Black councilmember cannot sue fellow councilmen for racial discrimination

The plaintiff in this case is a Black councilmember in upstate New York who brought a racial discrimination case against two other councilmembers after the Town reneged in its commitment to create ICARE, a racial diversity and equity initiative that the plaintiff chaired, and a program to help minority residents become first-time homebuyers. The district court held plaintiff cannot make out an equal protection claim for a hostile work environment, and the Court of Appeals affirms.

The case is Freeman v. Town of Irondequoit, a summary order issued on October 25. Plaintiff's relationship with the Town Board appears to have gotten worse after the lawsuit was filed. The Court does not focus on that and instead examines the allegations in the lawsuit. The individual defendants are Perticone and Romeo. The Court (Jacobs, Wesley and Robinson) holds there can be no hostile work environment claim against them. "Most of Freeman’s allegations concern acts done by people other than Perticone and Romeo. And most of Perticone’s and Romeo’s alleged misconduct is protected by legislative immunity and cannot be considered.  The acts by Perticone and Romeo that are not protected by immunity do not plausibly establish a hostile work environment claim against either defendant."

First, much of the hostility that plaintiff endured from these defendants -- who either alone or separately became hostile toward the ICARE initiative, defended what plaintiff deemed a hostile police presence at Town Board meetings, filed a police report against and falsely accused her of threatening his life, and screamed at her -- are nonactionable because of legislative immunity. 

The remaining acts of hostility are not enough to support a hostile work environment claim, the Court says, because "neither Perticone’s shouting, interference with Freeman’s recording, and statements regarding Freeman’s agenda nor Romeo’s false police report and her comment that it is “a free country,” created sufficiently severe and pervasive hostility in Freeman’s work environment so as to alter her conditions of employment." Nor can plaintiff sue the Town under Section 1983 for racial discrimination. Her allegations in support of this claim are as follows:

she alleges the Town implicitly condoned the intimidating actions of off-duty police officers during Town Council meetings because the Council failed to take ameliorative action.  We understand this first claim as an allegation that the Town violated Freeman’s personal rights to be free from a hostile work environment based on racial animus.  Second, she alleges that after Perticone began serving as the Acting Town Supervisor, he took actions “designed to frustrate and impede” ICARE’s homeownership program and “undercut its contract with the Urban League.”

It is not enough to argue that the Town created a hostile work environment by insisting that hostile police officers are allowed to attend Town meetings. While plaintiff also argued that ICARE itself has a hostile work environment claim against the Town, not only did she disavow such a claim in the district court, but "she has not explained how ICARE, which Freeman alleges was formed as a government entity but is now an independent unincorporated association, has standing to assert claims based on wrongs allegedly inflicted against the prior incarnation of ICARE which was a Town Commission."