In Kwong v. City of New York, No. 152932/2013, 2020 WL 7360816 (N.Y. Sup Ct, New York County Dec. 15, 2020), the court, inter alia, denied defendants’ motion for summary judgment on his national origin discrimination claim asserted under the New York City Human Rights Law.
As to whether plaintiff suffered an “adverse employment action”, the court held that plaintiff demonstrated an issue of fact as to the severity of certain actions, namely, at least one unfounded EEO violation and a transfer.
The court next considered whether plaintiff raised an issue of fact as to whether there was an “inference of discrimination,” i.e., “that the alleged adverse actions were motivated, at least in part, by his race, national origin, gender or age.” Since plaintiff testified that there were no derogatory comments made about his age or gender, claims related to those characteristics were dismissed.
It reached the contrary conclusion, however, as to claims based on plaintiff’s being Chinese:
Plaintiff has alleged derogatory references to Chinese cuisine, and mockery of his use of English, which is sufficient to state a claim for discrimination (Tolbert, 790 F3d at 438; Altman v NY City Dept. of Educ., 2007 US Dist LEXIS 32320, at *14 [SDNY May 1, 2007, No. 06 CV 6319 [HB] [“national origin discrimination includes ‘the denial of employment opportunity because… an individual has the… linguistic characteristics of a national origin group.”]). To the extent that Defendants argue, in reply, that any allegedly discriminatory comments were made by employees uninvolved in decisions regarding Plaintiff’s employment, this argument is unavailing for two reasons: first, Defendants focus on comments relating to Chinese cuisine, characterizing them as relatively benign, but do not discuss other allegations–for example, Plaintiff’s allegations that colleagues pretended not to understand Plaintiff’s English.
Additionally, to the extent that colleagues made unsubstantiated EEO complaints, including at least once by an individual who later recanted, and that those complaints admittedly played at least some role in Plaintiff’s reassignment, there remains an issue of fact which cannot be resolved on a motion for summary judgment.
The court also rejected defendants’ argument based on their favorable treatment of other employees with plaintiff’s protected characteristics, noting that this was “not conclusive evidence” that plaintiff was not subjected to discrimination based on his protected characteristics.