Aulicino v. New York City Dep't of Homeless Servs., No. 06-5605 (2d Cir. 2009)
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06-5605-cv Aulicino v. New York City Dep't of Homeless Servs. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: November 19, 2008 Decided: September 8, 2009) 5 Docket No. 06-5605-cv 6 ------------------------------------- 7 THOMAS A. AULICINO, 8 Plaintiff-Appellant, 9 - v. - 10 11 NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, and LINDA GIBBS as Commissioner of the Agency, 12 Defendants-Appellees.* 13 ------------------------------------- 14 Before: 15 STRAUB, SACK, and WESLEY, Circuit Judges. Appeal from a judgment of the United States District 16 Court for the Eastern District of New York. 17 (Sterling Johnson, Jr., Judge), adopting a report and 18 recommendation by Magistrate Judge Lois Bloom, granted the 19 defendants' motion for summary judgment in this employment 20 discrimination action. 21 plaintiff's failure to promote claim and remand that cause for 22 trial to resolve genuine issues of material fact. 23 the dismissal of the plaintiff's hostile work environment claim 24 because, we conclude, the district court failed to consider the * The district court We vacate the dismissal of the We also vacate The Clerk of the Court is respectfully directed to amend the official caption to conform to this one. 1 evidence supporting that claim in the light most favorable to the 2 plaintiff. 3 That cause is therefore remanded for reconsideration. VACATED in part and REMANDED. 4 5 6 Arthur Z. Schwartz, Schwartz, Lichten & Bright, P.C., New York, NY, for Appellant. 7 8 9 10 11 Fay Ng (Pamela Seider Dolgow, Eric Eichenholtz, Michael A. Cardozo, Corporation Counsel of the City of New York, of counsel), New York, NY, for Appellees. 12 SACK, Circuit Judge: 13 The plaintiff, Thomas Aulicino, appeals from a judgment 14 of the United States District Court for the Eastern District of 15 New York. 16 Hinsdale Depot of the New York City Department of Homeless 17 Services ("DHS"). 18 DHS because he is white, was subjected to a discriminatory 19 hostile work environment, and was retaliated against for engaging 20 in protected activity. 21 Jr., Judge), adopting a report and recommendation by Magistrate 22 Judge Lois Bloom over Aulicino's objections, granted the 23 defendants' motion for summary judgment and dismissed Aulicino's 24 complaint in its entirety. 25 Aulicino is a Motor Vehicle Operator ("MVO") at the He claims that he was denied a promotion at The district court (Sterling Johnson, In our view, the failure to promote and hostile work 26 environment claims should not have been dismissed. 27 that the record reflects genuine issues of material fact with 28 respect to the failure to promote claim. 29 dismissal of that claim and remand the cause for trial. 2 We conclude We therefore vacate the We also 1 think the district court, in applying the legal standard 2 governing hostile work environment claims, failed to consider the 3 record evidence in the light most favorable to the plaintiff, as 4 it was required to do. 5 complaint with respect to that cause of action for 6 reconsideration.1 We therefore vacate and remand the BACKGROUND 7 8 Evidence of Derogatory Racial Comments 9 According to Aulicino's deposition testimony, Frank 10 John, an African-American who was a fleet coordinator at the 11 Hinsdale Depot beginning in November 2001, made several "nasty" 12 and "harassing" "racial comments" to or about Aulicino. 13 Dep. 76, 88. 14 right for [a DHS client] to call [Aulicino] a white mother fuck" 15 and that "[Aulicino] deserved it." 16 76 (same). 17 threatened to withhold Aulicino's pay for that day, though he did 18 not follow up on the threat. 19 occasion, John remarked to Aulicino that "white people are lazy." 20 Id. at 76. 21 and Aulicino "all take off the same days . . . like there was 22 some sort of white conspiracy." 23 Aulicino was told by one of his supervisors, Gary Brown, that Aulicino For example, John told Aulicino that "it was all Id. at 136; see also id. at In the same encounter, according to Aulicino, John See id. at 136-37. On another And on another, John asked a white colleague why he Id. at 88. 1 On still another, The plaintiff has not appealed from the denial of his retaliation claim. 3 1 John called him a "white fuck" and had threatened to "get" him. 2 Id. at 154-56.2 3 It is not clear from Aulicino's testimony or other 4 material in the record when the statements in question were 5 allegedly made. 6 appeal assert that they occurred in a period between late 7 December 2001 and September 2002. 8 40; Appellant's Br. 5-8. 9 Aulicino's second amended complaint and brief on See Amended Complaint3 ¶¶ 19- Aulicino also testified that his African-American 10 supervisor, Larry Singleton, made "the sort of comments Frank 11 John makes." 