18

‐ 3260

‐ cv

Gebrial Rasmy v. Marriott International, Inc., et al.



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2019

No. 18

‐ 3260

‐ cv

G EBRIAL R ASMY

, Plaintiff

‐ Appellant

,

v.

M ARRIOTT I NTERNATIONAL

, I NC

. D / B / A JW M ARRIOTT E SSEX H OUSE

H OTEL

, E STRATUE S TAMATIS

, individually, K AREN D OHERTY

, individually, T EHRANI M EHRANI

, individually, AND S ESSKON

P ONGPANTA

, individually,

Defendants

‐ Appellees

.

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : D ECEMBER 11, 2019

D ECIDED : M ARCH 6, 20202 Before: C ABRANES

, B IANCO

, Circuit Judges

, and R EISS

, Judge

. *

Plaintiff

‐ Appellant Gebrial Rasmy appeals from a September 28,

2018 judgment entered in the Southern District of New York (Alison J.

Nathan, Judge ) principally granting Defendants

‐ Appellees’ motion for

summary judgment dismissing Rasmy’s claims brought under Title

VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Rasmy alleged

a discriminatory hostile work environment and retaliation for

complaining about discrimination. For the reasons set forth below, we

VACATE the September 28, 2018 judgment of the District Court and

REMAND the cause to the District Court for trial.

S TEPHEN B ERGSTEIN

, Bergstein & Ullrich,

LLP, New Paltz, NY, for Plaintiff

‐ Appellant

.

M ARK A. S ALOMAN

, FordHarrison LLP,

Berkeley Heights, NJ, for Defendants

‐

Appellees.

G AIL S. C OLEMAN

, (James L. Lee, Jennifer S.

Goldstein, and Elizabeth E. Theran, on the

* Judge Christina Reiss, of the United States District Court for the District of

Vermont, sitting by designation.3 brief ), for Amicus Curiae Equal Employment

Opportunity Commission.

J OSÉ A. C ABRANES

, Circuit Judge :

We consider here claims of hostile work environment and

retaliation in the context of allegations of religious and national origin

discrimination, necessarily mindful of the inevitable normative

ambiguity of allegations of “hostile work environment”

discrimination. 1

Plaintiff

‐ Appellant Gebrial Rasmy (“Rasmy”) appeals from a

September 28, 2018 judgment entered in the Southern District of New

York (Alison J. Nathan, Judge ) (1) granting Defendants

‐ Appellees’

motion for summary judgment, thereby dismissing Rasmy’s claims

brought under Title VII of the Civil Rights Act of 1964 (“Title VII”) and

42 U.S.C. § 1981 (“Section 1981”) alleging a discriminatory hostile

work environment and discriminatory retaliation; and (2) declining to

exercise supplemental jurisdiction over Rasmy’s remaining claims

1 See generally

, Harris v. Forklift Sys., Inc.

, 510 U.S. 17, 22

‐ 23 (1993); Gallagher

v. Delaney

, 139 F.3d 338, 347 (2d Cir. 1998) (Jack B. Weinstein, J

., sitting by

designation ) (“An Article III judge is not a hierophant of social graces. Evaluation of

ambiguous acts such as those revealed by the potential evidence in this case

presents an issue for the jury.”); Reed v. A.W. Lawrence & Co., Inc.

, 95 F.3d 1170, 1179

(2d Cir. 1996) (“It cannot be denied that we live in a time of significant cultural

change, in which varieties of coarse conduct once taken for granted in the American

workplace appear to be subject to punishment under the law.”).4 brought under the New York State Human Rights Law (“NYSHRL”)

and the New York City Human Rights Law (“NYCHRL”).

Rasmy challenges the District Court’s conclusions that (1) the

record of undisputed facts would not permit a rational jury to find that

Rasmy suffered from a hostile work environment on the basis of his

religion and national origin in violation of Title VII and Section 1981;

and (2) the record of undisputed facts would not permit a rational jury

to find that Rasmy suffered retaliation for complaining about

discrimination in violation of Title VII and Section 1981.

We hold that: (1) a hostile work environment claim does not

require a plaintiff to show that he or she had been physically

threatened by the defendant or that his or her work performance has

suffered as a result of the claimed hostile work environment; (2)

discriminatory conduct not directly targeted at the plaintiff ( e.g.

,

discriminatory remarks made in the plaintiff’s presence though not

directly aimed at such employee) can contribute to an actionable

hostile work environment; and (3) dismissal of Rasmy’s retaliation

claim by summary judgment was improper because Rasmy’s

submission in opposition to the motion presented disputed issues of

material fact that should be resolved by a jury.

