Labor & Employment Law Daily Fired for confronting coworker over racist comments, employee has viable hostile work environment claim
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Thursday, February 6, 2020

Fired for confronting coworker over racist comments, employee has viable hostile work environment claim

By Brandi O. Brown, J.D.

Allegations of slurs such as “typical Spic,” and the isolation and mistreatment of Hispanic workers were enough to keep a hostile work environment action alive. But his other claims were dismissed.

A federal court in New York allowed a Hispanic employee’s hostile work environment claims to proceed, finding that he adequately stated a Title VII cause of action. The employee alleged that he was subjected to degrading comments and that he and other Hispanic employees were isolated and given the worst job assignments and shifts, while their complaints were brushed off. However, the court dismissed the employee’s other claims under Title VII, Section 1981, and state and local law, including those arising from his suspension and subsequent discharge for confronting a white employee who was making racist comments (Ramirez v. NYP Holdings, Inc., January 28, 2020, Failla, K.).

“Typical Spic.” According to the employee’s complaint, during his eight years working for the employer, he and other Hispanic employees were subjected to racial slurs and derogatory comments by coworkers, and were given the least desirable work conditions. When he complained about the comments, including being called a “typical Spic,” he was told by management to “ignore it.” Moreover, Hispanic employees were not promoted as quickly as white employees, and received the worst job and shift assignments from their white foremen.

Could not “ignore it.” One day, however, the employee was unable to “ignore it” when a white coworker left his designated work area and began yelling at him. “It’s because of people like you that we lose our jobs,” the coworker yelled, adding “People like you are worthless.” The employee yelled back, asking why he was making such comments, and the foreman ordered the employee to go home for the rest of the day. The foreman contended he took this action because he had told the employee “to stop and he didn’t stop.” The employee was suspended indefinitely and then fired, because his suspension violated a last chance agreement. The white coworker was not sent home. He filed suit claiming race and national origin discrimination, hostile work environment, and retaliation.

Hostile work environment. The only claim to survive the employer’s motion to dismiss was his hostile work environment claim under Title VII. Drawing reasonable inferences in the employee’s favor, the court found he had “alleged a story of continual abuse and mistreatment, based on his race, throughout the eight years that he worked” for the defendant, and a reasonable employee would find that his or her work conditions had worsened under those circumstances. The court rejected the employer’s characterization of the employee’s allegations as “too conclusory,” and explained that they “in no way” described abuse that was isolated or minor.

Discrimination. The employee’s allegations of discrimination were not sufficient to support his assertion that his employer was motivated by discriminatory intent when it suspended and fired him. He described derogatory remarks by coworkers, but none were made by supervisors or decisionmakers. He did not otherwise describe how this related to the decision to suspend him, aside from the fact that his coworker’s comments “perhaps incited” the employee to engage in the conduct that led to his suspension.

Moreover, his allegation that he was treated differently from the white coworker involved in the final incident was insufficient because he failed to plead facts from which the court could conclude the employees were similarly situated. Also, the fact that he was on a last chance agreement provided a nondiscriminatory reason for his suspension and discharge.

Retaliation. The court also dismissed the employee’s retaliation claim finding no showing of causation. While he alleged that he complained about the hostile work environment to his foremen and that it was one of those foremen who ordered him to leave work, he failed to provide any detail with regards to when those complaints were made, to whom they were made, or their substance. He argued that the court should presume that he made such a complaint shortly before his suspension, given that he had made these complaints continuously throughout his employment. But the court declined to draw such an inference.

NYSHRL, NYCHRL claims. His non-federal claims were also dismissed based on the election of remedies doctrine that was applicable to complainants who file with the state and city human rights commissions. He elected to use the administrative forum and that complaint contained all of the same “core allegations.” Thus, these claims were barred.

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