Section 1981 Employment Discrimination Claim Survives Dismissal Against Pharmacy

In Jaffery v. Downtown Pharmacy, Inc., et al, 20 Civ. 3437, 2021 WL 1199074 (S.D.N.Y. March 30, 2021) (J. Daniels), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s discrimination and hostile work environment claims under 42 USC § 1981.

From the decision:

Here, Plaintiff alleges both a hostile work environment and discriminatory adverse employment action, namely Defendants disciplining her and terminating her employment. To succeed on a hostile work environment claim, “a plaintiff must show that her workplace was ‘permeated with discriminatory intimidation, ridicule, and insult, that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment.’ ” Watkins v. New York City Transit Auth., No. 16 Civ. 4161 (ER), 2020 WL 1888839, at *8 (S.D.N.Y. Apr. 16, 2020) (quoting Bermudez v. City of New York, 783 F. Supp. 2d 560, 578 (S.D.N.Y. 2011)). Plaintiff alleges that she was the only South Asian employee at Downtown Pharmacy and that Defendants made several racially-charged comments to her over the course of her employment. (Id. ¶ 271.) Defendants alleged comments were varied and targeted Plaintiff’s race, gender, religion and national origin. Nonetheless, comments such as those associating Plaintiff with ISIS and querying whether she would be sold for a camel because “that’s how your culture works,” are plausibly connected to race, regardless of whether they also touch on religion and national origin. Plaintiff alleges that such comments were made frequently and cites specific instances that cover the period of 2015 through 2017. Moreover, Plaintiff alleges that at least some comments were made in front of customers. This Court is also mindful that “whether a particular work environment is objectively hostile is necessarily a fact-intensive inquiry,” Patane v. Clark, 508 F.3d 106, 114 (2d Cir. 2007), and, accordingly, “is generally inappropriate for the Court to determine on a motion to dismiss,” Amaya v. Ballyshear LLC, 295 F. Supp. 3d 204, 224 (E.D.N.Y. 2018). Liberally construed, Plaintiff has adequately alleged that Defendants made repeated comments directed at her race and ethnicity that a reasonable person would find to be hostile and interfere with the conditions of her employment. Because Plaintiff’s allegations are, at least, sufficient to support her claim of a hostile work environment, her count of race discrimination pursuant to Section 1981 (Count 11) survives Defendants’ motion to dismiss. [Citations and internal quotation marks omitted; emphasis added.]

The court, however, held that plaintiff failed to state a plausible claim of retaliation under Section 1981. While plaintiff argued that defendants disciplined and fired her because she reported and opposed racist comments and actions taken against her, the court held that plaintiff “fails to plausibly allege any connection between any complaint she made regarding racist comments and Defendants’ decision to discipline and, ultimately, fire her”, noting that, “[i]f anything, the complaint alleges that Defendants’ actions were taken in direct response to complaints by Plaintiff regarding sexual harassment.”

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