Tassy v. Buttigieg ( 2022 )

21-1425
Tassy v. Buttigieg
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2021
(Argued: May 26, 2022 Decided: October 20, 2022)
No. 21-1425
––––––––––––––––––––––––––––––––––––
JEAN-CLAUDE TASSY
Plaintiff-Appellant,
-v.-
PETE BUTTIGIEG, SECRETARY OF TRANSPORTATION
Defendant-Appellee.
––––––––––––––––––––––––––––––––––––
On Appeal from the United States District Court
for the Eastern District of New York
––––––––––––––––––––––––––––––––––––
Before: LIVINGSTON, Chief Judge, POOLER, and SACK, Circuit Judges.
Plaintiff-Appellant Jean-Claude Tassy appeals the dismissal of his Title VII
discrete act and hostile work environment claims against the Federal Aviation
Administration on summary judgment by the United States District Court for the
Eastern District of New York (Cogan, J.). See Tassy v. Buttigieg, 540 F. Supp. 3d
228 (E.D.N.Y. 2021). We conclude that Tassy’s claims were properly dismissed.
1
First, Tassy’s failure-to-train claim is time-barred by the applicable statute of
limitations, which requires that a claimant initiate administrative review of his
employment discrimination claim within 45 days of the allegedly discriminatory
conduct. See Fitzgerald v. Henderson, 251 F.3d 345, 358–59 (2d Cir. 2001). Tassy
fails to point to any particular discrete and actionable unlawful employment
practice that occurred in the 45 days before he initiated administrative review of
his claims. The continuing violation doctrine does not allow Tassy to pursue
alleged incidents of unlawful practices that occurred before the 45-day period, as
the doctrine is inapplicable to discrete act claims. Second, as to Tassy’s hostile
work environment claim, Tassy failed to establish a prima facie case that his
employer’s alleged failure to train him or the other alleged incidents of hostile
behavior in the workplace were motivated by hostility to his race, color, or national
origin. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002). Accordingly, the
judgment of district court is AFFIRMED.
FOR PLAINTIFF-APPELLANT: PAUL SHOEMAKER, Greenfield Stein &
Senior, LLP, New York, NY.
FOR DEFENDANT-APPELLEE: EKTA DHARIA, Varuni Nelson (on the brief),
on behalf of Breon Peace, United States
Attorney for the Eastern District of New
York, Brooklyn, NY.
DEBRA ANN LIVINGSTON, Chief Judge:
In the summer of 2015, plaintiff-appellant Jean-Claude Tassy, then a
technical operator at John F. Kennedy International Airport, began his training to
become an Aviation Safety Inspector (“ASI”) for the Federal Aviation
Administration (“FAA”). As an “ASI-in-training,” Tassy had to complete three
levels of on-the-job training. Tassy quickly completed the first two levels,
involving classroom instruction and observation in the field, respectively. But
2
the third level, which required the trainee to complete certain tasks himself,
proved to be an obstacle: A year-and-a-half in, Tassy had completed only 30
percent of the Level 3 training. After two-and-a-half years of training, he
remained at 35 percent. According to Tassy, his failure to make progress in his
ASI training was because he was intentionally excluded from training
opportunities on account of his race.
After filing an unsuccessful complaint with the Equal Employment
Opportunity Commission (“EEOC”) alleging that the FAA failed to train Tassy
and subjected him to a hostile work environment because of his race, color, and
national origin, Tassy filed suit against defendant-appellee the Secretary of the
Department of Transportation (“DOT”) in the Eastern District of New York. He
argued that the FAA, a component of the DOT, violated Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., because it discriminated against Tassy on the
basis of his race, color, and national origin. Following discovery, the district
court granted summary judgment to the defendant-appellee on Tassy’s claims,
holding that Tassy’s failure-to-train claim was time-barred and his hostile work
environment claim failed on the merits. We agree with the district court’s
decision, and therefore AFFIRM.
3
BACKGROUND
I. Factual Background 1
Plaintiff-Appellant Jean-Claude Tassy is a Black man of Haitian origin. In
2012, he began working for the FAA as a technical operator at John F. Kennedy
International Airport. Tassy long aspired to be an FAA ASI, a position that
involves administering and enforcing safety regulations and standards for aircraft.
At some point, he began considering applying for a position as an ASI.
