Hostile Work Environment Claim Dismissed; Plaintiff Not “Treated Less Well” Because of National Origin

In Skariah v. The City of New York et al, No. 153189/2013, 2020 WL 3317000 (N.Y. Sup Ct, New York County June 18, 2020), the court, inter alia, granted defendants’ motion for summary judgment dismissing plaintiff’s national origin-based hostile work environment claim under the New York City Human Rights Law.

The court summarized the law as follows:

A hostile work environment exists in violation of the NYCHRL where an employee “has been treated less well than other employees because of her protected status.” Chin v New York City Hous. Auth., 106 AD3d 443, 445 [1st Dept 2013]. Under the NYCHRL, “the conduct’s severity and pervasiveness are relevant only to the issue of damages. To prevail on liability, the plaintiff need only show differential treatment – that she is treated ‘less well’ — because of a discriminatory intent.” Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 [2d Cir 2013] (internal citation omitted).

*3 To establish a hostile work environment claim under the NYCHRL, “the primary issue for a trier of fact in harassment cases, as in other terms and conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her [protected status].” Williams v New York City Hous. Auth., 61 AD3d 62, 78 [1st Dept 2009]. Despite the broader application of the NYCHRL, conduct that consists of “petty slights or trivial inconveniences … do[es] not suffice to support a hostile work environment claim.” Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560, 560 [1st Dept 2017] (internal quotation marks and citation omitted).

Applying the law to the facts, the court held:

Plaintiff’s hostile work environment claim, as with the other discrimination claims, includes the failure to promote and decisions regarding certain work equipment and overtime, as well as allegations of disparaging comments because of his national origin. However, plaintiff has not established that he was treated less well because of his national origin or that these remarks were more than “petty slights or trivial inconveniences.” Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560 [1st Dept 2017].

Plaintiff conclusory assertions [sic] that he was qualified for positions in which he did not receive is not supported on this record. Plaintiff fails to state the qualifications for the positions, how he was qualified and a nexus between his national origin and not getting the positions applied for. It is well established that “a plaintiff’s feelings and perceptions of being discriminated against are not evidence of discrimination.” Basso v Earthlink, Inc., 157 AD3d 428, 430 [1st Dept 2018] (internal quotation marks and citation omitted). Moreover, plaintiff fails to address how the candidates that were ultimately hired for the positions are not qualified.

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