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September 26, 2018

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims

Appealing summary judgment in favor of the employer in an action involving alleged a racially hostile work environment and retaliation claims
Berrie v. Bd. of Educ. of the Port Chester-Rye Union Free Sch. Dist. et al., USCA, Second Circuit, 17-2045-cv

Gregory Tyrone Berrie, the Plaintiff in Action I, alleged that the Port Chester-Rye Union Free School District [Board] had subjected him to a racially hostile work environment and retaliated against him following his filing complaints pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New York State Human Rights Law (“NYSHRL”), and against all named defendants pursuant to 42 U.S.C. §§1981 and 1983.

Sustaining the district court's granting the employer's motion for summary judgment dismissing Berrie's action, the Circuit Court of Appeals indicated that, with respect to the issues presented to it on appeal, it would address them "only as necessary to explain [its] decision to affirm" the lower court's disposition of the matter. Among the issues address by the Circuit Court were the following:

1. Consideration to be given to hearsay statements in the record. Although certain statements are hearsay as presented in the record, the court observed that such evidence could be presented in admissible form as live testimony from the students. Thus, said the court, it "could consider them on summary judgment."

2. Failure to address certain references in the record. The court noted that there were references in the record concerning certain incidents that Berrie did not discuss in his briefing and the Circuit Court concluded that "it appears" they are not part of Berry's claims.

3. Hostile work environment claims. As to Berrie’s hostile work environment claims, the Circuit Court said that district court reasoned that Defendants’ conduct was not sufficiently severe or pervasive to constitute a hostile work environment. With respect to the Board, the district court concluded that the Board had met its burden to establish the Faragher/Ellerth affirmative defense.*

As to Berrie’s retaliation claims, the district court concluded that Berrie had shown no adverse employment action against him that was causally related to Berrie’s complaints of discrimination.

Reviewing the district court’s grant of summary judgment de novo, the Circuit Court said that it would “resolve all ambiguities and draw all permissible factual inferences in favor of the non-moving party, and will affirm summary judgment only if the moving party shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Further, the Circuit Court, citing Lyons v. Lancer Ins. Co., 681 F.3d 50, said “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient” to defeat summary judgment."

With respect to Barry's "hostile work environment claims, the court explained:

a. “To establish a hostile work environment claim . . . a 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” and such mistreatment must have occurred “because of [the] employee’s protected characteristic, such as race or national origin,” although the protected characteristic need not be “the only motivating factor.”

b. “A hostile environment claim must be evaluated on the basis of the cumulative effect of the abusive conduct” by examining the totality of the circumstances, including: 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 the victim’s job performance.”

c. The hostile and abusive conduct alleged must be severe or pervasive both subjectively to the plaintiff and objectively to a “reasonable person.”

d. In considering the totality of the circumstances, there must be “some circumstantial or other basis for inferring that incidents [race-]neutral on their face were in fact discriminatory."

The Circuit Court found that "several of Berrie’s most substantial allegations are unsupported by the record evidence, or else not attributable to discriminatory animus."

Accordingly, the court held that summary judgment was warranted on Berrie’s hostile work environment claims.

With respect to Barry's retaliation claims, the Circuit Court said it evaluates retaliation claims under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792.

4. Unlawful retaliation claims. To establish a prima facie case of unlawful retaliation, “an employee must show that (1) he was engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.”

A materially adverse action is one that “produces an injury or harm” in that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination” and "retaliatory actions need not be a “materially adverse change in the terms and conditions of employment.”

In contrast, the court observed that “trivial harms—i.e., those petty slights or minor annoyances that often take place at work and that all employees experience—are not materially adverse.” Further, “[m]aterial adversity is to be determined objectively, based on the reactions of a reasonable employee.”

To establish causation, a plaintiff may rely on evidence “that the protected activity was followed closely by discriminatory treatment, or [use] other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct” and/or “evidence of retaliatory animus directed against the plaintiff by the defendant.” However, said the Circuit Court, "[t]emporal proximity alone is generally insufficient after about three months."

Accordingly, the Circuit Court, Berrie did not establish a prima facie case of retaliation, and summary judgment was warranted on Berrie’s retaliation claims.

5. Evidentiary ruling by the federal district court. With respect to Barry's objections to certain evidentiary rulings made by the lower court underlying its granting the Defendant's motion for summary judgment as constituting an "abuse of discretion" the Circuit explained that "[a] district court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or renders a decision that cannot be located within the range of permissible decisions.”

Under the controlling local rule, Local Rule 56.1(c), a fact asserted in the moving party’s statement “will be deemed admitted unless controverted . . . by the opposing party.”

As the district court noted, Berrie had the opportunity "to take discovery and his counterstatement failed to impugn the motives and counter the testimony of witnesses whose testimony defeated his claims."

Accordingly, the Circuit Court ruled that the district court did not abuse its discretion in deeming admitted facts that Berrie failed to properly dispute.

* This defense takes its name from the two US Supreme Court cases that created it: Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Typically Faragher-Ellerth has been relied upon by defendants in action involving claims of hostile work environment sexual harassment but has cited in defending against claims of hostile work environment harassment not alleged to constituted sexual harassment.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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