The FAA had open positions at the Flight Standards District Office in
Farmingdale, New York (the “Farmingdale FSDO”) to train employees for ASI
positions. Prior to applying for a position, Tassy contacted Erik Anderson, a
manager at the Farmingdale FSDO who, like Tassy, is Black. Anderson
encouraged Tassy to apply for an ASI position at the Farmingdale FSDO. But
Tassy asserts that Anderson also gave him a warning: “Before you get to the
office be careful,” he said while pointing to the exposed skin on his arm. App’x
31–32. In the same conversation, according to Tassy, Anderson “specifically
In reviewing the grant of summary judgment, we construe the “evidence in the
1
light most favorable to the non-movant and draw all reasonable inferences in that party’s
favor.” See Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir. 2011) (quoting
McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009)).
4
mentioned a white female employee who worked at the front desk [at the
Farmingdale FSDO] and cautioned [Tassy] to be very careful in [his] dealings with
her.” App’x 473. Because Anderson is Black, Tassy understood these warnings
to mean that “color is [an] issue” at the Farmingdale FSDO. App’x 32. Despite
Anderson’s warnings, Tassy decided to apply and became an “ASI-in-training” at
the Farmingdale FSDO in 2015.
Once in his new role, Tassy needed to finish three levels of on-the-job
training to complete his ASI training program. Tassy quickly passed Level 1
(written and classroom instruction) and Level 2 (observation of inspectors in the
field). But Tassy got stuck at Level 3, which required that he “demonstrate[]
competence” by performing the work himself while a trainer observed and
evaluated his performance. App’x 511. After his first 18 months on Level 3,
Tassy had completed only 30 percent of that level’s training.
At the Farmingdale FSDO, ASIs-in-training are expected to coordinate with
current ASIs to satisfy their Level 3 training. At a May 2017 quarterly review
attended by Tassy’s supervisor, Miguel Soto, and other FAA employees, Soto told
Tassy that “he needed to coordinate with other trainers and inspectors to complete
more on-the-job tasks” and that he expected Tassy to complete 60 percent of his
5
required Level 3 training by the end of the next quarter. App’x 513; see also App’x
321–22.
However, Tassy did not reach that goal; he completed only 35 percent by
the end of the next quarter. At a September 2017 quarterly review, Soto again
told Tassy that “he needed to coordinate with other trainers [and] inspectors to get
more on-the-job tasks completed.” App’x 515; see also App’x 324–25. Tassy
complained to Soto that “no one takes him out” for training. App’x 325. In
response, Soto “reminded” Tassy that it was “his responsibility to make progress”
toward completing his training. App’x 325. Tassy’s superiors again set a goal
of 60 percent by the end of the next quarter. But Tassy’s performance did not
improve after his second quarterly review. See App’x 340.
In April 2018, more than two-and-a-half years into his tenure as an ASI-in-
training at the Farmingdale FSDO, Tassy had still completed only 35 percent of his
Level 3 training. Soto met with Tassy again. After this meeting, Soto sent Tassy
a memorandum “to ensure that [Tassy] underst[ood] [his] concerns with [Tassy’s]
job performance.” App’x 345; see also App’x 517. One of those concerns was
that Tassy “refus[ed] to go out in the field with senior inspectors when invited.”
App’x 345. Soto also reiterated his concern that after 30 months on the job,
6
Tassy’s Level 3 training was “only 35% complete.” Id. And Soto noted that
Tassy could not “perform” the “functions” his role “required.” Id. The
situation never improved. Although Tassy worked at the Farmingdale FSDO for
another two years, he never completed his training.
The FAA and Tassy dispute the cause of his failure to meet his training
benchmarks. The FAA maintains that “Tassy’s own sustained, documented
performance issues . . . caused his lack of training.” Appellee’s Br. at 17. But
according to Tassy, he did not complete his ASI training because various FSDO
supervisors and employees denied him training opportunities on account of his
race, color, and national origin. In support of his claims, Tassy points to
numerous examples of what he characterizes as inadequate training supervision. 2
Raymond Melcer, who trained Tassy on only one occasion, was Tassy’s first
trainer at the Farmingdale FSDO. According to some, Melcer was “known to be
kind of a gruff individual, but that [was] his personality with all people.” App’x
284. Tassy alleges that Melcer was particularly “rough” on him. App’x 472.
Tassy also claims that Melcer harassed him in the office outside of training, once
2 The FAA does not typically assign specific trainers to work with ASIs in training,
but it made an exception given Tassy’s struggles to obtain adequate training.
7
berating him for using two monitors unlike other employees: “Why the f*** do
you f***ing need two f***ing [monitors] in this f***ing computer.” App’x 534.
