Retaliation Claim Survives Dismissal; Hostile Work Environment and Discrimination Claims Dismissed

In Thomas v. Jonathan Mintz et al, No. 103397/11, 11405, 2020 N.Y. Slip Op. 02367, 2020 WL 1942218 (N.Y.A.D. 1 Dept. Apr. 23, 2020), the court modified a lower court decision to deny defendant’s motion to dismiss plaintiff’s retaliation claim, but upheld its dismissal of plaintiff’s hostile work environment and discrimination claims, under the New York State and City Human Rights Laws.

As to the retaliation claims, the court explained:

Under the lenient notice pleading standard afforded to employment discrimination cases, the complaint states a cause of action for retaliation (see Petit v Department of Educ. of the City of N.Y., 177 AD3d 402, 403 [1st Dept 2019], citing Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009] ). It alleges that plaintiff filed a discrimination complaint in December 2010, that defendant Jonathan Mintz was notified of the complaint in November 2011, and that six months later plaintiff was charged with departmental misconduct that allegedly had occurred more than a year earlier.

It reached the opposite conclusion, however, as to plaintiff’s other claims:

The complaint fails to state causes of action for discrimination and a hostile work environment, because it does not allege that defendants’ actions occurred under circumstances that give rise to an inference of discrimination (see Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305, 310 [2004]; Massaro v Department of Educ. of the City of N.Y., 121 AD3d 569 [1st Dept 2014], lv denied 26 NY3d 903 [2015] ). It does not allege facts that would establish that similarly situated persons who were male or were not of African American descent were treated more favorably than plaintiff was (see Askin v Department of Educ. of City of N.Y., 110 AD3d 621 [1st Dept 2013] ). Instead, the complaint merely asserts the legal conclusion that defendants’ adverse employment actions and plaintiff’s termination were due to race and gender (see Askin, 110 AD3d at 622). The hostile work environment cause of action fails for the additional reason that the handful of potentially insensitive comments made by her superior over the course of a few years do not rise to a level that is actionable under either the State or the City HRL