ALLISON WILLIAMS v. NEW YORK CITY HOUSING AUTHORITY, NYC COUNCIL SPEAKER MELISSA MARK-VIVERITO, BRIAN CLARKE, and MICHAEL KELLY
21-1527-cv
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 23, 2023
August Term, 2021
(Argued: June 10, 2022)
Plaintiff-Appellant,
v.
NEW YORK CITY HOUSING AUTHORITY, NYC COUNCIL SPEAKER MELISSA MARK-VIVERITO, BRIAN CLARKE, and MICHAEL KELLY,
Defendants-Appellees.1
Before: POOLER, LYNCH, and LOHIER, Circuit Judges.
Appeal from a judgment of the United States District Court for the Southern District of New York (Vernon S. Broderick, J.) granting Defendants’ motions for summary judgment and dismissing Plaintiff‘s claims that Defendants created a hostile work environment in violation of federal, state, and city law. Because we conclude that a reasonable jury could find that the totality of the circumstances
Vacated and remanded.
MARCEL FLORESTAL, Florestal Law Firm, PLLC, New York, NY, for Plaintiff-Appellant.
HANH H. LE (Sean-Patrick Wilson, on the brief), for Lisa Bova-Hiatt, Executive Vice President for Legal Affairs and General Counsel, New York City Housing Authority, New York, NY, for Defendants-Appellees New York City Housing Authority, Brian Clarke, and Michael Kelly.
PHILIP W. YOUNG (Richard Dearing, Claude S. Platton, on the brief), for Georgia M. Pestana, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellee Melissa Mark-Viverito.
POOLER, Circuit Judge:
Alleging the creation of a hostile work environment in violation of federal, state, and city law, Allison Williams sued the New York City Housing Authority (“NYCHA“); Brian Clarke and Michael Kelly, two NYCHA senior officials (collectively, the “NYCHA Defendants“); and Melissa Mark-Viverito, the former Speaker of the New York City Council (collectively, “Defendants“). The United
BACKGROUND
I. Factual Background
Williams, an African-American woman, worked for NYCHA from 1984 until her retirement in 2017. After rising through the ranks over two decades, Williams became the housing manager of Mill Brook Houses in the Bronx in 2006. As housing manager, Williams could not be fired absent disciplinary charges and a trial (administrative hearing). This suit centers on Williams‘s claims that, for several years preceding her retirement, she was subjected to a racially hostile work environment. In reviewing the district court‘s grant of summary judgment to Defendants, we construe the evidence in the light most favorable to Williams, “drawing all reasonable inferences and resolving all
A. Williams‘s Allegations
Williams alleges that the trouble began on July 1, 2015 when Melissa Mark-Viverito, the then-Speaker of the New York City Council, requested a meeting with NYCHA. Although Mark-Viverito was not an employee, contractor, or agent of NYCHA, she wielded substantial influence over it in her role as Speaker. The City Council has oversight authority over NYCHA, and roughly seven percent of NYCHA‘s budget comes from city funds.2 In the lead up to the July 2015 meeting that precipitated the events at issue, Brian Honan, NYCHA‘s director of state and city legislative affairs, emailed NYCHA‘s Chair, Shola Olatoye, stating, “[t]he manager at Mill Brook is making it very difficult for
The meeting took place July 30, 2015 in Mark-Viverito‘s office. In attendance were Williams; Mark-Viverito; Honan; Marcela Medina, the state legislative affairs officer in NYCHA‘s City and State Legislative Affairs Department; James Artis, OPMOM‘s regional asset manager for the Bronx; Sybil Colon, OPMOM‘s director; Princella Jamerson, Mill Brook Houses tenant association president; Diana Ayalau, from Mark-Viverito‘s office; and Gloria Cruz, Mark-Viverito‘s constituent services liaison. NYCHA‘s Senior Vice President, Brian Clarke, attended by phone. NYCHA‘s General Manager, Michael Kelly, did not attend.
Following the meeting, Williams, Colon, and Artis remained in the office to process what had transpired; Colon was “too shaken to even stand up,” and
Meanwhile, following the July 30 meeting, Clarke met with his supervisor, Kelly, to discuss transferring Williams out of the OPMOM program. Clarke lacked the authority to transfer Williams, but he recommended her transfer to Kelly and human resources. Kelly did not object to Clarke‘s recommendation.
