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In the case of Achee v. Inc. Village of Valley Stream, 2023 U.S. Dist. LEXIS 194342 (E.D. N.Y. 10/23/2023), Plaintiff Jahbaree Achee sued the Defendants Incorporated Village of Valley Stream and the Village of Valley Stream Parks and Recreation Department, alleging a hostile work environment, discrimination and retaliation in violation of federal civil rights law Title VII; 42 U.S.C. § 1981.
Facts of the Case
In June of 2014, Plaintiff began working for the Village of Valley Stream (the Village) as a seasonal laborer in the parks department. Plaintiff identifies as a Jewish African American male. On Plaintiff’s first day of work, one of his coworkers informed Plaintiff that another coworker, “RR,” had called Plaintiff a “[racial slur].” In a separate incident approximately two weeks later, RR approached Plaintiff and “yelled multiple racial slurs at him, including ‘stinking [racial slur].’” After this incident, RR continued to make racially discriminatory comments, telling Plaintiff that “[Racial slur] cannot perform the job” and questioning him about why he was working for Valley Stream.
In July 2015, Plaintiff changed roles from a seasonal to a part-time worker. Plaintiff stated that, after his transition to a part-time worker, RR continued to make racially charged statements to him. In 2016, these comments escalated to threats against Plaintiff and that RR said, “Hang that [racial slur] in the creek bed” in reference to Plaintiff in front of other coworkers. In total, Plaintiff estimates that RR used the word “[a racial slur]” more than 10 times during the course of the five years that Plaintiff was employed by the parks department. Throughout his employment with the Village, Plaintiff had two supervisors, “FT” and “LW.”
In his deposition, Plaintiff further stated he had told his supervisor FT that RR “was saying a lot of racial slurs” and was making him “feel uncomfortable,” and, in response, FT told him not to mind RR and “just shrugged it off and walked away.” In addition, Plaintiff claimed he had spoken with both FT and supervisor LW about the second incident with RR, and they told him to “forget about what happened.”
In the summer of 2018, Plaintiff stated another coworker, “FC,” made discriminatory statements toward him. FC allegedly showed Plaintiff a picture of a noose on his phone, told him “white people stick together” and stated his “[coworkers] were going to hang” Plaintiff. After this incident, Plaintiff claimed his coworkers began regularly making comments that they would hang him. The following year, in the summer of 2019, Plaintiff claimed FC again showed him a noose on his phone and told him that “white employees ‘hang [racial slur]’ in the creek bed.’”
Plaintiff stated he complained about FC’s repeated display of a noose on his phone and threats to hang him. In August of 2019, Plaintiff said he had complained to his supervisors FT and LW that “these kinds of comments were racist, but they ignored me and nothing changed.”
Plaintiff also stated his coworkers made antisemitic remarks to him. Specifically, Plaintiff stated that another coworker, “RI,” told him in 2016 that “black jews don’t matter, blue lives matter” and also made “derogatory comments” about his faith. In addition, Plaintiff stated members of his crew knew of his Jewish faith and would make “numerous hateful and humiliating Anti-Jewish comments and jokes” toward him.
According to Plaintiff, he had “complained about a dozen times of race and religious discrimination to his supervisors.” Plaintiff’s crew chief “PS” testified that Plaintiff complained to him roughly a dozen times that he was not being treated as well as others by his supervisors because of his race. PS, however, testified that, to his knowledge, he did not know of any times that Plaintiff complained about racist or antisemitic comments to his supervisors or anyone at the Village. Supervisors LW and FT concurred that “Plaintiff did not complain to his supervisors about racial or religious discrimination at any point during his employment.”
Village Complaint Process
The Village had a written complaint process for its employees. Plaintiff attended several training sessions that outlined the Village’s Policy Against Discrimination and Harassment. According to this process, a complainant is instructed to “contact his or her supervisor or a Harassment Committee Member listed in section 10 of this Policy, or Village Clerk, or Human Resources official.” There was no requirement that a complaint to a supervisor be made in writing. Plaintiff, however, did not complain to human resources at any point.
Disciplinary Record
During his employment, Plaintiff had received verbal and written warnings for disciplinary infractions in the form of an employee counseling form signed by one of his supervisors. Plaintiff received an employee counseling form on July 24, 2018, for “abusive time off for leaving early on eight days in 2018.” In addition, Plaintiff received an employee counseling form on July 30, 2018, for failing to appear for his scheduled shift for that day and for calling in late to inform his employer that he would not be present. Plaintiff also received an employee counseling form for failing to report to work on April 26, 2019.
