The Clerk of the Court is respectfully directed to amend *

the official caption to conform to this one.

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
2

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
 The plaintiff has not appealed from the denial of his 1

retaliation claim.

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
 John denies that he made derogatory racial comments to or 2

about Aulicino.

 The pleading entitled "Amended Complaint" is in fact 3

Aulicino's second amended pleading.

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 Complaint ¶¶ 19- 3

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
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 ex7 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
 It does not appear that Gibbs was formally dismissed from 4

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.

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
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
11

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).
 Aulicino's papers make no reference to national origin 5

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."

13

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," that he applied for an MVS position that was posted 5

16 within DHS, that he was denied the position, or that the position
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
 To the extent the R&R found this statement to Aulicino 6

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.

 The R&R also reflects the magistrate judge's view that 7

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.

16

1 prove what John said. But irrespective of the existence of that 6

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
 The plaintiff must also produce evidence that 8

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.

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
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. 
20

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
 As we have noted, the R&R quotes the comment by Ferguson 9

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.

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
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
 The parties do not address whether racial comments to or 10

about a white person should be judged as to their "severity" in

the same way that racial slurs used about racial minorities

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
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.

24

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
25

1 work environment claim is vacated and remanded for

2 reconsideration.