Employment Discrimination Complaint Proceeds; Replacement Shortly After Termination Creates (Weak) Inference of Discrimination

In Berges v Bodner, No. 153658/2019, 2019 WL 4643770, 2019 N.Y. Slip Op. 32825(U) (N.Y. Sup Ct, New York County Sep. 24, 2019), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s employment discrimination complaint.

From the decision:

The only element that the parties seriously dispute is … whether her termination occurred under circumstances giving rise to an inference of discrimination. (See Forrest, 3 NY3d at 305.) (Docs. 5 at 15; 7 at 8-9.) Our courts have held that “[t]hat inference may be drawn from direct evidence, from statistical evidence, or merely from the fact that the position was filled or held open for a person not in the same protected class.” (Sogg v Am. Airlines, 193 AD2d 153, 156 [1st Dept 1993] (emphasis added).) In her complaint, plaintiff has expressed the various ways in which she felt like she was mistreated by Bodner and the Agency throughout her employment. (See, e.g., Doc. 4 at 5-6.) The complaint further asserts that plaintiff was the only African American and Hispanic employee (id. at 6) and, crucially, that she was replaced by a male who is neither African American nor Hispanic (id.) (see Sogg, 193 AD2d at 156). On top of that, this “replacement hire” was hired only a month after plaintiff was terminated from her position (see id. at 5-6), despite the fact that plaintiff was allegedly told that she was being let go because of a reduction in defendants’ workforce (id.). Giving plaintiff the benefit of every possible favorable inference (see Leon, 84 NY2d at 87-88), these facts, taken together, raise at least an inference–albeit not a strong inference–that defendants’ conduct may have been influenced by some invidious motive. Given that a CPLR 3211(a)(7) motion addresses solely the facial sufficiency of the complaint, this Court is reluctant, at least at this early stage of the proceedings, to dismiss **6 plaintiff’s first cause of action entirely.3 However, in allowing plaintiff’s discrimination claims under the NYSHRL and the NYCHRL to proceed, and given that the inference of discrimination in the complaint is not particularly strong, this Court will note that “the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff.”

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