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holding that tirade of cursing and use of a racial slur directed at plaintiff "do feature discriminatory language, [but] they are, at best, stray remarks, and as such, are insufficient to defeat summary judgment."
Summary of this case from AMNA v. NEW YORK STATE DEPARTMENT OF HEALTHOpinion
No. 03 Civ. 1991 (LAP).
January 28, 2005
OPINION AND ORDER
Plaintiff Roberto Rivera ("Plaintiff") was terminated from his position as a probationary employee by his employer, the United States Postal Service ("USPS"), on August 16, 2000. Plaintiff filed this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., against John E. Potter, the Postmaster General ("Defendant"), alleging that he was inappropriately terminated on account of his religion, race and national origin, and in retaliation for his invocation of the Equal Employment Opportunity ("EEO") process. Defendant presently moves for summary judgment.
The USPS was originally named as a defendant in this matter, but in response to Defendant's argument that the USPS was not an appropriate party under Title VII, Plaintiff voluntarily dismissed the USPS. See 42 U.S.C. § 2000e-16(c) (only the "head of the department, agency, or unit, as appropriate, shall be the defendant.").
I. Background
Plaintiff is a Christian man of Puerto Rican descent. He was hired by the USPS in early June of 2000 and, after completing an orientation program, he reported as a probationary employee to the East Tremont Postal Station on June 12, 2000. Pursuant to the collective bargaining agreement between the USPS and the National Association of Letter Carriers, Plaintiff was subject to a ninety-day probationary period, during which time the USPS could terminate his employment without affording him access to the grievance procedure available to full employees. (Decl. of Kenneth Levine ("Levine Dec."), dated March 3, 2004, Ex. A at Art. 12.1.A.) At the close of the probationary period, the USPS was to make a determination as to whether to retain Plaintiff as a full employee or let him go.
Plaintiff's official title was Part-Time Flexible ("PFT") letter carrier. As a PFT carrier, Plaintiff was to "work flexible hours as assigned by the [USPS] during the course of a service week." (Levine Dec., Ex. A at Art. 7.1.B.) According to Plaintiff, he "had no type of permanent route . . . [he] was just a part-time flex listening to [his] supervisors on a day-to-day basis work environment." (Dep. of Roberto Rivera ("Rivera Dep."), taken on Dec. 3, 2003, at 104.) Full USPS employees can work on Sundays, and probationary PTF carriers have no weekly limit on work hours. (Dep. of Brian Nash ("Nash Dep."), taken on Dec. 8, 2003, at 18; Dep. of Lawrence Tettah ("Tettah Dep."), taken on Dec. 11, 2003, at 20-23).
At the East Tremont Postal Station, Plaintiff had three supervisors: Sloan Williams ("Williams"), Brian Nash ("Nash") and Lawrence Tettah ("Tettah"). Williams was Plaintiff's direct supervisor from morning until late afternoon or early evening, at which time Tettah would take over as evening supervisor. Plaintiff obtained his assignments from Williams and reported to Tettah at the end of the day. Nash was the acting manager of the East Tremont Postal Station and performed Williams' duties when Williams was not present.
Plaintiff claims that during his tenure as a PTF carrier he was discriminated against by Defendant. Plaintiff filed his Complaint on March 21, 2003, alleging the following violations of Title VII: (1) employment discrimination on the basis of religion, race and national origin; (2) retaliation for engaging in a protected activity; and (3) creation by Defendant of a hostile work environment.
Plaintiff does not state this third claim separately in his Complaint but rather folds it into his employment discrimination claim. However, because a hostile work environment claim requires a different legal analysis from that applicable to an employment discrimination claim, the Court will address it separately. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (setting forth the basic Title VII analysis); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (setting forth a standard hostile work environment analysis).
Additionally, Plaintiff originally paired his Title VII claims with two parallel New York State Human Rights Law claims. However, in response to Defendant's argument that Title VII is the exclusive remedy for employees alleging employment discrimination, Plaintiff withdrew the state claims. See Brown v. General Services Admin., 425 U.S. 820, 832 (1976); Briones v. Ranyon, 101 F.3d 287, 289-90 (2d Cir. 1996).
Defendant, in the present summary judgment motion, argues that: (1) Plaintiff cannot make out a prima facie case of discrimination or retaliation under Title VII; (2) Plaintiff was terminated for a legitimate reason; and (3) Plaintiff has not proffered evidence from which a jury could find a hostile work environment. For the reasons set forth below, Defendant's motion for summary judgment is granted.
II. The Standard for Summary Judgment
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be rendered forthwith if the pleadings, depositions, answers, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, 477 U.S. 242, 250 (1986).