Accordingly, we VACATE the September 28, 2018 judgment of

the District Court and REMAND the cause to the District Court for

trial.5 BACKGROUND

Our account of the facts is drawn from the District Court’s

September 28, 2018 summary judgment order and from the record

before us. In considering the entry of summary judgment in favor of a

defendant, we are required to resolve all ambiguities and draw all

permissible factual inferences in favor of the party against whom

summary judgment is sought. 2

I. Factual Background

This suit arises from Rasmy’s employment at the JW Essex

House on Central Park South in New York City (“Essex House”),

which has been managed by Defendant

‐ Appellee Marriott

International, Inc. (“Marriott”) since 2012. Rasmy began working as a

banquet server at Essex House in 1991 and worked there until he was

fired in May 2016. Rasmy identifies himself as of Egyptian heritage

and as a “devout Coptic Christian.” 3

In late 2012, Rasmy told defendant Karen Doherty (“Doherty”),

Director of Human Resources for Essex House, that certain employees

were engaging in wage theft and overcharging, causing Marriott to

lose money. Rasmy alleges, that in response, Doherty told him, “I am

sick and tired of this shit, and I’m sick and tired also because of you I

have to send tons of fucking documents

. . . because you have called

2 See, e.g.

, Burg v. Gosselin

, 591 F.3d 95, 97 (2d Cir. 2010).

3 App’x 20, 307, 311, 316

‐ 17.6 corporate about possible overcharg[ing].” 4 In November or December

2012, Rasmy’s complaints about wage theft became known to other

employees at Essex House. After his complaint, other employees

allegedly began retaliating against Rasmy, in one instance by

circulating employee petitions against him. Rasmy alleges that,

following his complaint, defendant Stamatis Efstratiou (“Efstratiou”),

also a banquet server, as well as a union delegate, made inflammatory

comments in Rasmy’s presence. Among other comments, Efstratiou

called him a “fucking Egyptian rat,” and a “fucking mummy,” and

would say “where’s the fucking mummy.” 5 Efstratiou also told

Rasmy, whom he knew to be a Coptic Christian, that “the idea of God

is garbage,” “[r]eligions [are] for the stupid people,” and that “priests

are child molesters and alcoholic[s].” 6

In November 2013, Rasmy called Marriott’s Business Integrity

Line, which permits employees to speak directly to Marriott’s

corporate headquarters, to complain about the hostile work

environment he alleges he was enduring. Sue Birnie (“Birnie”), Area

Director of Associate Relations, was responsible for investigating

Rasmy’s complaint, including the allegations of wage theft. Rasmy

told Birnie that he was being subjected to racial slurs and religious

insults in the workplace, and although Birnie indicated that she would

4 App’x 335, 350.

5 App’x 380.

6 Id

.7 investigate his allegations, she never contacted Rasmy about the

results of her investigation of the overcharging or discrimination.

Rasmy also reported the alleged discrimination to Peggy

Hassinger (“Hassinger”) in Marriott’s human resources department.

Rasmy asserts he told Hassinger that Efstratiou was harassing him

based on his national origin and religion by taking “great pride that

Egyptian[s] do the dirty work in Greece like the Mexican[s] in the

United States.” 7 Efstratiou had also reportedly told Rasmy that

“Greeks are the only pure race” because they “lived on the same land

for 3,000 years,” while “Egyptians have been occupied all their

history.” 8 At a Mormon convention hosted at Essex House in 2014

‐ 15,

Efstratiou referred in Rasmy’s presence to the Mormon guests as

“fucking non

‐ alcoholic Christian[s]” and said that “they don’t drink

but they marry their sister.” 9 Rasmy states that he reported this

incident to Hassinger, who did not follow up on Rasmy’s complaint.

Rasmy also asserts that he reported these incidents to Doherty who,

Rasmy alleges, “laughed in [his] face” and did nothing to investigate

his complaints. 10

Rasmy states in his sworn declaration in opposition to

Defendants’ summary judgment motion that in addition to Efstratiou,

7 Id

.

8 Id

.

9 App’x 381.

10 App’x 381, 493

‐ 94.8 two other employees of Essex House, defendants Tehrani Mehrani

(“Mehrani”) and Sesskon Pongpanta (“Pongpanta”), would also

regularly insult and harass him. Rasmy testified that Efstratiou,

Mehrani, and Pongpanta would “constantly” call him names such as

“rat,” “[t]he mummy,” “camel,” “Egyptian rat,” “pretentious

Christian,” and “gyps[y],” and would often garnish these slurs with

familiar expletives. 11 Rasmy claims that eventually Efstratiou would

refuse to use Rasmy’s given name, and referred to him only by these

ethnic and religious insults.