The next day, July 31, 2015, Clarke met with Colon. Clarke asked Colon to work with human resources to transfer Williams; he said he could not do it himself because he was going on vacation. Clarke then asked Colon not to use the words “Spanish manager” when speaking with Kenya Salaudeen, NYCHA‘s director of human resources. App‘x at 171. Instead, Clarke advised Colon to tell Salaudeen that Williams‘s transfer was necessary because of Mill Brook Houses’ “cultural sensitivity needs.” App‘x at 171. The following week, Colon called Salaudeen to tell her that Clarke directed her to transfer Williams and replace her
Over the next month, several NYCHA employees asked Colon about the status of Williams‘s transfer. On August 6, 2015, for instance, Sheila Pinckney, a senior advisor in NYCHA‘s Office of the Senior Vice President of Operations, emailed Colon on Clarke‘s behalf to ask whether the “move [was] complete[] . . . regarding the Property Manager at Mill Brook Houses.” App‘x at 1063. Colon responded,
HR needs more information from us. There is also an [Inspector General (“ig“)] investigation going on. HR wants to talk to the ig‘s office first.
App‘x at 1063. Six days later, on August 12, 2015, Colon emailed Clarke to convey that she was
experienc[ing] difficulty with the transferring of the Manager at Mill Brook. HR is requesting information that I am unable to provide. . . . We reached out to the local political office where we had the meeting at and they did not [] provide complaint documentation or specifics.
App‘x at 986. Colon and Clarke exchanged more emails on August 25, 2015, after Clarke returned from vacation. Among other things, Colon told Clarke that she had
forwarded HR the development‘s resident population data and was informed that this was not enough information. I also contacted the political office where we had the meeting at and they stated they only had one repair complaint for [Williams]. This information was also shared with HR.
App‘x at 990.
On August 28, 2015, there was a monthly meeting for the OPMOM properties in the Bronx. Among the people in attendance were Williams, Clarke, Colon, Artis, Luis Ponce, NYCHA‘s senior vice president of operations, and Melania Allen, NYCHA‘s director of Bronx property management. Williams testified that during this meeting Clarke questioned her about Mill Brook
Ultimately, Williams was never transferred. According to Clarke, the transfer did not occur in 2015 “because it was recommended to me [by the Law Department] not to transfer at this time.” App‘x at 426. Nevertheless, Williams contends, her superiors attempted to sabotage her work. Mill Brook Houses had long been allocated four Housing Assistants (“HA“) to assist Williams. Following Colon‘s resignation, Williams asserts that the NYCHA Defendants deliberately neglected to timely replace four HAs who all left, for various reasons, between August 2015 and mid-2016. First, HA Rebecca Iyanda requested a transfer and was instructed to report to a different housing program on October 6, 2015; in November 2015, Iyanda was administratively transferred and replaced with HA Celeste Mangum, whose termination Williams sought and procured two months later. Williams sought to have Mangum replaced, to no
Saddled with these vacancies, Williams instructed her assistant, Fredericka Dilworth, to contact NYCHA management for replacements. Due to various delays, interviews for HA replacements were not scheduled until February 2016. In Williams‘s view, the failure to timely replace the HAs was part of an “orchestrated effort to deprive [Williams] of essential personnel at Mill Brook, setting her up to fail so that [Defendants] could justify removing her as manager, pursuant to [Mark-Viverito‘s] request.” Williams, 2021 WL 2077817, at *6.
Williams also alleges that in early 2017, her Spanish-speaking superintendent, Ralph Martinez, was transferred from Mill Brook Houses and replaced with an assistant superintendent referred to in the record only as “Limo.” According to Williams, while Martinez had been indispensable to her
Williams resigned as Mill Brook Houses’ manager two weeks after Limo arrived, on May 1, 2017 because she was “highly stressed, could not do her work with zero [] staff and . . . suspected that NYCHA Defendants were setting her up to fail so they [could] either remove, or terminate, her from Mill Brook.” Id. at *9.
