Opinion
No. 03 Civ. 1605 (SAS).
November 3, 2004
Edward H. Wolf, Esq. Wolf Wolf, LLP, Bronx, New York, Attorney for Plaintiff.
Allison D. Penn, Assistant United States Attorney, New York, Attorney for Defendant.
OPINION AND ORDER
George McKay, a retired employee of the Department of Veteran's Affairs (the "VA"), brings this action against Anthony Principi, Secretary of the VA. McKay alleges that he was subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 when a supervisor used a racial slur in his presence. Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion is denied.
I. BACKGROUND
McKay, an African-American, was born on August 14, 1936. From 1977 until his retirement from the VA on October 10, 2003, McKay served as a police officer at the VA Medical Center in Brooklyn, New York. During his employment at the VA, McKay filed six different complaints with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination. McKay's first complaint (No. 95-2081), filed in 1995 and alleging disability discrimination, was settled administratively on September 2, 1997, by permanently assigning McKay to the night shift. He alleges that in retaliation for filing and settling the 1995 complaint, he was subjected to several instances of discrimination, leading him to file five complaints with the EEOC between 1998 and 2002. In December 2002, at McKay's request, the EEOC consolidated and dismissed the last three complaints in order to allow McKay to pursue his claims in federal court. On March 10, 2003, McKay filed his complaint with this Court, alleging the three claims that had been dismissed by the EEOC. Following a January 23, 2004 pre-motion conference, however, this Court dismissed with prejudice McKay's first cause of action for retaliation and third cause of action for discrimination based on age because those claims were time-barred. Currently pending before this Court is McKay's hostile work environment claim, set forth in his January 14, 2002 EEO complaint (the "EEOC Complaint"), "in which Plaintiff alleged that he was subjected to a hostile work environment when a supervisor used a racial slur in his presence."
Complaint ("Compl.") ¶ 10. Unless otherwise noted, the facts are drawn from the Complaint and are undisputed.
See 11/19/03 Deposition of George McKay ("11/19 McKay Dep.") at 37:12-14, 139:19-22.
See Compl. ¶ 6; Answer ¶ 6. While the Complaint only asserts that the first complaint was filed "[p]rior to 1998," the Answer provides a specific year and complaint number. As defendant is in the best position to verify when complaints were filed with its organization, the Court will accept the defendant's account.
See Compl. ¶¶ 6-7. According to the Answer, what follows is a description of the five complaints.
(a) plaintiff filed an administrative complaint on or about October 18, 1998, No. 98-4845 alleging discrimination based on race, color, sex, age, and reprisal; (b) Plaintiff filed an administrative complaint on or about May 20, 1999, No. 99-2343, alleging discrimination based on race, color, sex, age, and reprisal; (c) plaintiff filed an administrative complaint on or about October 1, 1999, No. 99-3793, in which plaintiff alleged he was discriminated against and harassed based on race, color, sex, age and reprisal; (d) plaintiff filed an administrative complaint on or about February 9, 2001, No. 200R-2217, alleging that he was discriminated against based on age and reprisal; (e) plaintiff filed an administrative complaint on or about January 10, 2002, No. 200H-0527-2002100912, alleging that he was discriminated against and harassed based on race and reprisal.
Answer ¶ 7.
See 12/10/02 Consolidation and Dismissal Order (Lewis, A.J.); 12/10/02 Dismissal Order (Macauley, A.J.); 12/11/02 Correction to Dismissal Order. See also 29 C.F.R. § 1614.407 (establishing when a complainant under Title VII is permitted to file his or her complaint in federal court).
See Compl.; see also supra note 4 (describing the five EEOC complaints).
See 2/23/04 Stipulation and Order of Partial Dismissal; see also 1/16/04 Letter of Assistant U.S. Attorney Allison Penn to the Court, Ex. J to 7/2/04 Reply Declaration of Allison D. Penn ("Penn Reply Decl.") (explaining why the first and third causes of action are time-barred).
2/23/04 Stipulation and Order of Partial Dismissal.
McKay's hostile work environment claim centers around an alleged encounter between McKay and his then supervisor Sergeant Ramon Agosto, in which Agosto approached McKay, and said, at least once, that the chief of the Manhattan VA had fired five "niggers." McKay described the incident on several occasions, often with conflicting accounts of what occurred. For example, after McKay filed the EEOC Complaint, he gave the following account in an affidavit during an examination by an EEO investigator:
See Compl. ¶ 16. The record uses both "Agosto" and "Augusto."
