National Origin Discrimination Claim by Chinese Plaintiff May Proceed; Persons Identified as “American” Were Appropriate Comparators

In Cao-Bossa v. New York State Dep’t of Labor, 18-CV-0509, 2019 WL 2743505 (N.D.N.Y. July 1, 2019), the court, inter alia, held that plaintiff should be permitted to amend her complaint to add a claim for national origin discrimination.

From the decision:

As to Plaintiff’s claim for national origin discrimination, Defendant argues that amendment would be futile because (a) her indication that alleged similarly situated persons are “American” is not sufficient and she has failed to allege how those persons are otherwise similarly situated to her, (b) she failed to allege any facts as to statements made about her national origin or the national origin of other employees from which an inference of discrimination could be made, and (c) she has failed to allege any facts other than her own subjective belief that she was discriminated against based on her national origin. …  Contrary to Defendant’s first argument, the Court finds that Plaintiff’s allegation that three identified co-workers who received positive performance evaluations were all “American” is sufficient to plausibly suggest that those persons were outside of her protected group (i.e., Chinese). The Supreme Court has defined “national origin” as “the country where a person was born, or, more broadly, the country from which his or her ancestors came.” … Various courts have recognized that “American” can be a national origin for the purposes of assessing national origin discrimination under Title VII.[] Because Plaintiff has alleged that she is “of Chinese origin,” rather than American, she has plausibly alleged that she is of a different national origin than her allegedly American coworkers. …

Additionally, even if Plaintiff has not provided specific information as to some of those persons, she does specifically allege in her opposition affidavit that Ms. O’Hara was (a) supervised by the same supervisor for whom Plaintiff had worked, and (b) had all the same responsibilities that Plaintiff had when employed with Defendant. … Such allegations are sufficient for the purposes of Fed. R. Civ. P. 8 to plausibly suggest that a similarly situated employee of a different national origin was treated more favorably than was Plaintiff. …

Based on this, the court found “that Plaintiff’s opposition affidavit has provided sufficient indication that she could potentially allege facts that give sufficient notice to Defendant of her claim of national origin discrimination, and she should therefore be permitted an opportunity to amend the Amended Complaint as to that claim.”

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