In Alhaj v New York City Health and Hospitals Corporation, No. 501052/2016, 2022 N.Y. Slip Op. 22318, 2022 WL 7256572 (N.Y. Sup. Ct. Kings Cty. Oct. 10, 2022), the court denied defendant’s motion for summary judgment on plaintiff’s race, national origin, and religion-based discrimination claims.
From the decision:
This court finds that Chaikin’s comment that “it is 9/11” coupled with his strange smile at Hupert during plaintiff’s termination meeting held on 9/11, is more than a generic neutral comment made about the horrific event that occurred on that day. A jury could find that Chaikin’s comment and strange smile were directed at Alhaj, who is a Syrian Muslim, and could be deemed to be a code word, i.e. that as a Muslim, Alhaj was associated with the 9/11 catastrophe -a racist concept that is already planted in the public consciousness. Furthermore, Chaikin’s comment was made on the day of Alhaj’s termination and the facts are not clear as to his supervisory or decision making role in the Cardiology Department.
To state the obvious, there has been a marked increase in anti-Islam phobia since 9/11. See, Sulehria v. New York, 2012 U.S. Dist. LEXIS 52836 (N.D. NY 2012) (plaintiff alleges that he has been the victim of racial prejudice, xenophobia, and religious intolerance in the wake of the September 11, 2001. “His account of the climate of discrimination and fear felt by many Muslim Americans and individuals of Middle Eastern descent is unfortunately not a new one”). See, Liz Mineo, Born to take on Islamophobia, The Harvard Gazette, Sept. 2021, available at https://news.harvard.edu/gazette/story/2021/09/muslim-americans-reflect-on-the-impact-of-9-11/ “It has been 20 years since the atrocities of 9/11, yet the wound continues to dig deep,” said Ijaz in an email. “It digs into the families that lost loved ones on that ill-fated day…. It also digs into the lives of Muslim Americans, marked by the scarlet letters imprinted on them by terrorists with whom they shared nothing in common save for one imperfect classification: Muslim.”)
Having found previously that Chaikin’s comment to Hupart” that “Today is 9/11, right?” amd his immediate “strange smile” to Hupart followed by his immediate “strange smile” could be found by a jury to be a code word, the Court must now discern whether defendants produced evidence of a legitimate reason for the termination and if so, whether plaintiff can show that the termination was motivated at least in part by discrimination and that there is a nexus between said comment and his termination.
[Cleaned up.]
Continuing, the court found that defendants produced sufficient evidence that plaintiff “behaved in an inappropriate, unprofessional and insubordinate manner” which constitutes a legitimate reason for termination.”
This shifted the burden back to plaintiff “to produce evidence that the action was “motivated at least in part by discrimination” – which, under the City Law’s “mixed motive” approach requires plaintiff to “produce evidence that the unlawful discrimination was one of, even if not the sole motivating factors for the employment decision.”
The court ultimately held that plaintiff met this standard. The evidence – which included the “incendiary” 9/11 comment, as well as an affidavit from plaintiff’s supervisor praising plaintiff’s work performance – counseled against summary judgment, warranting proceeding to trial on the “narrow issue” of whether plaintiff’s termination was based upon discriminatory motives.