted an affidavit in opposition to summary judgment that stated, in relevant part: "I was made aware that Caucasian employee Paul Bergen used the n-word often in conversation."

This approach taken by plaintiffs is inappropriate on multiple levels. Although incidents that a plaintiff learns of second-hand may form the basis of a hostile work environment claim, a plaintiff must provide admissible evidence that the incidents actually occurred, for example by submitting an affidavit from the coworker who heard the comments. See Whidbee, 223 F.3d at 77-78. Worrell has not done so; indeed, Vilceus' conclusory assertion does not explain how he was "made aware" that Bergen used the slur, how "often" it occurred, nor anything else that would permit the Court to analyze the effect hearing about those comments (third-hand, years later) may have had on Worrell's work environment. Bergen's comments must be disregarded because plaintiffs have not provided any admissible evidence that they were made. And again, Bergen left defendant's employ in 2008, and so his comments, even if they were made, could not be related to a racist note found in 2011.

On a broader level, this is but one example of how plaintiffs have systematically supported their claims by citing to the affidavits or testimony of their co-plaintiffs. Those coplaintiffs often testify in turn that the information was conveyed to them by yet another person, who, as here, is either unidentified or at least has not submitted an affidavit. Although though second-hand knowledge may support a hostile work environment claim, this merry-go-round of hearsay is insufficient to withstand summary judgment unless it stops, at some point, at admissible evidence.

The remainder of Worrell's claim consists of "sporadic, discriminatory actions, taken by different coworkers, " which "preclude[s] invocation of the continuing violation doctrine." Maxton v. Underwriter Labs. Inc., 4 F.Supp. 3d 534, 544-45 (E.D.N.Y. 2014). The timely incidents are not sufficiently related to the untimely incidents to constitute part of the same continuing hostile work environment under either the SHRL or CHRL - they all involved different perpetrators and qualitatively different incidents, spread out over a number of years.

I will therefore consider only the incidents that allegedly occurred after 2009 in determining whether Worrell has raised a material issue of fact as to her hostile work environment claim. Considered collectively, these timely incidents are insufficient for a reasonable juror to conclude that Worrell suffered from a hostile work environment. First, complaints from Worrell's coworkers - such as Franklin Auld, Walker, and Vilceus - about how they felt about their own work environment cannot render Worrell's own work environment hostile. See Williams v. County of Westchester, 171 F.3d 98, 101 (2d Cir. 1999) ("[G]eneralized feelings of discomfort [fall] well short of the proof required to show a hostile work environment.").

Second, coworker Dorwyn Lewis's threat to co-plaintiff Guillermo Nunez about "crushing his bones" lacks any indication it was motivated by a discriminatory animus, and Worrell has not provided any evidence to the contrary besides her own conclusory belief that it was. See McWhite v. N.Y.C. Housing Auth., No. 05 CV 0991, 2008 WL 1699446, at *14 (E.D.N.Y. Apr. 10, 2008) ("Facially neutral incidents may be included in the totality of circumstances a court uses to consider a hostile work environment claim, so long as a reasonable fact finder could conclude that the incidents were based on a discriminatory or retaliatory motive."). Coworker Joe Rosalia's question to Vilceus concerning why he was not sitting at the "Haitian table, " was not directed at Worrell, and in any event anti-discrimination laws "do not set forth a general civility code for the American workplace." Burlington, 548 U.S. at 68.

The racist note found in the bathroom does not render Worrell's work environment "permeated" by "severe or pervasive" racial harassment, even when combined with the incidents above. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) ("For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity... instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments."); Bolden v. N.Y.C. Hous. Auth., No. 96 Civ. 2835, 1997 WL 666236, at *1-2 (S.D.N.Y. Oct. 27, 1997) (holding as matter of law that the use of the "n" word together with five other racially derogatory remarks over a period of six weeks is insufficient to establish a hostile work environment claim). Although the bathroom note was certainly vile, it is a single isolated incident that bears no relation to the other incidents that Worrell claims constituted a hostile work environment. The note is in no way indicative of any pattern of harassment.

Moreover, Worrell states in her brief that she only learned of the note third-hand through Vilceus, who in turn learned of it from "management and coworkers." This raises the possibility that Vilceus - or the co-worker who told him of it - learned of the racist note through the very remedial efforts that defendant undertook after it was found. The fact that Worrell (and her coplaintiffs) only learned of the note third-hand at least reduces the effect it could have on her work environment, even if it does not render it irrelevant; indeed, the individual who actually found the note is not a plaintiff here.

Most importantly, defendant's response to the note was remedial, prompt, and effective. If an employer becomes aware of a hostile work environment existed, it has a "duty to take reasonable steps to remedy it." Distasio v. Perkin Elmer Corp., 157 F.3d 55, 65 (2d Cir. 1998). "The standard for reviewing the appropriateness of an employer's response to co-worker harassment is essentially a negligence one, and reasonableness depends among other things on the gravity of the harassment alleged.'" Summa v. Hostra Univ., 708 F.3d 115, 125 (2d Cir. 2013) (quoting Torres v. Pisano, 116 F.3d 625, 638 (2d Cir. 1997)); see also Distasio, 157 F.3d at 65 ("Whether the company's response was reasonable has to be assessed from the totality of circumstances. Factors to be considered in this analysis are the gravity of the harm being inflicted upon the plaintiff, the nature of the employer's response in light of the employer's resources, and the nature of the work environment.").

Here, when the Manager Patrick Dixon was alerted to the note he called security, held meetings to stress that such a note would not be tolerated, requested that anyone with information about the note to report it, and emphasized that if an employee was found to be responsible, that employee would be fired. Dixon and Human Resources Business Partner Rima Dagia led a training course following the incident titled "Conduct in the Workplace, Expectations for all Employees." Security and Human Resources investigated the note by conducting interviews and viewing video footage. Dixon also contacted the New York and New Jersey State Divisions of Human Rights.

Plaintiffs argue that the investigation was insufficient, because no one was disciplined, the investigation was "outsourced, " and only two workers were interviewed. But they do not explain how these alleged deficiencies rendered the steps that defendant took unreasonable. Short of an unlikely admission of responsibility by the culprit, the author of the bathroom note was likely to remain anonymous regardless of the resources that defendant invested in tracking him down, particularly because it is undisputed that the note was found in a bathroom accessible to both defendants' employees and outside contractors. It would not have been unreasonable for defendant to conclude that its remedial efforts were better spent on education and prevention of future incidents, rather than an exhaustive investigation to identify and punish the culprit.

The "outsourcing" about which plaintiffs complain, meanwhile, was to defendant's own Employee Relations Team, i.e., defendant's department tasked with such investigations. Although located in Florida, Employee Relations sent a Security Manager Carlos Rodriguez onsite to investigate, along with Dagia to conduct additional training. Plaintiffs ...

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