Tassy also recalled an instance where Melcer “went crazy on” and berated a white
employee, repeatedly and loudly “sa[ying] F words” to him. App’x 41, 43.
After Melcer retired, the FAA assigned a new trainer to Tassy, Joseph
Rachiele. Rachiele trained Tassy several times. Rachiele was also allegedly a
“rough” and a “loud” person. App’x 544. Tassy recalled that, when he did not
pass certain tests that were required for him to complete his training, Rachiele said
“[y]ou failed” and repeated the word “failed” several times in a “[v]ery loud
voice.” App’x 543 (alteration in original, internal quotation marks omitted). Yet
Rachiele also expressed compassion for Tassy’s wellbeing. He once asked Tassy
if he was okay because Rachiele thought he “look[ed] [un]well.” App’x 541.
When Tassy responded that he found the job “stressful,” Rachiele expressed
sympathy. Id. Rachiele suggested that Tassy might return to his previous job
or retire because Rachiele feared that “this job is doing a lot of damage to [him].”
App’x 542. Rachiele then hugged Tassy and said “God bless” and “I love you.”
Id.8
At some point, the FAA assigned a third trainer to Tassy, Jeff Rose. Rose
never berated Tassy, used offensive language, or commented on his race, color, or
national origin, but he rarely trained Tassy. On two occasions, Tassy asked Rose
to take him for training and Rose agreed, but did not take him out. In total,
according to Tassy, Rose took him out for training on “five or fewer occasions.”
App’x 521. Tassy alleges, however, that Rose took a white employee out for
training on several occasions. App’x 527.
Not all experiences were bad, however. Tassy was able to receive
“several” trainings from Conrad DePinto, an ASI at the Farmingdale FSDO.
App’x 522. Tassy described DePinto as the “only guy who treat[ed] [him] with
respect as a . . . decent human being.” App’x 92. Additionally, Mark Burnett,
another ASI at the Farmingdale FSDO, trained Tassy on at least one occasion,
without apparent incident.
Aside from lack of training, Tassy claims that he faced other types of
hostility in the office while employed at the Farmingdale FSDO. First, Tassy
alleges that several employees never greeted or even acknowledged him in the
morning, but would say “good morning” to his co-workers. Second, when an
inspector named Shaukat Alvi asked Tassy whether he had completed an
9
assignment and Tassy responded he had not, Alvi allegedly “grabbed [a] folder”
from Tassy and said he would “never f***ing come to [Tassy’s] cubicle again” and
“stormed away.” App’x 174. According to Tassy, Alvi also “falsely reported”
that Tassy had used profanity in the office. App’x 571. Third, Tassy alleges that
a co-worker once made a gesture toward Tassy that he understood to mean that
she thought he smelled bad. App’x 111. And finally, on one occasion, when a
group of co-workers walked by Tassy’s cubicle, one allegedly disparaged a Haitian
painting Tassy had hung up nearby, stating “[l]ook at the piece of crap art on that
wall.” App’x 181.
II. Procedural History
Tassy first contacted an Equal Employment Opportunity (“EEO”) counselor
at the FAA on August 18, 2018. After EEO counseling failed to resolve Tassy’s
concerns, he filed a complaint with the EEOC on January 8, 2019, making eight
claims of discrimination and harassment based on his race, color, and national
origin.
The DOT conducted a formal investigation into Tassy’s claims from July to
August 2019. The agency’s formal decision, issued on February 18, 2020, found
no discrimination or workplace harassment, and concluded that six of Tassy’s
10
claims were time-barred because Tassy could not identify any particular incidents
that occurred within the 45 days prior to his contacting the EEO counselor.
On March 3, 2020, the FAA issued Tassy a “Notice of Proposed Removal”
for “misconduct during the course of his employment at the FAA Farmingdale
FSDO.” App’x 503. The notice purportedly stemmed from the FAA’s discovery
that Tassy was secretly “record[ing] workplace conversations without the consent
or permission of those he recorded, in violation of FAA policy.” App’x 503.
Tassy asserts that the notice was issued in retaliation for his filing of the EEO
complaint. Regardless, before the FAA imposed any discipline upon Tassy, he
voluntarily retired. Tassy then returned to the EEO counselor, claiming that the
FAA issued the notice in retaliation for the filing of his initial EEO complaint.
Again, after EEO counseling failed to resolve this issue, Tassy filed a second EEO
complaint on July 16, 2020. Like his first complaint, this second complaint also
ended in an unfavorable agency decision.
