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PLAINTIFF, AGE 61, WAS HIRED FOR AS A CORRECTIONS OFFICER BUT RESIGNED AFTER TWO DAYS AT THE TRAINING ACADEMY; PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT; PLAINTIFF WAS NICKNAMED “GRANDMA” AND SUBJECTED TO RIDICULE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for age discrimination/hostile work environment. Plaintiff, aged 61, was hired as a corrections officer. She only lasted a couple of days at the training academy. She allegedly was immediately nicknamed “Grandma” and was subjected to ridicule:

Even though plaintiff admitted that she was prepared for the intensive, para-military nature of an academy, she testified that she was not prepared for the humiliation based on the discriminatory conduct that was “singling [her] out by [her] age.” Despite that many of defendant’s witnesses — including the drill sergeant — did not have a recollection of the alleged discriminatory conduct, the Equal Employment Opportunity Commission still had determined that there was reasonable cause to believe that defendant discriminated against plaintiff; such finding, although not dispositive, is some evidence of discrimination … . Given that the conduct spread beyond staff and plaintiff’s trainee class, but also to members of a previous class, further demonstrates the pervasive nature of the alleged discriminatory conduct — particularly in such a short period before plaintiff’s resignation. Accordingly, based on the foregoing, particularly plaintiff’s account of the drill sergeant’s conduct and the candid admissions by the administrative sergeant as to the objective nature of the comments being discriminatory … , we are satisfied that this proof, when viewed in a light most favorable to plaintiff, is sufficient to survive summary judgment and warrant a trial on plaintiff’s hostile work environment claim … .  White-Barnes v New York State Dept. of Corr. & Community Supervision, 2023 NY Slip Op 01561, Third Dept 3-23-23

Practice Point: Plaintiff was hired as a corrections officer at age 61. At the training academy she was called “Grandma” and ridiculed. She resigned after two days. The Third Department held the complaint stated an age-discrimination/hostile-work-environment cause of action and should not have been dismissed.

 

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PLAINTIFF STATED CAUSES OF ACTION FOR EMPLOYMENT DISCRIMINATION AND VIOLATIONS OF THE LABOR LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff had stated causes of action for employment discrimination, failure to pay overtime, and failure to pay weekly:

… [P]laintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws … . Plaintiff alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination … . Specifically, plaintiff, a Black woman, alleges that her supervisor … , irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, “Why did you call HR? Blacks . . . I should have never hired her.”

… [W]e find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime (CPLR 3013 …).

Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191. Kirby v Carlo’s Bakery 42nd & 8th LLC, 2023 NY Slip Op 00059, First Dept 1-10-23

Practice Point: Here plaintiff stated causes of action for employment discrimination (a racist remark just prior to her termination), as well as failure to pay overtime and failure to pay weekly in violation of the Labor Law.

 

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IN THIS HOSTILE-WORK-ENVIRONMENT ACTION UNDER 42 USC 1983 AND THE NYS HUMAN RIGHTS LAW, SOME OF THE DEFENDANTS, ALL CITY EMPLOYEES, WERE DEEMED PROTECTED FROM SUIT BY QUALIFIED IMMUNITY AS A MATTER OF LAW; WITH RESPECT TO THE EMPLOYEE WHO ALLEGEDLY MADE SEXUALLY INAPPROPRIATE COMMENTS TO PLAINTIFF, THERE WERE QUESTIONS OF FACT WHETHER QUALIFIED IMMUNITY WAS APPLICABLE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined qualified immunity protected plaintiff’s supervisors in this hostile-work-environment action under 42 USC 1983 and the NYS Human Rights Law against the City of Albany and individual city employees. Plaintiff alleged a co-worker named Tierney made sexually inappropriate comments to her over a period of two years. The allegations against Tierney properly survived summary judgment, but the allegations against the defendants who played no role in the harassment, alleging supervisory inaction, should have been dismissed. Plaintiff had worked as a civilian dispatcher in the police department:

In the 42 USC § 1983 context, liability of an individual defendant is based on his or her “personal involvement in the alleged constitutional deprivation” … . Individual defendant liability only attaches when his or her own conduct is sufficiently severe and pervasive to create the hostile work environment; otherwise, that defendant is protected by qualified immunity … . * * *

Under state law, public officials are protected by qualified immunity for discretionary acts that are unlawful under the Human Rights Law unless “they are undertaken in bad faith or without reasonable basis” … . Hostile work environment claims under the Human Rights Law are evaluated under the same severe-or-pervasive standard as a claim brought pursuant to 42 USC § 1983 … .* * *

Although individual liability under 42 USC § 1983 may flow from a supervisor’s inaction in the face of known harassment … , the alleged individual inaction … did not suffice to create the hostile work environment … .

