Racial harassment claim fails despite 12 incidents in three years

The Second Circuit has rejected an employment discrimination claim against the New York State Police, holding that 12 racial incidents over the course of three years was not enough to create a hostile work environment. 

The case is Miller v. New York State Police, a summary order issued on April 18. This case reminds us that a Title VII plaintiff claiming racial harassment does not have to be the target of the racial abuse. It can be enough if she is aware of the racial comments. For that proposition, we have Rasmy v. Marriott International, 952 F.3d 379 (2d Cir. 2020). That's what happened here. Except that what happened is not enough for a case. Here is how the Court of Appeals (Walker, Sullivan and Lee) summarizes the harassment:

In support of his claims, Miller pointed to at least twelve incidents over a period of three years wherein Kendall, in Miller’s presence, allegedly repeated the statements of colleagues or witnesses containing racial slurs, called particular African Americans “animals” or "savages,” used a mocking or minstrelsy voice, showed Miller an online video making fun of an African American woman, used the word “nigga” in a Facebook post under a fictitious name as part of an undercover investigation, and remarked that a suspect’s African American sister “had a great body for monkey sex.”

As the district court stated, "Plaintiff concluded that Kendall's asserted ongoing use of the racial slur was humiliating and degrading, negatively affected his employment morale, job performance and, ultimately, Plaintiff's safety, and constituted race-based harassment directed toward Plaintiff." These comments were certainly offensive, but the district court found, and the Court of Appeals agrees, that plaintiff cannot prove a hostile work environment claim. "To be sure, this Court recognizes the special power that a supervisor’s use of a racial epithet has in creating a hostile work environment." The Court of Appeals cites Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012), for that proposition. The Court also notes that a single incident of harassment may be severe enough to create a hostile work environment. Fincher v. Depository Tr. & Cleaning Corp., 604 F.3d 712 (2d Cir. 2010), stands for that proposition. But these principles do not overcome summary judgment. The Court concludes, "the standard articulated in Schwapp v. Town of Avon still applies and, viewing the facts in the light most favorable to him, Miller does  not make out a case for hostile work environment under that standard." In support of this holding, the Court cites Albert-Roberts v. GGG Constr., LLC, 542 F. App’x 62, 64 (2d Cir. 2013) (rejecting plaintiff’s argument “that the single use of the word ‘nigger’ is so severe as to make out a prima facie case and survive summary judgment”).

Even if plaintiff made out a hostile work environment claim, the Court holds, the employer cannot be liable. Under the rules, management must have known about the harassment and failed to properly remedy it. The Court holds that the State Police conducted an exhaustive investigation into the allegations, and that plaintiff did not make a formal complaint for three years after the harassment began. Plaintiff responded that the Court in Gorzynski v. JetBlue Airways, 593 F.3d 93 (2d Cir. 2010), said it is enough to complain to the supervisor who is harassing the plaintiff. In that case, the Court said, “In  some  instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open.” But Gorzynski does not help plaintiff, the Court says, because the State Police's "other avenues were known and accessible to Miller during the three-year period," and Miller did not take advantage of those procedures right away, waiting three years to do so. Once he did, the Court says, the employer conducted an investigation, and the harassment stopped.