B. The Defendants’ Allegations
Unsurprisingly, Defendants do not view these events the same way. They vigorously contest Williams‘s description of what occurred during the July 30, 2015 meeting with Mark-Viverito. Defendants claim that the purpose of this meeting was to address significant language barriers between NYCHA employees and Mill Brook Houses’ Spanish-speaking residents. Mark-Viverito testified that, in the months leading up to the meeting, she received numerous complaints from her constituents that their needs were not being met. For instance, on October 30, 2014, a Mill Brook House resident complained to Mark-Viverito that “[e]very time [the resident] goes to the [Mill Brook] office he feels
On May 14, 2015, Honan, NYCHA‘s director of state and legislative affairs sent an email stating that,
[t]he manager at Mill Brook is making it very difficult for [Mark-Viverito] to support OPMOM. Yesterday I heard from three of her staff members who complained about a recent meeting at the development. . . . [Williams] ma[d]e a very insensitive remark about Spanish[-]speaking residents.
App‘x at 711. Multiple people also allegedly heard Williams make derogatory remarks about Spanish-speaking residents, including Williams saying during a tenant association meeting that she did not want to hear any “mira mira talk.” App‘x at 711. In light of those remarks, Mark-Viverito testified that the July 30 meeting was to “find out from NYCHA what they were doing to address the concerns of the Spanish-speaking residents of Mill Brook houses.” App‘x at 461.
Defendants also paint a different picture as to what occurred at the July 30, 2015 meeting. Medina, NYCHA‘s state legislative affairs officer, took notes in the meeting, observing that the “staff is very rude,” “management must at least represent the language,” and “follow-up[:] see about hiring a Spanish speaker.” App‘x at 978. A day after the meeting, Medina reported in an email that the
As for Clarke‘s directions to replace Williams and separately, his comments at the August 28, 2015 meeting, Defendants deny that the directions and Clarke‘s conduct were racially motivated. Clarke testified that although no one requested that he remove Williams as Mill Brook Houses’ manager, he wanted to transfer her out of the OPMOM program because she “was not a good manager.” App‘x at 419-20. Specifically, her
performance, certainly while I was involved with the program, was not good. She was never prepared for meetings, she never had a corrective action plan for whatever the issue was, and frankly I just thought it was just unbelievable that a property manager would ridicule tenants because of their inability to speak English, and violate a Mayoral order for language access for city services at a public meeting. That was the straw that really kind of broke the camel‘s back for me. This program, the [O]ptimal [P]roperty [M]anagement [P]rogram, was supposed to be the vanguard of how we were going to change the way that we were going to manage our properties. Customer service, resident engagement was a key part of that, and for a manager to tell somebody who is limited English-speaking that, you know, don‘t communicate with me, . . . that was
just it for me, and I wanted to have her removed from the program and then also disciplined for what she did at that meeting.
App‘x at 420. The record reflects that at least some of these performance issues were documented. On August 3, 2009, Williams entered into a Local Hearing Settlement Agreement, and she agreed to a loss of two days of annual leave in exchange for dismissal of three charges of failure to perform duties; on January 20, 2015, Williams was served with three charges of incompetency and/or misconduct and was then found guilty of two of the charges; and, in every year between 2007 and 2014 (except for 2010), she was subject to counseling memoranda for a variety of on-the-job deficiencies.
Defendants also contest that the unfilled HA vacancies were connected to any alleged plan to undermine Williams. Rather, they note, it was Williams‘s responsibility as the housing manager to notify human resources of vacancies by submitting a PD2 form, used to request employee replacements. Defendants point out that Williams failed to file the required form. Indeed, on December 29, 2015, a human resources employee reminded Williams that Mill Brook Houses needed to submit PD2 forms so two of the HA vacancies could be filled, but the forms were not submitted until January 26, 2016. Defendants also point to
Finally, as to the replacement of Superintendent Martinez with Limo, Defendants note that Williams admitted that she never asked Martinez why he transferred out of Mill Brook Houses, and that there is no policy prohibiting NYCHA from transferring staff in OPMOM developments.