We reach the same conclusion … under the Human Rights Law, pursuant to which supervisors may be held individually liable to the extent that they aided and abetted conduct creating a hostile work environment (see Executive Law § 296 [6]). … [D]efendants[] … did not actively participate in the conduct creating the hostile work environment as required under the aiding-and-abetting provision … .

Even if plaintiff’s Human Rights Law claim against them could proceed under a supervisory inaction theory, we would conclude that they are shielded by qualified immunity. … . Mahoney v City of Albany, 2022 NY Slip Op 07288, Third Dept 12-22-22

Practice Point: Here plaintiff and defendants were city employees. Plaintiff alleged one employee made sexually inappropriate comments to her over a two year period. Supervisory inaction was the basis for the action against other defendants. The Third Department held the “supervisory-inaction” defendants were protected from suit by qualified immunity as a matter of law under both 42 USC 1983 and the NYS Human Rights Law. There were questions of fact about whether the employee who made the comments was protected by qualified immunity.

 

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YESHIVA UNIVERSITY NO LONGER HAS THE REQUISITE CONNECTION TO RELIGION AND THEREFORE IS NOT EXEMPT FROM THE DISCRIMINATION PROHIBITIONS IN THE NYC HUMAN RIGHTS LAW; THE PRIDE ALLIANCE WAS ENTITLED TO RECOGNITION AS AN OFFICIAL STUDENT ORGANIZATION (FIRST DEPT).

The First Department determined a student group (Pride Alliance) at Yeshiva University was entitled to summary judgment pursuant to the NYC Human Rights Law (City HRL)on its claims asserting gender, sexual orientation, and association discrimination. In addition Pride Alliance was entitled to a permanent injunction requiring Yeshiva to recognize the group as an official student organization. Essentially, Yeshiva argued the university was exempt from the requirements of the City HRL as a religious corporation or institution, but the university no longer had the requisite connection to religion: Yeshiva’s constitutional arguments (free exercise of religion, freedom of expression and association) were rejected:

Yeshiva was originally chartered in 1897 under the Membership Corporations Law as the Rabbi Isaac Elchanan Theological Seminary Association (RIETS), with the stated purpose to “promote the study of Talmud” and prepare Orthodox Jewish rabbis for ministry. Over several decades, the charter was amended to allow numerous secular degrees to be awarded and to change the name of the institution, while RIETS remained part of Yeshiva. In 1967, Yeshiva amended its charter to become incorporated under the Education Law. Two years later it amended the charter to drop Hebrew Literature and Religious Education degrees, since RIETS was being spun off as its own corporation offering those degrees, and to “clarify the corporate status of the University as a non-denominational institution of higher learning.” While Yeshiva is now comprised of three undergraduate colleges and seven graduate schools, RIETS remains a separate corporate entity housed on one of Yeshiva’s campuses. YU Pride Alliance v Yeshiva Univ., 2022 NY Slip Op 07175, First Dept 12-13-22

Practice Point: Yeshiva University was not entitled to exemption from the discrimination prohibitions in the NYC Human Rights Law because the university no longer has the requisite connection to religion. Therefore the “Pride Alliance” was entitled to recognition as an official student group.

 

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THE THREE-YEAR STATUTE OF LIMITATIONS FOR AGE DISCRIMINATION CLAIMS UNDER THE NYS AND NYC HUMAN RIGHTS LAW IS TOLLED BY FILING A CHARGE FOR AGE DISCRIMINATION WITH THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) (FIRST DEPT).

The First Department, reversing Supreme Court, determined the age discrimination claims under the NYS and NYC Human Rights Law were timely brought because the three-year statute of limitations was tolled when plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC):

Plaintiff’s action, asserting claims of age discrimination under the New York State Human Rights Law (Executive Law § 296[1][a]) and the New York City Human Rights Law (Administrative Code § 8-107), was timely commenced, as the three-year statute of limitations was tolled by her filing of a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) … . The filing of an EEOC charge constitutes a simultaneous and automatic filing with the New York State Division of Human Rights (SDHR) due to a work-sharing agreement between the two agencies … .

Moreover, Administrative Code § 8-502(d) provides, “[u]pon the filing of a complaint with the city commission on human rights or the state division of human rights and during the pendency of such complaint and any court proceeding for review of the dismissal of such complaint, such three-year limitations shall be tolled.” The interplay between the EEOC/SDHR work-sharing agreement and the tolling provision in § 8-502(d) “indicates that a charge filed with the EEOC would also toll the statute of limitations period for [City HRL] claims” … . Gabin v Greenwich House, Inc., 2022 NY Slip Op 06428, First Dept 11-15-22

Practice Point: Filing an age discrimination charge with the Equal Employment Opportunity Commission (EEOC) tolls the three-year statute of limitation for filing age discrimination claims pursuant the NYS and NYC Human Rights Law.