12 supervisor several months before Aulicino's deposition was taken 13 in August 2004. 14 transcript in the record does not specify any particular 15 derogatory comments made by Singleton. 16 Aulicino Dep. 169. See id. at 27. Singleton became Aulicino's The excerpted deposition In an affidavit dated March 21, 2006, and submitted in 17 opposition to the defendants' motion for summary judgment, 18 however, Aulicino testifies to several recent examples of 19 derogatory comments made by Singleton, all of which, he says, 20 occurred during the pendency of this action. 21 affidavit, on January 7, 2005, Singleton handed him a copy of an 22 old union contract and grievance form. According to the When Aulicino asked why 2 John denies that he made derogatory racial comments to or about Aulicino. 3 The pleading entitled "Amended Complaint" is in fact Aulicino's second amended pleading. 4 1 he had done so, Singleton "mentioned" the instant lawsuit "in an 2 aggressive and inappropriate manner," as he had several times 3 before. 4 told Singleton to stop harassing him and threatened to file a 5 complaint about the incident. 6 affidavit, Singleton "stated that he [Singleton] was an ex- 7 felon." 8 be "assault[ed]" if he were to file such a complaint. 9 affidavit also asserts that on April 27, 2005, Singleton Aulicino Aff. ¶ 5. Id. According to the affidavit, Aulicino At that point, according to the Aulicino interpreted that as a threat that he would Id. The 10 "confronted" Aulicino saying, "Go back to Bensonhurst and tell 11 everyone that you report to a black man who is making your life 12 miserable." 13 thought the comment was "racist" and that he told Singleton that 14 "he was creating a hostile work environment." 15 Singleton replied, "I'll show you what a hostile work environment 16 is." 17 Id. ¶ 2. Aulicino stated in his affidavit that he Id. ¶ 3. Id. ¶ 4. The affidavit also alleges that in July 2005, Singleton 18 discussed a book he displayed on his desk "titled Black and 19 White: Separate, Hostile, and Unequal" with African-American 20 colleagues while pointing at Aulicino and laughing. 21 According to Aulicino, Singleton also commented in Aulicino's 22 presence that a lynching of an African-American man could have 23 been avoided if the man's friend "had not given the man up to 24 white people" and that "the moral of the story was that black 25 people need to stick together against white people." 5 Id. ¶ 6. Id. ¶ 7. 1 Overall, Aulicino swore, the racial remarks by John and 2 Singleton rendered Aulicino "short fused." Aulicino Dep. at 169. 3 Aulicino has contemplated an attempt to transfer out of the 4 Hinsdale Depot, but has not done so because he does not "know 5 where else to go," in light of what he characterizes as his "very 6 limited" choices. Id. 7 The Denial of a Promotion 8 On May 13, 2002, DHS posted a job opening for a Motor 9 10 Vehicle Supervisor ("MVS") position at the Hinsdale Depot. vacancy notice specified these qualifications: 11 Preferred Skills: 12 13 1. One year of permanent service in the title of Motor Vehicle Operator. 14 15 2. One year of full-time experience in Motor Vehicle Dispatching, and 16 17 3. A valid NYS Class B Motor Vehicle Driver License 18 . . . . 19 MINIMUM QUALIFICATIONS 20 21 1. One year of permanent service in the title of Motor Vehicle Operator; or 22 23 2. One year of full-time experience in motor vehicle dispatching. 24 License Requirement 25 26 27 28 29 30 31 32 33 A Motor Vehicle Driver License valid in the State of New York. For appointment to certain positions, possession of a Class B Commercial Driver License [("CDL")] valid in the State of New York may be required. There may be certain age requirements to obtain this license. Employees must maintain the Class B Commercial Driver License during their employment. 6 The 1 City of New York, Department of Homeless Services, Job Vacancy 2 Notice, May 13, 2002 ("MVS Posting"), at 1. 3 his application for the position on May 22, 2002, and he was 4 interviewed by John on June 13, 2002. 5 Aulicino submitted Aulicino, according to his deposition testimony, found 6 the interview"very unbelievable" because it "seemed like [John] 7 was trying to discourage [him] and disqualify [him] all at the 8 same time from taking the job" by telling Aulicino that the 9 position was for a later shift "and that [John] knew [Aulicino] 10 didn't want to change shifts." 11 [John] about [his dispatching] experience [John] stopped [him] 12 and said that he knew all about it and that was the end of the 13 conversation." 14 [Aulicino] if [he] had a CDL license [sic]." 15 but he said to John that the CDL "was not an official 16 requirement," in light of the fact that motor vehicle supervisors 17 "basically . . . don't drive." 