The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining whether summary judgment is appropriate, a court must resolve all ambiguities, and draw all reasonable inferences against the moving party. See Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1982)).
If the moving party meets its burden, the burden then shifts to the non-moving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party must "do more than simply show there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, and the non-moving party may not "rest upon . . . mere allegations or denials," St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). However, only when it is apparent than no rational finder of fact "could find in favor of the non-moving party because the evidence to support its case is so slight" should summary judgment be granted. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir. 1994).
It is often difficult to apply summary judgment analysis in employment discrimination cases because they necessarily turn on the intent of the alleged discriminator, and plaintiffs will rarely uncover direct evidence of discriminatory intent. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989). Nonetheless, a plaintiff must produce some evidence from which a reasonable inference of discrimination can be drawn. McLee v. Chrysler Corp., 109 F.3d 130, 134-35 (2d Cir. 1997). For a discrimination plaintiff to survive a motion for summary judgment, he must do more than present "`conclusory allegations of discrimination,'" Duprey v. Prudential Insur. Co. of America, 910 F.Supp. 879, 883 (N.D.N.Y. 1996) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)), "he must offer `concrete particulars' to substantiate [his] claim." Id.
III. Discussion
A. Title VII Discrimination
Under Title VII, it is unlawful "for an employer . . . to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). The Supreme Court articulated the employment discrimination burden of production in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). UnderMcDonnell Douglas, once a plaintiff makes out a prima facie case of discrimination, the defendant has the burden of articulating a legitimate, non-discriminatory reason for its actions. See Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir. 1998). If the defendant satisfies its burden, the plaintiff must show by a preponderance of the evidence that the legitimate reason proffered by the defendant is merely "a pretext for discrimination." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515-16 (1993) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
The Court assumes for the purposes of the present summary judgment motion that Plaintiff can make a prima facie case on his employment discrimination claim. However, because Defendant proffers evidence of a legitimate, non-discriminatory reason for Plaintiff's termination, and Plaintiff has not proffered evidence from which a jury could find that Defendant's reason was false and merely a pretext for discrimination (or retaliation), Plaintiff's Title VII discrimination claim fails as a matter of law.
Plaintiff was terminated on August 16, 2000. One of Plaintiff's three supervisors, Nash, informed him that he was fired from the USPS for deserting a mail route that he had been assigned to cover on August 14, 2000. The specific "Notice of Termination During Probation" reads:
Charge #1: Failure to Complete Your Assigned Duties. On Monday, August 14, 2000, you were assigned to deliver Route 5. The route was cased and tied down for you. Mr. Nash explained that he had curtailed mail to ensure that you would be able to complete the assignment. You did not complete the route and you did not report to management that you were unable to complete the assignment.
Charge #2: Failure to protect mail entrusted to your care. The undelivered mail from that day was left in a relay box overnight. It was discovered the next day and delivered.
(Declaration of Heather K. McShain ("McShain Dec."), dated March 5, 2004, Ex. E.)
Plaintiff argues that: "Plaintiff testified that he was assigned to Route Four (4) on August 14, 2000 and not Route Five (5). Rivera Dep., 152, lines 6-13; 153, lines 14-19." (Pl.'s Br. at 11). In fact, the cited testimony only establishes that, based on Ex. 5 to the Tetteh Dep., Plaintiff was assigned to an estimated one hour of work on Route 4 on August 14, 2000. On the record before me, Plaintiff did not testify that he was not assigned to Route 5. The undisputed evidence submitted by Defendant — Plaintiff's time record for August 14 — also establishes that Plaintiff worked ten and one half hours on August 14, 2000. (Levine Dec., Ex. F.) The documentary evidence also establishes that Plaintiff was assigned to Route 5 on August 14, 2000, as indicated by a worksheet, regularly used at the East Tremont Postal Station, to assign letter carriers to particular routes. (McShain Dec., Ex. G.) On the worksheet, Plaintiff's handwritten name appears in the column headed "Replacement" on the row clearly delineating Route 5. (Id.) Plaintiff's name also appears in the section of the worksheet identifying "Res. (Reserve) Carriers" and in the space next to Plaintiff's name, a number 5 is clearly written; another indication of his assignment to Route 5. (Id.) Plaintiff was also assigned to a one-hour portion of Route 4 on August 14, 2000, as indicated by the handwritten entry in the middle-bottom of the sheet, "RT4: 10, 17, 5, 6," indicating that Route 4 was to be covered by the carriers assigned to Routes 10, 17, 5 (Plaintiff) and 6. (Id.; Nash Dep. at 48-49.)
