SIENA v. PRIMO PIZZA 84 LLC, 2020 NY Slip Op 51344 – NY: Supreme Court November 5, 2020:


In order to establish a prima facie claim for hostile work environment, a plaintiff must demonstrate that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment (Schenkman v New York Coll. of Health Professionals, 29 AD3d 671, 673 [2d Dept 2006]; see Harris v Forklift Sys., Inc., 510 US 17 [1993]; Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]). Under the New York City Human Rights Law (NYCHRL), the court considers whether such comments amount to more than “petty slights and trivial inconveniences” (see Williams v New York City Hous. Auth., 61 AD3d 62, 79-80 [1st Dept 2009]). “Whether an environment is hostile or abusive can be determined by looking at all the circumstances, including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance'” (Forrest, 3 NY3d at 310-311, quoting Harris, 510 US at 23). The conduct must have altered the condition of the victim’s employment by being subjectively perceived as abusive by the plaintiff, and having created an objectively hostile or abusive environment (id. at 311).

Here, plaintiff’s factual allegations, such as that defendants Goodman and Brill would refer to him as a “guido” or “wise guy” or imitate his accent, fall short of establishing that the “`workplace [was] permeated with discriminatory intimidation, ridicule, and insult. . . that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and create an abusive working environment'” (Schenkman, 29 AD3d at 673, quoting Harris, 510 US at 21). This court is cognizant that “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 183 [1978]). Nonetheless, as defendants have demonstrated the absence of a prima facie case for national origin discrimination, summary judgment dismissing that cause of action is required (see Zhao v State Univ. of NY, 472 F Supp 2d 289 [ED NY 2007] [mimicking plaintiff’s accent and comparing Turkish people to Chinese people were insufficient to establish a hostile work environment]). Indeed, in a similar case, Little v National Broad. Co., where a defendant’s employee constantly used a “weird Spanish accent” when talking to Hispanic people, and on an occasion described Hispanics as being “very greasy,” the court held that the “comments, standing alone, were not so severe that they could alter the conditions of [plaintiff’s] employment. However, when combined with the display of Klu Klux Klan robes and/or [a] noose, these incidents may constitute an objectively hostile environment” (210 F Supp 2d 330, 390 [SD NY 2002]).”