18 "if it was necessary [he] would upgrade [his] license." 19 109-10. 20 When Aulicino "tried to tell Aulicino Dep. 108-09. John also "asked Aulicino did not, Aulicino also volunteered that John declined to promote Aulicino. Id. at Aulicino testified 21 that one of his supervisors, Sterling Ferguson, later told 22 Aulicino that he had heard John "make derogatory comments about 23 [Aulicino]" in connection with his application, "saying that he 24 wouldn't hire [Aulicino]," referring to Aulicino as "a white 25 fuck." 26 about stuff that [John] said to . . . him when he spoke to [John] Id. at 96-97; see also id. at 100 ("[Ferguson] told me 7 1 in regard to [whether] I was qualified for the position I was 2 applying for and [John] responded by saying something to the 3 [effect of] I wouldn't hire that white fuck."). 4 John testified in his deposition that he rejected 5 Aulicino for the MVS position because "Mr. Aulicino didn't have 6 the appropriate driver's license" -- he had "a class E license," 7 and, John thought, the job vacancy posting required "a valid New 8 York State Class B license." 9 that "looking at Mr. Aulicino's record, it wasn't that good, it John also testified 10 wasn't good." 11 Aulicino's performance was consistently rated "good," he was 12 "written up" several times for misconduct on the job. 13 Id. at 145. John Dep. 109. And indeed it appears that although Joseph Johnson, an African-American, was awarded the 14 MVS position. At the time, Johnson had a commercial learner's 15 permit but no Class B license, some "fill-in" dispatching 16 experience, Johnson Dep. 64, and more than one year of experience 17 as an MVO. 18 Procedural History 19 On January 7, 2003, Aulicino filed a pro se complaint 20 with the EEOC. He received a "right to sue" letter from the 21 agency on March 1, 2003. 22 13, 2003, pursuant to Title VII of the Civil Rights Act of 1964, 23 42 U.S.C. § 2000e et seq., by completing and filing a form 24 complaint alleging discrimination and retaliation on the basis of 25 his race, color, and national origin. 26 the form to reflect his assertion that the defendants were "still He initiated this action pro se on May 8 Aulicino checked a line on 1 committing these acts against [him]." 2 after pretrial matters in the action had been referred to 3 Magistrate Judge Bloom, Aulicino, continuing to act pro se, filed 4 an amended form complaint adding John as a defendant. 5 Discovery ensued. On August 4, 2003, shortly On March 8, 2004, counsel retained 6 by Aulicino's union filed a notice of appearance on behalf of 7 Aulicino. 8 complaint would be amended and discovery extended. 9 The parties subsequently agreed that Aulicino's The second amended complaint, the operative complaint 10 for present purposes, added Linda Gibbs, the Commissioner of DHS, 11 as a defendant, and dismissed the complaint against Frank John. 12 It also set forth Aulicino's factual allegations in greater 13 detail, and it proffered the New York City and State Human Rights 14 Laws as bases for relief in addition to Title VII. 15 further extensions, the magistrate judge ordered that discovery 16 would be closed on July 29, 2005. 17 Aulicino stipulated to the dismissal of his claims against Gibbs, 18 inasmuch as Title VII does not provide for individual liability. 19 The parties also stipulated to substitute the City of New York 20 for DHS, and the magistrate judge set a schedule for the City's 21 proposed motion for summary judgment.4 22 23 After several In a status conference, On September 20, 2005, Aulicino received new counsel through his union. 4 After two extensions, the City served its It does not appear that Gibbs was formally dismissed from this action, since Aulicino agreed to but did not file a written stipulation of dismissal by October 18, 2005. Nor does it appear that the City was ever formally substituted for DHS. 9 1 motion for summary judgment on January 23, 2006. 2 counsel opposed it by, inter alia, submitting the Aulicino 3 affidavit dated March 21, 2006, referred to above, in which he 4 specifies derogatory comments made by Singleton after the filing 5 of the second amended complaint but before the close of 6 discovery. 7 Aulicino's new In a report and recommendation dated August 31, 2006 8 (the "R&R"), the magistrate judge recommended that the City's 9 motion be granted in its entirety. In her view, Aulicino's 10 failure to promote claim was insufficient because the record 11 lacked evidence that Aulicino was qualified for the MVS position 12 or that the denial of the promotion was discriminatory. 13 reflects the magistrate judge's conclusion that the defendants' 14 stated reasons for not promoting Aulicino were legitimate and 15 nondiscriminatory, and that Aulicino had failed to produce 16 evidence that those reasons were pretextual. 