18‐3260‐cv
Gebrial Rasmy v. Marriott International, Inc., et al.




                                             In the
               United States Court of Appeals
                              for the Second Circuit


                                    AUGUST TERM 2019

                                        No. 18‐3260‐cv

                                      GEBRIAL RASMY,
                                     Plaintiff‐Appellant,

                                                 v.

   MARRIOTT INTERNATIONAL, INC. D/B/A JW MARRIOTT ESSEX HOUSE
     HOTEL, ESTRATUE STAMATIS, individually, KAREN DOHERTY,
    individually, TEHRANI MEHRANI, individually, AND SESSKON
                     PONGPANTA, individually,
                       Defendants‐Appellees.



               On Appeal from the United States District Court
                   for the Southern District of New York



                              ARGUED: DECEMBER 11, 2019
                               DECIDED: MARCH 6, 2020
Before: CABRANES, BIANCO, Circuit Judges, and REISS, 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.




                              STEPHEN BERGSTEIN, Bergstein & Ullrich,
                              LLP, New Paltz, NY, for Plaintiff‐Appellant.

                              MARK A. SALOMAN, FordHarrison LLP,
                              Berkeley Heights, NJ, for Defendants‐
                              Appellees.

                              GAIL S. COLEMAN, (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.




                                         2
                                brief), for Amicus Curiae Equal Employment
                                Opportunity Commission.




JOSÉ A. CABRANES, 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



        1See 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.”).




                                              3
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.




                                    4
                                    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.




                                               5
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.




                                   6
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.




                                   7
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.




                                           8
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.




                                  9
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.




                                  10
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.




                                     11
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”).




                                             12
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

        Kaytor, 609 F.3d at 546 (emphasis omitted) (citation and internal quotation
        28

marks omitted).




                                        13
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.




                                           14
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,




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

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
EEOCʹs 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.”).




                                          15
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.




                                           16
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.




                                      17
        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.

         Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (citation and internal
        43

quotation marks omitted).
        44The EEOC notes in its brief that it has long taken this position. See EEOC
Br. at 13‐14 (citing cases).




                                           18
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).




                                           19
… 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


        49Hayut 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.”).




                                            20
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



       51See Harris, 510 U.S. at 23 (discussing Title VII’s totality of the
circumstances inquiry).
       52Cf. Harris, 510 U.S. at 22 (“A discriminatorily abusive work environment,
even one that does not seriously affect employeesʹ psychological well‐being, can
and often will detract from employeesʹ 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.”).




                                        21
   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).

          See Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d
         56

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)).




                                              22
“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).




                                            23
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 is




                                            24
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.




                                             25
       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.




                                            26
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.
       69See 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).




                                       27
                            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.




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