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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Curtis v. DiMaio

46 F. Supp. 2d 206 (E.D.N.Y., April 23, 1999), aff'd. summary order 205 F.3d 1332 (2d. Cir., 2000)

This case arises out of the transmission of two ethnically and racially insensitive jokes over a company's e-mail system. Plaintiffs, African Americans, were former at-will employees of Citibank, N.A. ("Citibank"). Defendants were each employees of Citibank. Defendant DiMaio sent defendant Ravkin two jokes via e-mail over Citibank's e-mail system. These jokes were received by defendant Ravkin at her private e-mail address, which could not be accessed without Ravkin's private password. Ravkin forwarded these jokes to defendant Murphy who, in turn, sent them via Citibank's e-mail system to ten additional Citibank employees. None of the defendants sent the e-mails at issue to either of the plaintiffs. It was conceded by the defendants that the jokes contained in these e-mails were ethnically and racially insensitive -- the first joke was a "Polish joke" and the second a "joke about Ebonics."

Plaintiffs alleged that defendant Captain, also a Citibank employee, "had the authority to control the persons who had access to the e-mail system, and ... permitted and encouraged [defendant] DiMaio to use this system to send the racially offensive messages."

Charging that this conduct created a hostile work environment, plaintiffs brought suit under 42 U.S.C. §§1981, 1985, 1986, New York Executive Law §296, and New York City Administrative Code §8-502. On defendants' motion for summary judgment, the Court held that there was no evidence that a hostile work environment had been created, and dismissed plaintiffs' claims.

To establish a claim for hostile work environment under 42 U.S.C. §1981, the "plaintiff must allege that he or she (1) is a member of a protected class; (2) was subjected to harassment that had the effect of unreasonably interfering with his or her work performance or creating an intimidating, hostile or offensive work environment and (3) that a specific basis exists for imputting the conduct that created the hostile environment to the employer."

The court held that the evidence plaintiffs presented failed "to demonstrate that their workplace was 'permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions' of their work environment." According to the court "the case law makes clear that the sending of a single racist e-mail does not create a hostile work environment," particularly when that e-mail is not sent to the plaintiff. As a result, "given the clear and unambiguous teaching of the precedent on the issue, the court must conclude, as a matter of law, that . . . a hostile environment was not created."

In reaching this conclusion, the court relied on Owens v. Morgan Stanley & Co., Inc., 1997 W.L. 403454 (S.D.N.Y. 1997) ("[A]s a matter of law, (the sending of a single racist e-mail), while entirely reprehensible, cannot form the basis for a claim of hostile work environment.")

The court also dismissed plaintiffs' claims on the independent ground that the suit at bar was duplicative of a prior action (the "Citibank Action") plaintiffs had brought against Citibank (which had not been named as a defendant in the suit at bar). The bringing of the instant claim appeared to the court to be a calculated attempt to avoid an order issued in the Citibank Action, which order prohibited plaintiffs from joining the individual defendants in the case at bar as parties to the Citibank Action.

Upon dismissal of plaintiffs' federal claims, the court declined to exercise jurisdiction over plaintiffs' state law claims, and accordingly dismissed those claims as well.

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