With both of his EEO complaints dismissed by agency decisions, Tassy sued
defendant-appellee the Secretary of the Department of Transportation in the
Eastern District of New York. 3 In his complaint, Tassy alleges that he suffered
3 At the time Tassy’s complaints were originally filed, he sued Elaine Chao, who
11
disparate treatment from his supervisors and co-workers at the Farmingdale
FSDO. Specifically, he claims that the FAA failed to train him and subjected him
to a hostile work environment on account of his race, color, and national origin. 4
The Secretary of Transportation moved for summary judgment, arguing,
inter alia, that (1) Tassy’s discrimination claim arising from his allegations of a
failure to train was barred by the statute of limitations, and (2) that his hostile work
environment claim failed because he could not establish a prima facie case under
Title VII.
The district court granted the Secretary of Transportation’s motion for
summary judgment and dismissed Tassy’s claims. Tassy, 540 F. Supp. 3d at 232.
The district court first held that Tassy’s claim based specifically on his allegations
of a failure to train was time-barred by the applicable statute of limitations. Id. at
235. Noting that EEOC regulations require that an employee contact an EEO
was then the Secretary of Transportation. Elaine Chao has since been substituted for
Pete Buttigieg, the current Secretary of Transportation.
4Tassy also brought a second complaint in federal court, claiming retaliation and
constructive discharge based on his allegation that the FAA issued the Notice of Proposed
Removal in retaliation for his decision to file a complaint with the Department of
Transportation’s EEO. The district court denied the Secretary of Transportation’s
motion to dismiss this claim. See Tassy, 540 F. Supp. 3d at 232. This issue is not before
us on appeal.
12
counselor within 45 days of an allegedly discriminatory act, the court concluded
that because Tassy contacted the EEO counselor on August 18, 2018, any discrete
discriminatory act must have occurred on or after July 4, 2018 to be actionable.
Id. The court determined that Tassy had failed to identify any particular discrete
and actionable unlawful employment action that occurred within that limitations
period. Id. The district court also held that, because Tassy’s failure-to-train
allegations constituted a claim challenging a discrete act—as opposed to a hostile
work environment—the continuing violation doctrine did not apply. Id.
Next, the district court ruled that the Secretary of Transportation was
entitled to summary judgment on Tassy’s hostile work environment claim because
any allegedly wrongful conduct was not sufficiently severe or pervasive to meet
Title VII’s standards. Id. at 236–37. The claim separately failed because Tassy
could not show that the allegedly wrongful conduct was on account of his
protected characteristics, i.e., his race, color, or national origin. Id. at 237. This
appeal followed.
DISCUSSION
Tassy appeals the district court’s summary judgment dismissal of his
complaint alleging that he was subject to a discriminatory failure to train and a
13
hostile work environment on the basis of his race, color and national origin in
violation of Title VII. We review de novo the district court’s grant of summary
judgment. Pucino v. Verizon Wireless Commun., Inc., 618 F.3d 112, 117 (2d Cir.
2010). “Summary judgment is appropriate only if ‘the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a matter
of law.’” Id. (quoting Fed. R. Civ. P. 56(c)(2)). 5
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17,
“prohibits employment-related discrimination on the basis of race, color, religion,
sex, or national origin and retaliation against employees who complain about
discrimination.” Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir. 2008). As
relevant here, a Title VII claimant may establish an employer’s liability under the
statute by showing either (1) “that he has suffered an adverse job action under
circumstances giving rise to an inference of discrimination on the basis of [his]
race, color, religion, sex, or national origin” (i.e., a “discrete act” claim), or (2) that
he was subjected to harassment on account of one or more of the above bases that
5 Unless otherwise indicated, we omit all internal citations, quotation marks,
alterations, and footnotes from citations.
14
amounted to a “hostile work environment” (i.e., a “hostile work environment”
claim). Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004).
On appeal, Tassy argues that the district court erred in holding that the
“continuing violation” doctrine does not apply to his failure-to-train theory of
liability and that it was thus time-barred. He also contends that the district court
was wrong to grant summary judgment on his hostile work environment claim.
We disagree and hold that (1) to the extent Tassy asserts a distinct “failure-to-
train” claim, such a claim is for a discrete act and thus the continuing violation
doctrine does not apply, and (2) Tassy failed to raise a genuine dispute of material
fact as to whether the allegedly hostile behavior he experienced in the workplace
was motivated by hostility to his race, color, or national origin.
