In Oluwo v. Sutton, No. 2019-13814, 2260/19, 2022 N.Y. Slip Op. 03734, 2022 WL 2057838 (N.Y.A.D. 2 Dept. June 08, 2022), the Appellate Division, Second Department modified a lower court order, and held that plaintiff sufficiently alleged claims of national origin-based discrimination (under the New York State Human Rights Law), and hostile work environment (under the New York City Human Rights Law).
From the decision:
The plaintiff, who is from Nigeria, commenced this action against the defendant La Peninsula Community Organization, Inc. (hereinafter La Peninsula), and its executive director, the defendant Renee Sutton, inter alia, to recover damages for employment discrimination on the basis of national origin in violation of the New York State Human Rights Law (Executive Law § 290 et seq. [hereinafter NYSHRL]) and the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107 [hereinafter NYCHRL]). The complaint alleged discrimination based on disparate treatment and a hostile work environment, and further alleged that Sutton aided and abetted La Peninsula’s discrimination. La Peninsula moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. In an order dated October 7, 2019, the Supreme Court granted the motion. The plaintiff appeals.
When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. A motion to dismiss merely addresses the adequacy of the pleading, and does not reach the substantive merits of a party’s cause of action. Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss.
Here, the Supreme Court should have denied those branches of La Peninsula’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of national origin in violation of the NYSHRL and the NYCHRL based on disparate treatment. Accepting the facts as alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleged that an adverse employment action occurred under circumstances giving rise to an inference of discrimination based on the plaintiff’s national origin.
Moreover, the plaintiff alleged facts sufficient to state a cause of action against his supervisor, Sutton, pursuant to Executive Law § 296(6) and Administrative Code § 8–107(6), which impose liability upon individuals who aid and abet an employer that commits employment discrimination. Accordingly, the Supreme Court should have denied that branch of La Peninsula’s motion which was to dismiss that cause of action.
[Cleaned up.]
The court further explained that the lower court should have denied that branch of defendant’s motion to dismiss plaintiff’s national origin-based hostile work environment claim under the New York City Human Rights Law, since he sufficiently alleged that he was “treated less well” than other employees because of his national origin.
It held, however, that plaintiff failed to state a cause of action for employment discrimination in violation of the New York State Human Rights Law, since the complaint’s allegations “fell short of alleging that the workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” [Cleaned up.]
MJP Note: In 2019, the NYSHRL was amended to provide that harassment is actionable “regardless of whether such harassment would be considered severe or pervasive under precedent applied to harassment claims,” and the plaintiff need demonstrate only that she or he was subjected to “inferior terms, conditions or privileges of employment” (N.Y. Executive Law § 296[1][h]). However, in Golston–Green v. City of New York, 184 A.D.3d 24 (NY App. Div. 2020), the court noted that this amendment “only applies to claims filed after the amendment’s effective date of October 11, 2019.” It is unclear, therefore, that the same result would have occurred here if the court applied the new “inferior terms” standard, as opposed to the arguably more restrictive (federal) “severe or pervasive” standard.