Aulicino v. New York City Dep't of Homeless Servs.

Opinion

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 NEW YORK CITY DEPARTMENT OF HOMELESS SERVICES, and LINDA GIBBS as 11 Commissioner of the Agency,

12 Defendants-Appellees.* 13 ------------------------------------- 14 Before: STRAUB, SACK, and WESLEY, Circuit Judges. 15 Appeal from a judgment of the United States District 16 Court for the Eastern District of New York. The district court 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. We vacate the dismissal of the 21 plaintiff's failure to promote claim and remand that cause for 22 trial to resolve genuine issues of material fact. We also vacate 23 the dismissal of the plaintiff's hostile work environment claim 24 because, we conclude, the district court failed to consider the

*

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. That cause is therefore remanded for reconsideration. 3 VACATED in part and REMANDED.

4 Arthur Z. Schwartz, Schwartz, Lichten & 5 Bright, P.C., New York, NY, for 6 Appellant.

7 Fay Ng (Pamela Seider Dolgow, Eric 8 Eichenholtz, Michael A. Cardozo, 9 Corporation Counsel of the City of New 10 York, of counsel), New York, NY, for 11 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. Aulicino is a Motor Vehicle Operator ("MVO") at the 16 Hinsdale Depot of the New York City Department of Homeless 17 Services ("DHS"). He claims that he was denied a promotion at 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. The district court (Sterling Johnson, 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 In our view, the failure to promote and hostile work 26 environment claims should not have been dismissed. We conclude 27 that the record reflects genuine issues of material fact with 28 respect to the failure to promote claim. We therefore vacate the 29 dismissal of that claim and remand the cause for trial. We also

3

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. We therefore vacate and remand the 5 complaint with respect to that cause of action for 6 reconsideration.1 7 BACKGROUND 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. Aulicino 13 Dep. 76, 88. For example, John told Aulicino that "it was all 14 right for [a DHS client] to call [Aulicino] a white mother fuck" 15 and that "[Aulicino] deserved it." Id. at 136; see also id. at 16 76 (same). In the same encounter, according to Aulicino, John 17 threatened to withhold Aulicino's pay for that day, though he did 18 not follow up on the threat. See id. at 136-37. On another 19 occasion, John remarked to Aulicino that "white people are lazy." 20 Id. at 76. And on another, John asked a white colleague why he 21 and Aulicino "all take off the same days . . . like there was 22 some sort of white conspiracy." Id. at 88. On still another, 23 Aulicino was told by one of his supervisors, Gary Brown, that

1

The plaintiff has not appealed from the denial of his retaliation claim.

4

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. Aulicino's second amended complaint and brief on 6 appeal assert that they occurred in a period between late 7 December 2001 and September 2002. See Amended Complaint3 ¶¶ 19- 8 40; Appellant's Br. 5-8. 9 Aulicino also testified that his African-American 10 supervisor, Larry Singleton, made "the sort of comments Frank 11 John makes." Aulicino Dep. 169. Singleton became Aulicino's 12 supervisor several months before Aulicino's deposition was taken 13 in August 2004. See id. at 27. The excerpted deposition 14 transcript in the record does not specify any particular 15 derogatory comments made by Singleton. 16 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. According to the 21 affidavit, on January 7, 2005, Singleton handed him a copy of an 22 old union contract and grievance form. 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.

5

1 he had done so, Singleton "mentioned" the instant lawsuit "in an 2 aggressive and inappropriate manner," as he had several times 3 before. Aulicino Aff. ¶ 5. According to the affidavit, Aulicino 4 told Singleton to stop harassing him and threatened to file a 5 complaint about the incident. At that point, according to the 6 affidavit, Singleton "stated that he [Singleton] was an ex- 7 felon." Id. Aulicino interpreted that as a threat that he would 8 be "assault[ed]" if he were to file such a complaint. Id. The 9 affidavit also asserts that on April 27, 2005, Singleton 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." Id. ¶ 2. Aulicino stated in his affidavit that he 13 thought the comment was "racist" and that he told Singleton that 14 "he was creating a hostile work environment." Id. ¶ 3. 15 Singleton replied, "I'll show you what a hostile work environment 16 is." Id. ¶ 4. 17 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. Id. ¶ 6. 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." Id. ¶ 7.

6

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 Vehicle Supervisor ("MVS") position at the Hinsdale Depot. The 10 vacancy notice specified these qualifications:

11 Preferred Skills: 12 1. One year of permanent service in the title 13 of Motor Vehicle Operator. 14 2. One year of full-time experience in Motor 15 Vehicle Dispatching, and 16 3. A valid NYS Class B Motor Vehicle Driver 17 License 18 . . . .

19 MINIMUM QUALIFICATIONS 20 1. One year of permanent service in the title 21 of Motor Vehicle Operator; or 22 2. One year of full-time experience in motor 23 vehicle dispatching.