I. Failure to Train
We begin by addressing Tassy’s Title VII claim based on his allegation of a
failure to train. Title VII prohibits an “employer” from “fail[ing] or refus[ing] to
hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e–2(a)(1); see 42 U.S.C. § 2000e-16(a) (extending Title
15
VII’s protection to federal employees). To successfully bring a disparate
treatment claim based on a discrete act, as opposed to a hostile work environment,
a plaintiff must show that he or she suffered an “adverse job action under
circumstances giving rise to an inference of discrimination on the basis of race,
color, religion, sex, or national origin.” Feingold, 366 F.3d at 149.
A discrete act required to support such a claim is an adverse employment
action that is “more disruptive than a mere inconvenience or an alteration of job
responsibilities.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Unlike the
“incidents that comprise a hostile work environment claim, which may not be
individually actionable,” “each discrete act necessarily ‘constitutes a separate
actionable unlawful employment practice.’” Chin v. Port Auth. of N.Y. & N. J., 685
F.3d 135, 157 (2d Cir. 2012) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114 (2002)). Actionable discrete acts are often “easy to identify,” Morgan, 536
U.S. at 114, generally because they involve material changes to an employee’s
conditions of employment. Examples include “termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a
material loss of benefits, significantly diminished material responsibilities, or
other indices . . . unique to a particular situation.” Terry, 336 F.3d at 138.
16
As a preliminary matter, we note that it is not entirely clear whether Tassy
actually brings a discrimination claim sounding in a discrete act. See Deravin v.
Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (recognizing that we must look at the
“substance of [a] charge,” not its “label” to determine what kind of claim a Title
VII plaintiff brings). Certainly, a failure to train can, at least in some
circumstances, be a discrete act. In Morgan, for instance, the Supreme Court
recognized that an employee’s allegation that he was “denied training” was a
“discrete discriminatory act[]” under Title VII. Morgan, 536 U.S. at 114–15. In
other situations, however, we have held that failures to train are better analyzed
as hostile work environment claims. See Davis-Garett v. Urb. Outfitters, Inc., 921
F.3d 30, 47 (2d Cir. 2019) (holding that evidence that a plaintiff was
“denied . . . training,” inter alia, could support a jury finding that a supervisor
subjected the plaintiff to a hostile work environment); Gregory v. Daly, 243 F.3d
687, 693 (2d Cir. 2001), as amended (Apr. 20, 2001) (holding that a supervisor’s
“depriving [plaintiff] of necessary training,” among other things, if proven,
“establish[ed] that plaintiff was required to endure an environment that
objectively was severely and pervasively hostile”). 6
6 Moreover, although Tassy premises his hostile work environment claim on both
17
Tassy argues on appeal that the FAA’s failures to train him “were not
discrete acts, but [were] part of an ongoing pattern and practice of mistreatment”
directed towards him, thus constituting “a claim of a continuing violation.”
Appellant’s Br. at 28–29; see also id. at 16–17 (labeling the claim as a “failure to train
claim”). But the “continuing violation” doctrine is “an exception to the normal
[rules governing] accrual,” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015), not
an independent theory of liability. Similarly, as we have noted, “[a] pattern or
practice case is not a separate and free-standing cause of action,” but rather a
“method of pro[ving]” a disparate treatment claim that “is not available to
nonclass, private plaintiffs,” such as the plaintiff here. Chin, 685 F.3d at 149–50.
Accordingly, to the extent Tassy seeks to assert a discrimination claim
premised on something other than a hostile work environment, that claim is
properly analyzed as a discrete act claim. Thus, we assume that Tassy brings
both a discrete act claim premised on a failure to train and a hostile work
the alleged failure to train and other allegedly hostile incidents, it is conceivable that, in
certain circumstances, allegations of a failure to train alone could sustain a claim of a
hostile work environment so long as the failure is “sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an abusive working environment,”
Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015), by “unreasonably interfer[ing] with an
employee’s work performance,” Littlejohn v. City of New York, 795 F.3d 297, 321 (2d Cir.
2015).
18
environment claim supported in part by allegations of a failure to train. As
explained below, we conclude that any such discrete act claim was not timely
brought.
A. Statute of limitations for Title VII claims
Before bringing a federal lawsuit under Title VII, a “federal government
employee must timely exhaust the administrative remedies at his disposal.”
Mathirampuzha, 548 F.3d at 74; see also Hardaway v. Hartford Pub. Works Dep’t, 879
F.3d 486, 489 (2d Cir. 2018) (“As a precondition to filing a Title VII claim in federal
court, a plaintiff must first pursue available administrative remedies and file
a timely complaint with the EEOC.”).
