Federal District Court Opinions
NICOLOSI-RUSSO v. PROGRAM BROKERAGE CORPORATION, (S.D.N.Y. 12-13-2006) MICHELE NICOLOSI-RUSSO, Plaintiff, v. PROGRAM BROKERAGE CORPORATION, Defendant. 05 Civ. 9373 (GEL). United States District Court, S.D. New York. December 13, 2006
Robert David Goodstein, Eileen West, and Paula, Johnson Kelly, Goodstein & West, New Rochelle, New York, for Plaintiff.
John E. Higgins and Vincent E. Polsinelli, Nixon, Peabody LLP, Albany, New York, for Defendant.
OPINION AND ORDER
GERARD LYNCH, District Judge
Defendant Program Brokerage Corporation (“Program”) moves
to dismiss this action, brought by Michele Nicolosi-Russo,
a former employee, pursuant to federal, state, and local
laws that prohibit employment discrimination. The motion
will be denied.
BACKGROUND
Program employed Nicolosi-Russo from some time before the
events alleged until approximately February 4, 2005.[fn1]
Her immediate supervisor was Cynthia O’Brien. On about
January 6, 2005, Nicolosi-Russo complained to a Mr. Savage
(apparently a responsible Program Page 2 executive) that
“O’Brien had engaged in hostile environment employment
discrimination by making offensive comments, such as
repeatedly stating `fucking Jew brokers’ and disparaging
comments regarding `Asian brokers.'” (Compl. ¶ 6.)
She further reported that O’Brien had also made “off-color
comments regarding the tsunami and the race of its
victims.” (Id.) Nicolosi-Russo told Savage that she “took
these racist comments in a negative fashion” because “her
significant other was of African descent.” (Id.) Savage
offered to speak with O’Brien, outside plaintiff’s
presence, about these comments. Nicolosi-Russo agreed.
Approximately one week after this discussion with Savage,
O’Brien informed Nicolosi-Russo that “this was not going to
work out,” because O’Brien wished to feel free to “speak
the way she did without distraction and without thinking
that someone was keeping a file on her.” (Id. ¶ 7.)
O’Brien challenged plaintiff to decide whether she could
continue to work “on [O’Brien’s] terms.” (Id.) O’Brien’s
offensive remarks continued, including use of the term
“guinea clubs” to describe potential new clients. (Id.
¶ 8.) On February 4, 2005, O’Brien fired
Nicolosi-Russo, stating that her termination was “a
follow-up to the conversation a month ago,” and further
asserting that plaintiff “was not meeting expectations.”
(Id. ¶ 9.)
Nicolosi-Russo filed a charge with the Equal Employment
Opportunity Commission, signed on April 5 and received on
April 13, 2005, alleging retaliation. (Compl. Ex. 1.) Her
statement of facts to the EEOC mirrors, verbatim, the
discrimination-related facts alleged in her complaint to
this Court. After investigating, the EEOC dismissed the
charge, advising that it had been “unable to conclude that
the information obtained establishes violations of the
statutes,” and issued a right-to-sue letter on September
12, 2005. Plaintiff filed this action on November 4, 2005.
Page 3
Program now moves to dismiss the case, arguing that the
allegations of Nicolosi-Russo’s complaint and incorporated
EEOC charge, even taken as true, do not entitle her to any
legal relief. Besides objecting to the sufficiency of the
complaint itself, defendant insists that the allegations
set forth in an affidavit appended to Nicolosi-Russo’s
motion papers may not be considered in connection with this
motion, because they were not set forth in the complaint
and because plaintiff’s failure to exhaust her
administrative remedies by including them in her EEOC
complaint deprives the Court of jurisdiction to address
them.
DISCUSSION
I. Legal Standards
A. Motions to Dismiss
A defendant is entitled to dismissal of a complaint only if
it can show either that the complaint fails to provide fair
notice of the basis of plaintiff’s claims, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 512-14 (2002), or that “it
appears beyond doubt that the plaintiff can prove no set of
facts in support of [her] claim[s] which would entitle
[her] to relief.” Patel v. Searles, 305 F.3d 130, 135 (2d
Cir. 2002) (internal quotation marks omitted).