In May 2015, Rasmy filed an Equal Employment Opportunity

Commission (“EEOC”) charge against Marriott. While Doherty states

in her depositionthat she told staff that they “[should] not engage in

that kind of [discriminatory] behavior,” 12 Rasmy asserted in his EEOC

charge that Doherty “explicitly conveyed to [him] how upset she [was]

about the extra work [he] caused her because of [his] complaints.” 13

Rasmy also alleges that after he filed the EEOC charge, Doherty

“verbally abused” him and threatened him with “termination under

false pretenses.” 14 Doherty allegedly also told Rasmy that another

employee had filed a complaint against him, but she did not allow him

to see evidence of that complaint. Finally, Rasmy claims that after he

11 App’x 93

‐ 94, 200

‐ 01, 357, 371, 484, 493, 496.

12 App’x 203

‐ 05.

13 App’x 493

‐ 94.

14 App’x 494.9 made “four or five complaints,” Doherty called him into her office and

told him: “keep your mouth shut about anything [that] happen[s] in

this hotel or your days will be numbered.” 15 After this meeting,

Rasmy’s attorney emailed Doherty about the harassment, but Doherty

did not respond.

Frustrated because of Marriott’s lack of response to his

allegations, Rasmy drove to Marriott’s corporate headquarters in

Bethesda, Maryland in January 2016 and spoke to Keith Wallace

(“Wallace”), Senior Director of Global Investigations. Rasmy told

Wallace that employees were stealing money from the company, and

that his internal complaints about the theft led to discriminatory

retaliation and unlawful religious and racial harassment. In response,

Wallace told Rasmy to “[t]ake it to Hassinger.” 16 When Rasmy told

Wallace he had already spoken to Hassinger, Wallace replied, “I don’t

know, it’s not my department.” 17 Rasmy explained that he had been

cursed at, racially insulted, and discriminated against, to which

Wallace responded, “I am here only to investigate the money issue.

This other issue you need to take it to Peggy Hassinger.” 18 Rasmy

again stated he had already done so, and Wallace told him, “[w]ell,

there’s nothing I can do.” 19 Defendants disclosed in their Rule 56.1

15 App’x 361, 367.

16 App’x 377.

17 Id

.

18 App’x 378.

19 Id

.10 statement that Wallace eventually went to Essex House to investigate

the wage theft, but did not state whether he investigated the

allegations of discrimination.

Rasmy stated in his sworn declaration in opposition to

Defendants’ motion for summary judgment that, as a result of his

reporting to Marriott the discrimination and use of slurs by Efstratiou,

Mehrani, and Pongpanta, the harassment he experienced at work

“escalated.” 20 In consequence, Rasmy claims, he became “chronically

nervous,” would “cr[y] regularly,” and began to see a psychiatrist who

prescribed him anti

‐ anxiety medication. 21

On May 9, 2016, Rasmy and Pongpanta were working at an

event in the restaurant at Essex House. A dispute arose between

Rasmy and Pongpanta in the hallway between the restaurant and the

kitchen. While Rasmy alleges there was a video camera in that

hallway, Defendants asserted in their Rule 56.1 statement that “[t]here

are no surveillance cameras pointing into the hallway” and that “no

video footage of the altercation exists.” 22 Rasmy alleges that

Pongpanta insulted him and spat in his face, and told him “[y]ou

smell” and “[y]ou stink.” 23 Pongpanta then told Rasmy “you got no

...

witnesses,” and that he would “get my gun” and “finish you

20 App’x 288.

21 App’x 287

‐ 88.

22 App’x 303.

23 App’x 64.11 tonight.” 24 While investigating the incident immediately afterwards,

Marriott security officers saw liquid on Rasmy’s face, which Rasmy

alleged was Pongpanta’s saliva. After this incident, Doherty

recommended Rasmy’s termination, and he was fired by Marriott

shortly thereafter on May 24, 2016.

II. Procedural History

Rasmy filed this suit against Marriott pro se on June 22, 2016, in

the Southern District of New York. He challenged his termination as

discriminatory and retaliatory, and alleged that he had been subjected

to a hostile work environment on the basis of his race, religion, and

national origin. Marriott moved to dismiss the complaint under

Federal Rule of Civil Procedure 12(b)(6). On January 26, 2017, Rasmy,

now represented by counsel, moved to amend his complaint to add

the individual defendants and new claims under Section 1981.

On February 24, 2017, the District Court dismissed Rasmy’s

hostile work environment claims under New York State and New

York City law as stated in his initial complaint for lack of subject

matter jurisdiction, but otherwise denied Marriott’s motion to dismiss.

After Rasmy filed his First Amended Complaint on May 9, 2017,

Defendants moved for summary judgment on October 25, 2017. On

September 28, 2018, the District Court granted Defendants’ summary

judgment motion as to Rasmy’s Title VII and Section 1981 claims,

declined to exercise supplemental jurisdiction over the remaining

24 App’x 72, 355.12 NYSHRL and NYCHRL claims, and dismissed them without

prejudice.

This timely appeal followed.