EEOC regulations “establish the applicable administrative procedures that
a federal employee must exhaust prior to filing suit.” Mathirampuzha, 548 F.3d at74–75. These regulations require, among other things, that a claimant “must
initiate contact with a[n] [EEO] [c]ounselor within 45 days of the date of the matter
alleged to be discriminatory.” 29 C.F.R. § 1614.105(a)(1). This “45-day period
serves as a statute of limitations; thus, as a general rule, claims alleging conduct
that occurred more than 45 days prior to the employee’s initiation of
administrative review are time-barred.” Fitzgerald, 251 F.3d at 359. In
19
considering the timeliness of discrete act claims, we have held that each actionable
discrete act “‘occur[s]’ on the day that it ‘happened.’” Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 79 (2d Cir. 2015) (quoting Morgan, 536 U.S. at 110–11). 7
Tassy’s discrete act claim is barred by the applicable statute of limitations
because he has not adequately established that a discrete act occurred within 45
days prior to him contacting an EEO counselor. Tassy first contacted an EEO
counselor on August 18, 2018. Thus, Tassy’s discrete act claim must be based on
alleged discrete acts of discrimination that occurred after July 3, 2018. But Tassy
failed to produce any evidence of a discrete act occurring within this time period.
Indeed, he makes no allegations that any particular training incidents occurred or
that any ASIs refused him training in that period. Rather, all of the alleged
discrete instances of discrimination occurred before the 45-day period began.
Tassy counters that he produced evidence showing that discriminatory
conduct occurred after July 3, 2018, during the limitations period. Specifically,
7 Additionally, if EEOC counseling does not resolve the matter, the “aggrieved
person shall be informed in writing” by the EEO counselor of their “right to file a
discrimination complaint within 15 days of receipt of the notice.” 29 C.F.R.
§ 1614.105(d). After receiving the notice, if the claimant has not received a final agency
action, the claimant “may then file a civil action . . . after 180 days from the filing of the
EEO complaint if the agency has not yet rendered a decision.” Mathirampuzha, 548 F.3d
at 75 (citing 29 C.F.R. § 1614.407).
20
he points to a sworn affidavit in which he states that he was “subjected to a
campaign of discrimination” at the Farmingdale FSDO throughout the entirety of
his employment there, and that he “constantly made requests for training and
repeatedly was rebuffed.” App’x 471, 480. But in order to resist a motion for
summary judgment, a plaintiff’s “affidavit[] must be based upon concrete
particulars, not conclusory allegations.” Schwapp v. Town of Avon, 118 F.3d 106, 111
(2d Cir. 1997); see also Delaney v. Bank of Am. Corp., 766 F.3d 163, 170 (2d Cir. 2014)
(a plaintiff “must provide more than conclusory allegations to resist a motion for
summary judgment”). And Tassy’s vague reference to “repeatedly . . . rebuffed”
requests is insufficient to support his claim that discrete acts of discriminatory
conduct occurred throughout the entirety of his time at the Farmingdale FSDO—
including the period after July 3, 2018.
B. The continuing violation doctrine does not apply to Tassy’s
discrete act claim
Tassy argues that, even if there was no discrete act from July 4, 2018 to
August 18, 2018, he has alleged a “continuing violation” that extended through
the end of his employment as an ASI-in-training, bringing the earlier discrete acts
within the limitations period. We disagree.
21
“The continuing violation doctrine, where applicable, provides an
‘exception to the normal knew-or-should-have-known accrual date.’” Gonzalez,
802 F.3d at 220 (quoting Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999)).
The doctrine “applies to claims composed of a series of separate acts that
collectively constitute one unlawful practice,” id., and functions to “delay the
commencement of the statute of limitations period until the last discriminatory act
in furtherance of” that broader unlawful practice, Harris, 186 F.3d at 248.
However, as we have previously held, this doctrine does not apply to
“‘discrete acts of discrimination or retaliation that occur outside the statutory time
period,’ even if other [related] acts of discrimination occurred within the statutory
time period.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004) (quoting
Morgan, 536 U.S. at 105). Rather, the doctrine extends exclusively “to claims that
by their nature accrue only after the plaintiff has been subjected to some threshold
amount of mistreatment.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 309 (2d Cir.
2020).
This conclusion follows directly from the Supreme Court’s decision in
Morgan. There, the Court “unanimously rejected the . . . view that a series or
pattern of ‘related discrete acts’ could constitute one continuous ‘unlawful
22
employment practice’ for purposes of the statute of limitations.” Chin, 685 F.3d
at 156 (quoting Morgan, 536 U.S. at 111). To the contrary, the Court held that
“discrete discriminatory acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges,” as “[e]ach discrete discriminatory
act starts a new clock for filing charges alleging that act.” Id. (quoting
Morgan, 536 U.S. at 113).