When deciding a motion to dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(6), the Court must take as true
the facts as alleged in plaintiff’s complaint. Bolt Elec.,
Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).
It may consider documents attached to the complaint as
exhibits or incorporated in it by reference. Brass v. Am.
Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); see
also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir. 2002) (determining that documents were properly
considered in a motion to dismiss as plaintiff had relied
on the documents in drafting the complaint). All reasonable
inferences must Page 4 be drawn in the plaintiff’s favor.
Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d
Cir. 2004). However, “[g]eneral, conclusory allegations
need not be credited . . . when they are belied by more
specific allegations of the complaint.” Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Whyte v.
Contemporary Guidance Servs., Inc., No. 03 Civ. 5544 (GBD),
2004 WL 1497560, at *3 (S.D.N.Y. July 2, 2004).
B. Title VII Retaliation
Under Title VII of the Civil Rights Act of 1964 (“Title
VII”), it is unlawful “for an employer to discriminate
against any of his employees . . . because [the employee]
has opposed any practice made an unlawful employment
practice by [Title VII].” 42 U.S.C. § 2000e-3(a). An
“unlawful employment practice” is defined as follows:
It shall be an unlawful employment practice for an
employer to fail or refuse 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). One who opposes employer
conduct need not know for certain that an unlawful
employment practice has occurred, but need only have a
“good faith, reasonable belief” that the troubling practice
was unlawful. Reed v. A.W. Lawrence & Co., 95 F.3d 1170,
1178 (2d Cir. 1996) (internal quotation marks and citation
omitted). The same standards apply to employment
discrimination claims brought under Title VII as to claims
brought under New York State and New York City
antidiscrimination laws. See Keady v. Nike, Inc., 116 F.
Supp. 2d 428 (S.D.N.Y. 2000); see also Torres v. Pisano,
116 F.3d 625, 629 n. 1 (2d Cir. 1997) (“[C]laims brought
under New York State’s Human Rights Law are analytically
identical to claims brought under Title VII.”) (citation
omitted). Page 5
C. Claims Involving Discrimination Against Non-Employees
Title VII and the related state and local laws protect
against discrimination in employment. Correspondingly, the
prohibition against retaliation protects employees who
challenge specifically employment-related discrimination.
As the Second Circuit has noted, “Title VII is not a
general bad acts statute. . . . [A] claim of retaliation is
not cognizable under Title VII [unless plaintiff’s]
opposition was . . . directed at an unlawful employment
practice of his employer.” Wimmer v. Suffolk Cty. Police
Dep’t, 176, F.3d 125, 134-35 (2d Cir. 1999) (internal
quotation marks and citation omitted) (emphasis in
original). In Wimmer, the Court affirmed a judgment as a
matter of law for defendant where an employee had claimed
retaliation after being terminated for “having reported
overhearing racial slurs made by [colleagues] against black
citizens,” and where “[t]here [was] no claim that any of
this activity was directed at [plaintiff] or any of his
co-employees”). Id. As the Court observed, Wimmer “could
not have reasonably believed that he was opposing an
employment practice because the evidence does not address
racial discrimination in an employment practice.” Id. at
136. “It is inherent in the definition of a racially
hostile work environment . . . that the person against whom
the hostility is directed must be in an employment
relationship with the employer.” Id.
II. The Standards Applied
Relying on Wimmer, Program argues that Nicolosi-Russo’s
allegations, at least considering only those made in the
complaint itself, cannot make out a claim of unlawful
retaliation under the employment discrimination laws,
because the rude remarks of which she complained to Savage
could not be construed as statutorily covered
discrimination in the workplace. Although the legal premise
is correct, the argument ultimately fails because it is
Page 6 based on a crabbed reading of the complaint.
Although the complaint could be read as asserting that
Nicolosi-Russo had complained of offensive remarks
affecting only non-employees, it could also be read more
broadly, and a complaint must be sustained if relief could
be granted based on any evidence that could be proved in
support of the allegations in the complaint.