II. Procedural Background
Williams filed the operative amended complaint in this action on October 28, 2016. Her claims included: 1) creation of a hostile work environment based on race and national origin, in violation of the New York State Human Rights Law (“NYSHRL“),
On September 10, 2018, the district court granted in part Defendants’ motion to dismiss the amended complaint. See Williams v. City of New York, No. 16-cv-8193, 2018 WL 4308552 (S.D.N.Y. Sept. 10, 2018). The court dismissed all the claims against the City; the claims against Mark-Viverito for unlawful creation of a hostile work environment, violations of Sections 1981, 1983, and 1985, the Equal Protection Clause, and intentional infliction of emotional distress; and the claim against Clarke and Kelly for violation of Section 1985 and intentional infliction of emotional distress. Id. at *10. That left 1) the state and city law hostile work environment claims against NYCHA, Clarke, and Kelly; 2) the aiding and abetting claims against Mark-Viverito, NYCHA, Clarke, and Kelly; and 3) the claims under Sections 1981, 1983, and the Equal Protection Clause against Clarke and Kelly. Id.
III. The District Court‘s Analysis
The district court began by assessing “in isolation” each of the five main sets of incidents that Williams asserted established a hostile work environment: 1) the July 30, 2015 meeting at Mark-Viverito‘s office; 2) Clarke‘s directions to
As to the first incident, the district court reasoned that, “even if a reasonable trier of fact could find that Defendant Mark-Viverito asked for a ‘Spanish Manager’ at this meeting, this incident alone does not constitute sufficient basis for [Williams‘s] hostile work environment claims,” principally because Mark-Viverito “had no role, management or otherwise, at NYCHA,” never communicated with Williams outside of the July 30 meeting, and because Williams‘s belief that Mark-Viverito “wanted her replaced is mere conjecture.” Id. at *14-15.
As for the second incident-Clarke‘s “aborted attempt to replace [Williams] as Manager of Mill Brook,” — the district court determined this too was insufficient to support a hostile work environment claim. Id. at *15. The district court observed that the attempt was unsuccessful, and there is no “indication that, during the period that Clarke was attempting to transfer
As to the third incident-Clarke‘s allegedly aggressive statements to Williams during an August 28, 2015 meeting concerning Williams‘s communications with “Spanish residents” at Mill Brook-the district court concluded that although Williams had offered sufficient evidence to raise a triable issue of fact regarding what occurred during the meeting, Clarke‘s “demeanor and comments during this meeting alone [were] insufficient to establish a hostile work environment claim” because “hostile work environment claims are not appropriate venues for enforcing general workplace civility codes.” Id. at *16. The fourth incident-concerning the HA vacancies-similarly failed, primarily because the “four HAs [who] were absent from work or
After analyzing each of the five central events in isolation, the district court considered the first three incidents “in their totality” and concluded that “these three incidents combined are also inadequate to support [Williams‘s] hostile work environment claims.” Id. at *19. The court did not include the fourth and fifth incidents in its totality analysis after concluding that Williams had failed to “establish facts showing that [those] two events . . . are in any way connected to the other three alleged discriminatory events . . . or otherwise motivated by
Williams timely appealed.
DISCUSSION
This appeal concerns hostile work environment claims under federal law against Clarke and Kelly for violating Sections 1981 and 1983 and the Equal Protection Clause; under state law against Clarke, Kelly, and NYCHA; and under city law against Clarke, Kelly, and NYCHA. This appeal also concerns state law
Williams contends that the district court erred in granting Defendants’ motions for summary judgment and in doing so, misapplied the totality of the circumstances standard established in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). We agree. We also conclude that the district court failed to draw “all reasonable inferences” in Williams‘s favor when it considered the five incidents underlying her claims, both when viewing the incidents individually and in their totality. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).