October 23rd [Agosto] came up to me one day. I was in the lobby. I was in the emergency room. I hate to use this word but he came up to me and he said, `You know, chief of Manhattan had fired five niggers.' I looked at him and walked away. I am saying why does he say stufflike that? It was his job to make me upset and go into a fight. When I found out he used to be a fighter that if you swing at him he duck and he got your job.
7/12/02 Transcription of EEOC Proceedings ("7/12 EEOC Tr."), Ex. K to Penn Reply Decl., at 10:9-18.
It is well established in the Second Circuit that "[a]ffidavits submitted to defeat summary judgment must be admissible themselves, or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681 (2d Cir. 2001). Rule 801(d)(1)(A) of the Federal Rules of Evidence states that a witness's prior statement that is "inconsistent with the declarant's testimony, and was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" is not hearsay. McKay provided testimony during an EEOC proceeding that is inconsistent with, and more favorable to his case than testimony provided during his deposition in this case. See, e.g., 7/12 EEOC Tr. This testimony is admissible at trial for the following reasons:
First, the transcript of the EEOC proceeding is a "proceeding" under Rule 801(d)(1)(A). See Gilardi v. Schroeder, 672 F. Supp. 1043, 1044 n. 1 (N.D. Ill. 1986) (admitting into evidence under Rule 801(d)(1)(A) an affidavit provided to the EEOC); see also U.S. v. Castro-Ayon, 537 F.2d 1055, 1057-58 (9th Cir. 1976) (admitting into evidence transcript of an immigration interrogation). Next, while it may be unusual for McKay to rely on his prior statements in order to defeat summary judgment, Judge Jack B. Weinstein observed in discussing Rule 801(d)(1) that "[prior] statements are often made closer in time to the events they recount and may have been made before the exertion of external pressures on the declarant. Thus, they might be more trustworthy than testimony at trial." Weinstein's Federal Evidence § 801.21[1] (2d ed.). Moreover, at trial, the "trier of fact [will have] the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it [will be] in as good a position to determine the truth or falsity of the inconsistent testimony given in court." Fed.R.Evid. 801 Advisory Committee Note (quoting Comment, California Evidence Code § 1235).
Shortly after giving this account, McKay stated that "[t]his happened on several occasions. This happened November 3rd, October 23rd, November 5th."
7/12 EEOC Tr. at 11:7-9.
Five days later, during another EEO examination, McKay stated that "[Agosto] came into my space less than four feet and told me this: `The chief of Manhattan got rid of five niggers.' This is in my face and I walked away and that is the truth. . . . [H]e kept repeating it to me. Each time he repeats it I walk away. . . . He did it five times."
7/17/02 Transcription of EEOC Proceedings ("7/17 EEOC Tr."), Ex. K to Penn Reply Decl., at 6:4-8, 7:10-11.
The Complaint, in describing the EEOC Complaint, stated that "Sergeant Ramon Agosto, Shift Supervisor, used a racial slur when referring to African-Americans, calling them `niggers.' Plaintiff alleged that Agosto attempted to get him in a physical confrontation so that he would lose his job."
Compl. ¶ 16.
During his deposition in this action, McKay stated that "Sergeant Agosto got in my face three times, repeated the word to me: `Chief of Manhattan fired five niggers,' in my face, closer to me than I am to you, three times he repeated to me. He wanted me to get into a fight. I walked away from him." Later in the deposition, McKay again described the incident, stating that he believed it occurred in "November 2001."
I was on my post, I was in the lobby. Augusto walked up to me, Lieutenant Torres about ten feet away from me, he came to my office, face about little closer than I am to you, and made a statement: `The chief of Manhattan fired five niggers.' I looked at him. I didn't believe — he repeated it. I just looked at him. Then I turned away, he said it again. I kept on walking.
11/19 McKay Dep. at 170:3-9.
Id. at 202:20-23.
Id. at 203:2-11.
Finally, McKay described the events as follows:
A. . . . [A]fter he said that to me, he went back to the chief's office. I looked back, he went in the chief's office. Then like maybe five minutes, him and the chief comes out, and they were like laughing, like look at me, like you know, like . . .
Q. And after he said which thing to you did that happen?
A. When he made the statement "The chief of Manhattan fired five niggers."
Q. You saw him then go into Chief Corselli's office?
A. Yes.
Q. And where were you seated?
A. I wasn't seated. I was standing. You see, I was patrolling the lobby. The lobby was my post. The lobby and the emergency room. The chief's office like right there (indicating), the emergency room is here (indicating).
