Court of Appeals reinstates hostile work environment and other civil rights claims

The Court of Appeals has reinstated a hostile work environment claim brought by a former laundromat employee who claims her supervisors subjected her to a barrage of racial slurs. The Court also reinstates her retaliation claim, as well as her disability discrimination and wage-and-hour claims.

The case is Knox v. CRC Management Co., issued on April 9. I briefed and argued the appeal. Plaintiff alleges that, on a daily basis, supervisor Ashmeade made derogatory comments, telling her she was "too 'hood' and 'ghetto' to work" for defendant, and that "the Yankee in you makes you timid." Another supervisor, Ferris, "began routinely making derogatory comments of his own," once telling plaintiff that she "looked like Aunt Jemima," and he criticized her for "'talking Jamaican' when she got upset." The district court said these daily comments, while "deplorable," were not enough to create a hostile work environment "because they only lasted two months and did not involve any physical altercations with a coworker." The district court also held that plaintiff's declaration in detailing the racial harassment was "self-serving" and thus not enough for trial.

The Court of Appeals (Park, Perez and Kearse) disagrees and remands this issue for trial. The Court says a jury can find that "daily and routine comments such as these were sufficiently continuous and concerted to have worsened the conditions of Knox's employment," and the Second Circuit held in Whidbee v. Garzarelli Food Specialties, 223 F.3d 62 (2d Cir. 2000) (a case I argued 25 years ago) that "a stream of racially offensive comments over the span of two to three months was sufficient to defeat summary judgment. Plaintiffs in these cases do not need to prove there was any physical altercation to win these cases, though the record actually shows there was such an altercation. The Court reminds us that "specific descriptions of each instance of harassment -- which, if harassment occurred daily, could be difficult to provide -- are unnecessary for a plaintiff to defeat summary judgment." The plaintiff does not need specific details to prove pervasive harassment. The case for that proposition is Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997).

The retaliation claim, stemming from plaintiff's termination shortly after she complained about the work environment, will also proceed to trial. She last complained about the harassment in mid-March 2019, and she was fired in mid-April 2019. Cases hold that a four-month period is enough to prove the causation element of the prima facie case. Plaintiff can also show she was fired for pretextual reasons. While defendant said plaintiff was fired for taking cash from the register, the jury could find Ferris had given her permission to reimburse herself if she left her cab receipt in the register. If defendant's articulated reason was knowingly false, then the jury may find pretext and can rule in her favor on the retaliation claim.

Plaintiff also has a triable disability discrimination claim. After she broke her thumb from a car accident, one supervisor said plaintiff could refrain from lifting 25 pounds during her shifts (again, this was a laundromat), but Ashmeade told plaintiff that she "shouldn't have a job" if she needed an accommodation, and she continued to require plaintiff to lift more than 25 pounds. After plaintiff complained to another supervisor about this, that supervisor responded that "we might need to have a conversation if you can't do your job."

The wage-and-hour claim is also reinstated. Plaintiff alleged she was denied pay for extra working hours and that her time sheets were altered to make it look like defendant had paid her, and that compensation for her hours seemed to have been allocated to Ashmeade. Under Kuebel v. Black & Decker, 643 F.3d 352 (2d Cir. 2011), an FLSA plaintiff can meet her burden through her own estimates about her time estimates.

NYU processor has a retaliation claim for filing internal hostile work environment claim

The plaintiff is a professor at NYU school of dentistry who claims he suffered retaliation after filing an internal hostile work environment charge. The trial court dismissed the case on summary judgment, but the Second Circuit brings it back. The professor will have his trial.

The case is El Chaar v. New York University, a summary order issued on April 2. The hostile work environment claim is discussed at this link. After plaintiff filed his charge with the Office of Equal Opportunity (OEO), which supported his charge, he wanted to be appointed Department Chair, where there was an opening. The Dean of the College of Dentistry, Bertolami, told plaintiff, "We are not appointing the chair because of your complaint to OEO. We need to have a chilling period. And you should have been the acting chair, but because of your complaint, we can't -- I can't put you there." In another conversation, Bertolami, contemplating a search for a permanent chair, told plaintiff that he would have been a logical choice to serve as Interim Chair but that he did not appoint plaintiff "for political reasons." This conversation was recorded. Bertolami then convened a committee to search for a permanent chair. The search committee identified plaintiff as a finalist; as part of that process, a faculty survey reported mixed reviews of plaintiff. Some thought very highly of him but others said he was divisive, vindictive, a bully, and narcissistic.Plaintiff was denied the position,

The Court of Appeals holds as follows: 

1. Plaintiff can sue for retaliation over his denial of the interim Chair position. The admissions from Bertolami are enough for plaintiff to prevail. Bertolami told plaintiff he was not appointed interim Chair because he filed the OEO charge. How this claim was dismissed on summary judgment is unclear. While Bertolami may dispute some of these admissions, the Second Circuit notes the plaintiff's testimony on such a matter is enough to avoid summary judgment. The case for that is Bellamy v. City of New York, 914 F.3d 727 (2d Cir. 2019).

 2. As for the permanent chair position, plaintiff cannot prevail at trial on that claim. It is undisputed that Bertolami wanted a tenured full professor for the position and someone who was a consensus builder who was good at interpersonal relationships. Such a person was appointed to the position, While plaintiff was second choice for the position, he was not on a tenure track and "was emotional and divisive" in the department. What about the above admissions? The Court of Appeals says they are not relevant to this claim.

Bertolami’s reference to the OEO complaint in the context of his decision to appoint an external interim chair in 2018 can’t reasonably support an inference that, in the face of the above evidence—including the survey results, which indicated that El Chaar was a divisive figure—El Chaar’s OEO complaint was a but-for cause of the decision to appoint a different candidate as a permanent chair.

