Racial harassment claim under the City HRL will proceed to trial

This is an unpleasant racial harassment case against Fashion Institute of Technology, where the plaintiff complained about such harassment arising from a supervisor's allegedly racially-insensitive comment toward a white student aide. Plaintiff says she suffered retaliation from that supervisor, Barton, in the form of a death threat. The Court of Appeals holds that plaintiff has a case against Barton under the New York City Human Rights Law.

The case is Phillips v. FIT, a summary order issued on March 8. After Barton learned about plaintiff's complaint to the Affirmative Action Office, Barton screamed at plaintiff, saying, "I'm tired of your bullshit" and "If you don't shut the fuck up, I'm going to fucking kill you." Plaintiff says Barton was "foaming at the mouth" and put her hands on plaintiff's chest as if to push her. Plaintiff complained to HR, which suspended Barton, sent her to a racial empathy seminar, and began investigating the allegation about three weeks later.

The hostile work environment claim was properly dismissed, the Court of Appeals (Lohier, Calabresi and Cabranes) holds, because there is no evidence that Barton's threats were racially-motivated. It was not enough for plaintiff to assert otherwise on the basis that Barton had never acted that way toward a white employee. Such an argument is speculative, the Court holds. 

But we do have a viable retaliation claim for a retaliatory hostile work environment, because the jury may find that Barton's threats were materially adverse and would have deterred a reasonable employee from complaining about racial discrimination in the future. The Court notes that "[a] single incident may constitute a hostile work environment, and thus a materially adverse action, if it is 'extraordinarily severe.'” Under that test, plaintiff could have reasonably been dissuaded from complaining about discrimination again. The Court of Appeals writes that "Phillips testified that Barton threatened to kill her, cursed repeatedly at her, and physically intimidated her. Indeed, Barton testified at her deposition that she repeatedly threatened 'to kill' Phillips because saying it once 'evidently . . . didn’t scare [Phillips] enough; because she kept talking and so [Barton] said it again.'” 

The Court thus holds that "[a] reasonable juror could find that this type of threatening behavior by a coworker with whom Phillips shared an office might well dissuade a reasonable employee from filing a complaint." In addition, Phillips provided admissible evidence that Barton’s threats were motivated by retaliatory animus. During her interview with Human Resources, Barton acknowledged that Phillips’s disapproval was the 'last straw' after Phillips had 'complained about [Barton], it went up to Affirmative Action and there is still no resolution.'” 

While plaintiff may sue Barton for the retaliatory hostile work environment under the City HRL, there is no racial harassment case against FIT. The Court holds that FIT's delay in initiating the investigation into Barton's racially-motivated threats is not enough to impute liability to the school. The standard for this issue is whether FIT knew about the harassment but "did nothing about" it. Plaintiff's complaint did not suggest that Barton posed a physical threat to her. I am not sure how the record deals with this, as plaintiff asserts that Barton said, "I'll fucking kill you." The district court ruling does not shed light on this, either. Maybe the internal complaint did not affirmatively say that plaintiff feared that Barton would carry out this threat. The Court writes, "Phillips does not point to any evidence in the record to suggest that FIT was warned that Barton might pose a physical threat to Phillips or anyone else." Cases hold that (“[L]ess grave conduct, such as . . . flirtation, sexual innuendo, or crude talk, . . . might . . . not reasonably give notice of a likelihood that the person will represent a danger to co-employees”). Under that standard, the nearly three-week delay was not so long as to hold FIT liable for the retaliatory harassment.