According to McKay, Lieutenant Louis Torres, who is now deceased, was the only witness to the encounter. However, Reginald Minus, an officer at the VA, stated that he witnessed an incident in which Agosto made the alleged comment. According to Minus, in 1999 or 2000, at "about 7 o'clock in the morning," Minus, Officer Foster, Agosto and McKay were standing "in back of the ER outside the emergency room," when "the comment was made that the chief of police in Manhattan fired, you know, five `Ns.'" After making the statement, Agosto looked "straight at" Minus and McKay and Minus responded by telling Agosto that he "didn't appreciate that language."
11/20/03 Continued Deposition of George McKay ("11/20 McKay Dep.") at 344:18-345:18.
See, e.g., 7/12 EEOC Tr. at 11:10-16.
Deposition of Reginald Minus ("Minus Dep."), Ex. F to Declaration of Allison D. Penn ("Penn Decl."), at 74:17-78:20.
As several of these accounts reveal, McKay stated several times that Agosto confronted him in this manner on three or five different occasions, also describing the encounters as circular.
See 7/12 EEOC Tr. at 19:3-4 ("The same incident happened. It is like in a circle. It is like in a circle."); 7/17 EEOC Tr. at 18:3 ("He did it five times.").
Aside from this particular incident, McKay alleges that Agosto frequently made racially discriminatory comments. For example, McKay stated that he once heard Agosto say, "I used to knock niggers out." He also described an incident in which he heard Agosto say, during a conversation about Agosto's previous employment as a dog catcher at the ASPCA, that he "used to kick niggers doors in." McKay stated that Agosto made this comment on several occasions. "He mentioned that on the 5th. Knocked out niggers on the 5th. Knocked out niggers on the 3rd." In his EEOC testimony, McKay also alleged that Agosto "is always coming up to you saying something using the N word," and that he "throws [the word nigger] around like it is okay." In his pretrial deposition, he testified that Agosto "used racial remarks like `them,' `they,' `put them out there,' meaning blacks,' `they shouldn't be here,' `they should be in the office,' meaning blacks. . . . He made statements like that, several occasions." According to McKay, at least four other employees, including Officers Minus, Heredia, Watty and Shields, told him that they heard Agosto use the "N word." Minus corroborated McKay's allegation, stating that Agosto "says [the N word] frequently." Heredia and Watty, however, denied having heard Agosto make any racially discriminatory comments. Officer Cynthia Shields, who according to McKay, "transferred to another service," was not interviewed in this case.
7/12 EEOC Tr. at 13:12-13.
Id. at 15:7-12.
Id.
Id. at 19:4-6; 26:11-12.
11/20 McKay Dep. at 318:11-16.
See, e.g. 11/19 McKay Dep. at 172:18-19 ("he had used the N word toward other officers"); 11/26/03 Continued Deposition of George McKay ("11/26 McKay Dep.") at 487:14-488:18 ("a similar situation happened to [Reginald Minus"); id. at 490:25-491:9 (Officer Raphael Heredia "heard Ray Augusto use the N word on several occasions, not — when I wasn't around."); id. at 501:2-6 (Nahaniel Watty "heard [Agosto] [using the N word] — slipped and use it once."); id. at 507:19-21 (Kathy Shields "heard [Agosto] on several occasions use the word `nigger. . . .'").
Minus Dep. at 84:14-15.
See Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Mem.") at 6.
11/20 EEOC Tr. at 293:15-16.
McKay also alleged that on several occasions Agosto treated him in a discriminatory manner on the basis of McKay's race, including unnecessarily stationing McKay at the main gate of the VA, and using his cell phone to spy on McKay.
See 11/19 McKay Dep. at 208:19-25, 324:16-328:15.
II. LEGAL STANDARD
Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'"
Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Id. (quoting Anderson, 477 U.S. at 248).
The movant has the burden of demonstrating that no genuine issue of material fact exists. In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, it "must do more than simply show that there is some metaphysical doubt as to the material facts," and it must "come forward with `specific facts showing that there is a genuine issue for trial.'" In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor.
See Powell v. National Bd. of Medical Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).
"[T]he salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Courts within "the Second Circuit have not hesitated to grant defendants summary judgment in such cases where . . . plaintiff has offered little or no evidence of discrimination." Indeed, "[i]t is now beyond cavil that summary judgment may be appropriate even in the fact-intensive context of discrimination cases."