Plaintiff argues that the Tremont Station worksheet is unclear and there is slight confusion over the date that appears on the worksheet — the "4" in "8/14/00," though still clearly legible, was written over another number, suggesting that the author may have first written the wrong date. However, immediately next to the "8/14/00" is a space for the "M-T-W-Th-F-Sa-Su" day of the week, and "Monday" is written, clearly identifying the day for which the worksheet made assignments. (Id.) I take judicial notice that August 14, 2000 was a Monday. On August 15, Plaintiff was again assigned to Route 5, on a worksheet virtually identical to the previous day's. (Levine Dec., Ex. B.) Plaintiff's name again appears in the row marked "Route 5," and in accordance with the worksheet assignment, Plaintiff admits that he performed his duties. (Rivera Dep. at 115-16.) Despite the fact that the documents indicate that Plaintiff was assigned to Routes 4 (for a one-hour assignment) and 5 on August 14, 2000, and that he was assigned to and worked on Route 5 on August 15, 2000, he denies that he was assigned to Route 5 on August 14. E.g., Plaintiff's Rule 56 Counterstatement of Material Facts, ¶ 31.
Interestingly, on the points of confusion Plaintiff notes with regard to the August 14, 2000 worksheet, the August 15, 2000 worksheet is arguably even less clear. On the August 15, sheet, in the column marked "Res. Carriers," there is no route assignment next to Plaintiff's name. (Id.) On the August 14 sheet, the number "5" was written next to Plaintiff's name. (McShain Dec., Ex. G.) Perhaps most importantly, the "4" in "8/14/00" on the first sheet is even less legible than the "5" in "8/15/00" on the second sheet. Compare McShain Dec., Ex. Gwith Levine Dec., Ex. B. Yet despite the increased potential for confusion on August 15, 2000, Plaintiff completed Route 5 without a question, noticing that "[y]esterday's mail was still there and today's mail was being put there." (Rivera Dep. at 115-16.)
Defendant has proffered a legitimate, nondiscriminatory reason for Plaintiff's termination, viz., on Aug. 14, 2000, Plaintiff failed to complete Route 5 and failed to protect mail entrusted to his care when he left mail overnight in a relay box on Route 5. See McShain Dec., Ex. E; Rivera Dep. at 122; Nash Dep. at 58-61. As noted above, because Plaintiff has denied assignment to Route 5 on August 14, the burden now shifts to Plaintiff to proffer evidence from which a jury could find both that Defendant's reason is false and that discrimination (or retaliation) was the true motive. See St. Mary's Honor Ctr., 509 U.S. at 515; Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990) (retaliation). The inquiry is not whether the employer's reason is credible but whether the adverse employment action was intentionally discriminatory or retaliatory. St. Mary's Honor Ctr., 509 U.S. at 519; Sumner, 899 F.2d at 209 ("It is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination.")
Here, Plaintiff has proffered no evidence from which a factfinder could reasonably conclude that Plaintiff's termination was a pretext for discrimination. In an attempt to show that Defendant's termination of Plaintiff for abandoning Route 5 on August 14, 2000 was merely a pretext for discrimination, Plaintiff primarily points to two events. The first event involves alleged religious discrimination by supervisor Williams, and the second event involves alleged racial discrimination by a co-worker, Ray Dominguez.
Plaintiff testified that on or about July 8, 2000, he overheard Williams say that he "thought religion was funny." (Rivera Dep. at 33). Plaintiff stated that Williams "questioned" him about the Star of David he wore around his neck, that Williams referred to him as a "Christian boy" and that in response to Plaintiff's request that he not work on Sundays for religious reasons, Williams replied, "[t]here's no religion in the post office." (Id. at 34, 36-37, 78-79.) There is no evidence that Plaintiff failed to work on a Sunday.
It is worth noting that nowhere in his pleadings, response pagers or deposition testimony does Plaintiff specify the branch of Christianity to which he belongs or the religious rule to which he adheres that prevents him from working on consecutive Saturdays and Sundays. In any event, he did not refuse to work on Sundays and, thus, could not have drawn any adverse employment decision as a result.
The instance of alleged racial discrimination occurred on or about June 21, 2000 when a co-worker of Plaintiff's, Ray Dominguez, called Plaintiff a "Puerto Rican Spic" and an "asshole." (Id. at 47.) Although Plaintiff testified that he "did not have a problem" with Dominguez, after allegedly insulting Plaintiff, Dominguez followed him down a flight of steps toward an exit and "kept on cursing." (Id. at 36, 48-49.) Plaintiff claims that this event happened in front of "the whole staff" including Williams, and that in response, Plaintiff's USPS supervisors "didn't do nothing." (Id. at 67-68.)