Plaintiff claimed no other employees were disciplined for the same types of offenses and that other employees were rarely disciplined at all. When asked at his deposition if he ever observed any white employees written up at work, crew chief PS, who identifies as a white man, responded, “[N]obody gets written up besides me and [Plaintiff] Achee.”
In addition, PS testified that he believed supervisor LW selectively enforced rules regarding leaving early because she did not write up other employees for leaving early for lunch. However, he also testified that Plaintiff’s early departures were especially frequent and that his coworkers would have to do more work as a result.
In June of 2019, Interim Village Clerk “JH” implemented a new initiative to “stop tolerating rampant and repeat performance and attendance issues from the Village’s employees,” and he “instructed the Village’s department heads and supervisors to stop tolerating poor performance and attendance issues and to issue counseling forms to their employees who exhibit these issues.”
On August 23, 2019, Plaintiff went to his crew chief, PS, to “call out sick from work.” In response, two separate written warnings, dated September 6, 2019, were issued to Plaintiff and signed by supervisor LW, stating Plaintiff had left early without approval that day. One warning stated that Plaintiff left on this date “without requesting permission to leave.” The other stated Plaintiff had “no authority to decide to leave work for the day.” In addition, the written report noted Plaintiff also left work early without approval from a supervisor on two other dates that year and Plaintiff’s “poor attendance and regularly leaving early are disruptive and hamper productivity of other employees.”
A counseling session was held on September 6, 2019, to discuss these incidents. Plaintiff met with the Interim Village Clerk, JH, who, like Plaintiff, identifies as a Black man. Supervisor LW and Plaintiff’s union representative were also present. During this meeting, the parties discussed Plaintiff’s disciplinary record, and Plaintiff was provided an opportunity to be heard.
During this meeting, Plaintiff had complained about discrimination. According to JH, Plaintiff complained that at least one individual who worked in the parks department had used the [racial slur] on at least one occasion. Moreover, Plaintiff described how the discrimination against him had “affected both his mental and physical health.” When asked at his deposition whether he also complained about threats of violence toward him, Plaintiff responded that he did without providing additional details.
JH stated that he viewed Plaintiff’s complaints of discrimination, as “proffered excuses” that were “manufactured as a way to avoid taking responsibility for his poor performance.” JH also observed that, during this meeting, Plaintiff exhibited “anger, hostility and combativeness” toward his supervisor LW that JH found “concerning.”
Following the meeting, JH conducted a review of Plaintiff’s personnel file, as well as an investigation of Plaintiff’s allegations of racism in the parks department. To the best of his knowledge, JH stated that “this was the first discrimination complaint ever raised by a Village employee.”
Based on his “review of Plaintiff’s complete personnel file, Plaintiff’s hostility towards his supervisor LW, and the lack of corroboration of Plaintiff’s complaint of potential racial discrimination,” JH made the decision to terminate Plaintiff. In so doing, JH acknowledged Plaintiff “was the first such Village employee to be held accountable for his actions” pursuant to the policy shift implemented by JH.
By letter dated September 19, 2019, Plaintiff was informed of his termination effective that date. The letter stated: “in 2019 alone, multiple incidents of unacceptable conduct have been documented.” Write-ups included “the initiation of discipline for instances ranging from insubordination, defiance of Village and departmental rules and leaving work without authorization, among others.”
Hostile Work Environment
As cited by the federal district court, Title VII provides that it shall be unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
Further, to “survive summary judgment on a hostile work environment claim,” the court noted Plaintiff would have to show 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.” As a general rule, the court also recognized workplace discrimination “incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.”
According to the court, a violation of Title VII would exist when “a reasonable person would have found the work environment to be hostile, and if the plaintiff subjectively so perceived it,” based upon the following “totality of circumstances”:
(1) [T]he frequency of the conduct, (2) the severity of the conduct, (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance, and (4) whether the conduct unreasonably interferes with the employee’s work performance.