 

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THE HOSTILE WORK ENVIRONMENT ALLEGATIONS STATED CLAIMS UNDER THE STATE AND CITY HUMAN RIGHTS LAW (HRL); THE SEXUAL HARASSMENT ALLEGATIONS STATED A CLAIM UNDER ONLY THE CITY HRL; THE CONTINUING VIOLATION DOCTRINE DID NOT APPLY TO ISOLATED STATEMENTS MADE OUTSIDE THE STATUTE OF LIMITATIONS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff stated a hostile work environment claim under the state and city Human Rights Law (HRL) and sexual harassment claim under the city, but not the state, HRL: The isolated statement made outside the statute of limitations were not subject to the continuing violation doctrine:

Plaintiff’s allegations, that several times a week over a period of at least two years, plaintiff’s coworker spoke to him in a mock Chinese accent, told plaintiff to “open your eyes,” and tormented him about his mandatory drug testing in a sexually and racially charged manner, are sufficient to state a hostile work environment claim based on national origin discrimination under both the State and City HRLs … .

… [T]he allegations that his coworker regularly made statements about plaintiff’s penis size when plaintiff took bathroom breaks or reported for drug testing “fall within the broad range of conduct that falls between ‘severe and pervasive’ on the one hand and a ‘petty slight or trivial inconvenience’ on the other,” such that they are sufficient under the City HRL but not under the State HRL … . The continuing violation doctrine does not apply to the isolated statements made outside the limitations period because they do not form part of “a single continuing pattern of unlawful conduct extending into the [limitations] period . . . , but rather discrete events, involving different actors, occurring months to years apart” … . Lum v Consolidated Edison Co. of N.Y., Inc., 2022 NY Slip Op 05594, First Dept 10-6-22

Practice Point: The allegations that a coworker spoke using a mock Chinese accent and told plaintiff “open your eyes” stated hostile work environment claims under the state and city Human Rights Law (HRL). The allegations that a coworker made comments about the size of plaintiff’s penis stated a sexual harassment claim under the city, but not the state, HRL. Isolated statements made outside the statute of limitations were not subject to the continuing violation doctrine.

 

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PLAINTIFF’S CAUSES OF ACTION FOR CONSTRUCTIVE DISCHARGE AND HOSTILE WORK ENVIRONMENT SHOULD HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff’s causes of action for constructive discharge and hostile work environment should have been dismissed. The court laid out the criteria for those causes of action:

“An employee is constructively discharged when her or his employer, rather than discharging the plaintiff directly, deliberately created working conditions so intolerable that a reasonable person in the plaintiff’s position would have felt compelled to resign” … . Here, the defendants established, prima facie, that the plaintiff’s complaints were insufficient to show an intolerable work environment that would lead a reasonable person in that position to feel compelled to resign … . …

A hostile environment claim “involves repeated conduct,” not “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” … . Here, the two discrete acts alleged by the plaintiff were insufficient to create a hostile work environment … . Blackman v Metropolitan Tr. Auth., 2022 NY Slip Op 03490, Second Dept 6-1-22

Practice Point: A “constructive discharge” employment-discrimination cause of action requires the deliberate creation of intolerable working conditions designed to force the plaintiff to quit (not demonstrated here). A “hostile work environment” employment-discrimination cause of action requires “repeated conduct” which is not demonstrated discrete acts such as termination, failure to promote, denial of transfer or refusal to hire.

 

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PLAINTIFF’S STATE AND CITY HUMAN RIGHTS LAW CAUSES OF ACTION PROPERLY DISMISSED PURSUANT TO THE DOCTRINE OF COLLATERAL ESTOPPEL; THE IDENTICAL CLAIMS UNDER FEDERAL LAW WERE DISMISSED IN FEDERAL COURT ON SUMMARY JUDGMENT; TWO-JUSTICE DISSENT (FIRST DEPT).

The First Department, over a two-justice dissent, determined plaintiff was collaterally estopped from asserting her NYC Human Rights Law causes of act after the dismissal of identical claims made under federal law in federal court. The First Department acknowledged the NYC Human Rights Law causes of action must be analyzed separately and independently from the federal and state human rights law causes of action, but held that collateral estoppel was proper under the facts:

In light of the particular express facts that the federal courts found were conclusively demonstrated by the record on the summary judgment motions before the district court; the nature of the allegations underlying plaintiff’s State and City Human Rights Law claims in this action and the manner in which plaintiff has litigated those claims; and the relevant collateral estoppel case law … , we conclude that, even affording the City Human Rights Law claims the liberal analysis to which they are entitled, plaintiff’s claims under both the State and City Human Rights Laws were properly dismissed under the doctrine of collateral estoppel … . …

In concluding that plaintiff failed to allege discriminatory intent, the motion court correctly held that collateral estoppel applied to facts identical to those necessarily found by the district court to be undisputed when it granted summary judgment dismissing plaintiff’s federal employment discrimination claims ..  …