Though these isolated events do feature discriminatory language, they are, at best, stray remarks, and as such, are insufficient to defeat summary judgment. See Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (citingWoroski v. Nashua Corp., 31 F.3d 105, 109-110 (2d Cir. 1994)). More importantly, Plaintiff has not proffered evidence from which a jury could make the critical connection between these events and his termination. There is no evidence from which a jury could find that Plaintiff was terminated for any reason other than his abandonment of Route 5, whether or not Plaintiff's supervisors were correct in their conclusion that he was, in fact, assigned to that Route.
Plaintiff only offers his own subjective belief concerning the motivation behind his termination, but his belief, standing alone, is insufficient to survive a motion for summary judgment. See Van Zant, 80 F.3d at 714 (dismissing Title VII claim where employer showed valid, unrefuted reasons for plaintiff's termination and plaintiff offered nothing but conclusory allegations regarding defendant's actions); Payne v. State of New York Power Authority, 997 F.Supp. 492, 498-99 (S.D.N.Y. 1998) (plaintiff's subjective belief that she was treated differently owing to protected class membership insufficient to survive summary judgment), aff'd, 173 F.3d 845 (2d Cir. 1999); Shabat v. Blue Cross Blue Shield of Rochester Area, 925 F.Supp. 977, 988 (W.D.N.Y. 1996) (employee's disagreement with adverse employment action did not create material dispute of fact as to whether decision was discriminatory).
Plaintiff makes an effort to include a wide array of interactions with Nash, Tettah and Williams in his discrimination claim. These interactions include allegedly insulting conversations, unsatisfactory work evaluations and unwanted schedule changes. However, none of these secondary events constitutes an adverse employment action. See e.g., Phillips v. Bowen, 278 F.3d 103, 117 (2d Cir. 2002) ("not every action that makes an employee unhappy" is an adverse employment action);Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 n. 3 (2d Cir. 1996) (supervisor's "nastiness" is not an adverse employment action); Boyd v. Presbyterian Hosp., 160 F.Supp.2d 522, 537 (S.D.N.Y. 2001) (holding that a poor performance evaluation alone does not constitute an adverse employment action).
Plaintiff attempts to latch these events onto the aforementioned instances of discrimination, arguing that the Williams and Dominguez comments create a "discriminatory backdrop" against which the "other harassing acts" should themselves be considered discriminatory. (Def.'s Br., 6-7.) However, Plaintiff offers no legal support for this "backdrop" theory. In fact, the relevant case law firmly opposes the linkage of common, albeit unpleasant, workplace behavior to Title VII claims. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (Title VII is not a "general civility code");Alfano v. Costello, 294 F.3d 365, 377 (2d Cir. 2002) ("many bosses are harsh, unjust and rude . . . [and] lack a linkage or correlation to the claimed ground of discrimination").
B. Title VII Retaliation
On July 18, 2000, Plaintiff visited the USPS Morgan Building in Manhattan to speak to a representative in Human Resources and file an EEO complaint based on the allegedly discriminatory events that had taken place at the East Tremont Postal Station. Plaintiff claims that after this visit, he was retaliated against in the East Tremont Station by Defendant, in violation of Title VII.
Title VII protects an employee engaging in a protected activity from any retaliation by an employer, Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000), and retaliation claims are analyzed under the same McDonnell-Douglas burden-shifting framework as Title VII discrimination claims. Texas Dept. of Community Affairs, 450 U.S. at 253. However, on his retaliation claim, Plaintiff cannot establish a prima facie case. To establish a prima facie Title VII retaliation case, a plaintiff must show that: (1) he was subjected to an adverse employment action, and (2) the adverse employment action was causally related to a protected activity in which the plaintiff was engaged. Id.
Plaintiff attempts to label every negative event during his employment as an adverse employment decision. There are two problems with this approach. First, Plaintiff visited the USPS Human Resources Department on July 18, 2000, and thus, only those events that took place after that date may be properly considered in this Title VII retaliation analysis.
Second, Plaintiff only suffered one adverse employment action: his termination. Although the other events to which Plaintiff refers may be less than pleasant, they do not qualify under Title VII as adverse employment decisions. To establish that an employer's conduct constituted an adverse employment decision, a plaintiff must show that the conduct resulted in "a materially adverse change in the terms and conditions of employment."Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997). While "adverse employment action" is not defined solely in terms of job termination or reduced wages and benefits, "not every unpleasant matter short of [discharge or demotion] creates a cause of action." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (quoting Welsh v. Derwinski, 14 F.3d 85, 86 (1st Cir. 1994)).