“We review de novo the district court‘s grant of summary judgment, construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in her favor.” Id. “Summary judgment is appropriate only when ‘the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.‘” Id. (quoting
To establish a hostile work environment claim under Sections 1981 and 1983, and the NYSHRL, a plaintiff must first produce evidence 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.” Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000), superseded on other grounds by N.Y.C. Local L. No. 85 (internal quotation marks omitted); see also Rivera v. Rochester Genesee Reg‘l Transp. Auth., 743 F.3d 11, 20 n.4 (2d Cir. 2014) (“The same standards apply to the plaintiffs’ hostile [work] environment claims arising under the NYSHRL and to their claims arising under
A plaintiff alleging a hostile work environment has a lower burden under city law than under its federal or state counterparts. For a NYCHRL claim to survive summary judgment, the plaintiff need only show that her employer treated her “less well than other employees,” at least in part for a discriminatory reason. Mihalik, 715 F.3d at 110 (internal quotation marks omitted). “The employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes . . . that discrimination play[ed] no role in its actions.” Id. at 110 n.8 (internal citation and quotation
II. The Hostile Work Environment Claims
Williams contends that genuine disputes of material fact preclude summary judgment on her hostile work environment claims under Sections 1981 and 1983, the NYSHRL, and the NYCHRL. As an initial matter, although the premise of each of Williams‘s claims is the allegation that Defendants contributed to a hostile work environment, we must analyze the federal- and state-law claims separately from the city-law claims. See Mihalik, 715 F.3d at 109 (concluding that courts must “analyze NYCHRL claims separately and independently from any federal and state law claims” and construe its
A. The Federal and State Law Hostile Work Environment Claims
Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
Section 1983 allows an action at law against a “person who, under color of [law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
The district court erred when it identified several triable issues of fact but concluded that a reasonable juror could not determine that the NYCHA Defendants subjected Williams to a hostile work environment. When looking at the five main incidents that gave rise to Williams‘s claims, the court categorized the first three as ones that “potentially reference race” and categorized the latter two as “facially neutral.” Williams, 2021 WL 2077817, at *13. The court then individually addressed the three incidents that “potentially reference race”
Beginning with Mark-Viverito‘s comment at the July 2015 meeting that she wanted a “Spanish manager,” the district court acknowledged that the record raises a triable issue of fact as to whether Mark-Viverito made the comment in question. See id. at *14. Mark-Viverito does not recall making the statement, “I want a Spanish Manager,” and Clarke‘s testimony supports her denial. App‘x at 464, 418-19. Clarke also testified that no one else at the meeting demanded Williams‘s transfer. See App‘x at 418-19. Williams, however, testified that Mark-Viverito insisted Williams be replaced with a “Spanish manager,” and Colon corroborated Williams‘s testimony. Colon also testified that after the meeting, she, Williams, and Artis discussed the “racist” incident, in which Mark-Viverito was “telling [them] that she want[ed] a Spanish manager.” App‘x at 770.
Apart from the conflicting accounts of whether Mark-Viverito uttered the “Spanish manager” demand, there is also a question as to whether such a statement, if made, was racially motivated. NYCHA argues that because the sole focus of the July 30 meeting was to discuss language-barrier issues at Mill Brook Houses, no rational juror could find that Mark-Viverito demanded NYCHA
The district court also held that, since Mark-Viverito was not a NYCHA employee and because this isolated incident was the only time she interacted with Williams, her conduct could not be imputed to NYCHA. Drawing an analogy to situations where harassment is perpetrated by the plaintiff‘s coworkers, the district court found Mark-Viverito‘s conduct could only be imputed to NYCHA if the agency “knew of the harassment but did nothing about it.” See id. at *14 (citing Perry, 115 F.3d at 152-53). It is undisputed that Williams‘s supervisor, Clarke, attended the July 30 meeting telephonically and
The district court next turned to the second event, Clarke‘s attempt to transfer Williams from her position at Mill Brook Houses and his reasons for doing so. The district court found it unnecessary to discern NYCHA‘s rationale for its attempts to transfer Williams because the attempted transfer, alone, was insufficient to raise a hostile work environment claim. See id. at *15. However, in Colon‘s companion case, with which discovery in this case was consolidated, the court concluded that a jury could find that Clarke‘s efforts to transfer Williams were motivated by unlawful discrimination. See Colon, 2021 WL 2159758, at *15. Thus, the court denied the same defendants summary judgment because “a reasonable person in [Colon‘s] position might believe that Clarke‘s attempt to transfer Williams for so-called ‘cultural’ reasons alone was a thinly veiled attempt to hide the discriminatory reason.” See id. The court observed that Colon
has raised sufficient facts that would allow a reasonable jury to infer that Human Resources hesitated and in fact did not approve of the transfer. As the record demonstrates, Williams‘s transfer was not
approved of by Human Resources, was delayed and ultimately abandoned—according to Clarke, “because it was recommended to me [by the Law Department] not to transfer at this time,” (Clarke June 13, 2019 Dep. Tr. 146:7-8)—raising questions about the propriety of the request.