DISCUSSION

We review de novo a district court’s grant or denial of summary

judgment on claims brought under Title VII and Section 1981. 25 In

evaluating such motions, the district court must resolve any doubts

and ambiguities and draw all reasonable inferences in favor of the

nonmoving party. 26 “In determining whether the moving party is

entitled to judgment as a matter of law, or whether instead there is

sufficient evidence in the opposing party’s favor to create a genuine

issue of material fact to be tried, the district court may not properly

consider the record in piecemeal fashion, trusting innocent

explanations for individual strands of evidence; rather, it must review

all of the evidence in the record.” 27

Rasmy primarily makes two points in challenging the District

Court’s decision granting Defendants’ motion for summary judgment

as to Rasmy’s claims alleging a discriminatory hostile work

environment. First, he argues that the District Court disregarded all

incidents of harassment that were not expressly discriminatory or

25 See, e.g. Kaytor v. Elec. Boat Corp.

, 609 F.3d 537, 546 (2d Cir. 2010).

26 See id

. at 545.

27 Id

. (internal citation and quotation marks omitted) (noting that “[t]his is

especially so in considering claims of hostile work environment”).13 directed at Rasmy. Second, Rasmy objects to the District Court’s

conclusion that pervasive and highly offensive harassment could not

have altered the conditions of Rasmy’s employment because he had

not been physically threatened and his work performance had not

suffered. With respect to each of these arguments, Rasmy contends

that the District Court improperly engaged in fact finding and

resolved disputed issues of fact by drawing inferences against Rasmy.

Regarding his claim of discriminatory retaliation, Rasmy argues that

he established a prima facie case for retaliation, and a jury could

reasonably find that he was terminated from his position in retaliation

for complaining about the hostile work environment. We agree on

each of these points.

I. Rasmy’s Hostile Work Environment Claim

An employer violates Title VII when 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

...

so long as there is a basis for imputing the conduct that created the

hostile environment to the employer.” 28 To analyze whether a plaintiff

meets this burden, a district court considers “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

28 Kaytor

, 609 F.3d at 546 (emphasis omitted) (citation and internal quotation

marks omitted).14 the victim’s [job] performance.” 29 This test has both “objective and

subjective elements: the misconduct shown must be severe or

pervasive enough to create an objectively hostile or abusive work

environment, and the victim must also subjectively perceive that

environment to be abusive.” 30

The District Court held, with respect to Rasmy’s hostile work

environment claims, that “[w]hile discriminatory behavior not

directed at the plaintiff can still contribute to the creation of an overall

hostile work environment, general anti

‐ religion statements of this

nature not directed at the plaintiff personally are stray remarks at best.”

(emphasis added) (internal quotation marks omitted). 31 It concluded

that there were “no facts in the record to support the inference that

plaintiff was personally targeted by anti

‐ Christian animus, nor that he

experienced anything more than a petty slight in his work

environment regarding his religious practice.” 32

A

Rasmy contends that the District Court erred by disregarding all

incidents of harassment that were not expressly discriminatory or not

29 Rivera v. Rochester Genesee Reg’l Transp. Auth.

, 743 F.3d 11, 20 (2d Cir. 2014)

(alteration in original).

30 Id

. (citation and internal quotation mark omitted).

31 Sp. App’x 21

‐ 22 (emphasis added) (citation and internal quotation marks

omitted).

32 Sp. App’x 22.15 directed at Rasmy. 33 Specifically, Rasmy maintains that the District

Court refused to consider conduct not expressly based on race,

religion, or national origin. Hence, Rasmy argues that it was error for

the District Court to conclude as a matter of law that certain

Defendants calling Rasmy a “rat” or allegedly filing false workplace

complaints against him did not constitute discriminatory actions. We

agree.

Our case law is clear that when the same individuals engage in

some harassment that is explicitly discriminatory and some that is not,

33 The EEOC, in an amicus brief in support of Rasmy and in favor of reversal,

noted this point. The EEOC may participate as amicus curiae in a case that “raises

novel or important issues of law under Title VII ...” See EEOC Amicus Curiae

Program https://www.eeoc.gov/eeoc/litigation/amicus.cfm. Here, the EEOC has

chosen to participate, taking the position that the District Court “significantly

misconstrued and misapplied Title VII’s protections against discriminatory hostile

work environments.” EEOC Br. at 1. Although we are not bound by the EEOC’s

interpretations of Title VII, we accord respectful consideration to the Commission’s

views. See Townsend v. Benjamin Enterprises, Inc.

, 679 F.3d 41, 53 (2d Cir. 2012) (“The

EEOC ʹ s Enforcement Guidance [interpreting Title VII] is entitled to deference to the

extent it has the power to persuade.”); see also Skidmore v. Swift & Co.

