In Pease v. The City of New York, No. 161501/2021, 2022 WL 3336139 (N.Y. Sup Ct, New York County Aug. 12, 2022), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of employment discrimination asserted under the New York State and City Human Rights Laws.
From the decision:
To state a claim for discrimination under the NYSHRL and NYCHRL, sufficient facts must be pled to support a prima facie case by showing that the plaintiff (1) is a member of a protected class, (2) was qualified to hold the position, (3) suffered an adverse employment consequence (NYSHRL) or was treated differently than other employees (NYCHRL), and (4) the employer’s adverse action or differential treatment occurred in circumstances giving rise to an inference of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). It is undisputed that Plaintiff is a member of a protected class. Plaintiff further demonstrates that he is qualified for his position, considering his length of service in the NYPD, prior career experience, and generally positive performance reviews prior to 2015.
Plaintiff alleges facts demonstrating adverse employment action for the purposes of the NYSHRL. “An adverse employment action requires a materially adverse change in the terms and conditions of employment” and “must be more disruptive than a mere inconvenience or an alteration of job responsibilities” (Forrest, 3 NY3d at 306, quoting Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000] [internal quotation marks omitted]). Denial of a promotion can constitute an adverse employment action under the NYSHRL (Santiago-Mendez v City of New York, 136 AD3d 428, 429 [1st Dept 2016]). The facts alleged in the Verified Complaint regarding Plaintiff’s 2017 non-promotion to Radio Motor Patrol Coordinator are therefore sufficient to show adverse employment action under the NYSHRL (Complaint ¶ 66).
The Court also finds that the facts stated in the Verified Complaint are sufficient to support an inference of discrimination under the NYSHRL. An inference of discrimination can be drawn where a plaintiff can show that they were treated less favorably than similarly situated individuals not in their protected class, including where “[a] position was filled or held open for a person not in the same protected class” (Sogg v American Airlines, 193 AD2d 153, 156 [1st Dept 1993]; see also Melman v Montefiore Med. Ctr., 98 AD3d 107, 114 fn 2 [1st Dept 2012]). A plaintiff must plead concrete factual allegations to support an inference of discrimination in the context of an adverse employment action (see Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 622 [1st Dept 2013]). Here, Plaintiff’s Verified Complaint asserts that a non-African American individual received the 2017 promotion to Radio Motor Patrol Coordinator. Based on the concrete facts pled with respect to his 2017 non-promotion, Plaintiff has demonstrated facts sufficient to make a prima facie case of discrimination and the Court accordingly declines to dismiss his NYSHRL discrimination claim with respect to this allegation (Sogg, 193 AD2d at 156).
In accordance with the statute’s “uniquely broad and remedial purposes,” the pleading standard for NYCHRL discrimination claims is more permissive than that of the pre-2019 NYSHRL (Williams v New York City Hous. Auth., 61 AD3d 62, 66 [1st Dept 2009]). “To state a claim for discrimination under the NYCHRL, a plaintiff must only show differential treatment of any degree based on a discriminatory motive” (Gorokhovsky v New York City Hous. Auth., 552 Fed Appx 100, 102 [2d Cir 2014]; see also Harrington, 157 AD3d at 584). The NYCHRL must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” to include differential treatment of a much broader degree than required under the NYSHRL (Albunio v City of New York, 16 NY3d 472, 477-478 [1st Dept 2011])
The Court finds that Plaintiff has stated a claim for discrimination under the NYCHRL with respect to his 2017 non-promotion (see Williams, 61 AD3d at 66 [“interpretations of state or federal provisions worded similarly to City HRL provisions may be used as aids in interpretation only to the extent that the counterpart provisions are viewed as a floor below which the City’s Human Rights law cannot fall”] [internal quotation marks omitted]). Plaintiff further states a claim for discrimination in violation of the NYCHRL with respect to the unfavorable work assignments he received in 2015-2016 and in 2017, discipline for minor infractions not faced by non-African American officers, and his reassignment to the 70th Precinct. Plaintiff pleads facts showing that he was assigned unfavorable tasks such as solo foot patrol, “cabaret duty,” and guarding hospitalized prisoners, assignments that he alleges were known to be below his seniority and that were not as readily given to non-African American officers (Complaint ¶¶ 74, 79, 81, 84-86, 106-108, 110-112, 131-140). Taken together and assumed to be true as alleged by Plaintiff, these facts show differential treatment and raise an inference of discrimination.
Plaintiff further states a claim for discrimination under the NYCHRL with respect to his alleged discipline and reprimands he faced for minor infractions, namely the report misclassification and radio incidents (id. ¶¶ 103-108, 132-135). He alleges that he was subject to disparate treatment because he asserts that he faced greater discipline than non-African American officers for similar or worse in fractions. The facts asserted in the Verified Complaint, assumed to be true on a motion to dismiss, further support an inference of discrimination considering the apparent lack of discipline faced by non-African American officers from the 102nd Precinct involved in the alleged misconduct of the “Jamaica Auto Unit” (id. ¶¶ 146-150). Plaintiff’s allegation that he was transferred to the 70th Precinct also states a claim for NYCHRL discrimination. The transfer was an unfavorable change in his work environment that led him to be treated less well than officers not of his protected class (id. 174-176; cf. Golston-Green v City of New York, 184 AD3d 24, 38-39 [2d Dept 2020] [finding that geographical reassignment of plaintiff was actionable under NYCHRL]).
The court did, however, hold that plaintiff failed to sufficiently allege a hostile work environment claim (under the NYCHRL), since his assertions about his direct interactions with a particular individual defendant were “bereft of any factual allegations that would show harassing conduct beyond ‘petty slights and trivial inconveniences’ such as being ignored or yelled at.”