Race/Color Hostile Work Environment Claim Survives, In Part, Against Carmine’s Restaurant

In Pichardo v. Carmine’s Broadway Feast Inc., No. 1467 4, 2021-00050, 2021 WL 5456247 (N.Y.A.D. 1 Dept. Nov. 23, 2021), the court, inter alia, held (in part) that summary judgment was improperly granted to defendant on plaintiff’s race/color-based hostile work environment claim under the New York City Human Rights Law.

After concluding that certain aspects of plaintiff’s contentions were time-barred, the court explained:

As to the conduct at issue that is not barred by the limitations period, although the motion court properly concluded that it does not rise to the level of “severe and pervasive” under the applicable pre–2019 State HRL, plaintiff has raised triable issues of fact regarding the hostile work environment claims under the more protective City HRL (Williams, 61 AD3d at 74; Executive Law § 296[1][a]; Administrative Code § 8–107[1][a][2], [3] ). There was evidence that in May and September 2015, several of plaintiff’s coworkers referred to him by using the Spanish word for “monkey,” a racially humiliating and degrading term. Further, the evidence suggested that other coworkers and supervisors, if not everyone at the restaurant, knew that certain employees were using that term to refer to plaintiff (see White v. BFI Waste Servs., LLC, 375 F3d 288, 298 [4th Cir2004]; Sims v Trustees of Columbia Univ. in the City of N.Y., 168 AD3d 622, 623 [1st Dept 2019] ). Under these circumstances, triable issues exist as to whether this rises above the level of a “truly insubstantial” case (Williams, 61 AD3d at 80). The evidence also raised triable issues as to whether plaintiff was treated differently from other employees of his ethnic background because of his skin color (see Williams, 61 AD3d at 78; see generally Gonzalez v. EVG, Inc., 123 AD3d 486, 487–488 [1st Dept 2014] ).

The court further held that summary judgment-defeating triable issues of fact exist as to “whether defendant was liable for the comments of its workers” and whether defendant took “immediate and appropriate corrective action” to prevent the conduct, as set forth in N.Y.C. Admin. Code § 8–107[13][b][2] and pertinent case law (Zakrewska v. The New School, 14 NY3d 469, 479 [2010]).

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