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A SERIES OF REMARKS MADE BY HIS SERGEANT OVER A PERIOD OF YEARS RAISED QUESTIONS OF FACT ABOUT WHETHER THE REMARKS WERE MOTIVATED BY RACIAL ANIMUS; THE COMPLAINT STATED CAUSES OF ACTION PURSUANT TO THE NYC HUMAN RIGHTS LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s racial discrimination complaint pursuant to the NYC Human Rights Law should not have been dismissed:

Plaintiff stated a cause of action for racial discrimination under the City HRL (see CPLR 3211[a][7]). … [Sergeant Martin] Toczek made many statements, both in the office of the NYPD Auto Crimes Unit and on a text thread with his subordinates including plaintiff, criticizing racial justice protests in the National Football League by Colin Kaepernick and other NFL players. On one occasion, plaintiff, who is Black, stated to Toczek that the players had a constitutional right to protest, and Toczek replied, “yeah, . . .but it’s my right . . . if I want to like [B]lack people.” Toczek also shared articles about Black NFL players committing crimes and described them as “perps.”

… Toczek directed plaintiff to accompany two White detectives in apprehending an arrestee who “had a history of assaulting police officers who tried to arrest him.” The arrestee had previously assaulted Dan Fox, a white Auto Crimes Unit detective. Plaintiff was on restricted duty at the time because of a shoulder injury and could not carry a gun or a shield. Toczek told plaintiff not to worry because, “[w]hen he sees you, he’s not going to fight, look how big you are,” and further suggested that the arrestee would not assault plaintiff “because, look at [Fox], look at him and look at you.” Plaintiff is 6’7″ and weighs about 260 pounds. Plaintiff suffered a serious injury when the arrestee resisted arrest; he retired shortly afterward with accidental disability benefits for his line-of-duty injury. * * *

… [I]t is a jury issue as to whether Toczek’s other comments about the NFL reflected racial animus. A reasonable juror could conclude that, once Toczek signaled that his objection to the protests was at least in part about race, every other reference to the protests and the NFL became infused with racial animus. * * *

The complaint … sufficiently alleges that Toczek’s assignment of plaintiff to the potentially dangerous arrest was “motivated at least in part by” plaintiff’s race … . * * *

… [A] reasonable juror could interpret Toczek’s assertion that plaintiff’s appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the “classic and common racist trope that Black men are inherently threatening or dangerous” … . Taylor v City of New York, 2026 NY Slip Op 03128, First Dept 5-19-26

Practice Point: Consult this decision for insight into when remarks made over a period of years by a supervisor in the work place can raise a question of fact about whether the remarks were motivated by racial animus and constituted violations of the NYC Human Rights Law.

 

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