Abdu-Brisson v. Delta Air Lines. Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citing or quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).
Scaria v. Rubin, No. 94 Civ. 3333, 1996 WL 389250, at *5 (S.D.N.Y. July 11, 1996), aff'd, 117 F.3d 652 (2d Cir. 1997).
Abdu-Brisson, 239 F.3d at 466.
However, greater caution must be exercised in granting summary judgment in employment discrimination cases where the employer's intent is genuinely at issue and circumstantial evidence may reveal an inference of discrimination. This is so because "[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law." But even where an employer's intent is at issue, "a plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment." "`[M]ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment.'"
See Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).
Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation marks and citation omitted, brackets in original).
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
Conroy v. New York State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996) (brackets in original)).
III. DISCUSSION
A. Scope of the Hostile Work Environment Claim
In order to assess the sufficiency of McKay's hostile work environment claim, I must first determine what evidence may appropriately be considered. Defendant contends that McKay may only present evidence of, and related to, the alleged encounter between Agosto and McKay. Plaintiff, on the other hand, seeks to include as part of his hostile work environment claim not only evidence of, and related to, Agosto's comments regarding the chief of Manhattan having "fired five niggers," but evidence of all racial discrimination that occurred during his employment at the VA. For the following reasons, McKay's claim must be confined to Agosto's comments regarding the chief of Manhattan having "fired five niggers" and other conduct attributed to Agosto.
See Pl. Mem. at 5 (enumerating fifteen allegations of racial discrimination, only one of which involves the encounter with Agosto). Oddly, the memorandum does not mention the other comments by Agosto that plaintiff described in his EEOC testimony and his pretrial deposition.
Butts v. City of N.Y. Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (quoting Stewart v. INS, 762 F.2d 193, 198 (2d Cir. 1985)).
"A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge." Plaintiff points out that his EEOC Complaint contains the words "Hostile Work Environment," which, under other circumstances, might have allowed McKay to allege the whole gamut of discriminatory conduct that occurred at the VA, including claims that would have otherwise been time-barred. In National Railroad Passenger Corp. v. Morgan, the Supreme Court held that "consideration of the entire scope of a hostile work environment claim, including behavior alleged outside the statutory time period, is permissible for purposes of assessing the liability, so long as an act contributing to that hostile environment takes place within the statutory time period." However, the procedural history of this case excludes it from the Morgan holding.
Id.
536 U.S. 101, 105 (2002).
On February 23, 2004, I signed a Stipulation and Order, in which plaintiff agreed that "Plaintiff's second cause of action for discrimination based on race is dismissed with prejudice, except for Plaintiff's hostile work environment claim, set forth in Plaintiff's EEO Complaint #200H-0527-2002100912, [dated January 14, 2002,] in which Plaintiff alleged that he was subjected to a hostile work environment when a supervisor used a racial slur in his presence." The Stipulation and Order makes it crystal clear that the gravamen of the remaining cause of action was the alleged use of a racial slur by Agosto, not a general hostile work environment claim. Moreover, the record reveals that Agosto's misconduct has always been the basis of McKay's January 10, 2002 EEOC Complaint. Evidence of this includes the Notice and Acceptance of Plaintiff's Complaint, dated February 12, 2002, in which the EEO formulated Plaintiff's issue, based on his initial interview with an EEO counselor, as "[w]hether the complainant was subjected to a hostile work environment on the basis of race (African American) and in reprisal for prior EEO activity when: On October 23, 2001, November 5, and November 6, 2001, he heard Sergeant R.A. of the Police Service use racial slurs when referring to African American employees." Likewise, the Complaint asserts that the EEOC Complaint "was filed because Sergeant Ramon Agosto, Shift Supervisor, used a racial slur when referring to African-Americans, calling them `niggers.' Plaintiff alleged that Agosto attempted to get him in a physical confrontation so that he would lose his job." Finally, in his deposition, McKay agreed that the encounter with Agosto was the "basis" of the EEOC Complaint. Accordingly, I will only consider evidence that concerns, or relates to, Agosto's discriminatory conduct.
See 2/23/04 Stipulation and Order of Partial Dismissal (emphasis added).
2/12/02 Notice and Acceptance of Plaintiff's Complaint, Ex. I to Penn Decl.
Compl. ¶ 16.
11/19 McKay Dep. at 170:10-12.