, 323 U.S. 134,

140 (1944) (“We consider that the rulings, interpretations and opinions of

[administrative agencies], while not controlling upon the courts by reason of their

authority, do constitute a body of experience and informed judgment to which

courts and litigants may properly resort for guidance. The weight of such a

judgment in a particular case will depend upon the thoroughness evident in its

consideration, the validity of its reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to persuade, if lacking

power to control.”).16 the entire course of conduct is relevant to a hostile work environment

claim. 34

Moreover, on de novo review of the record, we note disputed

issues of material fact as to whether a rational jury could infer

discrimination from the fact that Efstratiou, Tehrani, and Pongpanta

also allegedly called Rasmy several names explicitly related to his

religion or national origin, including “[t]he mummy,” “camel,”

“Egyptian rat,” and “pretentious Christian.” 35

On similar grounds, Rasmy challenges the District Court’s

conclusion that “the unmistakable inference from the timing of the

comments after years without incident [is] that [Rasmy’s] coworkers

were likely motivated by personal animus in response to [Rasmy’s]

allegations of wage theft more than any discriminatory animus.” 36

Here, too, we agree that the District Court inappropriately made

34 See Pucino v. Verizon Wireless Commc’ns, Inc.

, 618 F.3d 112, 118 (2d. Cir

2010) (“A plaintiff may rely on incidents of sex

‐ based abuse to show that other

ostensibly sex

‐ neutral conduct was, in fact, sex

‐ based.”); Kaytor

, 609 F.3d at 547

‐ 48

(“Circumstantial evidence that facially sex

‐ neutral incidents were part of a pattern

of discrimination on the basis of gender may consist of evidence that the same

individual engaged in multiple acts of harassment, some overtly sexual and some

not.” (citation and internal quotation marks omitted)).

35 App’x 93

‐ 94, 200

‐ 01, 357, 371, 484, 496.

36 Sp. App’x 24

‐ 25.17 factual determinations regarding Defendants’ motivations,

supplanting the role of the jury. 37

Concerning comments that Rasmy overheard that were not

directed at him but allegedly were purposefully made to others in his

presence, Rasmy testified at his deposition that Efstratiou “always

made sure that [Rasmy] hear[d] comment[s] about religion[], about

Egyptian[s], and [about] how superior Greeks are.” 38 Rasmy claims

that the record reveals numerous other references by Defendants to

Rasmy’s religion and national origin—which, in his view, were

“constant[].” 39 The District Court dismissed these comments as “stray

remarks,” stating that there were “no facts in the record to support the

inference that [Rasmy] was personally targeted by any anti

‐ Christian

animus.” 40 Our review of the record leads us to conclude that Rasmy’s

claims raise disputed issues of material fact—as to whether the

abusive comments of which Rasmy complained were in fact stray

remarks or sufficiently pervasive or chronic conduct constituting

consciously discriminatory animus.

37 See Raniola v. Bratton

, 243 F.3d 610, 623 (2d Cir. 2001) (stating that

questions regarding motives for defendant’s alleged discriminatory conduct are

matters of fact that should be resolved by a jury).

38 App’x 381.

39 App’x 287.

40 Sp. App’x 22.18 Moreover, the “stray remarks” doctrine is by no means

dispositive. 41 In a claim of a hostile work environment, the emphasis

is on the hostility of the work environment as a whole, not the

motivation of one decisionmaker, and liability is “determined only by

looking at all the circumstances.” 42 A plaintiff must show merely that

discriminatory incidents were “sufficiently continuous and concerted

to have altered the conditions of [the employee’s] working

environment.” 43 Accordingly, conduct not directly targeted at or

spoken to an individual but purposefully taking place in his presence

can nevertheless transform his work environment into a hostile or

abusive one, 44 and summary judgment for Defendants on this basis

was unwarranted.

In finding that Rasmy’s allegations did not constitute “severe”

harassment, the District Court relied substantially on Mathirampuzha

41 See Tomassi v. Insignia Fin. Grp., Inc.

, 478 F.3d 111, 115

‐ 16 (2d Cir. 2007)

(“Where we described remarks as ‘stray,’ the purpose of doing so was to recognize

that all comments pertaining to a protected class are not equally probative of

discrimination and to explain in generalized terms why the evidence in the

particular case was not sufficient. We did not mean to suggest that remarks should

first be categorized either as stray or not stray and then disregarded if they fall into

the stray category.”) abrogated in part on other grounds by Gross v. FBL Fin. Servs. Inc.

,

557 U.S. 167 (2009).

42 Harris

, 510 U.S. at 23.

43 Alfano v. Costello

, 294 F.3d 365, 374 (2d Cir. 2002) (citation and internal

quotation marks omitted).

