Race Discrimination Claim Against NY DOT Improperly Dismissed

In Local 621 v New York City Department of Transportation, No. 101831/17, 9991, 9991A, 2019 N.Y. Slip Op. 08014, 2019 WL 5791378 (N.Y.A.D. 1 Dept., Nov. 07, 2019), the court, inter alia, substantiated claims of national origin discrimination (asserted by the East Indian petitioners) arising from an allegedly biased EEO investigation.

From the decision:

[T]he discrimination claims of Bharat and Kubair were improperly dismissed. A plaintiff states a “claim of invidious discrimination under the State and City [Human Rights Laws] by alleging (1) that he/she is a member of a protected class, (2) that he/she was qualified for the position [held or for a promotion], (3) that he/she was subjected to an adverse employment action (under State HRL) or that he/she was treated differently from or worse than other employees (under City HRL), and (4) that the adverse or different treatment occurred under circumstances giving rise to an inference of discrimination” (Harrington v. City of New York, 157 A.D.3d 582, 584, 70 N.Y.S.3d 177 [1st Dept. 2018]; see also Executive Law § 296; Administrative Code of City of N.Y., § 8–107).

*2 It is undisputed that petitioners sufficiently stated the first two elements of an employment discrimination claim on behalf of Bharat and Kubair under both the State and City HRLs—namely, that they are both members of a protected class and were well qualified for their respective positions (see Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept. 2013] ). Petitioners also sufficiently stated the third element—that they were adversely (State HRL) or differently treated (City HRL) (id.). In particular, petitioners allege that DOT’s failure to upgrade Bharat to SMME II status (a position with greater salary and pension benefits) was discriminatory conduct as a less qualified white employee received the upgrade.

With regard to both petitioners Bharat and Kubair, the petition alleges that DOT discriminated against them by conducting a biased investigation of a baseless EEO complaint filed against them by a white disabled employee. The EEO complaint resulted in DOT placing an EEO letter, substantiating the EEO complaint in petitioners’ employment files, as a form of reprimand.

We find that the fact that a white employee (Cohen) was also issued an EEO letter of reprimand based on the same allegedly baseless EEO complaint does not negate the fourth element of discrimination so as to render the claim insufficient. In fact, in arguing that no inference of discriminatory motive can be drawn when white and nonwhite employees receive similar treatment, DOT wishes us to ignore the context in which the alleged discriminatory conduct took place with regard to the EEO letters placed in petitioners’ employment files. In essence, petitioners allege that respondent’s biased investigation of the EEO complaint was part of a pattern and practice of discrimination by DOT on the basis of race.
This alleged pattern and practice of discrimination is supported by DOT’s history of discrimination as suggested by the federal action initiated by Bharat, which culminated in a consent decree promoting minority employees who had been discriminated on the basis of race. This alleged pattern and practice of discrimination is also supported by the conduct of DOT during the investigation of the EEO complaint against petitioners that, as fully explained before, disregarded their due process rights.

In addition, we cannot ignore Bharat’s statements against the disabled employee who filed the EEO complaint against petitioners. Bharat states that the disabled employee was furious at Cohen, who as a supervisor had given a favorable assignment to an employee of East Indian descent. Petitioners also allege that, after the federal action’s consent decree was executed, there was an atmosphere among white employees at DOT, including the disabled employee, that minority employees were receiving treatment they did not deserve. Under the circumstances and according petitioners the benefit of every possible inference, it is fair to infer that the disabled employee’s animus toward Cohen was a byproduct of the disabled employee’s animus toward Bharat and Kubair. Bearing in mind the liberal pleading standards governing this stage of the action (see Brathwaite v. Frankel, 98 A.D.3d 444, 445, 949 N.Y.S.2d 678 [1st Dept. 2012] ); Wiesen v. New York Univ., 304 A.D.2d 459, 460, 758 N.Y.S.2d 51 [1st Dept. 2003] ), the foregoing sufficiently alleges discriminatory animus by DOT with regard to its investigation of the baseless EEO complaint that resulted in the EEO letter of reprimand.

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