NY Federal Court Allows Latino Employee's Hostile Work Environment Claim to Move Forward

Randy T. Enochs

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Employment / Labor Attorney

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Posted almost 2 years ago. 1 helpful vote

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Aformer employee, Fernando Marrero, of a moving and storage company filed claims alleging race-based discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII"), 42 U.S.C. § 2000e et seq. and the New York State Human Rights Law (“NYSHRL"), N.Y. Exec. Law § 296 et seq. A federal judge granted summary judgment in part and denied in part allowing the employee's hostile work environment claims to move forward based on, inter alia, the employee's almost-daily being called a "monkey" and coworkers' repeated throwing of monkeys at him, monkey noises made in his presence, posters of a monkey and his name written on it posted in numerous locations in the workplace, and even a banana presented to him as a joke. After repeated complaints to management that went nowhere and actually and incredibly led to harassment from management itself, the employee eventually quit after he noticed his work hours reduced. What makes this case interesting and unique is the fact the employee is Latino and "monkey" is most often referred to as an ethnic slur used on black people. Nevertheless, the Court allowed the hostile work environment claims to move forward to a jury. In allowing the employee's hostile work environment claim to move forward on his incessantly being called a "monkey" in the workplace, the Court reasoned that:

[T]he fact that plaintiff is not specifically of African heritage would not prevent a jury from concluding “monkey" was a derogatory reference to his race. Plaintiff self-identifies as a dark-skinned, dark-haired Hispanic man. He testified he understood “monkey" to be a reference to his physical appearance. Plaintiff also submitted an affidavit from a Hispanic co-worker, Joseph Amadiz, who witnessed plaintiff being called “monkey" and interpreted “monkey" to be a derogatory reference to plaintiff’s race. As plaintiff rightly notes, although nicknames were common between employees at R-Way, none of the nicknames given to other employees had any racial connotation.

The Court also noted that the employee was called a "monkey" by another Latino employee but the plaintiff told the other Latino not to be an "Uncle Tom" and engage in the harassment and also noted that Latino is a term that encompasses a variety of Latino countries with people of differing physical features as plaintiff was in fact darker than his other Latino coworkers. This is a very thoughtful opinion from the Court that acknowledges differences in ethnicities and does not allow the employer to attempt to make a silly, clever argument that "monkey" can only be a racial slur against African-Americans or other African decent employees. Clearly this plaintiff was being taunted for his physical characteristics stemming from his ethnicity and race and the Court was wise to see that. [Plaintiff's retaliation claims were dismissed for failure to show a causal connection between his protected activity of complaining about the harassment and his reduction in hours and constructive discharge.] The case is Marrero vs. R-Way Moving & Storage, Ltd.,, Case No. 10 Civ. 5838 (US Dist. EDNY)

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