Egyptian / Middle Eastern / Muslim Plaintiff’s Discrimination Claim Survives Summary Judgment

In Abdelal v. Police Commissioner Raymond W. Kelly, City of New York, No. 20-1436, 2021 WL 2025173 (2d Cir. May 21, 2021) (Summary Order) (Walker, Leval, Chin), the court vacated the lower court’s order granting defendants’ motion for summary judgment on plaintiff’s claims of discrimination based on his Egyptian national origin, Middle Eastern ancestry, and Muslim religion.

After summarizing the black-letter law – namely, that “[a] plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment” – the court proceeded to apply it to the facts:

Abdelal’s employment was terminated, which itself is, of course, an adverse employment action. See Kelleher v. Fred A. Cook, Inc., 939 F.3d 465, 468 (2d Cir. 2019). Further, there are factual issues regarding whether the NYPD’s pre-termination conduct constituted an adverse employment action. For example, an Internal Affairs Bureau (“IAB”) investigator contacted the Joint Terrorism Task Force (the “JTTF”) pursuant to the investigation of Abdelal, and Commissioner Kelly stated that IAB contacts the JTTF only when an officer is suspected of terrorism. Viewing the evidence in a light most favorable to Abdelal, a reasonable juror could infer that the IAB investigator contacted the JTTF not because of information linking Abdelal to terrorism but because of Abdelal’s national origin, ancestry, or religion. A reasonable juror could also infer that, after the IAB investigator did so, it resulted in a more searching investigation and harsher discipline than had the NYPD applied its standard investigative and disciplinary procedures. See Joseph, 465 F.3d at 92 n.1 (“The relevant question is therefore whether the employer has simply applied reasonable disciplinary procedures to an employee or if the employer has exceeded those procedures and thereby changed the terms and conditions of employment.”).

Abdelal also presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred in circumstances giving rise to an inference of discrimination. For example, he proffered two statements defendants made in which they noted his national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct. Further, he set forth evidence that defendants launched an investigation into him and his family, involving the JTTF, which as noted above, arguably was a departure from the NYPD’s normal investigative and disciplinary procedures. He also set forth evidence that Commissioner Kelly’s rejection of a more lenient recommended penalty for Abdelal’s misconduct in favor of termination was arguably inconsistent with the way the Commissioner generally imposed disciplinary consequences.

Based on this, the court concluded that plaintiff provided admissible evidence sufficient to permit a rational finder of fact to infer a discriminatory motive” resulting in its decision to vacate the district court’s judgment in favor of defendants on Abdelal’s disparate treatment claims pursuant to federal, state, and city law.

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