In Pittman v. Yantiss et al, No. 151274/2020, 2022 WL 2238886 (N.Y. Sup Ct, New York County June 15, 2022), the court, inter alia, denied defendants’ motion to dismiss her claims of discrimination based on gender and familial/caregiver status in violation of the New York State and City Human Rights Laws.
After determining that plaintiff sufficiently alleged that she suffered an “adverse employment action” (specifically, that “her research responsibilities were significantly reduced and that she was treated less well than her male colleagues”), the court explained that she likewise sufficiently alleged the requisite “inference of discrimination.”
From the decision:
A discriminatory motivation may be inferred from, among other things, ‘invidious comments about others in the employee’s protected group[,] or the more favorable treatment of employees not in the protected group’ ” (Mazzeo v Mnuchin, 751 Fed Appx 13, 14 [2d Cir 2018] [citation omitted]; see also Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580, 581 [1st Dept 2014] [finding that the plaintiff failed to plead discriminatory animus because the complaint did not contain allegations of comments or references to race or gender or allege facts that others who did not share the plaintiff’s protected characteristics were treated more favorably]). Construing the SAC in the light most favorable to plaintiff, the SAC pleads facts sufficient to infer that plaintiff suffered an adverse action or disadvantage treatment because of her gender and familial/caregiver status. The SAC alleges that Dr. Yantiss remarked on plaintiff’s inability to perform her job once she became a mother and that she was treated less well than male faculty members who were not caregivers.
The WCM Defendants argue that Dr. Yantiss’s comments constitute non-actionable, petty slights. While the State and City HRLs are not “general civility code[s]” (Williams, 61 AD3d at 79 [internal quotation marks and citation omitted]), whether conduct constitutes a petty slight or trivial inconvenience is an affirmative defense that must be raised in the defendant’s answer (Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051 [2d Dept 2016]). Thus, it is more appropriate to address that issue on a motion for summary judgment and not on a pre-answer, pre-discovery motion to dismiss. Accordingly, that part of the WCM Defendants’ motion seeking to dismiss so much of the first and second causes of action predicated on gender and familial/caregiver status discrimination is denied.
The court also held that plaintiff sufficiently alleged a hostile work environment, noting that while defendants repeated their argument that the comments in questions “constitute non-actionable petty slights,” since this is a defense that “should be raised in the defendants’ answer, and does not lend itself to a pre-answer motion to dismiss.”