17 The R&R See R&R 8-12. The R&R recommended dismissing the hostile work 18 environment claim because, in the magistrate judge's view, John 19 and Singleton's comments were "isolated and discrete" and had not 20 interfered with Aulicino's job performance or responsibilities. 21 Id. at 14. 22 retaliation claim for want of an adverse employment action. 23 id. at 15. 24 The R&R further recommended dismissing the See Aulicino submitted no objections to the R&R, and the 25 district court initially adopted it in full. 26 court subsequently granted Aulicino's application to submit 10 But the district 1 belated objections inasmuch as their lateness was caused by 2 problems counsel encountered with the court's electronic filing 3 system. 4 without merit, affirming its earlier dismissal of the complaint. The court nonetheless concluded that the objections were 5 Aulicino, acting pro se, filed a notice of appeal. 6 Through what we understand to be yet a fourth lawyer, he pursues 7 this appeal from the dismissal of his failure to promote and 8 hostile work environment claims. 9 appeal from the dismissal as it relates to his retaliation claim. 10 DISCUSSION As noted, he has not sought to 11 I. Standard of Review 12 We review de novo the grant of a motion for summary 13 judgment. Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 14 2008). 15 discovery and disclosure materials on file, and any affidavits 16 show that there is no genuine issue as to any material fact and 17 that the movant is entitled to judgment as a matter of law." 18 Fed. R. Civ. P. 56(c). 19 exists . . . where the evidence is such that a reasonable jury 20 could decide in the non-movant's favor." 21 The court must "'construe the facts in the light most favorable 22 to the non-moving party and must resolve all ambiguities and draw 23 all reasonable inferences against the movant.'" 24 Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d 25 Cir. 2003)). Such a judgment "should be rendered if the pleadings, the "A dispute about a 'genuine issue' 11 Beyer, 524 F.3d at 163. Id. (quoting 1 Aulicino seeks relief under Title VII and the New York 2 State and New York City Human Rights Laws. 3 able to resolve this matter on federal grounds, we need not and 4 do not address the reach of the City or State statutes. 5 6 7 II. A. Inasmuch as we are The Failure To Promote Claim The Applicable Legal Standard "At the summary-judgment stage . . . Title VII claims 8 are ordinarily analyzed under the familiar burden-shifting 9 framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 10 S. Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny." 11 Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). 12 13 At the first stage under that framework, the plaintiff bears the burden of establishing a prima facie case. 14 15 16 17 18 19 20 21 22 23 To establish a prima facie case of a discriminatory failure to promote, a Title VII plaintiff must ordinarily demonstrate that: (1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open and the employer continued to seek applicants having the plaintiff's qualifications. 24 Petrosino v. Bell Atl., 385 F.3d 210, 226 (2d Cir. 2004) (quoting 25 Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir. 1998) 26 (internal quotation marks omitted)). 27 plaintiff to avoid an adverse judgment, there must be proof that 28 the plaintiff "was rejected under circumstances which give rise 29 to an inference of unlawful discrimination." 30 (internal quotation marks omitted). 12 In all cases, for the Id. at 710 1 If the plaintiff carries that burden, "the burden 2 shifts to the defendant, which is required to offer a legitimate, 3 non-discriminatory rationale for its actions." 4 Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). 5 meets this second burden, "to defeat summary judgment . . . the 6 plaintiff's admissible evidence must show circumstances that 7 would be sufficient to permit a rational finder of fact to infer 8 that the defendant's employment decision was more likely than not 9 based in whole or in part on discrimination." 10 B. If the defendant Id. (internal quotation marks omitted). 11 Terry v. Application of the Standard 12 We conclude that Aulicino has made out a prima facie 13 case for his failure to promote claim. 14 Aulicino is a member of a protected class, i.e., a "race" or 15 "color,"5 that he applied for an MVS position that was posted 16 within DHS, that he was denied the position, or that the position 5 There is no dispute that Aulicino's papers make no reference to national origin discrimination; we therefore take his claim to focus solely on color and race discrimination. With respect to those classes, we do not decide whether, as some courts of appeals have concluded, the Title VII plaintiff who alleges discrimination on the basis that he is white, or "Caucasian," must proffer evidence of "background circumstances" reflecting that the defendant is "that unusual employer who discriminates against the majority." Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981). But see Iadimarco v. Runyon, 190 F.3d 151, 160 (3d Cir. 1999) (rejecting "background circumstances" requirement). The defendants do not argue that Aulicino must do so, and, in any event, as the following discussion makes clear, there is sufficient evidence from which a rational jury could conclude that both John and Singleton harbored discriminatory animus against white persons, facts that constitute "background circumstances" reflecting that the defendant is "that unusual employer who discriminates against the majority." 13 1 remained open until it was given to Johnson. 2 whether the magistrate judge was correct to conclude as a matter 3 of law -- and whether the district judge was correct to uphold 4 the conclusion -- that Aulicino was unqualified for the position 5 and that there was no proof of discriminatory intent. 6 those conclusions could not be made as a matter of law on the 7 record before the district court. 8 9 The issue is We think Viewing the record evidence in the light most favorable to Aulicino, as we must, Beyer, 524 F.3d at 163, a rational jury 10 could find that Aulicino was qualified for the MVS position. 11 necessary qualifications, as reflected in the job posting, were 12 (1) either "[o]ne year of permanent service in the title of Motor 13 Vehicle Operator" or "[o]ne year of full-time experience in motor 14 vehicle dispatching," (2) "[a] Motor Vehicle Driver License valid 15 in the State of New York," and possibly (3) "possession of a 16 Class B Commercial Drivers License valid in the State of New 17 York." 18 jury could conclude that Aulicino had more than one year of 19 permanent service as an MVO, see Resume of Thomas A. Aulicino 1 20 (reflecting employment as an MVO from "September 1993 - 21 Present"), and a valid New York driver's license, see John Dep. 22 109 ("[Aulicino] has a class E license . . . ."). 23 therefore met his burden to present evidence on that element of 24 his prima facie case. 25 26 MVS Posting 1. The There is evidence from which a rational Aulicino The R&R rightly points out that Aulicino "did not have at least one year of full-time experience as a motor vehicle 14 1 dispatcher," nor "the Class B [commercial drivers] license set 2 forth in the job posting." 3 necessary, in light of Aulicino's experience as an MVO, and as to 4 the latter, the job posting only notes that it "may be required." 5 MVS Posting 1. 6 interpreted as minimum qualifications from the job posting, a 7 rational jury could nonetheless conclude that DHS did not in 8 practice consider them part of the "basic eligibility for the 9 position at issue," Slattery v. Swiss Reinsurance Am. Corp., 248 10 F.3d 87, 91-92 (2d Cir. 2001), cert. denied, 534 U.S. 951 (2001). 11 There is evidence that Johnson -- the African-American who was 12 hired for the position -- also lacked dispatching experience and 13 a CDL. 14 as a dispatcher, that "it was never . . . a permanent title." 15 Johnson Dep. 64. 16 only a Class B commercial learner's permit, not a Class B CDL. 17 R&R 8-9. But the former was not And even if those qualifications could be Johnson testified that he had only "fill-in" experience And everyone appears to agree that Johnson had Again viewing the evidence in the light most favorable 18 to the plaintiff, we also conclude that a rational jury could 19 infer discriminatory intent in the denial of the promotion. 20 magistrate judge ruled in the R&R that John's comment to Ferguson 21 that "he wouldn't hire that white fuck," referring to Aulicino, 22 did not support an inference of discrimination because it is 23 inadmissible hearsay. 24 statement by Ferguson was elicited through Aulicino's testimony, 25 and insofar as Aulicino's report of the statement is offered to See R&R 9. 15 The That may be so, insofar as the 1 prove what John said.6 2 alleged comment and others that were reported to Aulicino by 3 third parties, there remain two specific racially derogatory 4 comments by John for which there is direct evidence: John's 5 comment to Aulicino that Aulicino "deserved" to be called "a 6 white mother fuck" by a DHS client, Aulicino Dep. 136, and his 7 comment to Aulicino that "white people are lazy," id. at 76. 8 think a reasonable jury could infer from these comments -- as to 9 which there is no admissibility dispute -- that John's hostility 10 toward Aulicino was race-based, and that that hostility played a 11 role in the denial of the promotion.7 12 But irrespective of the existence of that We Accordingly, we conclude that Aulicino has made out a 13 prima facie case of race discrimination on his failure to promote 14 claim. 