Disability Discrimination Claims, Based on Asthma and Cancer, Held Properly Dismissed

In Brown v. City of New York, No. 12411, 152006/19, 2020-02127, 2020 N.Y. Slip Op. 06700, 2020 WL 6731830 (N.Y.A.D. 1 Dept., Nov. 17, 2020), the court affirmed the dismissal of plaintiff’s disability discrimination claim asserted under the New York State and City Human Rights Laws, on the ground that it did “not contain any factual allegations showing that plaintiff’s employment was terminated under circumstances giving rise to an inference of discrimination.”

The court elaborated:

The complaint alleges, in conclusory fashion, that plaintiff’s employment with the Department of Correction was terminated on account of his alleged disabilities of asthma, chronic obstructive pulmonary disease (COPD), and cancer. Assuming his employer knew about his asthma and COPD, plaintiff was promoted twice while he had those conditions. Although he was later demoted in 2016, the complaint does not state why he was demoted or allege that he was demoted on account of these conditions. His demotion predates his cancer diagnosis in August 2017. The complaint alleges that plaintiff took an approved medical leave of absence from December 2017 to March 2018 for treatment of his cancer, and that he was discharged in November 2018, roughly 10 months after his leave started and 8 months after he returned. This passage of time is too long to establish any causal connection between any decisionmaker’s knowledge of his cancer or medical leave and plaintiff’s discharge to raise an inference of discrimination (Matter of Parris v. New York City Dept. of Educ., 111 AD3d 528, 529 [1st Dept 2013], lv denied 23 NY3d 903 [2014] ). The complaint does not allege that any decisionmakers made remarks that showed any discriminatory intent (Whitfield–Ortiz v. Department of Educ. of City of N.Y., 116 AD3d 580, 581 [1st Dept 2014]; compare Anderson v. Edmiston & Co., Inc., 131 AD3d 416, 417 [1st Dept 2015] ), nor does it allege facts that would establish that similarly situated persons who did not share his alleged disabilities were treated more favorably than he was (see Askin v. Department of Educ. of the City of N.Y., 110 AD3d 621 [1st Dept 2013] ).

While noting that plaintiff was not required to plead the last fact to state a claim of discrimination, it held that “the complaint does not allege any other facts that establish circumstances giving rise to an inference of discriminatory intent, and thus, dismissal pursuant to CPLR 3211(a)(7) was proper.”

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