In Coello v. The Riese Organization Inc., 2018 WL 1051730 (N.Y.Sup.), 2-3, 2018 N.Y. Slip Op. 30309(U) (N.Y. Sup. Ct. Bx. Cty. jan. 5, 2018), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claims of race discrimination, retaliation, and hostile work environment under the New York State and City Human Rights Laws.
From the decision/order:
Coello avers that many of the white employees had issues with punctuality and attendance, and were permitted to smoke, drink and skip days at work. Coello observed that none of the black and Hispanic employees were allowed such privileges. Coello further avers that less desirable work was assigned to black and Hispanics. Such assignments included demolition work, unprotected work with asbestos, work with sewage, unprotected work in spaces with bedbugs, heavy lifting, rubbish removal and clean-up, work in unheated work spaces as well as potentially life-threatening work around live electrical wires.
To sustain a NYSHRL hostile workplace claim, plaintiffs must show that the “workplace was ‘permeated with “discriminatory intimidation, ridicule and insult” that [was] “sufficiently severe or pervasive to alter the terms or conditions of [his] employment,” ’ ” so as to make out a claim for hostile work environment (Ferrer v New York State Div. of Human Rights, 82 AD3d 431 , quoting Harris v Forklift Systems, Inc., 510 US 17, 21 ).” Mejia v. Roosevelt Island Med. Assocs., 95 A.D.3d 570, 573 [1st Dept 2012]). In the case at bar there is evidence that the work environment had more than “ “isolated remarks or occasional episodes of harassment [that] will not support a finding of a hostile or abusive work environment” (see **6 Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 , lv denied 89 NY2d 809  [citations omitted]).” Ferrer v. New York State Div. of Human Rights, 82 A.D.3d 431 [1st Dept 2011]).
With respect to the hostile workplace Coello testified that a white foreman, Richard Ernst, (Ernst), would make derogatory racial comments toward Coello calling him “Pedro” or “Julio” knowing that his nickname was Mike and Ernst called all Hispanics, “Mexican.” He used the term “fucking useless” to describe minority workers.
Ernst’s behavior was documented in a “Notice of Poor Performance” dated August 13, 2010, in which his use of the term, “sand nigger,” was addressed. He was further cited for sleeping on the job, failure to complete work, excessive use of the cell phone, drinking alcohol on the job, and using company vehicles for personal purposes. Coello avers that after the Notice was given to Ernst, Ernst continued to engage in such conduct. No punishment was given to Ernest in sharp contrast to the indefinite suspension that lasted three weeks that was meted out to Coello for not timely reporting the loss of his work keys.
Riese, the CEO of Riese Organization and ARO, testified as follows: “That word [nigger] is being used constantly in our society, including by black people who seem to use it more often than white people these days. When a white person uses it in a conversation with them, they cry discrimination. That doesn’t seem fair… I am not convinced that the use of that word really means discrimination anymore. I really don’t.” (transcript p. 200-201). Subsequently, Riese testified that the context will govern whether the use of the term “nigger” by a white person **7 is discriminatory.
It cannot be held as a matter of law that Coello has failed to raise an issue of fact with his testimony and other evidence with respect to discrimination based on race, retaliation and hostile workplace, under both the NYCHRL and NYSHRL.