National Origin (Chinese) Discrimination Claim Dismissed Against Con Edison

In Lum v. Consol. Edison, No. 160027/2020, 2021 WL 5331547 (N.Y. Sup Ct, New York County Nov. 16, 2021), the court, inter alia, dismissed plaintiff’s national origin discrimination claim asserted under the New York State and City Human Rights Laws.

Plaintiff alleged, among other things, that plaintiff’s co-worker made derogatory comments to him (e.g., “open your eyes” and referring to his “little pee-pee”).

After summarizing the pertinent law, the court applied it to the facts, as follows:

The court agrees with defendant ConEd. It is undisputed that plaintiff was Chinese and that he suffered an adverse employment decision, his termination. However, there is nothing in the amended complaint or second amended complaint to support a claim for discrimination on the basis of national origin. In the second amended complaint, plaintiff alleges that Robert Moran asked plaintiff “Are you Chinese” in 2015, that a ConEd drug counselor made a derogatory comment about “Asian girls” in plaintiff’s presence three years prior to plaintiff’s termination, that plaintiff’s shop steward made a derogatory comment about plaintiff’s penis size in 2012, Scheib’s derogatory comments and that “defendants discriminated against plaintiff because Plaintiff is originally from China”. While these statements or comments may support a claim for hostile work environment, these statements/comments were made years prior plaintiff’s termination from ConEd and cannot be linked to the adverse employment decision, termination, which occurred in 2020. Further, the second amend complaint is devoid of any factual allegations that plaintiff was terminated because he was Chinese.

The court concluded that “[t]he only facts that plaintiff alleges in support of his claim is that he is Chinese and was terminated in 2020, which is insufficient to support a cause of action for national origin discrimination.”

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