In addition, to succeed in his Title VII claim, the federal district court noted Plaintiff would have to “show that there is a basis for imputing the conduct that created the hostile environment to the employer”:
When harassment is perpetrated by the plaintiff’s coworkers, an employer will be liable if the plaintiff demonstrates that the employer either provided no reasonable avenue for complaint or knew of the harassment but did nothing about it.
Under the alleged circumstances in this particular case, the federal district court found Plaintiff had indeed “set forth sufficient evidence of racial and religious harassment such that a reasonable jury could find that the conditions of his employment were altered and that the incidents he proffers created an abusive working environment.” In so doing, the court characterized the “noose” as “a symbol of racial violence” that “could amount to severe conduct sufficient to support an inference that the workplace is hostile to Black employees.” Moreover, according to the court, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet....” As a result, the federal district court held Plaintiff had “clearly met the objective standard for a hostile work environment.”
Conduct Imputed to Employer
Having established that “a jury could find that his coworkers’ behavior created an objectively and subjectively hostile work environment,” the federal district court would still require Plaintiff to “establish a basis for imputing this conduct to his employer.”
As described by the court, Plaintiff claimed his supervisors, FT and LW, had ignored him and “nothing changed” after Plaintiff complained about racist comments, including coworker FC’s showing Plaintiff “a noose on his phone and threatened to hang him.” In response, Defendants denied Plaintiff ever complained to his supervisors and argued these were “baseless assertions.”
The federal district court found resolution of these two conflicting accounts presented “factual questions for a jury” to determine whether Plaintiff’s allegations were “sufficient to impute the objectionable conduct to Defendants.” As a result, the court denied Defendants’ motion for summary judgment on Plaintiff’s hostile work environment claim.
Discrimination Claim
The federal district court then considered Defendants’ motion for summary judgment on Plaintiff’s racial discrimination claims. As described by the federal district court, the “relevant framework” for evaluating Plaintiff’s discrimination claims under Title VII would be analyzed and evaluated under the following “burden shifting framework”:
The plaintiff in such a case must first establish, by a preponderance of the evidence, a prima facie case of racial discrimination. Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. [A “prima facie case” refers to the initial examination of a claim which contains sufficient evidence “on its face” to satisfy applicable legal requirements, in this case Title VII discrimination.]
Once Plaintiff had established a prima facie base of racial discrimination, the burden of proof then would shift to Defendant to produce “evidence that the adverse employment actions were taken for a legitimate, nondiscriminatory reason.” If such evidence is produced, Plaintiff then would have to establish that Defendant’s “legitimate nondiscriminatory reason” was “not the true reason for the employment decision,” but a mere pretext to hide the actual discriminatory motive. At all times, the court acknowledged “the ultimate burden of proof rests with the plaintiff.”
As described by the court, a plaintiff could make a prima facie case for discrimination under Title VII by meeting the following minimal requirements:
(1) [H]e is a member of a protected class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination.
In this case, the court found the parties agreed that Plaintiff had met the first three required elements for a discrimination claim (i.e., a qualified Black man who was terminated from his employment). The remaining issue before the court was, therefore, whether Plaintiff had “shown that his termination occurred in circumstances giving rise to an inference of discrimination.”
According to the federal district court, a plaintiff’s “mere subjective belief that he was discriminated against because of his race does not sustain a race discrimination claim.” That being said, the court acknowledged the “standard for proving an inference of discrimination is a flexible one that can be satisfied differently in differing factual scenarios”:
No one particular type of proof is required. An inference of discrimination can be drawn from circumstances such as the employer’s criticism of the plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s adverse employment action.
In this case, the federal district court found Title VII discrimination against Plaintiff could be inferred from the following two circumstances:
First, he asserts that, when he reported discriminatory comments to his supervisors, they told him to forget about them, and they took no disciplinary action in response. Second, Plaintiff asserts that he was selectively disciplined for conduct for which his non-black and non-Jewish coworkers were not.
As a result, the court found sufficient evidence that could support Plaintiff’s claim of discrimination since offensive remarks were “repeatedly brought to the attention of Plaintiff’s supervisors who took no action in response and instructed him to ‘forget about’ them.”
Disparate Treatment
Plaintiff also had claimed “his differential treatment in being disciplined” supported “an inference of discrimination.” According to the federal district court, evaluate Plaintiff’s “disparate treatment claim” would be evaluated as follows:
The standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff’s and comparator’s cases, such that the comparator must be similarly situated to the plaintiff in all material respects.
