Hostile work environment claim fails -- not enough offensive comments

Plaintiff in this case says she suffered a hostile work environment because of her disability. The Second Circuit says she has no case even though she claims coworkers "constantly" made derogatory comments about her mental health.

The case is Lawson v. Avis Budget Group, a summary order decided on October 11. Plaintiff apparently does not explicitly allege in her complaint that she suffered a hostile environment. In 2007, the Second Circuit said that a hostile work environment claim can be inferred from a “complaint [that] does not explicitly allege discrimination based on a hostile work environment” but nonetheless “gives the defendant fair notice of [the] claim for hostile work environment and the grounds upon which that claim rests." That case was Kassner v. 2nd Avenue Delicatessen, 496 F.3d 229 (2d Cir. 2007). The Court of Appeals (Raggi, Sack and Carney) wonders if the Supreme Court's plausibility pleading standard under Iqbal (2009) has repudiated the reasoning in Kassner. The Circuit does not resolve that issue, because it finds that plaintiff has not adduced enough evidence of a HWE in any event.

"Although Lawson argues that her coworkers “constantly” made derogatory comments about her mental health, Appellant’s Br. 13, this argument is belied by her deposition testimony, in which she stated that she could recall only one instance of such a remark. This isolated incident is insufficiently severe to permit a rational trier of fact to find a hostile work environment." What you say in the brief is one thing, but briefs are not evidence. While plaintiff points to her summary judgment affidavit stating that she endured insults related to her mental health on a "near daily" basis for almost a year, that affidavit -- which might normally be enough to repel summary judgment -- cannot work here because it contradicts her deposition testimony.

Lawson tries to get around this by arguing that her deposition testimony discusses the one occasion in which she heard subordinates discuss her medical condition, and her affidavit addresses many instances in which she was "insulted" by coworkers. That argument can work, but the Court of Appeals rejects it based on how it reads the deposition and affidavit.

At her deposition, Lawson testified that coworkers discussing her medical condition said “like, oh, she’s unstable, stuff like that,” and were “laughing at” and “mocking” her for being “cuckoo for Cocoa Puffs.” In her affidavit, Lawson similarly stated that coworkers “laugh[ed] at” her and called her, among other derogatory names, “cuckoo for co[]coa puffs.” This belies the distinction she attempts to draw between the deposition and affidavit and supports the district court’s identification of a clear contradiction as to the frequency of harassment. Because Lawson has not provided a plausible explanation for this contradiction, her affidavit cannot create a triable issue of fact as to the existence of a hostile work environment.