A. Discrimination Against Non-Employees
Program is correct that Nicolosi-Russo’s complaints to
Savage that her supervisor disparagingly commented about
the race of tsunami victims or about the ethnicity of
potential clients, even taken as true, do not standing
alone constitute actions protected under the
anti-discrimination laws, because they do not concern
unlawful employment practices. Such remarks, while
deplorable, are precisely the sort of non-work-related
social comments that, under Wimmer, fall outside the scope
of employment discrimination law. Any claim relying solely
on allegations of defendant’s discriminatory attitude
toward, or treatment of, non-employees is thus dismissed as
failing to state a claim of employment discrimination.
B. Discrimination Against Other Employees
Plaintiff’s complaint need not, and therefore should not,
be read so narrowly, however. Nicolosi-Russo does not say
that she complained simply that O’Brien was a bigot.
Rather, she alleges that she complained that “O’Brien had
engaged in hostile environment employment discrimination,”
by making comments “such as” those disparaging Jewish and
Asian brokers. (Compl. ¶ 6; emphasis added.) This
allegation can easily be read as a complaint that O’Brien
created a hostile work environment for defendant’s
employees. An employee who opposes conduct she reasonably
believes to constitute prohibited discrimination against
herself or against a fellow employee is engaged in activity
protected from retaliatory discrimination. Page 7
Program assumes that such an employment-based retaliation
claim could arise only from facts alleged in plaintiff’s
motion-related affidavit and that such a claim cannot be
supported by any fact suggested in the complaint. It
therefore argues that the Court may not consider the facts
set forth in the affidavit. There is no need, however, for
the Court to reach outside the complaint, as the complaint
itself suggests the existence of facts that could support a
claim for relief based on defendant’s retaliatory
termination of plaintiff after plaintiff opposed
discrimination against fellow employees.
Certainly, it is unclear whether such a claim would
ultimately succeed. The only facts specifically pled in the
complaint that could support such a claim amount to the
allegation that O’Brien “repeatedly” referred to “fucking
Jew brokers” and derided “Asian brokers.” (Compl. ¶
6.) The complaint does not explicitly allege that the
brokers referred to were plaintiff’s fellow employees,
rather than competitors, clients or potential clients of
defendant or simply members of the general public.
Nevertheless, it is hardly an unreasonable inference that
the brokers referred to were plaintiff’s coworkers.
Defendant, after all, employs “brokers.”[fn2] Any doubt as
to the referent of “brokers,” as the term is used in the
complaint, must be resolved in favor of plaintiff on this
motion to dismiss.
Nor is it beyond doubt that the alleged discriminatory
comments did not reference the race or ethnicity of any of
plaintiff’s coworkers. While plaintiff’s complaint does not
actually articulate any such link between O’Brien’s
comments and the protected status of any employee, Page 8
such a link is perfectly plausible on the face of the
pleading, and defendant does not demonstrate that such a
link could not exist.[fn3] Again, any doubt at this stage
must be resolved in plaintiff’s favor.[fn4] It is, of
course, not necessary for plaintiff ultimately to establish
that any particular employee was subjected to conditions
that rise to the level of a hostile work environment.
Liability will be established if Nicolosi-Russo can show
that she complained about conduct that she, in good-faith,
reasonably believed to be unlawful. Reed, 95 F.3d at 1178.
The allegations upon which this Court relies in denying
defendant’s request for dismissal on this ground were
submitted, in identical terms, to the EEOC. There can be no
dispute, then, that plaintiff adhered to the administrative
exhaustion requirements of Title VII, 42 U.S.C. §
2000e-5, on this claim or that the EEOC had sufficient
notice to investigate “broker” — related, and thus
potentially employee-related, discrimination issues. See,
e.g., Williams v. New York City Housing Authority, 458 F.3d
67 (2d Cir. 2006). The Court therefore properly exercises
jurisdiction over this claim.[fn5] Page 9
At this stage, the Court cannot weigh the sufficiency of
the evidence to support a conclusion that retaliation
occurred, but may only determine whether plaintiff is
entitled to offer such evidence on an even remote
possibility of such a conclusion. See Bernheim v. Litt, 79
F.3d 318, 321 (2d Cir. 1996) (on Fed.R.Civ.P. 12(b)(6)
motion, the “issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims”) (internal quotation
marks and citations omitted). Thus, defendant’s motion to
dismiss as to plaintiff’s claim of retaliation for opposing
discrimination against her coworkers is denied.
