Firefighter’s Race Discrimination Claims Dismissed; Comments Were “Stray Remarks”

In Johnson v. City of New York, 2020 WL 2036708 (S.D.N.Y. April 28, 2020), the court, inter alia, granted defendants’ motion to dismiss plaintiff’s race discrimination claims under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.

On the race discrimination claim, the Court agrees with Defendants. Plaintiff first argues that his allegations of over-drilling give rise to a plausible inference of discrimination. As noted above, Plaintiff alleges that “on several occasions, [he] was singled out” to perform unusual and humiliating drills. FAC ¶ 23. An inference of discrimination can be supported by disparate treatment of otherwise “similarly situated” employees. Littlejohn, 795 F.3d at 312 (citing Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). Here, while Plaintiff alleges that he was “singled out,” he fails to allege that similarly situated white firefighters were not “singled out” for over-drilling. In fact, Plaintiff alleges that on Christmas Day 2016, a white SOC firefighter was also singled out to perform allegedly unusual drills alongside Plaintiff. See FAC ¶ 29. Moreover, Plaintiff’s allegation that he was criticized for taking longer than the white firefighter to complete one of the Christmas Day drills cannot give support an inference of discrimination because he does not allege that he and white firefighter were actually similarly situated—i.e. that they took the same amount of time to complete the drill. Plaintiff’s claim that, during the trivia drill, questions were yelled at him but not the white firefighter is also too trivial to support even a minimal inference of discrimination.
Additionally, Plaintiff alleges that during a water drill, he was subjected to several negative remarks that invoked racist stereotypes about African-Americans and swimming. See FAC ¶ 24. These remarks were alleged to have occurred nearly seven months before Plaintiff’s transfer from SOC. The Second Circuit has long held that “stray remarks” that are temporally removed from the adverse employment action at issue cannot, without more, meet even a “de minimis burden of raising an inference of discriminatory intent.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001). This applies with additional force when the remarks are not made by a decisionmaker. See Dixon v. Int’l Fed’n of Accountants, 416 F. App’x 107, 110 (2d Cir. 2011) (“[S]tray comments [by a co-worker who played no role in the plaintiff’s termination] do not create an inference of discrimination.”); Campbell v. Alliance Nat’l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000). Thus, these alleged comments cannot save his Title VII race discrimination claim. Even drawing all inferences in Plaintiff’s favor, he has failed to allege facts that support a minimal inference of race discrimination. His Title VII claim that his transfer from SOC was racially discriminatory is dismissed.