In Grewal v. Cuneo Gilbert & LaDuca LLP, No. 13-CV-6836 (RA), 2017 WL 1215752 (S.D.N.Y. Mar. 31, 2017), the court denied defendants’ motion for summary judgment on the plaintiff’s breach of contract claim, but granted it as to her national origin-based hostile work environment claims.
In this case, plaintiff – a lawyer of Indian national origin – asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and hostile work environment on the basis of her national origin.
Breach of Contract / Implied Covenant of Good Faith & Fair Dealing
The contract dispute hinged on an email exchange (which the court held created a binding employment agreement) which provided that plaintiff was an “at will” employee who would be compensated “hourly, plus 10 percent of the work you originate plus twelve percent of your lodestar contribution.” (Emphasis added.) The court held that summary judgment was not warranted to either party, since the term “originate” was ambiguous and has no fixed meaning in the legal profession.
The court quickly dismissed plaintiff’s claim that defendant breached the “implied covenant of good faith and fair dealing,” since it was undisputed that plaintiff was an at-will employee and “well-settled New York law holds that no implied covenant of good faith and fair dealing attaches to at-will employment contracts.”
New York State Human Rights Law
Next, the court dismissed plaintiff’s discrimination/hostile work environment claims under the New York State Human Rights Law.
Plaintiff identified two incidents constituting “harassment” on the basis of her national origin: (1) a comment during a litigation meeting that “we don’t take this girl seriously”, “we just treat her as a foreigner,” and “we should be ashamed of ourselves”; and (2) a statement that “we don’t understand your accent.”
As to the first set of statements, the court noted (inter alia) that “[t]he thrust of [the] statements … was that Grewal deserved equal treatment and that anything less would not be tolerated at the firm”, and that “[c]ritically, it is not disputed that Grewal shared this positive impression of [the] statements regarding her national origin” as evidenced by an email she sent “thanking him ‘for all the wonderful things [he] said at the meeting.'”
The court held that the second (accent-based) comment was also insufficient to support a hostile work environment claim under the NYS Human Rights Law, noting that “no reasonable juror could find that incidents of discrimination on the basis of Grewal’s national origin were continuous and concerted or constituted a steady barrage of opprobrious … comments.” None of the other workplace slights identified by plaintiff was sufficient, alone or collectively, to establish a hostile work environment under the NYSHRL, since plaintiff “has not alleged that any of these incidents, which she describes as demoralizing, related in any way to her national origin.”
New York City Human Rights Law
The court also dismissed plaintiff’s claim under the comparatively broader New York City Human Rights Law, since she failed to provide evidence that she was treated “less well” than other employees because of her national origin.
Notably, it highlighted defendant firm partner Cuneo’s comments advanced, rather than frustrated, that law’s purpose:
[T]he broad remedial purpose of the Restoration Act does not support Grewal’s claim that Cuneo’s statements should be actionable under the NYCHRL, even though they are not under state or federal law. In passing the Restoration Act, the New York City Council emphasized the “need to make sure that discrimination plays no role” in the work environment. Williams, 872 N.Y.S.2d at 38 (emphasis in original). Far from frustrating this objective, Cuneo’s statements promoted it: the undisputed evidence demonstrates that Cuneo sent his employees a clear message that discrimination in any form—whether on the basis of race, gender, or national origin—is unacceptable. Moreover, like the New York City Council, Cuneo expressly acknowledged that workplace discrimination remains an intractable problem—and one from which “educated people and the legal profession are not immune.” Cuneo’s statements thus reflect the very goals and concerns that lay behind the Restoration Act, and subjecting CGL to liability on the basis of these statements would do little to further the Act’s purpose.
Finally, the court held that Cuneo’s statement that “we don’t understand your accent” was insufficient to support a claim under the city law. While this statement could be taken as a reference to plaintiff’s national origin, it did “not indicate that Grewal was treated any less well than her colleagues” particularly where “Cuneo did not, for instance, mock Grewal or suggest that she was any less capable an employee because she spoke with an accent.”