Race, National Origin Discrimination Complaint Dismissed; Non-Detailed Events That “Almost Happened” Insufficient

From Chong v. The City of New York, No. 161606/2018, 2020 WL 3104355, 2020 N.Y. Slip Op. 31827(U) (N.Y. Sup Ct, New York County June 11, 2020) (J. Bluth):

A close reading of plaintiff’s amended complaint reveals that plaintiff seems to have many grievances towards his co-workers and supervisors, including a complaint that OLR’s employees are primarily women of Russian descent. But missing from his pleading are adverse actions and unlawful treatment motivated by his status in a protected class. Rather, it lists many allegations about things that almost happened (a change in schedule, scrutiny of time records), acts that don’t contain enough detail to state a cause of action (pay raises for other employees, demotion from a “manager” position and false accusations by a supervisor) and isolated incidents (a nasty comment from a co-worker and a denial of a vacation request). In fact, plaintiff admits that supervisors had meetings with plaintiff about several of his complaints (NYSCEF Doc. No. 8, ¶¶ 29, 30, 32).

Assuming all the allegations are true, as the Court must on a motion to dismiss, it appears that plaintiff’s co-worker (Cortez) did not get along with plaintiff and made an insensitive **10 comment about plaintiff’s weight on one occasion. That does not support the causes of action asserted by plaintiff. And while plaintiff is upset with how defendants handled his EEO complaints, mere disagreement with their process or conclusions do not state a cause of action under the NYSHRL or the NYCHRL.

The Court recognizes that the standard under the NYCHRL to state a cause of action–to be treated less well–is quite broad. But the overwhelming theme of the amended complaint is that plaintiff did not like how he was treated, not that he was necessarily treated less well because of his status in a protected class. Plaintiff was not fired, he didn’t have his pay reduced, his title was not changed, his schedule was not changed and no action was taken on his time records. Surely, even the broadest reading of the NYCHRL cannot support a cause of action based on every perceived slight from an employer, especially where those slights are devoid of sufficient factual allegations.

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