15 Aulicino, we also conclude that a rational factfinder could find 16 the defendant's non-discriminatory reasons for failing to promote 17 Aulicino to be pretextual. 18 Aulicino was denied a promotion on the basis of race is a genuine In light of the racially derogatory comments John made to Because we think the question whether 6 To the extent the R&R found this statement to Aulicino inadmissible to prove what John said (and thus John's intent) it is not immediately clear why the R&R considered the statement, along with another third-party statement about another derogatory comment by John, as evidence of a hostile work environment. See Section III.B infra. More clarity on the issue is not necessary for resolution of the failure to promote claim, however. 7 The R&R also reflects the magistrate judge's view that the failure to promote claim "is undercut by the fact that three of the African American candidates who were interviewed for the job were likewise not selected for the position." R&R 10. This goes to the weight, not to the sufficiency, of the evidence in support of the failure to promote claim. 16 1 issue for trial, we vacate the dismissal of the failure to 2 promote claim and remand that cause for trial. 3 4 III. A. The Hostile Work Environment Claim The Applicable Legal Standard 5 "[T]o survive summary judgment on a claim of hostile 6 work environment harassment, a plaintiff must produce evidence 7 that 'the workplace is permeated with discriminatory 8 intimidation, ridicule, and insult, that is sufficiently severe 9 or pervasive to alter the conditions of the victim's 10 employment.'" 11 Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 12 21 (1993)).8 13 Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Whether the challenged conduct is sufficiently severe 14 or pervasive "depends on the totality of the circumstances." 15 The Supreme Court in Harris "established a non-exclusive list of 16 factors," Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 17 426, 437 (2d Cir. 1999), abrogated on other grounds, Burlington 18 N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), to consider 19 in this regard: "(1) the frequency of the discriminatory conduct; 20 (2) its severity; (3) whether the conduct was physically 21 threatening or humiliating, or a 'mere offensive utterance'; (4) 22 whether the conduct unreasonably interfered with plaintiff's 8 Id. The plaintiff must also produce evidence that subjectively, he thought the workplace environment was abusive. See Harris, 510 U.S. at 21-22. The parties do not dispute this element of the claim on appeal. 17 1 work; and (5) what psychological harm, if any, resulted." 2 (quoting Harris, 510 U.S. at 23). 3 Id. Our case law treats the first two of these factors -- 4 the frequency and the severity of the misconduct -- as the 5 principal focus of the analysis; the last three factors are 6 specific considerations within the severity inquiry. 7 hostile work environment cases involve misconduct that is both 8 frequent and severe, for example, when a supervisor utters 9 "blatant racial epithets on a regular if not constant basis" and Core 10 behaves in a physically threatening manner. 11 571-72. 12 denied if the claimed misconduct ranks sufficiently highly on 13 either axis. 14 environment may be actionable if the conduct there is either so 15 severe or so pervasive as to alter the working conditions of a 16 reasonable employee." 17 single episode of harassment, if severe enough, can establish a 18 hostile work environment. . . ." 19 omitted)); Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997) 20 ("[If] the harassment is of such quality or quantity that a 21 reasonable employee would find the conditions of her environment 22 altered for the worse, it is actionable under Title VII . . . ." 23 (emphasis added)). 24 Cruz, 202 F.3d at But an employer's motion for summary judgment must be See Richardson, 180 F.3d at 440 ("[A] work (emphasis in original)); id. ("[E]ven a (internal quotation marks "For racist comments, slurs, and jokes to constitute a 25 hostile work environment," however, "there must be more than a 26 few isolated incidents of racial enmity." 18 Schwapp v. Town of 1 Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) (internal quotation 2 marks and citation omitted); see also Kotcher v. Rosa & Sullivan 3 Appliance Ctr., Inc., 957 F.2d 59, 62 (2d Cir. 1992). 4 "the quantity, frequency, and severity of th[e] slurs [at issue]" 5 are to be "considered cumulatively in order to obtain a realistic 6 view of the work environment." 7 (internal quotation marks and citation omitted). 8 B. Overall, Schwapp, 118 F.3d at 110-11 Application of the Standard 9 The magistrate judge's R&R recommended that the hostile 10 work environment claim be dismissed. 