An employee is similarly situated to co-employees if they were (1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.
In this particular case, the court noted Plaintiff had claimed “Defendants did not discipline White and non-Jewish Laborers for the reasons they disciplined Plaintiff.” The federal district court also found Plaintiff’s claim was supported by the Village clerk JH’s “own acknowledgement that no other employee had previously been terminated for the reasons” Plaintiff was terminated.
In addition, Plaintiff’s crew chief, PS, had testified that Defendants rarely disciplined non-Black employees for attendance and performance issues for which Plaintiff had been disciplined. Further, the court noted Defendants had acknowledged “the presence of rampant and repeat performance and attendance issues from the Village’s employees.”
In the opinion of the federal district court, the Village clerk, JH, “did not harbor racial or religious animus against Plaintiff.” The court, however, noted a Title VII plaintiff could still succeed on a discrimination claim against an employer “even absent evidence of illegitimate bias on the part of the ultimate decision maker”:
Where an employer relies on the account of a biased supervisor in reaching an adverse employment decision, that supervisor has played a meaningful role in the decision-making process.
In this case, the court found the Village clerk had relied upon Plaintiff’s personnel record in making the termination decision. In the opinion of the court, a jury could find this personnel record was “tainted by the racial animus” of Plaintiff’s supervisors.
Legitimate Reasons Pretextual?
Further, the federal district court found Defendants had articulated legitimate, nondiscriminatory reasons for their decision to terminate Plaintiff:
Plaintiff had a well-documented disciplinary history, including infractions related to timeliness, insubordination, and absenteeism. These are legitimate and non-discriminatory reasons to terminate an employee.
In light of these nondiscriminatory reasons for termination of Plaintiff’s employment, the federal district court noted “the burden shifts back to the plaintiff to show that this reason is pretextual.” As described by the court, “a reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason” and “the defendant intentionally discriminated against him.” Further, the court found Plaintiff could show the reasons for his termination were pretextual “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered ‘legitimate’ reasons for its action.”
In this particular instance, the federal district court found Plaintiff’s “disparate disciplinary treatment” had presented “evidence of pretext”:
JH admitted that Plaintiff was the only employee who was terminated for these issues despite similar widespread and repeat performance issues in the Department. A jury could infer from this that the reasons given for his termination were pretextual.
Accordingly, the federal district court concluded a reasonable jury could find the reasons given for the termination of Plaintiff’s employment were “pretextual” and “Defendants discriminated against Plaintiff by ignoring his complaints of racial and religious discrimination and by disciplining him selectively.”
Retaliation
As cited by the federal district court, “Title VII also prohibits retaliation by employers against workers for their opposition to employment discrimination.” To establish a case of retaliation, the court noted “a plaintiff must demonstrate that he participated in a protected activity, that he suffered an adverse employment action, and that there was a causal connection between his engaging in the protected activity and the adverse employment action.”
To establish a causal connection for retaliation, the court noted a plaintiff must show “the desire to retaliate was not just a motivating factor, but a ‘but-for’ [i.e., actual or necessary] cause of the challenged employment action.” Moreover, the court found: “A period of several months can demonstrate a causal connection between the protected activity and the alleged adverse action.”
In this particular instance, the court found the pretrial record had established a case for retaliation based on Plaintiff’s complaints to JH in September of 2019:
Plaintiff complained [to] JH for the first time that one of his coworkers used [a racial slur] to describe him during their meeting on September 6, 2019. On September 19, JH made the decision to fire Plaintiff. Such a short time frame is sufficient to give rise to an inference of retaliation….
Furthermore, the federal district court found JH had “terminated Plaintiff and no other employees for similar conduct provides additional evidence that Plaintiff’s termination was the product of retaliation.”
Accordingly, the court held Plaintiff had made a case for retaliations based upon “disparate treatment of fellow employees who engaged in similar conduct” and “the short time period between Plaintiff’s complaint of racial discrimination” and his being terminated.
Conclusion
Having found a factual basis for Plaintiff’s claims regarding a hostile work environment, discrimination and retaliation in violation of Title VII, the federal district court denied Defendants’ motion for summary judgment. As a result, Plaintiff would have an opportunity to present his discrimination claims to a jury in further trial proceedings.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Emeritus Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Archive of articles (1982 to present).