Id. at *15 n.33. Moreover, “[g]iven Williams‘s lack of any apparent disciplinary history that could substantiate the claim that she was underperforming, Human Resources employees were leery of effectuating her transfer on ‘cultural’ reasons alone.” Id. at *15. Ultimately, the district court reasoned that “[t]hese impressions could certainly support an inference that race was a motivating factor in requesting the transfer that a trier of fact could reasonably make.” Id. (citing Abrams v. Dep‘t of Pub. Safety, 764 F.3d 244, 253 (2d Cir. 2014) (holding that phrases such as “better fit or fitting in” may “have been about race” and at the summary judgment phase, when construing the facts in a light most favorable to the non-moving party, such phrases could create a reasonable question of fact for a jury) (internal quotation marks omitted)).
By contrast, the district court here denied Williams the benefit of this interpretation of events even though the record at summary judgment was materially similar to Colon‘s. Instead, the district court granted NYCHA summary judgment because “Clarke‘s aborted attempt to replace
The third incident the district court examined as “potentially referenc[ing] race” was the August 28, 2015 meeting, in which Clarke allegedly made aggressive statements regarding Williams‘s communications with “Spanish residents” at Mill Brook Houses. See Williams, 2021 WL 2077817, at *14-16. Clarke maintains that he did not attend that meeting, nor did he ever ask Williams in any meeting how she “spoke to Spanish people.” App‘x at 693. But both Williams and Artis testified that Clarke was at the August 28 meeting. Williams stated, “it was just horrible the way that man spoke to me,” App‘x at 346, and “everyone was shocked at how [Clarke] spoke to me.” App‘x at 348. Artis acknowledged that “[Clarke] was kind of rough with her” and spoke to her “with contempt.” App‘x at 898. Williams testified that during the meeting Clarke asked her about the “Spanish speaking thing.” App‘x at 350. Despite finding that Williams proffered sufficient evidence to raise triable issues of fact regarding whether the meeting occurred and what was said, the court concluded that
This was error. Again, at summary judgment a district court must credit all factual inferences that could rationally be drawn in Williams‘s favor, and the court failed to do so. See Allen, 64 F.3d at 79. Despite acknowledging that Williams raised a triable issue as to whether the meeting took place, the district court failed to consider that there is also a question of material fact as to whether Clarke‘s demeanor and conduct, at a meeting he claims he did not attend, could establish a hostile work environment claim. Moreover, Clarke‘s testimony that he was not present at the meeting because he was “extremely busy” that day since it “was the day that Ms. Colon resigned,” is contradicted by the testimony of Colon and others that she resigned from her position during the meeting at issue. App‘x at 693; see also App‘x at 351, 1065.
Later, in its totality analysis, the district court stated that “[i]t also strains credulity that the August 28, 2015 meeting and Clarke‘s unsuccessful attempt to have [Williams] transferred from Mill Brook somehow precipitated or had any connection whatsoever with [Williams‘s] retirement almost two years later.” See
i. Totality of the Circumstances Analysis
In Harris v. Forklift Systems, Inc., the Supreme Court established the principle that “whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances,” including such factors as, “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.” 510 U.S. at 23. Courts are thus “cautioned to consider the totality of the circumstances, and to evaluate the ‘quantity, frequency, and severity’ of the incidents,” and must consider those factors “‘cumulatively,’ so that we may ‘obtain a realistic view of
Williams argues the district court failed to follow this guidance, impermissibly disaggregating the facts. Appellant‘s Br. at 21-29. By divorcing the facts from the full context, she argues, the district court, misapplied the Harris standard. Id. According to Williams, “the proper analysis is not whether each incident of harassment ‘standing alone’ is sufficient to sustain [her] hostile work environment claim, but whether—taken together—the reported incidents make out such a case.” Id. at 23.
We disagree that a district court commits error per se by employing a two-pronged analysis as the lower court did here. The district court properly began
The district court did not offend the Harris standard in assessing whether this incident—and the other incidents, individually—were “sufficiently severe” to establish a hostile work environment. See Redd, 678 F.3d at 175-76. Of course, it would have been error had the court omitted its totality of the circumstances analysis. Williams, 2021 WL 2077817, at *18-19. Because the court did not forgo a cumulative totality analysis, we disagree that merely employing a two-step analysis meant the court was wrong from the start.