Moreover, El Chaar points to insufficient evidence that Bertolami’s decision to survey the department about the finalists was pretextual. It is undisputed that Bertolami regularly sought input from faculty in making hiring decisions and had, in the context of prior searches, conducted “listening tour[s]” seeking faculty input.  And it is undisputed that, because the COVID-19 pandemic made it difficult for the faculty to gather in person, Bertolami solicited the feedback in writing. Without more, the fact that Bertolami relied upon a survey of the faculty doesn’t itself show retaliatory intent.

 

No hostile work environment claim for NYU professor

The Court of Appeals holds that an NYU professor cannot proceed with a hostile work environment claim because it is time-barred. But the Court also finds that plaintiff may pursue his retaliation claim against NYU. The latter holding reverses summary judgment on that issue.

The case is El Chaar v. New York University College of Dentistry, a summary order issued on April 2. This blog post will cover the hostile work environment. The next will cover the retaliation claim. For now, we look at the racial harassment claim, and the many ways that such a time-barred claim cannot extend into the limitations period.

Plaintiff immigrated from Lebanon in 1993 and worked for NYU from 1995 through 2012, returning in 2013. During these time periods, plaintiff suffered derogatory remarks about his ethnicity. Yes, this even happens at NYU's College of Dentistry. After plaintiff filed an internal hostile work environment complain in August 2017, the Office of Equal Opportunity (OEO) found in February 2018 that "the evidence as a whole supported a finding of a hostile work environment." But plaintiff still does not have a case.

Plaintiff sued NYU under Section 1981, which prohibits racial discrimination and carries a four-year statute of limitations. Since plaintiff brought suit on October 6, 2021, all claims that accrued prior to October 6, 2017 are time-barred. Now, courts hold that hostile work environments permit the "continuing violations" theory, which holds that if any related harassment took place during the four-year period, then all the harassment that predated the statute of limitations is actionable. That's because hostile work environment claims inherently last for an extended period of time, both prior to and after the statute of limitations. 

The problem for plaintiff is that the post-October 6, 2017 incidents are not related episodes of harassment. A July 2019 letter to the Interim Department Clair, in which he said the hostility had not stopped, is not a related act of harassment within the limitations period because the letter "provides insufficient evidence that any incidents constituting 'part of the same discriminatory pattern or practice of mistreatment' took place within the limitations period." While plaintiff further argues that NYU failed to investigate  his complaints of retaliation and ongoing harassment within the limitations period, the Court of Appeals (Parker, Robinson and Perez) holds that no rational jury could find as such because none of the "alleged failures to investigate were part of the same course of conduct as the offensive statements that gave rise to the August 2017 OEO complaint." And, the Court says, "an employer's failure to investigate a discrimination complaint cannot, by itself, contribute to or constitute a hostile work environment absent a showing that the failure altered the terms and conditions of employment." Moreover, while plaintiff alleges that NYU failed to respond properly to his harassment complaint and its leaders did not engage with the trainings prescribed by OEO, "inadequate engagement by leadership in remedial trainings is not in itself part of the continuing course of conduct creating a hostile work environment."

2d Circuit clarifies reasonable accommodations under the ADA

This case raises an issue that the Second Circuit not previously resolved under the Americans with Disabilities Act: is the plaintiff entitled to a reasonable accommodation if he she can perform the essential functions of her job without an accommodation? 

The case is Tudor v. Whitehall Central School District, issued on March 25. Plaintiff is a teacher with  PTSD, whose symptoms have affected her neurological functioning, interfered with her ability to perform daily tasks, induced a stutter, and causes severe nightmares. Her employer gave plaintiff an accommodation that allows her to leave campus for a 15 minute break during her morning and after noon prep periods. A new school administrator then directed that no teachers can leave school grounds during prep periods. Under the arrangement that led to this lawsuit, plaintiff would leave during afternoon study hall. Plaintiff's lawsuit alleges that defendant's refusal to guarantee a 15 minute afternoon break violated the ADA. Defendant argued, and the district court agreed, that plaintiff cannot win this case because she is able to perform her job without the accommodation.

The Court of Appeals goes back to the basics in this case, reviewing the reasonable accommodation cases that have developed over the last 30 years, when the ADA was enacted. The Court reaches this conclusion based on the statutory language:

an employer must, absent undue hardship, offer a reasonable accommodation--such as a modified work schedule--to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation.  

Under a straightforward reading of the phrase “with or without,” the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must: she may be a “qualified individual” entitled to reasonable accommodation even if she can perform the essential functions of her job without one.

Other Circuits have held as such, and the Second Circuit joins in that interpretation of the ADA. Adding to its analysis, the Court of Appeals says, "To say that an accommodation must be strictly necessary to be reasonable would run counter to this purpose; if Congress had wanted employers to make only necessary accommodations, rather than reasonable ones, it could have said so.  But Congress did not require 'necessary accommodations'; the ADA plainly directs employers to make 'reasonable accommodations.'” Per se rules are inapplicable in the ADA context, the Court of Appeals adds, as the "reasonableness of an employer's accommodation is a fact-specific question." Bottom line: "An employee may qualify for an accommodation even if it is not strictly necessary to her performance of the essential functions of her job."

One other point, as the Second Circuit remands this case to the district court for trial. The Court says that while the defendant may argue that "that the requested accommodation would impose on it an undue hardship," plaintiff's "long history of receiving her requested accommodation and [defendant's] evolving policies indicate that Tudor’s requested accommodation may have been reasonable, notwithstanding that she performed her essential job functions without it." This is significant: many ADA plaintiffs argue that a longstanding accommodation was rejected by new supervisors. This language allows plaintiff to argue that the longstanding arrangement is inherently reasonable and cannot be altered for the time being.