… [I]n dismissing the discrimination and hostile work environment claims against NYU, the motion court correctly relied on the district court’s finding that defendants Joseph Thometz and Eve Meltzer (the individual defendants) were not supervisors or managers, and thus that [defendant] NYU, as plaintiff’s employer, was not strictly liable for their conduct … . …

… [T]he federal courts found that NYU provided a legitimate, nonretaliatory reason for plaintiff’s termination: plaintiff breached a protective order issued by the district court by sending unsolicited emails to a potential witness in the federal action. Moreover, the federal courts found that plaintiff failed to present evidence that NYU’s reason was pretextual. … . Russell v New York Univ., 2022 NY Slip Op 02765, First Dept 4-26-22

​Practice Point: Although NYC Human Rights Law violations must be analyzed separately and independently from federal and state law violations, here the dismissal of the federal claims in federal court required the dismissal of the state and city claims pursuant to the doctrine of collateral estoppel.

 

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PLAINTIFF STATED A HOSTILE WORK ENVIRONMENT CAUSE OF ACTION WITH THE ALLEGATION (AMONG OTHERS) THAT HIS ACCENT WAS MOCKED, BUT PLAINTIFF DID NOT DEMONSTATE HIS DEMOTION WAS RELATED TO SUCH ANIMUS; THERFORE THE DISCRIMINATION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff’s employment discrimination claims under the NYS and NYC Human Rights Law stemming from his demotions should have been dismissed:

The discrimination claims should not have been allowed to proceed. Defendants proffered evidence supporting several legitimate reasons for demoting him from his provisional managerial position, including (1) an agency-wide restructuring, (2) plaintiff’s lack of accounting and management skills, and (3) evidence that he was a poor manager whose routinely hostile demeanor demoralized his subordinates, as evidenced by complaints made against him by several of those subordinates …  In the face of this evidence, plaintiff failed to come forward with any evidence raising an issue of fact as to whether these reasons were mere pretext for discrimination (under the State HRL) or whether discrimination was one of the motivating factors for the demotion (under the City HRL) … . Plaintiff presented no evidence of any disparity between defendants’ treatment of him and defendants’ treatment of employees of other races or ethnicities under similar circumstances. While plaintiff’s allegations of remarks that could be interpreted as derogatory or indicative of animus suffice to support the hostile work environment claim … plaintiff fails to identify any evidence connecting such animus, if any, to the decision to demote him … . Kwong v City of New York, 2022 NY Slip Op 02342, First Dept 4-7-22

Practice Point: Facts sufficient to state a cause of action for a hostile work environment do not necessarily state a cause of action for employment discrimination. A connection must be made between the hostile work environment claims (here allegations plaintiff’s accent was mocked) and the discrimination (here a demotion).

 

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PLAINTIFF SUFFICIENTLY ALLEGED CAUSES OF ACTION FOR EMPLOYMENT DISMCRIMINATION BASED ON NATIONAL ORIGIN (YEMENI), HOSTILE WORK ENVIRONMENT, AND RETALIATION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff stated claims for (1) employment discrimination on the basis of national origin )Yemeni), (2) hostile work environment, and (3) retaliation:

[Plaintiff’s] assertion that he was denied a promotion to sergeant on at least two occasions adequately supports … his claim [for discrimination on the basis of national origin] …  . … [H]is allegations that a coworker made derogatory remarks about Yemenis in the presence of his supervisors, that such remarks were ignored or condoned, and that non-Yemeni campus peace officers, who were less qualified than he, were promoted to the sergeant position, supports the fourth element of his claim, i.e. that the adverse action occurred under circumstances giving rise to an inference of discrimination … . …

Plaintiff has also stated a cause of action for hostile work environment, as his coworker’s multiple derogatory remarks about Yemenis, sometimes made in the presence of plaintiff’s supervisors, along with the allegedly unfounded write-ups, unfavorable assignments, and denial of a promotion, were sufficiently severe and pervasive to support that cause of action … . Plaintiff also alleges that defendants knew about the comments and failed to take appropriate action … .

Plaintiff has sufficiently alleged retaliation by showing that: (1) he engaged in protected activity in December 2016 when he filed a complaint stating that his supervisor was discriminating against him, (2) defendants were aware that he participated in such activity, (3) he was denied a promotion in February and May 2017, and (4) there is a causal connection between the protected activity and the adverse action … . Alshami v City Univ. of N.Y., 2022 NY Slip Op 02053, First Dept 3-24-22

Practice Point: This decision describes the allegations of employment discrimination (Human Rights Law) for (1) discrimination on the basis of national origin (Yemeni), (2) hostile work environment, and (3) retaliation which are sufficient to survive a motion to dismiss.

 

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