     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


           *
             The Clerk of the Court is respectfully directed to amend
     the official caption to conform to this one.
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

                                       2
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




          1
             The plaintiff has not appealed from the denial of his
     retaliation claim.

                                       3
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 Complaint3 ¶¶ 19-

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



          2
             John denies that he made derogatory racial comments to or
     about Aulicino.
          3
             The pleading entitled "Amended Complaint" is in fact
     Aulicino's second amended pleading.

                                         4
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 ex-

7    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.



                                         5
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.



                                        6
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]

                                       7
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

                                        8
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



          4
             It does not appear that Gibbs was formally dismissed from
     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    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

                                     10
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)).



                                       11
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).


                                      12
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,"5 that he applied for an MVS position that was posted

16   within DHS, that he was denied the position, or that the position



           5
             Aulicino's papers make no reference to national origin
     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    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

                                      14
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



                                       15
1    prove what John said.6   But irrespective of the existence of that

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



          6
             To the extent the R&R found this statement to Aulicino
     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.
          7
             The R&R also reflects the magistrate judge's view that
     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    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




           8
             The plaintiff must also produce evidence that
     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    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

                                     18
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.



                                        19
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

                                       20
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



          9
             As we have noted, the R&R quotes the comment by Ferguson
     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 party-
     opponents for Rule 801(d)(2)(D) purposes.
                                     21
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

                                     22
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


          10
             The parties do not address whether racial comments to or
     about a white person should be judged as to their "severity" in
     the same way that racial slurs used about racial minorities
                                     23
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



     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   work environment claim is vacated and remanded for

2   reconsideration.




                                   25
