In Ramirez v. NYP Holdings, Inc., 18-cv-12058, 2020 WL 470011 (S.D.N.Y. Jan. 29, 2020), the court held, inter alia, that plaintiff failed to state claims for race and national origin discrimination. (The court did find, however, that plaintiff sufficiently alleged a hostile work environment claim.)
The court noted, in particular, that “although [plaintiff’s complaint] does specifically allege numerous instances of disparaging remarks regarding Plaintiff’s race, none of these statements came from supervisors or other individuals who may have played a role in suspending or terminating Plaintiff.”
This was particularly relevant, since under Second Circuit law “the Court’s analysis must focus on whether the plaintiff has met [his] burden of proving that the adverse employment decision was motivated at least in part by an impermissible reason.” [Internal quotation marks omitted.]
While the alleged statements were “deplorable”, plaintiff failed to “allege how, if at all, they relate to Defendant’s decision to suspend Plaintiff.”
And while these statements arguably related to plaintiff’s suspension – “insofar as they temporally precede, and perhaps incited Plaintiff to engage in the conduct that led to, that suspension” – this was not enough.
Specifically, the court explained that “[i]t is well settled that verbal comments may constitute evidence of discriminatory intent if the plaintiff can establish a nexus between the alleged discriminatory remarks and the defendant’s decision to terminate the plaintiff’s employment,” but “statements made by nondecisionmakers … do not constitute sufficient evidence to support a claim of discrimination.”
The court further rejected plaintiff’s argument that disparate treatment was evidenced by the employer’s permitting the person with whom plaintiff had a verbal altercation to return to work, while suspending plaintiff, noting that plaintiff failed to plead any facts from which the court could conclude that plaintiff and the other employee were “similarly situated” to one another.