B. The Hostile Work Environment Claim
In order to defeat a motion for summary judgment on a hostile work environment claim, the plaintiff must 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.'" The defendant's conduct must have both created an objectively hostile work environment and have subjectively caused the victim to perceive the work place as hostile. Courts must consider the totality of the circumstances surrounding the claim, which "may include 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." "For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that [i]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments." Recognizing, however, that certain comments and racial slurs are more offensive than others, "`[t]he offensiveness of the individual actions complained of is also a factor to be considered in determining whether such actions are pervasive.'"
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). See also Patterson v. County of Oneida, N.Y., 375 F.3d 206, 227 (2d Cir. 2004); Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Schwapp, 118 F.3d at 110.
See, e.g., Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citing Harris, 510 U.S. at 21).
See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000).
Harris, 510 U.S. at 23.
Schwapp, 118 F.3d at 110.
Whidbee, 223 F.3d at 69 (quoting Carrero v. New York City Housing Auth., 890 F.2d 569, 578 (2d Cir. 1989)).
Defendant asserts the following in support of the motion for summary judgment:
With regard to plaintiff's only surviving claim in this lawsuit — that a racial slur by his supervisor — Ramon Agosto — created a hostile work environment — summary judgment should be granted. Plaintiff's claims of hostile work environment fail as a matter of law because he has identified only one instance of a racial remark having been made in his presence. That single remark does not rise to the level of a hostile working environment. Mr. McKay's remaining allegations regarding alleged remarks made outside of his presence were not "sufficiently continuous and concerted" to be considered severe or pervasive.
Def. Mem. at 1.
Contrary to defendant's assertion, however, McKay alleged multiple times that Agosto repeated the "Chief of Manhattan" comment, and that Agosto approached him in this manner on more than one occasion. Although McKay has provided conflicting accounts of the encounter, when viewing the evidence in the light most favorable to plaintiff, a reasonable juror could find that there were indeed multiple encounters. Moreover, plaintiff's allegation that Agosto "got in his face" in order to draw McKay into a physical altercation adds to the severity of the incident by making it "physically threatening."
Plaintiff also alleged that Agosto used the word "nigger" on a regular basis, pointing to at least two specific incidents in which he overheard Agosto use the slur. Officer Minus also testified that Agosto used the word "nigger" regularly. These allegations sufficiently allege a "steady barrage of opprobrious racial comments."
One court has aptly observed that "[f]ar more than a `mere offensive utterance,' the word `nigger' is pure anathema to African-Americans. `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.'" Or, as another court noted, "[g]iven American history, we recognize that the word `nigger' can have a highly disturbing impact on the listener. Thus, a plaintiff's repeated subjection to hearing that word could lead a reasonable factfinder to conclude that a working environment was objectively hostile."
White v. BFI Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004) (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993) (citation and internal quotation marks omitted)).
Hrobowski v. Worthington Steel Co., 358 F.3d 473 (7th Cir. 2004) (citations and footnote omitted).
In sum, viewed in a light most favorable to plaintiff, McKay has alleged that Sergeant Agosto: (1) confronted McKay in a physically threatening manner on multiple occasions by getting in his face and repeatedly uttering a highly offensive and racially charged statement; (2) repeatedly invoked racial slurs, including the term "nigger" both in and out of McKay's presence; and (3) unnecessarily placed McKay on guard duty and spied on him because of his race. Considering these allegations together, McKay has produced sufficient evidence from which a trier of fact could find a hostile work environment. While this may be a close call, "[i]t is the province of the jury, rather than the Court, to define the limits of appropriate conduct in the workplace."
While these actions do not explicitly reveal a racial bias, when viewed in conjunction with Agosto's alleged comments, a reasonable juror could find that these actions were racially motivated. See Alfano, 294 F.3d at 375 ("There is little question that incidents that are facially sex-neutral may sometimes be used to establish a course of sex-based discrimination — for example, where the same individual is accused of multiple acts of harassment, some overtly sexual and some not."). Courts have held that the standards for evaluating hostile environment claims are the same whether the alleged discrimination is based on race or sex. See, e.g., Torres v. Pisano, 116 F.3d 625, 630 (2d Cir. 1997).
Little v. National Broadcasting Co., Inc., 210 F. Supp. 2d 330 (S.D.N.Y. 2002) (citing Gallagher v. Delaney, 139 F.3d 338, 342-43 (2d Cir. 1998)).
V. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied. The Clerk of the Court is directed to close this motion [#19 on the docket sheet]. A conference is scheduled for November 11 at 10:00 a.m.
SO ORDERED.