Male Worker’s Gender Discrimination Among Claims Surviving Dismissal

In Cherry v. NYC Housing Authority et al, 15-cv-6949, 2017 WL 4357344 (E.D.N.Y. Sept. 29, 2017) (J. Brodie), the court held (inter alia) that plaintiff sufficiently alleged gender discrimination under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.

Plaintiff – a black male – alleged, among other things, that his manager (Bazelais) told him many times that “this is a woman’s job” and as a man he “could not do a woman’s job as well as a woman.”

The court explained the pleading standard for alleging Title VII claims:

[A]bsent direct evidence of discrimination, to survive a motion to dismiss a claim of employment discrimination in violation of Title VII, a plaintiff must allege facts that plausibly support a finding that he suffered an adverse employment action and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.

After determining that plaintiff “plausibly alleges that the non-secretarial assignments and failure to authorize his overtime pay were adverse employment actions”,[1]While I focus here on the court’s evaluation of the sufficiency of plaintiff’s allegations of discriminatory intent, this decision is also instructive on what actions qualify as “adverse employment actions” that are actionable under the anti-discrimination laws. the court next held that plaintiff sufficiently alleged discriminatory motivation.

As part of its analysis, the court cited the “stray remarks” doctrine. Under that doctrine:

To determine whether a comment is probative of intent to discriminate or whether it is a non-probative “stray remark,” a court considers the following factors: [¶] (1) who made the remark, i.e. a decisionmaker, a supervisor, or a low-level co-worker; (2) whether the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process.

Applying these factors, the court held that the alleged comments were, indeed, probative of discrimination and not “stray”:

Here, Bazelais’ comments are probative of her discriminatory intent, which motivated her accusations that led to the termination of Plaintiff’s employment and the assignment of non-secretarial work to Plaintiff without commensurate compensation. Bazelais was Plaintiff’s supervisor, and, according to Plaintiff, Bazelais assigned Plaintiff non-secretarial work, denied Plaintiff overtime pay and accused Plaintiff of becoming angry and agitated in response to Bazelais reprimanding him for failing to photocopy a check, which accusations contributed to the termination of his employment. Although, none of the comments were made explicitly in relation to any of the alleged adverse actions, a reasonable juror could find the remarks that Plaintiff was performing a “woman’s job,” and that he “could not do a woman’s job as well as a woman,” to be discriminatory. …

Moreover, the timing and implied context of the remarks suggest that there was a connection between the comments, made on several occasions during Plaintiff’s employment at Unity Plaza, and the adverse actions. Bazelais’ frequent comments during the time she supervised Plaintiff at Unity Plaza between January of 2012 and July 12, 2013 …, and her actions of delegating Plaintiff non-secretarial assignments, denying his overtime requests and accusing him of misconduct that led to his termination, suggest that she was motivated by discriminatory animus. …

In addition to the probative value of Bazelais’ statements, Plaintiff also alleges that while Bazelais gave him non-secretarial assignments, she did not give the female secretaries similar assignments, which further supports the inference that Bazelais treated Plaintiff adversely because of his gender.

The court concluded that plaintiff “alleged the necessary elements of a gender discrimination claim under Title VII and the NYSHRL based on Plaintiff’s termination,[] the non-secretarial work assignments and the denial of overtime pay for the overtime hours Plaintiff worked.”[2]The court also held that plaintiff sufficiently alleged a discrimination claim under the New York City Human Rights Law, and hostile work environment and retaliation claims under Title VII and the NYS and NYC Human Rights Laws.

1 While I focus here on the court’s evaluation of the sufficiency of plaintiff’s allegations of discriminatory intent, this decision is also instructive on what actions qualify as “adverse employment actions” that are actionable under the anti-discrimination laws.
2 The court also held that plaintiff sufficiently alleged a discrimination claim under the New York City Human Rights Law, and hostile work environment and retaliation claims under Title VII and the NYS and NYC Human Rights Laws.
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