C. Discrimination Against Plaintiff Herself
Nicolosi-Russo argues that her complaint also charges that
she was retaliated against for opposing the working
atmosphere to which she herself was subjected. In opposing
the motion to dismiss, for example, she contends that she
was subjected to a “barrage of slurs made directly to her.”
(P. Mem. 7.) Allegations that plaintiff had been subjected
to workplace discrimination herself and was then fired for
protesting such discrimination would clearly entitle
plaintiff to Page 10 proceed with her claim for relief
from discriminatory retaliation. However, plaintiff has not
sufficiently alleged facts that give content to the general
statement, made for the first time in her motion papers,
that slurs were directed at her, or that she was fired for
protesting circumstances that could reasonably have been
believed to constitute discrimination against her.
The complaint does not allege that Nicolosi-Russo is Asian
or Jewish; indeed, it contains no allegation at all
regarding her ethnicity or religion, nor any suggestion
that the unpleasantness of her working environment was in
any way directed to her own “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Neither
the complaint nor Nicolosi-Russo’s supplemental affidavit
contends that Nicolosi-Russo told Savage that O’Brien was
discriminating against her.[fn6]
Indeed, it is apparent from plaintiff’s brief that she
altogether misconceives the notion of a cognizably “hostile”
work environment. She contends that “she personally was
subjected to a hostile work environment because of comments
made about third parties” and because “the activities taken
against third parties affected [her] work environment,” and
that she “engaged in protected Page 11 activity by
registering opposition” to that “hostile environment.” (P.
Mem. 5, 9.) While there is no question that courts may
consider comments referencing non-employee third parties in
determining whether an individual was subjected to a
hostile work environment, see, e.g., Schwapp v. Town of
Avon, 118 F.3d 106 (2d Cir. 1997), plaintiff fatally misses
the requirement that those comments nevertheless relate to
some notion of discrimination — based on a protected
trait of plaintiff’s, such as gender or race —
against plaintiff (or, against another employee, as
previously discussed). In other words, to be taken toward a
cognizable employment discrimination claim, it is necessary
that any allegation of offensiveness about third parties
suggest some discriminatory link between that offensiveness
and plaintiff (or other employee[fn7]). See 42 U.S.C.
§ 2000e-2(a)(1) (prohibiting only discrimination
against an individual “because of such individual’s race,
color, religion, sex, or national origin”) (emphasis
added); Gregory v. Daly, 243 F.3d 687, 691-92 (2d Cir.
2001) (“[H]arms suffered in the workplace are cognizable
under Title VII, . . . if they arise from conduct . . .
that creates [a hostile] environment because of plaintiff’s
sex (or other characteristic protected by Title VII) [the
`prohibited causal factor’ requirement]”) (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998))
(second brackets in original); Demoret v. Zegarelli, 451
F.3d 140, 149 (noting that a plaintiff alleging subjection
to a hostile work environment must demonstrate the
existence of “discriminatory intimidation, ridicule, and
insult”) (citing Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) (emphasis added) (internal quotation marks
omitted); Nelson v. Beechwood Organization, 03 Civ. 4441
(GEL), 2006 WL 2067739, *3 (S.D.N.Y. July 26, 2006)
(“[P]laintiff Page 12 must prove that the hostile
environment is the result of discrimination `because of a
protected ground, in this case, [plaintiff’s] race.”)
An example should make this clear. No doubt most white
Americans would find it offensive to have to listen to a
supervisor’s racist disparagement of African Americans. But
Title VII does not protect everyone merely from having to
work for an obnoxious or rude boss; rather, such offensive
remarks would support a Title VII claim only when
complained of by, or on behalf of, employees of color,
because they may constitute evidence that these employees
were being subjected to less desirable working conditions
than were white employees on the basis of race. See, e.g.,
Gregory, 243 F.3d at 691-92; Oncale, 523 U.S. at 80. The
white employees, if complaining merely on behalf of
themselves, would not have a cause of action regardless of
the reprehensibility of their supervisor’s behavior.[fn8]
In short, an offensive work environment does not constitute
a hostile work environment in the statutory sense unless
the offensiveness is discriminatorily inflicted on members
of a protected group. Nicolosi-Russo does not allege that
O’Brien’s unpleasant remarks were made to her on account of
her race, gender, or national origin.