44 The EEOC notes in its brief that it has long taken this position. See EEOC

Br. at 13

‐ 14 (citing cases).19 v. Potter

. 45 Mathirampuzha

, however, is inapposite. In that case, our

analysis addressed a disparate

‐ treatment claim, rather than allegations

of a hostile work environment. We held that an assault did not

constitute an “adverse employment action” for purposes of the third

prong of establishing a prima facie case in a disparate

‐ treatment case. 46

And even if the assault in Mathirampuzha were analyzed for purposes

of determining whether a hostile work environment existed, the

question presented was whether a “single event, if extraordinarily

severe, could alter the conditions of a working environment.” 47

By contrast, here Rasmy has alleged numerous incidents of

discriminatory harassment over the course of at least three years, and

he claims that despite his repeated complaints to various persons in

Marriott management, Marriott failed to respond appropriately. 48 In

examining the question of the severity of Defendants’ alleged

discriminatory conduct and its effect on Rasmy, we consider relevant

the total impact on Rasmy of the many alleged episodes of harassment

over the course of three years. The District Court’s comparison of the

facts to those in Mathirampuzha created “a rigid ‘calculat[ion] and

compar[ison]’ methodology [that] ignore[d] the proper role of courts

45 548 F.3d 70 (2d Cir. 2008).

46 Id

. at 78

‐ 79.

47 Id

. at 79 (citation and internal quotation marks omitted).

48 See Schiano v. Quality Payroll Sys., Inc.

, 445 F.3d 597, 606 (2d Cir. 2006)

(when a plaintiff alleges ongoing harassment, the severity of any one act is not

dispositive).20 ... at the summary judgment stage

... [and], if strictly followed,

disregards Supreme Court guidance that hostile environment analysis

‘is not, and by its nature cannot be, a mathematically precise test.’” 49

B

Despite finding that Rasmy had not shown “severe”

harassment, the District Court acknowledged that a jury could find

“pervasive” harassment that was “offensive” and “degrading.”

Nevertheless, it determined that the harassment Rasmy claimed was

not actionable because there is nothing in the record from which a

reasonable jury could conclude that the alleged discrimination altered

the conditions of Rasmy’s employment. Specifically, the District Court

concluded that Rasmy had not alleged that he had been physically

threatened or that the claimed harassment, had interfered with his job

performance. This analysis, in our view, misreads Title VII. As the

EEOC’s brief noted, it “ignores the very reason that Title VII prohibits

discriminatorily hostile work environments.” 50

Although the presence of physical threats or impact on job

performance are relevant to finding a hostile work environment, their

49 Hayut v. State Univ. of N.Y.

, 352 F.3d 733, 746 (2d Cir. 2003) (quoting Harris

,

510 U.S. at 22).

50 EEOC Br. at 18; see also Harris

, 510 U.S. at 22 (“[E]ven without

... tangible

effects, the very fact that the discriminatory conduct was so severe or pervasive that

it created a work environment abusive to employees because of their race, gender,

religion, or national origin offends Title VII’s broad rule of workplace equality.”).21 absence is by no means dispositive. Rather, the overall severity and

pervasiveness of discriminatory conduct must be considered. 51 By its

very nature that determination is bound to raise factual disputes that

likely will not be proper for resolution at the summary judgment stage.

In this case, there is a reasonable inference that Rasmy participated in

a physical altercation as part of a deteriorating job performance caused

by the alleged hostile work environment. 52 Moreover, in its calculation

of the severity of the discrimination Rasmy claimed, the District Court

did not credit Rasmy’s sworn statements that the harassment made

him “chronically nervous,” that he began to “cr[y] regularly,” and that

he started seeing a psychiatrist who prescribed him anti

‐ anxiety

medication, all of which arguably gives rise to a strong inference that

Rasmy’s workplace conditions had been materially altered. 53 To that

extent, Rasmy presented disputed issues of material fact that should

be resolved by a jury, not the court. 54

51 See Harris

, 510 U.S. at 23 (discussing Title VII’s totality of the

circumstances inquiry).

52 Cf. Harris

, 510 U.S. at 22 (“A discriminatorily abusive work environment,

even one that does not seriously affect employees ʹ psychological well

‐ being, can

and often will detract from employees ʹ job performance, discourage employees

from remaining on the job, or keep them from advancing in their careers.”).

53 App’x 287

‐ 88.

54 See Patterson v. County of Oneida, N.Y.

, 375 F.3d 206, 227 (2d Cir. 2004)

(“Where reasonable jurors could disagree as to whether alleged incidents of racial

insensitivity or harassment would have adversely altered the working conditions

of a reasonable employee, the issue of whether a hostile work environment existed

may not properly be decided as a matter of law.”).22 II. Rasmy’s Retaliation Claim

Rasmy also contends that the District Court erred in granting

Defendants’ motion for summary judgment as to Rasmy’s retaliation

claim. Specifically, he argues that there are disputed issues of material

fact from which a reasonable jury could find that Rasmy was fired for

complaining about unlawful discrimination. We agree.

