In Blanc v. The City of New York et al, No. 154032/2020, 2021 WL 1022595, 2021 N.Y. Slip Op. 30837(U) (N.Y. Sup Ct, New York County Mar. 17, 2021), the court, inter alia, held that plaintiff – a 57 year-old Black man of Haitian national origin – sufficiently alleged facts to make out a claim for race, national origin, and age discrimination.
From the decision:
Plaintiff alleges that he was a 57-year old black male and qualified for his position. In July 2019, defendants hired an additional DACCO [Deputy Agency Chief Contracting Officer], raising the total count to four DACCOs. Plaintiff’s job responsibilities were initially diluted and, by February 2020, he was ultimately demoted and his salary was reduced by 20 percent. Defendants purportedly did not identify any deficiencies in plaintiff’s performance, nor did they provide an explanation for their actions at the time. Although the age of Tian is unknown, at least two out of the three remaining DACCOs were younger than plaintiff and all were non-black.
Accordingly, set forth above, plaintiff has “made allegations, that, if true, would carry [his] ‘de minimis burden’ of establishing a prima facie case of discrimination in violation of the [NYCHRL].” Brathwaite v Frankel, 98 AD3d 444, 445 [1st Dept 2012] (internal citations omitted). Plaintiff has alleged that he was a member of a protected classes due to his race, color, national origin and age, that he was demoted despite being qualified to hold the position, and that the demotion occurred under circumstances giving rise to an inference of discrimination. Despite the fact that plaintiff had been in the position the longest amount of time, he was the only DACCO who was demoted, while the other three, who were outside of plaintiff’s protected classes, were allowed to remain. Although it is unclear if another DACCO will be appointed to officially replace plaintiff’s position, it is irrelevant at this time. Given the liberal pleading standards, the court finds that plaintiff has sufficiently alleged that he was treated less well than other employees because of his age and race. See e.g. Brathwaite v Frankel, 98 AD3d at 445 (“The inference of discrimination arises from the complaint’s allegations that plaintiffs, who performed clerical work, were laid off as a result of the elimination of their job title, under which all the employees were disabled, while other job titles involving clerical work were not eliminated”).
It is well settled that “[a] plaintiff relying on disparate treatment evidence must show she[/he] was similarly situated in all material respects to the individuals with whom she[/he] seeks to compare her[/him]self.” Mandell v County of Suffolk, 316 F3d 368, 379 (2d Cir 2003) (internal quotation marks and citation omitted). Defendants argue that plaintiff fails to allege that a similarly situated comparator outside of his class experienced more favorable treatment. However, construing the complaint liberally and giving plaintiff the benefit of every possible inference, plaintiff has alleged that three other employees who share the same job title, have been allowed to remain in their positions and did not have their salary reduced, while he was demoted and had his salary reduced. Plaintiff had been in the DACCO position longer than any of the other employees. On this pre-answer motion to dismiss stage, plaintiff has presented “sufficient allegations that the comparators had similar workloads and responsibilities. The purported comparators are [DACCOs], like Plaintiff. And it is alleged that they have similar responsibilities, including responsibilities that were once Plaintiff’s but were reassigned to the younger [DACCOs].” Alexander v New York City Dept. of Educ., 2020 WL 7027509, *6, 2020 US Dist LEXIS 223311, *19 (SD NY 2020) (citation omitted).
Accordingly, defendants’ motion to dismiss the complaint is denied. Under the lenient notice pleading standard, plaintiff has adequately plead that his demotion occurred under circumstances giving rise to an inference of race, color, national origin or age discrimination.
While the court held that plaintiff’s claims survived defendants’ motion to dismiss, it noted that “[d]uring subsequent litigation, defendants will have an opportunity to attempt to rebut the presumption of discrimination arising from [plaintiff’s] prima facie case by setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support [their] employment decision.”