Racial harassment case is dismissed: 11 racial acts over five years not enough

The black schoolteacher in this case certainly had a difficult time at work. He sued the district for racial harassment, but the district court held plaintiff did not suffer a hostile work environment. The Court of Appeals affirms.

The case is Berrie v. Board of Educ. of the Port Chester-Rye Union Free School District, a summary order issued on September 18. Plaintiff was the gym teacher. From 2011 through 2016, a variety of bad acts were directed toward him. In February 2013, a teacher, Iantorno, sent a racially-offensive email to the faculty, for which the district disciplined her and made her apologize. Two months later, the principal shot a hockey ball in plaintiff's direction, hitting plaintiff's head. The district said this was an accident. In May 2013, the assistant superintendent, Coates, sent plaintiff an article about the "Code of the Streets" in an effort to determine why plaintiff was so angry about the hockey incident. In June, the district wanted plaintiff to attend anger management class, though it later retracted this recommendation. Other acts included: in 2011 or 2012, the principal asked plaintiff, "Can't you guys spell?"; someone made an offensive comment during anti-harassment training in December 2013; an assistant principal in observing plaintiff's class sent home one of plaintiff's guest speakers; one teacher said plaintiff was "too black" and that she had a right to use the n-word; the administration told that teacher that it was fed up with plaintiff; an unidentified individual urinated in plaintiff's coffee pot; another unidentified person left feces in the gymnasium toilet without flushing; and the principal told plaintiff that his transfer to the middle school would make it a "dumping ground."

The Court of Appeals (Jacobs, Droney and Shea [D.J.]) says there is no hostile work environment. Some of the incidents were race-neutral, like the hockey incident. The urine/feces incidents cannot be attributed to any of the defendants or to any discriminatory animus and, besides, many people had access to these areas.

After kicking aside that evidence, the Court of Appeals says, plaintiff has eleven incidents over a five-year period:

the Iantorno email; the Coates article; Swift asking “can’t you guys spell” and criticizing Berrie’s transmission of a lesson plan; the retracted recommendation that Berrie seek anger management; Ciccoria’s lewd jokes and gestures; three racially offensive remarks from Piccola; and two other racially offensive remarks from other teachers. Even if all of these incidents could be viewed as racially motivated, eleven incidents over five years is not “severe or pervasive” enough to create an “environment [that] would reasonably be perceived, and is perceived, as hostile or abusive.”

The Court of Appeals cites Stembridge v. City of New York, 88 F. Supp. 2d 276, 286 (S.D.N.Y. 2000), for the proposition that seven racially insensitive comments over three years, including one instance of calling the plaintiff the “n-word,” were not pervasive.

Can the Court just set aside certain bad acts because they were not explicitly racial? The Second Circuit has a few cases that hold you can infer the neutral acts were racially or gender motivated if the plaintiff endured other acts motivated by race or gender. Those cases are not cited here. I have seen cases holding that the plaintiff did not suffer enough bad acts over a period of several years, but this may be the first case I've seen where eleven arguably racial acts were not enough over the course of a few years. Note the Second Circuit's reliance on a district court case (and not a Circuit court ruling) for its central holding in this case.