11 the comments of John and Singleton, the magistrate judge noted 12 that they collectively "occurred over a five-year time period." 13 R&R 14. 14 Credit Corp., 159 F.3d 759 (2d Cir. 1998), the magistrate judge 15 concluded that the comments, while "unfortunate," were too 16 "isolated and discrete" to be actionable. 17 judge then went on to assess the comments' severity: 18 19 20 21 22 23 24 Assessing the frequency of With that observation, and citing Quinn v. Green Tree Id. The magistrate Plaintiff . . . fails to establish that defendants' conduct interfered with his job performance or responsibilities. . . . [P]laintiff admits that his work hours were never altered. Plaintiff also acknowledges that he got along with his fellow employees on the job. 25 Id. (citations omitted). In our view, this analysis is 26 unpersuasive inasmuch as it does not appear to us to consider the 27 record evidence in the light most favorable to the plaintiff, as 28 it is required to do. 19 1 1. Frequency. The evidence supporting Aulicino's 2 hostile work environment claim reflects two sets of derogatory 3 comments by two different people during two different periods of 4 time. 5 have occurred between December 2001 and September 2002. 6 specific comments by Singleton are alleged to have occurred some 7 years later, between January and July 2005. 8 9 The specific comments by John in the record are alleged to The Correctly, the magistrate judge looked to the frequency of these remarks. And a review of the R&R discloses that she 10 considered them "cumulatively" to obtain a "realistic view" of 11 the workplace environment. 12 she appears to have done so by calculating the length of time 13 from the first specific comment by John, which occurred during 14 one period of time, to the last specific comment by Singleton, 15 which occurred several years later, and then asking whether eight 16 comments in that period of time constituted sufficient 17 "frequency." 18 four by Singleton); id. at 14 ("The incidents plaintiff describes 19 occurred over a five-year time period. 20 they are isolated and discrete incidents."). 21 there are different ways in which sets of hostile comments might 22 be considered "cumulatively," but we think the R&R's approach 23 improperly draws inferences against Aulicino rather than for him 24 as required. 25 26 See Schwapp, 118 F.3d at 110-11. But See R&R 12-13 (listing four comments by John and They are unfortunate, but We acknowledge that First, the R&R takes into consideration two comments by John reported by third parties to Aulicino, see R&R 12 20 1 ("[P]laintiff alleges that John questioned one of plaintiff's 2 Caucasian co-workers 'why all the white people take the same days 3 off?'"); id. at 13 ("[P]laintiff claims that another supervisor, 4 Sterling Ferguson, overheard John stating that 'he would not hire 5 that white fuck' referring to plaintiff."), but fails to mention 6 a third: John's threat to Gary Brown that he would "get" 7 Aulicino, referring to Aulicino as a "white fuck." 8 154-56. 9 Aulicino's claim.9 Aulicino Dep. The omission of this threat was detrimental to 10 Second, the calculation in the R&R of the relevant time 11 period in which the alleged derogatory comments were made appears 12 to have been analyzed in the light least, rather than most, 13 favorable to the plaintiff. 14 comments as having been made "over a five-year time period," R&R 15 14, even though the first comment it mentions dates from December 16 2001 and the last was in July 2005, less than four years later, 17 id. at 12-14. 18 in the R&R includes a 26-month period between the last comment by 19 John and the first comment by Singleton. 20 to take the facts of this case in the light most favorable to 9 The magistrate judge viewed the In addition, the "cumulative" assessment contained We think that, in order As we have noted, the R&R quotes the comment by Ferguson in its hostile work environment analysis, even though in its failure to promote analysis it ruled that comment inadmissible as proof of what John said. See n.6 supra. To the extent the admissibility of this and other comments by third parties about what John said remains an issue -- perhaps relating to double hearsay -- for the court on remand of the hostile work environment claim, we offer the observation that such statements are not hearsay if the declarants are the agents of partyopponents for Rule 801(d)(2)(D) purposes. 21 1 Aulicino, the court should have discounted from its analysis, if 2 not altogether disregarded, the intervening period between 3 comments by one supervisor and comments by another. 