Tassy counters that the continuing violation doctrine applies because he
alleged that the Farmingdale FSDO maintained a “discriminatory policy or
practice” to refuse him training. Appellant’s Reply Br. at 15. But we squarely
rejected this argument in Chin, holding that “[d]iscrete acts . . . , which fall outside
the limitations period, cannot be brought within it, even when undertaken
pursuant to a general policy that results in other discrete acts occurring within the
limitations period.” Chin, 685 F.3d at 157; see id. (recognizing that “[e]ach of our
sister circuits has held that an allegation of an ongoing discriminatory policy does
not extend the statute of limitations where the individual effects of the policy that
give rise to the claim are merely discrete acts”); see also Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618, 639 (2007) (“Morgan is perfectly clear that when an
employee alleges ‘serial violations,’ i.e., a series of actionable wrongs, a timely
23
EEOC charge must be filed with respect to each discrete alleged violation.”
(quoting Morgan, 536 U.S. at 113)), superseded by statute, Lilly Ledbetter Fair Pay
Act of 2009, Pub. L. No. 111-2, 123 Stat. 5. 8
Accordingly, the continuing violation doctrine is inapplicable to Tassy’s
discrete act claim regardless of whether the FAA’s failure to train him was based
on a discriminatory policy or practice, and the claim must be dismissed as time-
barred. We therefore affirm the district court’s dismissal of Tassy’s claim.
II. Hostile Work Environment Claim
We next turn to Tassy’s hostile work environment claim. Title VII has been
understood “to evince[] a congressional intent to strike at the entire spectrum of
disparate treatment, which includes requiring people to work in a discriminatorily
hostile or abusive environment.” Littlejohn, 795 F.3d at 320. To prevail on a
hostile work environment claim, a plaintiff
8 This limitation on the scope of the continuing violation doctrine contrasts with
some of our pre-Chin case law holding that “a plaintiff who files a timely EEOC charge
about a particular discriminatory act committed in furtherance of an ongoing policy of
discrimination extends the limitations period for all claims of discriminatory acts
committed under that policy even if those acts, standing alone, would have been barred
by the statute of limitations.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.
1997); see also Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (same). But, as noted
above, this rule was held to have been repudiated by the Supreme Court’s decisions in
Morgan and Ledbetter. See Lucente, 980 F.3d at 309; Gonzalez, 802 F.3d at 220; Chin, 685
F.3d at 156–57.
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must ultimately prove conduct (1) that is objectively severe or
pervasive[, ]that is, conduct that creates an environment that a
reasonable person would find hostile or abusive . . . , (2) that the
plaintiff subjectively perceives as hostile or abusive . . ., and (3) that
creates such an environment because of plaintiff’s [membership in a
protected class].
Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001).
The third element
may be proven [by evidence of] harassment in such [race]-specific and
derogatory terms as to make it clear that the harasser is motivated by
general hostility to the presence of [individuals of a particular race] in
the workplace, or by offering some circumstantial or other basis for
inferring that incidents [race]-neutral on their face were in fact
discriminatory.
Pucino, 618 F.3d at 117–18. In other words, a “hostile work environment claim
need not be supported by direct evidence of explicit racial harassment,” as
“[c]ircumstantial evidence may do.” Rivera, 743 F.3d at 23; see also Kaytor v.
Electric Boat Corp., 609 F.3d 537, 547–48 (2d Cir. 2010) (“Circumstantial evidence
that facially [race]-neutral incidents were part of a pattern of discrimination on the
basis of [race] may consist of evidence that the same individual engaged in
multiple acts of harassment, some overtly [racist] and some not.”).
Tassy rests his hostile work environment claim both on the FAA’s alleged
failure to train him as an ASI and various “office incidents” that he contends
occurred during his more than four-and-a-half-year employment at the
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Farmingdale FSDO. 9 These alleged “office incidents” consist of (1) Tassy’s co-
workers not saying “good morning” to him, (2) a supervisor cursing at Tassy for
not completing an assignment and “falsely report[ing]” him for using profanity in
the office, (3) a co-worker gesturing toward Tassy in a manner suggesting that he
smelled bad, and (4) a different co-worker ridiculing a Haitian painting Tassy had
placed by his desk. Tassy, 540 F. Supp. 3d at 234. Tassy contends that these
incidents, as well as his alleged “exclusion from training” and related actions,
App’x 387, were on account of his co-workers’ “discrimination against [him]
because [he is] of foreign (Haitian) origin, because [his] skin color is dark and
because [he is] a black man.” Id.