To establish a prima facie case of unlawful retaliation, a plaintiff

must show “(1) that [he] participated in a protected activity, (2) that

[he] suffered an adverse employment action, and (3) that there was a

causal connection between [his] engaging in the protected activity and

the adverse employment action.” 55 Rasmy’s complaints to Marriott’s

management regarding the alleged discrimination he was facing on a

daily basis and his eventual termination satisfy the first two elements

of the prima facie case. 56

With respect to the third element, the District Court concluded

that Rasmy could not make out a prima facie case because the record

does not show that he was terminated for complaining about

harassment. To reach that conclusion, the District Court employed a

55 Gorzynski v. JetBlue Airways Corp.

, 596 F.3d 93, 110 (2d Cir. 2010).

56 See Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons

, 842 F.2d

590, 593 (2d Cir. 1988) (“To prove that he engaged in protected activity, the plaintiff

need not establish that the conduct he opposed was in fact a violation of Title VII.

However, the plaintiff must demonstrate a good faith, reasonable belief that the

underlying challenged actions of the employer violated the law.” (internal citations

and quotation marks omitted)).23 “but

‐ for” causation standard, which applies at the later stage of the

burden shifting

‐ analysis when a plaintiff is attempting to demonstrate

that an employer’s allegedly neutral reason for an adverse action is a

pretext for retaliation. 57 We conclude that Rasmy’s retaliation claim

raises issues of material fact.

The record indicates that Rasmy had complained about

discrimination for years prior to being fired, and that his last formal

complaint was made in January 2016, five months before his

termination. On the basis of this timeline, the District Court held that

“no reasonable juror could find that Marriott would not have

terminated Rasmy but for his complaints of discrimination.” 58 As

noted above, however, the rule of but

‐ for causation is not applicable

as to whether Rasmy established a prima facie case—it applies when a

plaintiff is rebutting an employer’s neutral reason for an adverse

employment action. As it happens, we have previously held that “five

months is not too long to find the causal relationship.” 59 Questions

regarding the time gap and causal connection of an alleged retaliatory

termination may entail special consideration of the size and

57 See Ya

‐ Chen Chen v. City Univ. of N.Y.

, 805 F.3d 59, 70 (2d Cir. 2015).

58 Sp. App’x 18.

59 Gorzynski

, 596 F.3d at 110; see also Summa v. Hofstra Univ.

, 708 F.3d 115, 128

(2d Cir. 2013) (concluding that a “seven

‐ month gap between [plaintiff’s] filing of

the instant lawsuit and the decision to terminate her employment privileges is not

prohibitively remote”); Grant v. Bethlehem Steel Corp.

, 622 F.2d 43, 45

‐ 46 (2d Cir.

1980) (finding a causal connection between a retaliatory act and an EEOC complaint

filed eight months earlier).24 complexity of a defendant employer, where termination of

employment may involve multiple layers of decisionmakers, as well

as the nature of plaintiff’s claims. In some such circumstances, a five

‐

month time frame for a decision to fire an employee may not be

exceptional.

In sum, we find that there is a triable issue of fact as to whether

Rasmy’s allegations that his attempts to raise the issue of harassment

with higher management at Marriott in January 2016 led to him being

fired. Specifically, Rasmy asserts that after he filed his EEOC charge,

Doherty was upset, “verbally abused” him, threatened to fire him, and

told him to “keep [his] mouth shut” about anything that happened in

the hotel “or [his] days will be numbered.” 60 Whether Rasmy’s firing

five months after a complaint of discrimination was caused by his

complaints or, as Marriott argues, by his fight with Pongpanta, raises

a factual issue that should be decided by a jury. Marriott’s claim that

Doherty’s reaction related to Rasmy’s reports of wage theft rather than

his complaints of discrimination also poses a factual question that both

sides are disputing, and therefore should be presented to a jury.

As our cases hold, the question of what motivated an employer’s

desire to fire a worker is a quintessential jury function. 61 In the

60 App’x 361, 367, 494.

61 See Stern v. Trustees of Columbia Univ. in City of N.Y.

, 131 F.3d 305, 312 (2d

Cir. 1997) (noting that, “[i]n assessing the record to determine whether there is such

an issue, the court is required to resolve all ambiguities and draw all permissible

factual inferences in favor of the party against whom summary judgment is25 circumstances presented here, a reasonable jury could find that

Marriott’s reasons for firing Rasmy were pretextual. Once a plaintiff

makes out a prima facie case of retaliation under the burden

‐ shifting

framework, the defendant may rebut the “presumption of retaliation”

by “articulat[ing] a legitimate, non

‐ retaliatory reason for the adverse

employment action.” 62 If the defendant provides an explanation, the

plaintiff must prove “that the desire to retaliate was the but

‐ for cause

of the challenged employment action.” 63 Here, Marriott states that its

non

‐ retaliatory reason for firing Rasmy was due to his physical

altercation with Pongpanta on May 24, 2016. 64 However, Rasmy

argues (and a jury could agree) that this proffered reason is mere

pretext, and the decision to terminate his employment was due to his

repeated complaining to Marriott about ongoing discrimination.

