The Second Circuit reverses in part dismissal of a pro se Title VII complaint of harassment, discrimination and retaliation, in an unpublished order, and in the course of so doing churns up some useful rulings for all of us.
La Grande v. DeCrescente Distributing Co., Inc., Nos. 08-3010, 09-1789 (2d Cir. Mar. 23, 2010): The opinion is light on factual development, but it appears that an African-American man sued under a panoply of theories for sex and race discrimination. The magistrate judge dismissed the complaint entirely. On appeal, the plaintiff sought to revive all of his claims, while the employer cross-appealed for an award of attorneys fees for defending a supposedly frivolous action.
The Second Circuit reverses the district court on several of the claims, rejects the demand for fees, and remands. In a brief but enlightening ruling, the panel holds that:
1. Even comments seperated by as much as eight months can constitute a single claim of harassment:
"Here, La Grande alleged that in November 2003 one of his co-workers 'made racial comments about black men being lazy, and about black men using white females to take care of them.' Amended Compl. ¶ 1 (internal quotation marks omitted). When La Grande complained about these comments to his employer's human resources department, he was allegedly threatened with termination, told that his complaint was not 'sufficient,' and his workload was then doubled. Further, on four dates in early July 2004, La Grande alleged that a company manager physically threatened him and called him a 'nigger,' making it 'mentally and physically impossible' for him to work. Id. at ¶11. Based on these allegations, La Grande has stated a plausible race-based hostile work environment claim sufficient to survive dismissal."
2. Denial of training on-the-job may constitute a materially adverse employment action for a disparate treatment claim:
"Training is a benefit of employment that receives protection under Title VII. See 42 U.S.C. § 2000e-2(d); see also Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 76-79 (2d Cir. 2001) (concluding that summary judgment was improperly granted to defendant on plaintiff's failure-to-train claim under the Age Discrimination in Employment Act). Further, liberally construing the complaint, it is plausible that the DeCrescente Company's alleged action was a materially significant disadvantage with respect to the terms of La Grande's employment, particularly if the training was 'part of the job' and barring him from the training diminished his material responsibilities or opportunities."
3. An employee who advocates for customers who are allegedly sexually harassed is covered by Title VII anti-retaliation section:
"Here, although (as the district court pointed out) La Grande may not predicate a retaliation claim on his complaints that he himself was discriminated against on the basis of sex, since there was no reasonable basis for such complaints, La Grande has sufficiently alleged that, in response to his complaints about the sexual harassment of a female customer and about a co-worker's racial remarks, he was threatened with termination and given a higher work load."