None of the cases plaintiff cites in which comments about
third parties were held to support a claim of hostile
environment discrimination erases the requirement of some
discriminatory relationship between the offense and a
protected employee. See Whidbee v. Page 13 Garzarelli
Food Specialities, Inc., 223 F.3d 62 (2d Cir. 2000)
(derogatory remarks about other black employees to be taken
as evidence for black plaintiffs’ hostile work environment
claim); Schwapp, 118 F.3d 106 (racist comments about
African-American third parties relevant to hostile work
environment claim of African-American employee); Preda v.
Nissho Iwai American Corp., 128 F.3d 789 (2d Cir. 1997)
(implicitly deeming employer memoranda deriding minorities,
women, older employees, and Americans in general, to
constitute grounds for plaintiff reasonably to believe
there was discrimination against fellow employees); Kelly
v. Senior Centers, Inc., 169 Fed. Appx. 423 (6th Cir. 2006)
(implicitly deeming allegations of defendant’s antiblack
commentary about clients to support white plaintiff’s
retaliation claim, where the workplace included black
employees);[fn9] Montelongo v. Chase Manhattan Mortg. Corp.,
No. 04 Civ. 1376 (AS), 2005 WL 2346088, *5 (D.Or., Sept.
22, 2005) (“Chase challenges Montelongo’s hostile work
environment claim on the ground that none of the allegedly
racially or ethnically derogatory statements were directed
toward her. . . . [But, v]iewing the evidence in the light
most favorable to Montelongo, the record includes
allegations of conduct of a racial nature and conduct
engaged in because of Montelongo’s race.”); Turner v. Barr,
811 F. Supp. 1 (D.D.C. 1993) (commentary about Holocaust
supported Jewish plaintiff’s claim of hostile work
environment).
It would not have been reasonable for Nicolosi-Russo to
believe that generally offensive commentary in the
workplace, lacking any relationship to any trait of her
own, constituted Page 14 employment discrimination against
herself. See Wimmer, 176 F.3d at 135-36. Thus, plaintiff
cannot claim that her termination was retaliation for
opposing unlawful discrimination against herself.
CONCLUSION
To the extent that plaintiff complains that she was
retaliated against for complaining that O’Brien’s alleged
obnoxious remarks were generally offensive, or offensive to
plaintiff, she does not state a viable claim under Title
VII or the corresponding state and city anti-discrimination
laws. However, because her complaint can be read to allege
that she complained about the existence of a hostile work
environment regarding other employees, she properly alleges
that she engaged in activity protected by Title VII and was
fired in retaliation for such activity. Defendant’s motion
to dismiss is therefore denied.
SO ORDERED.
[fn1] For purposes of resolving this motion, the Court must
accept as true the facts alleged by plaintiff in her
complaint and incorporated allegations. Unless otherwise
attributed, the facts set forth in this section are taken
solely from plaintiff’s complaint.
[fn2] An exhibit submitted with defendant’s own reply
brief, consisting of the record of plaintiff’s EEOC case,
includes a statement on defendant’s letterhead describing
defendant corporation as “a wholesale insurance brokerage
firm. . . . [where a] wholesale broker assists retail
brokers in obtaining insurance policies for their clients.”
(D. Rep. Aff., Ex. A, certified copy of Nicolosi-Russo’s
EEOC file, EEOC 4.)
[fn3] Even if the Court could refer to facts outside the
pleading to resolve this issue — which it cannot
— defendant’s submission of an exhibit listing the
apparently ethnically diverse names of plaintiff’s
immediate coworkers, seemingly intended to demonstrate its
inclusiveness, only perpetuates uncertainty about whether
O’Brien’s alleged comments could be taken as referring to
Jewish or Asian employees of defendant. (D. Rep. Aff., Ex.
A., May 9, 2005, letter of D. to EEOC, EEOC 62.)