Plaintiff considers a disagreeable fluctuation in his `working schedule' on July 19, 2000 and his failure to receive a performance evaluation on August 2, 2000 adverse employment decisions potentially motivated by his EEO Complaint. (Complaint, ¶¶ 29-34.) Neither event fits the criteria set out inTorres. Plaintiff's job, by definition, subjected him to a changing work schedule. As a PFT carrier, Plaintiff was to "work flexible hours as assigned by the [USPS] during the course of a service week." (Levine Dec., Ex. A at Art. 7.1.B.) Plaintiff also testified that he "had no type of permanent route . . . [he] was just a part-time flex listening to [his] supervisors on a day-to-day basis work environment." (Rivera Dep. at 104.). Plaintiff's subjective opinion about his working schedule at any given point during his employment as a PFT does not qualify as an adverse employment decision.
Similarly, the fact that Plaintiff did not receive a second performance evaluation does not qualify as an adverse employment decision. Even a negative performance evaluation is not considered an adverse employment action. See Castro v. New York City Board of Educ., 96 Civ. 6314, 1998 WL 108004 at *7 (S.D.N.Y. March 12, 1998) (negative evaluations "unattended by a demotion, diminution of wages or other tangible loss do not materially alter employment conditions); Boyd v. Presbyterian Hosp., 160 F.Supp.2d at 537 (holding that a poor performance evaluation alone does not constitute an adverse employment decision). If a negative evaluation is not considered an adverse employment action, Defendant's failure to give Plaintiff an evaluation altogether cannot constitute an adverse employment action.
The only adverse employment action that Plaintiff potentially suffered with respect to his retaliation claim is his actual termination. However, moving to the second element of the prima facie Title VII retaliation analysis, Plaintiff must show that his termination was causally related to a protected activity in which he was engaged. Texas Dept. of Community Affairs, 450 U.S. at 253. Plaintiff has not proffered any evidence that would establish any such connection.
One of the primary means of establishing an inference of retaliatory motive for an adverse employment decision is to show temporal proximity. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). In this case, such a showing would involve Plaintiff's connecting his July 18, 2000 visit to USPS Human Resources with his August 16, 2000 termination. However, "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'" Id.; see also Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996).
Here, not only was Plaintiff terminated nearly a month after his making his EEO complaint, but Plaintiff has not proffered any evidence from which a jury could find that any one of his three supervisors was aware of his visit to USPS human resources. Plaintiff only testifed that "Nash knew I went to human resources, but he had no recollection of knowing who I spoke to," and that Plaintiff himself never spoke to Nash about his visit. (Rivera Dep. at 132-33.) Plaintiff also testified that he never had a conversation with Williams or Tettah regarding his visit.Id. at 134. Finally, both Tettah and Nash testified that they were not aware that Plaintiff had filed an EEO complaint until after Plaintiff's termination on August 16, 2000. (Tettah Dep. at 26; Nash Dep. at 28.) Because Plaintiff has not proffered evidence of a causal connection between his protected activity and his termination he has not established a prima facie retaliation case, and his retaliation claim fails as a matter of law.
C. Title VII Hostile Work Environment
A hostile work environment claim exists where the workplace is permeated with "discriminatory `intimidation, ridicule, and insult . . . that [is] sufficiently severe or pervasive enough to alter the conditions of employment and create an abusive working environment.'" Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993)). To state a claim for a hostile work environment, a plaintiff must demonstrate that he "was subjected to hostility because of . . . membership in a protected class."Brennan v. Metropolitan Opera Co., 192 F.3d 310, 318 (2d Cir. 1999).
However, as previously noted, Plaintiff only complains of two allegedly discriminatory events — Williams' religious comments and Ray Dominguez's racial insult. The Court of Appeals has held that:
[F]or racial comments, slurs and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. Thus, whether racial slurs constitute a hostile work environment typically depends on the quantity, frequency and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment.Schwapp v. Town of Avon, 118 F.3d 106, 110-11 (2d Cir. 1997) (citations omitted). "[I]solated remarks or occasional episodes of harassment will not merit relief under Title VII. In order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive."Riedlinger v. D'Amicantino, 974 F.Supp. 322, 327 (S.D.N.Y. 1997). Put simply, a jury could not find from the two instances of discriminatory behavior that Plaintiff describes that a hostile work environment prevailed at Plaintiff's workplace, and Plaintiff's Title VII hostile work environment claim consequently fails.