4 a "realistic" picture of the hostile workplace alleged by 5 Aulicino is not obtained by focusing on a two-year stretch of 6 time in which he fails to allege acts of hostility, and using 7 that time to dilute the strength of his claims based on two 8 discrete periods of more intense harassment. 9 In our view, Third, the court's reliance on Quinn v. Green Tree 10 Credit Corp., 159 F.3d 759 (2d Cir. 1998), for the proposition 11 that "thirty episodes occurring over a seven-year period d[o] not 12 constitute a hostile work environment," R&R 14 (emphasis added), 13 appears to us to have been misplaced. 14 Quinn opinion was based undercut that reading. 15 F.3d at 768 ("Quinn did . . . make two allegations . . . that 16 appear to be timely . . . . 17 claim . . . rests on these two alleged incidents." 18 added)). 19 sufficiently frequent to be actionable may not be determined by 20 extrapolation inasmuch as the applicable legal standard "is not, 21 and by its nature cannot be, a mathematically precise test." 22 Harris, 510 U.S. at 22. 23 harassment, if severe enough, can establish a hostile work 24 environment." 25 quotation marks omitted). 26 not to treat Quinn as providing a precise standard for the number The facts on which the See Quinn, 159 Quinn's hostile work environment (emphasis More importantly, whether the comments in this case are Indeed, "even a single episode of Richardson, 180 F.3d at 437 (citation and internal On remand, the court therefore ought 22 1 of hostile incidents over a particular time span so as to give 2 rise to a viable hostile work environment claim. 3 2. Severity. We also think the magistrate judge 4 should have considered, but did not, the severity of John and 5 Singleton's comments in the light most favorable to Aulicino, in 6 two respects. 7 First, the R&R omits to report that two of the comments 8 may be inferred to be physical threats: Singleton's remark to 9 Aulicino that he was an "ex-felon," which Aulicino took to be a 10 threat that Singleton would "assault" him, Aulicino Aff. ¶ 5, and 11 John's threat to "get" Aulicino, Aulicino Dep. 154-56. 12 Second, the R&R concludes that Aulicino "fails to 13 establish that defendants' conduct interfered with his job 14 performance or responsibilities," R&R 14, but omits mention of 15 Aulicino's testimony that he has contemplated transferring out of 16 the Hinsdale Depot, and has not done so only because he does not 17 yet know "where else to go" in light of his "very limited" 18 choices. 19 Aulicino Dep. 169. This evidence is material. See Richardson, 180 F.3d at 20 437 (requiring courts to consider "whether the conduct was 21 physically threatening or humiliating, or a mere offensive 22 utterance" and whether it caused "unreasonabl[e] interfer[ence] 23 with [the] plaintiff's work" 24 omitted)). 10 (internal quotation marks The magistrate judge should consider it on remand.10 The parties do not address whether racial comments to or about a white person should be judged as to their "severity" in the same way that racial slurs used about racial minorities 23 1 C. Disposition of the Claim 2 Although our review is de novo and we might therefore, 3 if we thought it best, decide the merits of the summary judgment 4 motion as to the hostile work environment claim now ourselves, we 5 think it better to remand the matter to the district court for 6 its reconsideration in accordance with these views. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Although we have repeatedly observed, in words or substance, that we review a grant of summary judgment de novo applying the same standard as the district court, that does not mean that it is our function to decide motions for summary judgment in the first instance. We are dependent on the district court to identify and sort out the issues on such motions, to examine and analyze them, and to apply the law to the facts accepted by the court for purposes of the motion. We are entitled to the benefit of the district court's judgment, which is always helpful and usually persuasive. 21 Beckford v. Portuondo, 234 F.3d 128, 130 (2d Cir. 2000) (per 22 curiam) (citation and internal quotation marks omitted). 23 24 CONCLUSION We have considered the defendants' other arguments in 25 support of the judgment below, insofar as they have been 26 appealed, and find them to be without merit. 27 reasons, the dismissal of the failure to promote claim is vacated 28 and the claim remanded for trial. For the foregoing The dismissal of the hostile should be assessed. See Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) ("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 such as 'nigger' by a supervisor in the presence of his subordinates." (internal quotation marks and citation omitted)). We therefore do not reach the issue. 24 1 work environment claim is vacated and remanded for 2 reconsideration. 25
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