As Tassy essentially concedes, none of the office incidents or failures to train
were clearly or overtly racist. Tassy does not show, for instance, that any trainers
9 Tassy’s hostile work environment claim—like his disparate treatment claim
sounding in a discrete act—must be timely to advance. The same 45-day statute of
limitations applies to Tassy’s Title VII hostile work environment claim. Fitzgerald, 251
F.3d at 359. Unlike for discrete act claims, the continuing violation doctrine applies to
hostile work environment claims. See Davis-Garett, 921 F.3d at 42 (holding that “a charge
alleging a hostile work environment claim will not be time-barred so long as all acts
which constitute the claim are part of the same unlawful employment practice and at
least one act falls within the time period” (quoting Morgan, 536 U.S. at 122)). However,
because the issue of timeliness is not jurisdictional and we affirm the dismissal of the
claim on other grounds, we do not address whether the hostile work environment claim
was timely brought. See Hardaway, 879 F.3d at 491 (noting that the issue of the timeliness
of the administrative exhaustion requirement of a Title VII claim can be waived).
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(or anyone else, for that matter) expressly told him that he was not being trained
because of his race, color, or national origin, or otherwise made expressly racist
comments to him or in the office generally. Instead, Tassy relies on
circumstantial evidence, pointing to three other episodes that he contends suggest
that the FAA’s failure to train him and the relied-upon office incidents were indeed
motivated by hostility to his race, color, or national origin.
Beginning with the first episode, Tassy contends that Anderson, who, like
Tassy, is Black, warned Tassy that he might face racial mistreatment at the
Farmingdale FSDO. In particular, Tassy asserts that prior to Tassy taking the
position at the Farmingdale FSDO, Anderson warned him to “be careful when you
get there” while simultaneously pointing to the skin on Anderson’s arm. App’x
473. In that same conversation, Anderson “cautioned [Tassy] to be very careful
in [his] dealings” with a particular white female employee who worked at the front
desk at the Farmingdale FSDO. Id. Tassy understood this conversation to mean
that “Anderson was telling [him] that there was discrimination against Black
people in the Farmingdale FSDO.” Id. In the second episode, Tassy asserts that
after he brought his concerns to Soto’s attention, Soto “acknowledged that there
were racial issues in the office.” Id. Soto, however, “refused to address” the
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issues. Id. Last, during another meeting with Anderson, Anderson speculated
that other employees “were afraid” to be around Tassy “because they feared [he]
would file a grievance or an EEO complaint.” App’x 475.
But this evidence is insufficient to create a genuine dispute that the alleged
failures to train and the non-overtly-racist office incidents—the alleged failure of
co-workers to say “good morning,” for instance, or one office worker’s expression
of distaste for Tassy’s artwork—were motivated by hostility to Tassy’s race, color,
or national origin, as opposed to any other reason. While Anderson’s earlier
comment and gesture to Tassy perhaps suggests that racism was prevalent at the
Farmingdale FSDO, the conversation predated Tassy’s employment there and did
not refer to any particular person or behavior that Tassy subsequently complained
about. Anderson’s warning about a particular white employee is also insufficient
since Tassy does not claim that this employee ultimately harassed him at the
Farmingdale FSDO. And, like Anderson’s comment, Soto’s alleged remark about
general “racial issues” in the office, while probative, is insufficient to demonstrate
that the particular treatment that Tassy faced was based upon his protected
characteristics. Finally, Anderson’s later suggestion that Tassy’s co-workers
might be avoiding Tassy over fears of him filing an EEO complaint against them
28
was mere speculation and cannot support the inference that the employees were
actually mistreating Tassy on account of his race.
Accordingly, Tassy has not shown that any alleged wrongdoing from his
supervisors and co-workers was motivated by hostility to his race, color, or
national origin. We therefore agree with the district court that Tassy has failed
to show that he was subjected to a hostile work environment while employed at
the Farmingdale FSDO. Because we conclude that he has failed to establish that
the alleged harassment was “because of” his race, color or national origin, we do
not address whether Tassy’s proffered evidence, when considered collectively,
rises to the requisite level of pervasiveness or severity to establish a hostile work
environment.
CONCLUSION
For the foregoing reasons, we AFFIRM the District Court’s dismissal of
Tassy’s Title VII claims.
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