It bears recalling, that in discrimination cases, plaintiffs rarely

produce direct evidence of retaliation. As we observed in Carlton v.

Mystic Transportation, Inc. :

[P]roof is seldom available with respect to an employer’s mental

processes. Instead, plaintiffs in discrimination suits often must

sought”); Gallo v. Prudential Residential Servs., Ltd. Partnership

, 22 F.3d 1219, 1224 (2d

Cir. 1994) (“A trial court must be cautious about granting summary judgment to an

employer when, as here, its intent is at issue.”).

62 Jute v. Hamilton Sundstrand Corp.

, 420 F.3d 166, 173 (2d Cir. 2005).

63 Ya

‐ Chen Chen

, 805 F.3d at 70 (citation omitted).

64 See Appellees’ Br. at 19.26 rely on the cumulative weight of circumstantial evidence, since

an employer who discriminates against its employee is unlikely

to leave a well

‐ marked trail, such as making a notation to that

effect in the employee’s personnel file. Ordinarily, plaintiff’s

evidence establishing a prima facie case and defendant’s

production of a nondiscriminatory reason for the employment

action raise a question of fact to be resolved by the factfinder

after a trial. Summary judgment is appropriate at this point only

if the employer’s nondiscriminatory reason is dispositive and

forecloses any issue of material fact. 65

Here, Rasmy has made a prima facie case of retaliation based on

Doherty’s threats for Rasmy “to keep [his] mouth shut” or his “days

will be numbered.” 66 Marriott claims that Rasmy was fired because of

his altercation with Pongpanta, and that both employees were treated

equally because Pongpanta was fired as well. 67 There are a host of

disputed facts in this regard that render summary judgment

inappropriate. Rasmy denies hitting Pongpanta (both Marriott and

Pongpanta argue that Rasmy initiated the physical conflict), and based

on Rasmy’s earlier complaints about Pongpanta, Marriott was aware

that Pongpanta had been instigating confrontations with Rasmy

65 202 F.3d 129, 135 (2d Cir. 2000) (internal citations omitted).

66 App’x 361, 367.

67 Pongpanta was later reinstated to his position after a post

‐ termination

arbitration proceeding brought through his union. Rasmy never attempted to

appeal his firing through arbitration.27 repeatedly by making offensive remarks about Rasmy’s race, religion,

and national origin.

Marriott claims that there were no cameras in the hallway where

the fight took place, which Rasmy disputes in his testimony, recalling

at his deposition that there were “two cameras in the hallway ceiling

pointed at the ground of the hallway

... [and that] they were

functioning.” 68 Whether or not such cameras were in place and

functioning are relevant and disputed factual questions that should be

decided by a jury. On our review of the record, we think a jury could

find in favor of Rasmy on the issue of fact as to whether Marriott was

aware of video footage of the altercation, but declined access to it. In

sum, we conclude that it was error to grant summary judgment to

Defendants on Rasmy’s retaliation claim.

III. Rasmy’s State Law Claims

Because the District Court granted summary judgment

disposing of Rasmy’s federal claims, it declined to exercise

supplemental jurisdiction over Rasmy’s remaining retaliation claims

brought under the NYSHRL and NYCHRL. We accordingly reinstate

these claims insofar as the District Court dismissed them without

prejudice due solely to the absence of Rasmy’s federal claims. 69

68 App’x 379.

69 See Karibian v. Columbia Univ.

, 14 F.3d 773, 781 (2d Cir. 1994) (vacating

dismissal of plaintiff’s Title VII claims and reinstating pendent state law claims

dismissed for lack of jurisdiction).28 CONCLUSION

To summarize, we hold as follows:

(1) A hostile work environment claim does not require a plaintiff

to show that he or she had been physically threatened or that

his or her work performance had suffered by reason of such

hostile work environment;

(2) Discriminatory conduct not directly targeted at another

employee ( e.g.

, discriminatory remarks made in an

employee’s presence though addressed to another person)

can contribute to the creation of an actionable hostile work

environment;

(3) Dismissal of Rasmy’s retaliation claim by summary

judgment was improper because Rasmy presented disputed

issues of material fact that should be resolved by a jury.

For the foregoing reasons, we VACATE the September 28, 2018

judgment of the District Court and REMAND the cause to the District

Court for further proceedings consistent with this opinion, including

trial as appropriate.