Hostile Work Environment Claims, Based on Mocking of Accent, May Proceed

In Kinwing (Ricky) Kwong v. The City of New York et al., No. 152932/13, 15574, 2021-00645, 2022 N.Y. Slip Op. 02342, 2022 WL 1038073 (N.Y.A.D. 1 Dept., Apr. 07, 2022), the court, inter alia, affirmed the lower court’s denial of defendants’ motion for summary judgment on plaintiff’s hostile work environment claims.

From the decision:

The hostile work environment claims were correctly allowed to proceed. Although most of the incidents of which plaintiff complains were relatively minor, at least the repeated mocking of plaintiff’s accent and pretending not to understand him, if true, could affect his ability to do his job and create an abusive working environment (see generally Forrest, 3 NY3d at 310; Chin v. New York City Hous. Auth., 106 AD3d 443, 444–445 [1st Dept 2013], lv denied 22 NY3d 861 [2014] ). This is not a case, like the ones on which defendants rely, in which plaintiff claims only that Kloss had difficulty understanding him (see Ghose v. Century 21, Inc., 12 Fed Appx 52, 54 [2d Cir2001]; Masaru Tomizawa v. ADT LLC, 2015 U.S. Dist LEXIS 133649, *35 [ED N.Y. July 17, 2015, No. 13–CV–06366 (MKB/LB) ], report and recommendation adopted by 2015 WL 57722106, 2015 U.S. Dist LEXIS 132182 [ED N.Y. Sep. 29, 2015]; Watt v. New York Botanical Garden, 2000 WL 193626, *7 and n 6, 2000 U.S. Dist LEXIS 1611, *22 and n 6 [SD N.Y. Feb. 16, 2000]; see also Jeudy v. City of New York, 142 AD3d 821, 823 [1st Dept 2016] [“disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin”] ).

The court did, however, held that plaintiff’s claims for, e.g., discrimination and retaliation must be dismissed, since plaintiff failed to demonstrate, respectively, evidence sufficient to demonstrate pretext for discrimination and protected activity.

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