In Bistreich v City of New York, No. 160194/2016, 2019 WL 4569921 (N.Y. Sup Ct, New York County Sep. 16, 2019), the court denied defendants’ motion for summary judgment on plaintiff’s disability discrimination claim under the New York City Human Rights Law.
Plaintiff – a former Legislative Director and Budget Director for the office of City Council Member Vincent J. Gentile who was diagnosed with Asperger’s Syndrome – alleges a horrific litany of conduct, including:
senior staff referring to plaintiff as “retarded” and stating, “You sit there and drool on yourself all day;” staff throwing pencils at plaintiff’s head; plaintiff being locked in the basement; and mutilated stuffed animals being placed on plaintiff’s desk. Plaintiff also alleges that Council Member Gentile repeatedly asked plaintiff whether there was medication he could take to address physical manifestations of his disability, to wit: physical tics, and thereafter remarking that plaintiff’s tics were “getting worse,” were “unnerving” to people, and were “annoying.”
The court summarized the pertinent law, namely, the contours of a discrimination claim under the City Law:
The standards for recovery under the New York City Human Rights Law (NYCHRL) is analyzed pursuant to the burden-shifting framework established in McDonnell Douglas Corp. v Green, 411 US 792 . See also Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of the AFL-CIO, 6 NY3d 265, 270 ; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 ). Under McDonnell Douglas, the plaintiff has the initial burden to establish a prima facie case of discrimination. To meet that burden, plaintiff must show that he or she is a member of a protected class, was qualified for the position held, was terminated from employment or suffered another adverse employment action, and the termination or other adverse action occurred under circumstances giving rise to an inference of discrimination.
Applying the law to the facts, the court holds
that plaintiff has proffered sufficient evidence to establish a prima facie case of discrimination. The City maintains that plaintiff was not subjected to disparate treatment because all staff were subject to the same conduct, but the court finds this argument unavailing. As the City concedes in its papers, plaintiff was open about having Asperger’s Syndrome, Council Member Gentile knew that plaintiff was diagnosed with Asperger’s, and plaintiff’s co-workers were aware of plaintiff’s disability and attachment to inanimate objects. Consequently, a review of the record suggests that the defendants were advised of the plaintiff’s disability and its manifestations. Thus, the defendants were aware that the alleged conduct would severely impact plaintiff in a way that was distinct from the impact on other staff. Further, the City contends that it was plaintiff’s purported unprofessional conduct in not reminding his supervisors of an already approved vacation on the eve of an anticipated budget deadline that served as the basis for plaintiff’s termination. However, defendants’ subsequent decision to divest plaintiff of his Legislative Director title and not his Budget Director title, which directly correlated to the purported professional misconduct issue, undermines this argument. Moreover, Council Member Gentile’s repeated inquires as to a possible medication that could address the physical manifestations of plaintiff’s disability further supports plaintiff’s assertion that his approved vacation taken near a budget deadline was merely a pretext for his termination.
Therefore, it concluded that given that “the nature of a summary judgment motion is to ascertain whether triable issues of fact exist”, here, “whether or not the plaintiff’s disability gave rise to the treatment he experienced and his subsequent termination from employment are issues of fact appropriate for a jury to decide.”