24 License Requirement 25 A Motor Vehicle Driver License valid in the 26 State of New York. For appointment to 27 certain positions, possession of a Class B 28 Commercial Driver License [("CDL")] valid in 29 the State of New York may be required. There 30 may be certain age requirements to obtain 31 this license. Employees must maintain the 32 Class B Commercial Driver License during 33 their employment.

7

1 City of New York, Department of Homeless Services, Job Vacancy 2 Notice, May 13, 2002 ("MVS Posting"), at 1. Aulicino submitted 3 his application for the position on May 22, 2002, and he was 4 interviewed by John on June 13, 2002. 5 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." When Aulicino "tried to tell 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." Aulicino Dep. 108-09. John also "asked 14 [Aulicino] if [he] had a CDL license [sic]." Aulicino did not, 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." Aulicino also volunteered that 18 "if it was necessary [he] would upgrade [his] license." Id. at 19 109-10. 20 John declined to promote Aulicino. 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." Id. at 96-97; see also id. at 100 ("[Ferguson] told me 26 about stuff that [John] said to . . . him when he spoke to [John]

8

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." John Dep. 109. John also testified 9 that "looking at Mr. Aulicino's record, it wasn't that good, it 10 wasn't good." Id. at 145. And indeed it appears that although 11 Aulicino's performance was consistently rated "good," he was 12 "written up" several times for misconduct on the job. 13 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. He initiated this action pro se on May 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. Aulicino checked a line on 26 the form to reflect his assertion that the defendants were "still

9

1 committing these acts against [him]." On August 4, 2003, shortly 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 March 8, 2004, counsel retained 6 by Aulicino's union filed a notice of appearance on behalf of 7 Aulicino. The parties subsequently agreed that Aulicino's 8 complaint would be amended and discovery extended. 9 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. After several 15 further extensions, the magistrate judge ordered that discovery 16 would be closed on July 29, 2005. In a status conference, 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 On September 20, 2005, Aulicino received new counsel 23 through his union. After two extensions, the City served its

4

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.

10

1 motion for summary judgment on January 23, 2006. Aulicino's new 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 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. The R&R 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. See R&R 8-12. 17 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. The R&R further recommended dismissing the 22 retaliation claim for want of an adverse employment action. See 23 id. at 15. 24 Aulicino submitted no objections to the R&R, and the 25 district court initially adopted it in full. But the district 26 court subsequently granted Aulicino's application to submit

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1 belated objections inasmuch as their lateness was caused by 2 problems counsel encountered with the court's electronic filing 3 system. The court nonetheless concluded that the objections were 4 without merit, affirming its earlier dismissal of the complaint. 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. As noted, he has not sought to 9 appeal from the dismissal as it relates to his retaliation claim. 10 DISCUSSION 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). Such a judgment "should be rendered if the pleadings, the 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). "A dispute about a 'genuine issue' 19 exists . . . where the evidence is such that a reasonable jury 20 could decide in the non-movant's favor." Beyer, 524 F.3d at 163. 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.'" Id. (quoting 24 Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d 25 Cir. 2003)).

12

1 Aulicino seeks relief under Title VII and the New York 2 State and New York City Human Rights Laws. Inasmuch as we are 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 II. The Failure To Promote Claim 6 A. The Applicable Legal Standard 7 "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 At the first stage under that framework, the plaintiff 13 bears the burden of establishing a prima facie case.

14 To establish a prima facie case of a 15 discriminatory failure to promote, a Title 16 VII plaintiff must ordinarily demonstrate 17 that: (1) she is a member of a protected 18 class; (2) she applied and was qualified for 19 a job for which the employer was seeking 20 applicants; (3) she was rejected for the 21 position; and (4) the position remained open 22 and the employer continued to seek applicants 23 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)). In all cases, for the 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." Id. at 710 30 (internal quotation marks omitted).

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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." Terry v. 4 Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). If the defendant 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." Id. (internal 10 quotation marks omitted). 11 B. Application of the Standard 12 We conclude that Aulicino has made out a prima facie 13 case for his failure to promote claim. There is no dispute that 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

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."

14

1 remained open until it was given to Johnson. The issue is 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. We think 6 those conclusions could not be made as a matter of law on the 7 record before the district court. 8 Viewing the record evidence in the light most favorable 9 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. The 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." MVS Posting 1. There is evidence from which a rational 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 . . . ."). Aulicino 23 therefore met his burden to present evidence on that element of 24 his prima facie case. 25 The R&R rightly points out that Aulicino "did not have 26 at least one year of full-time experience as a motor vehicle

15

1 dispatcher," nor "the Class B [commercial drivers] license set 2 forth in the job posting." R&R 8-9. But the former was not 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. And even if those qualifications could be 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. Johnson testified that he had only "fill-in" experience 14 as a dispatcher, that "it was never . . . a permanent title." 15 Johnson Dep. 64. And everyone appears to agree that Johnson had 16 only a Class B commercial learner's permit, not a Class B CDL. 17 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. The 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. See R&R 9. That may be so, insofar as the 24 statement by Ferguson was elicited through Aulicino's testimony, 25 and insofar as Aulicino's report of the statement is offered to

16

1 prove what John said.6 But irrespective of the existence of that 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. We 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 Accordingly, we conclude that Aulicino has made out a 13 prima facie case of race discrimination on his failure to promote 14 claim. In light of the racially derogatory comments John made to 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. Because we think the question whether 18 Aulicino was denied a promotion on the basis of race is a genuine

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.