[fn4] It is especially important to take a broad view of
complaints alleging retaliation, as retaliation claims
serve a normative purpose beyond protecting particular
employees from discrimination. As the Second Circuit
recently explained in holding that the standard for finding
an “adverse” action on a retaliation claim favorably
differs from that on a non-retaliation discrimination
claim, the prohibition against retaliation is intended
generally to prevent employers’ interference with
enforcement of the law. Kessler v. Westchester County Dept.
of Social Services, 461 F.3d 199, 208 (2d Cir. 2006)
(citing Burlington Northern and Santa Fe Ry. Co. v. White,
126 S.Ct. 2405 (2006)).
[fn5] While the complaint’s allegations may thus be
sustained without reference to the additional allegations
in Nicolosi-Russo’s supplemental affidavit, it is
appropriate to comment briefly on defendant’s argument that
plaintiff’s failure to include these specific allegations
in her EEOC complaint bars the Court from considering them.
Nicolosi-Russo’s claim, both to the EEOC and to this Court,
is that she was fired in retaliation for her complaints
about O’Brien. She exhausted her administrative remedies on
this claim, and it is squarely before the Court. While she
may not now assert new claims of Title VII violations not
presented to the EEOC (unless those claims were “reasonably
related” to her EEOC charge or would have been expected to
come to the attention of the agency while it investigated
the claim she did present, Williams, 458 F.3d at 70-71),
the exhaustion of remedies requirement does not limit the
scope of the evidence that Nicolosi-Russo may present to
establish the validity of the charge already made. Under
the notice pleading practice established by Rule 8,
Fed.R.Civ.P., a plaintiff is not required to set forth in a
complaint all the facts on which she relies, see
Swierkiewicz, 534 U.S. at 511-13, and EEOC charges, which
are frequently filed without the assistance of counsel, are
not subject to stricter pleading rules. To the extent that
Nicolosi-Russo’s affidavit further elaborates on the
contents of her complaints to Savage, or other facts
supporting her claim that she was fired because of those
complaints, such elaborations are simply evidentiary matter
that may at the appropriate stage of the litigation be
relevant to assessing the accuracy of the allegations made
in the complaint.
[fn6] Besides O’Brien’s alleged comments about Asians and
Jews, the complaint refers to two other ethnicities. First,
it is alleged that O’Brien referred to certain potential
clients as “guinea clubs.” (Compl. ¶ 8.) “Guinea”
has been defined as a derogatory term for “[a]n Italian
[or] a person of Italian descent.” Wentworth and Flexner,
Dictionary of American Slang, 234 (2d supp. ed. 1975).
Plaintiff nowhere even hints at an interpretation of that
comment as discrimination against herself; even if that
single comment were construed as a slur directed at
Nicolosi-Russo, the complaint nowhere alleges that she
protested against any such slur prior to being terminated,
and plaintiff explicitly alleges that this comment was
uttered after she had complained internally about her
supervisor’s conduct. (Compl. ¶ 8.)
Second, plaintiff alleges that she told Savage that she
took offense at O’Brien’s bigotry because “her significant
other was of African descent.” (Id. ¶ 6.) However,
the complaint does not allege that O’Brien made offensive
remarks about Africans, or African Americans, or persons
who associated with them, or that O’Brien was aware of
Nicolosi-Russo’s relationship or discriminated against her
because of it.
[fn7] It is possible, for instance, that the alleged
third-party-referencing remarks could support plaintiff’s
properly pled allegations of discrimination against her
co-workers, should some logical link between the subject
matter of the remarks and the protected status of those
co-workers be established.
[fn8] Conversely, a discriminatorily hostile work
environment need not involve explicit slurs directed at the
employee’s race, gender or ethnicity. Liability is
established where an employee is abused in a manner
“sufficiently sever or pervasive to alter the conditions of
the victim’s employment and create an abusive working
environment” because of the employee’s race, gender,
religion or national origin. Demoret v. Zegarelli, 451 F.3d
140, 149 (2d Cir. 2006), quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993) (internal quotation
marks omitted). How the victim is abused does not matter;
what matters is why the abuse occurs.
[fn9] Plaintiff in Kelly did not claim that he himself had
been subjected to a racially discriminatory work
environment. Rather, he claimed he had been subjected to
retaliation for complaining about racist commentary about
his employer’s black clients, and it was alleged that some
of his co-workers were black.