A white New York employee complained that his African-American supervisor and the boss’s manager, also African American, made many racist comments about him. Furthermore, he sought a promotion that the manager seemed determined not to give him. When a black man with less experience got the job, the white employee sued.

What happened. “Arpino” was a motor vehicle operator for the Department of Homeless Services (DHS) in Hinsdale. In 2001 and 2002, he alleged in court, the African-American fleet coordinator made several race-based comments to and about Arpino that Arpino described as “nasty” and “harassing.” For example, he reported that the coordinator said, “White people are lazy.”

Arpino initially sued after failing to be named to an advertised opening for a motor vehicle supervisor in 2002—a promotion that went to a less-experienced African-American candidate. The coordinator told Arpino he didn’t get the job because he lacked both a commercial driver’s license and experience as a dispatcher. Arpino later testified that the posted job requirements had included neither qualification and that the successful candidate didn’t have a commercial license either.

His legal case dragged on, and Arpino eventually amended his complaint to include threatening and race-based negative comments from his immediate supervisor in 2004 and 2005. A federal magistrate judge reviewed his claims and recommended dismissing them in favor of DHS, which a federal district judge did. Arpino appealed to the 2nd Circuit, which covers Connecticut, New York, and Vermont.

What the court said. Appellate judges noted that the district judge found Arpino’s work environment not sufficiently hostile because several comments in more than 4 years didn’t qualify as “pervasive or severe.” But 2nd Circuit judges said that two rounds of comments from two different superiors seemed sufficiently hostile, even though they were separated by more than 2 years.

Judges stressed that Arpino perceived one set of comments by each of his harassers as deliberate threats of physical assault. Furthermore, they said, a reasonable jury could find that the coordinator’s explanation of why Arpino was not promoted was a pretext for race discrimination. So the judges sent Arpino’s case back to the district court for reconsideration. They didn’t order a jury trial on the racial harassment claim but did so for the failure-to-promote charge. Aulicino v. New York City DHS, U.S. Court of Appeals for the 2nd Circuit, No. 06-5605-cv (9/8/09).

Point to remember: Someone of any race or national origin may be able to show harassment on the basis of that protected characteristic.