We find, however, that the district court did err in the substance of its analysis. After examining each of the five incidents giving rise to Williams‘s
Accordingly, the court only assessed whether the first three incidents combined were “inadequate to support [Williams‘s] hostile work environment claims.” Id.; see also id. at *18 (“I will not consider [Williams‘s] claim that the NYCHA Defendants failed to timely fill Mill Brook HA vacancies as part of my analysis of whether, under a totality of the circumstances, a claim for a hostile work environment lies.“); id. (“Since [Williams] failed to identify any evidence of untoward conduct by [Defendants] with respect to [superintendent] Martinez‘s transfer, or a factual basis for any link between the transfer and the alleged discriminatory events, I decline to consider this event as part of [Williams‘s] hostile work environment claims . . . .“).
The district court misapplied the Harris test by completely excluding the fourth and fifth incidents from its totality analysis. This analysis is intended to
None of this is to say that Williams is entitled to judgment in her favor. A jury could conclude that Mark-Viverito‘s reference to a “Spanish manager,” if indeed she used the term, referred to language abilities, not ethnicity, and thus did not represent a “cover basis for national origin discrimination.” Cf. Pacheco v. N.Y. Presbyterian Hosp., 593 F. Supp. 2d 599, 612 (S.D.N.Y. 2009) (quoting Garcia v. Gloor, 618 F.2d 264, 270 (5th Cir. 1980)). So too could a jury find that, even if the phrase was uttered and referred adversely to Williams‘s ethnicity, it was nothing
Alternatively, a jury could plausibly find that Mark-Viverito and the NYCHA Defendants engaged in a campaign to remove Williams from her position at Mill Brook Houses on account of race. The evidence would permit a reasonable jury to find, among other things, 1) that Mark-Viverito demanded that Williams be replaced with a “Spanish manager;” 2) that Clarke attempted to carry out Mark-Viverito‘s demand but failed after human resources and the Law Department stymied his efforts; and 3) that staffing issues at Mill Brook Houses began shortly after Clarke‘s failed attempts at transferring Williams, continuing up until her resignation.
Regardless, these are determinations for the jury, not the judge, to make. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether [the judge] is ruling on a motion for summary judgment or for a directed verdict.“). “An Article III judge is not a hierophant of social graces” and is no better suited than a jury to decide if conduct rises to the level of a hostile work environment. See Schiano, 445 F.3d at 605 (citation and internal quotations omitted).
Resolving all ambiguities and drawing all inferences in Williams‘s favor, we cannot say as a matter of law that these incidents could not amount to a claim
B. The City Law Hostile Work Environment Claims
Once a federal court exercises pendent jurisdiction over claims under the NYCHRL, as the district court did here, the court must “undertak[e] [an] independent analysis required by” city law. Velazco v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir. 2015); see also Mihalik, 715 F.3d at 109 (explaining that a district court must “separately and independently” analyze claims under the NYCHRL). Though the district court acknowledged that requirement, see Williams, 2021 WL 2077817, at *12, it arguably did not address the separate force of the NYCHRL.
We need not resolve that question, however. In light of our holding that Williams raised triable issues of material fact regarding her hostile work environment claims under federal and state law, it follows that she has done the same under the NYCHRL‘s more lenient standard. See Mihalik, 715 F.3d at 109 (explaining that federal and state law operate “as a floor below which the City‘s Human Rights law cannot fall” (quoting Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009))). We therefore vacate the district court‘s grant of
C. The State-Law Aiding and Abetting Claims Against Mark-Viverito and Clarke
Williams argues that each defendant aided and abetted the creation of a hostile work environment, in violation of state and city law. See
The district court concluded that because there was no underlying NYSHRL or NYCHRL violation, Defendants could not aid or abet any acts prohibited by these two statutes. See Williams, 2021 WL 2077817, at *20. On appeal, Williams objects only to the court‘s dismissal of her state-law aiding and
CONCLUSION
For the foregoing reasons, we vacate the district court‘s judgment and remand for further proceedings consistent with this opinion.