17

1 issue for trial, we vacate the dismissal of the failure to 2 promote claim and remand that cause for trial. 3 III. The Hostile Work Environment Claim 4 A. 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.'" Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d 11 Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 12 21 (1993)).8 13 Whether the challenged conduct is sufficiently severe 14 or pervasive "depends on the totality of the circumstances." Id. 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

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.

18

1 work; and (5) what psychological harm, if any, resulted." Id. 2 (quoting Harris, 510 U.S. at 23). 3 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. Core 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 10 behaves in a physically threatening manner. Cruz, 202 F.3d at 11 571-72. But an employer's motion for summary judgment must be 12 denied if the claimed misconduct ranks sufficiently highly on 13 either axis. See Richardson, 180 F.3d at 440 ("[A] work 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." (emphasis in original)); id. ("[E]ven a 17 single episode of harassment, if severe enough, can establish a 18 hostile work environment. . . ." (internal quotation marks 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 "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." Schwapp v. Town of

19

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). Overall, 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." Schwapp, 118 F.3d at 110-11 7 (internal quotation marks and citation omitted). 8 B. Application of the Standard 9 The magistrate judge's R&R recommended that the hostile 10 work environment claim be dismissed. Assessing the frequency of 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. With that observation, and citing Quinn v. Green Tree 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. Id. The magistrate 17 judge then went on to assess the comments' severity:

18 Plaintiff . . . fails to establish that 19 defendants' conduct interfered with his job 20 performance or responsibilities. . . . 21 [P]laintiff admits that his work hours were 22 never altered. Plaintiff also acknowledges 23 that he got along with his fellow employees 24 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.

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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. The specific comments by John in the record are alleged to 5 have occurred between December 2001 and September 2002. The 6 specific comments by Singleton are alleged to have occurred some 7 years later, between January and July 2005. 8 Correctly, the magistrate judge looked to the frequency 9 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. See Schwapp, 118 F.3d at 110-11. But 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." See R&R 12-13 (listing four comments by John and 18 four by Singleton); id. at 14 ("The incidents plaintiff describes 19 occurred over a five-year time period. They are unfortunate, but 20 they are isolated and discrete incidents."). We acknowledge that 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 First, the R&R takes into consideration two comments by 26 John reported by third parties to Aulicino, see R&R 12

21

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." Aulicino Dep. 8 154-56. The omission of this threat was detrimental to 9 Aulicino's claim.9 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. The magistrate judge viewed the 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. In addition, the "cumulative" assessment contained 18 in the R&R includes a 26-month period between the last comment by 19 John and the first comment by Singleton. We think that, in order 20 to take the facts of this case in the light most favorable to

9

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.

22

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. In our view, 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 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. The facts on which the 14 Quinn opinion was based undercut that reading. See Quinn, 159 15 F.3d at 768 ("Quinn did . . . make two allegations . . . that 16 appear to be timely . . . . Quinn's hostile work environment 17 claim . . . rests on these two alleged incidents." (emphasis 18 added)). More importantly, whether the comments in this case are 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. Indeed, "even a single episode of 23 harassment, if severe enough, can establish a hostile work 24 environment." Richardson, 180 F.3d at 437 (citation and internal 25 quotation marks omitted). On remand, the court therefore ought 26 not to treat Quinn as providing a precise standard for the number

23

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. Aulicino Dep. 169. 19 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" (internal quotation marks 24 omitted)). The magistrate judge should consider it on remand.10

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

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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 Although we have repeatedly observed, in 8 words or substance, that we review a grant of 9 summary judgment de novo applying the same 10 standard as the district court, that does not 11 mean that it is our function to decide 12 motions for summary judgment in the first 13 instance. We are dependent on the district 14 court to identify and sort out the issues on 15 such motions, to examine and analyze them, 16 and to apply the law to the facts accepted by 17 the court for purposes of the motion. We are 18 entitled to the benefit of the district 19 court's judgment, which is always helpful and 20 usually persuasive.

21 Beckford v. Portuondo, 234 F.3d 128, 130 (2d Cir. 2000) (per 22 curiam) (citation and internal quotation marks omitted). 23 CONCLUSION 24 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. For the foregoing 27 reasons, the dismissal of the failure to promote claim is vacated 28 and the claim remanded for trial. 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.

25

1 work environment claim is vacated and remanded for 2 reconsideration.