Race, Gender Discrimination Claims Dismissed Against Whole Foods

In Jaiteh v. Whole Foods Market Group, Inc., No. 154251/2021, 2022 WL 2191385 (N.Y. Sup Ct, New York County June 17, 2022) the court, inter alia, dismissed plaintiff’s race discrimination claims, asserted under the New York State and City Human Rights Laws, against defendant Whole Foods Market Group.

Here are the facts, as summarized by the court:

On May 6, 2020, plaintiff was at the store entrance when a customer, Nune Melikyan, walked in unmasked. Plaintiff asked her to wear a mask and stand behind a social distancing line, but Melikyan refused, insisting that she be allowed to enter mask-free. Plaintiff insisted that she follow the rules, but Melikyan, who was recording plaintiff with her phone, demanded to speak to a manager and spat on plaintiff. Plaintiff, “alarmed that she might get infected [with Covid-19]” tried to protect herself with an “air-kick gesture of self defense”. Elite’s security guard did not assist plaintiff and, although plaintiff called Whole Foods’ manager for assistance, nobody responded. The police removed Melikyan from the store.

Shortly after the incident, plaintiff was put on administrative leave. On May 12, 2020, plaintiff was fired.

Plaintiff claims that, prior to the May 6, 2020 incident, a white male co-worker, John Doe, sexually harassed a Hispanic female co-worker but was not fired or put on administrative leave. Plaintiff was told that the female co-worker had suffered several instances of “unwanted and inappropriate” sexual advances from John Doe and was “scared” of him because he kept pestering her even though she repeatedly told him she had no romantic interest in him. John Doe also handed a note to the female co-worker, who told him to stop bothering her and reported him to the managers of the store. John Doe allegedly works at the same store and at the same level as plaintiff, answered to the same supervisors, and was subject to the same performance and disciplinary standards.

[Cleaned up.]

After summarizing the black-letter law, the court applied it to the facts. In sum, the issue here was plaintiff’s failure to sufficiently allege that she was treated worse than a similarly-situated “comparator” – i.e., someone outside the relevant protected class(es) (here, gender and race).

As to plaintiff’s claims under the New York City Human Rights Law (which is to be construed more broadly than its state law counterpart), the court explained:

In this action, plaintiff has adequately pleaded that she was a member of protected race and gender classes, that she was qualified for her position, and that she suffered an adverse employment action. However, her allegations of race and gender discrimination under the NYCHRL fail for the same reasons that those same claims failed under the NYSHRL — she does not adequately plead disparate treatment. Plaintiff merely asserts bare legal conclusions without factual specificity (see, Shah v Wilco Sys., Inc., 27 AD3d 169, 177 [1st Dept 2005] [disparate treatment claim dismissed where plaintiff failed to establish comparators were similarly situated in all material respects]; see also Pappas v Moody’s Inv. Serv., 202 AD3d 630, 630 [1st Dept 2022] [NYCHRL claim dismissed where plaintiff failed to allege facts that co-workers who engaged in similar behavior were treated differently]; Matter of Russell v New York State Ins. Fund, 181 AD3d 497, 498 [1st Dept 2020] [conclusory allegations of another employee’s poor performance insufficient to show discriminatory treatment]; Thomas v Mintz, 182 AD3d 490, 490 [1st Dept 2020] [NYCHRL claim dismissed for failure to allege facts that similarly situated persons not in protected class were treated more favorably than plaintiff]; Johnson v Department of Educ. of City of N.Y., 158 AD3d 744,746-747 [2d Dept 2018] [NYCHRL claim dismissed where disparate treatment allegations conclusory]; Matter of England v New York City Dept. of Envtl. Protection, 150 AD3d 996, 997 [2d Dept 2017] [dismissal granted where speculation and bare legal conclusions without factual support]; Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580, 581 [1st Dept 2014] [NYCHRL claim dismissed for lack of factual allegations that similarly situated employees who did not share plaintiff’s protected characteristics were treated better than plaintiff]; Askin v Department of Educ. of the City of N.Y., 110 AD3d at 622 [NYCHRL claim dismissed for failure to state claim because of lack of concrete factual allegations]).

Plaintiff’s only allegations supporting her claims about John Doe’s alleged “unwanted and inappropriate sexual advances,” and that he was “pestering” another employee, are based on hearsay from another co-worker. Since plaintiff fails to allege any details about John Doe’s conduct, this Court cannot determine the nature of the same or how similar, if at all, his conduct was to plaintiff’s at the time of her altercation with Melikyan. Her conclusory allegations fail to establish, or even suggest, circumstances that bear reasonably close resemblance between herself and her comparator. Therefore, her pleading of this claim is deficient (see, Pappas v Moody’s Inv. Serv., 202 AD3d 630; Brown v City of New York, 188 AD3d 518, 519 [1st Dept 2020] [complaint failed to allege facts giving rise to inference of discriminatory intent]; Wolfe-Santos v NYS Gaming Commn., 188 AD3d 622, 622 [1st Dept 2020] [NYCHRL claim failed to allege facts to establish plaintiff was treated less well than similarly situated employees]; Johnson v Department of Educ. of City of N.Y., 158 AD3d at 746-747; Askin v Department of Educ. of City of N.Y., 110 AD3d at 622; Fawcett v Fox News Network, LLC, 2022 WL 635418, * 5, 2022 NY Slip Op 30691[U] [Sup Ct, NY County 2022]).

Despite the fact that the NYCHRL is to be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]), the pleadings as a whole are simply insufficient here for plaintiff to show that she was disparately treated based on her protected traits in comparison to persons outside her protected class who engaged in similar conduct (see Rommage v MTA Long Is. R.R., 452 Fed Appx 70, 71 [2d Cir 2012] [dismissed where no reasonably close resemblance of facts and circumstances of plaintiff’s and comparator’s cases under Title VII or NYCHRL]). Therefore, the first and third causes of action also are dismissed.

The court did, however, deny the motion to dismiss filed by defendant Elite Investigations, Ltd. (which provided security and maintenance services at Whole Foods), finding that plaintiff sufficiently alleged a claim for negligence against it.

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