2d Department Decision Illustrates More Favorable State Discrimination Standards

Kassapian v. City of New York, ____A.D.3d____(2d Dep't. Nov. 15, 2017), is brought to your attention for several reasons.

The case concerned an ALJ who alleged that she was terminated because of her age, sex and retaliation for her speech under the NYS Constitution. She sought to amend her Free Speech Claim to assert a 1983 claim and the court held that a Notice of Claim was not required.

The court also held that the lower court erred by dismissing plaintiff's sexual harassment claims and appeared to apply a much more liberal standard than federal courts do. As the court explained:

Here, the Supreme Court erred in granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging employment discrimination on the basis of sex and age in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]). The allegation that a coworker repeatedly demonstrated a sex toy to the plaintiff was sufficient to state a cause of action to recover damages for sexual harassment in violation of the NYCHRL (see Nelson v HSBC Bank USA, 87 AD3d 995, 999). Further, in opposition to the defendants' motion, the plaintiff submitted an affirmation of a separate coworker detailing further allegations of sexual harassment directed toward the plaintiff. The court erred in determining that the cause of action must be dismissed because the behavior constituted no more than petty slights or trivial inconveniences. A contention that the behavior was a petty slight or trivial inconvenience constitutes an affirmative defense (see Williams v New York City Hous. Auth., 61 AD3d 62, 80), which should be raised in the defendants' answer and does not lend itself to a pre-answer motion to dismiss (see Kaplan v New York City Dept. of Health & Mental Hygiene, 142 AD3d 1050, 1051).

Further, the allegations of disparate treatment of older employees, including the plaintiff, and that the plaintiff's demotion was based, in part, on age discrimination, sufficiently stated a cause of action to recover damages for age discrimination in violation of the NYCHRL (see Administrative Code of City of NY § 8-107[1][a][3]; Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 40; cf. Askin v Department of Educ. of the City of N.Y., 110 AD3d 621, 621-622). The fact that the individual defendants were approximately the same age as the plaintiff does not render the cause of action insufficient (see Rollins v Fencers Club, Inc., 128 AD3d 401, 402).
The Supreme Court also erred in granting dismissal of the cause of action alleging unlawful retaliation based on the plaintiff's complaints of sexual harassment. Under the NYCHRL, the retaliatory act or acts complained of "must be reasonably likely to deter a person from engaging in protected activity" (Administrative Code of City of NY § 8-107[7]; see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 739). The allegations that, following the plaintiff's complaint to a supervisor concerning alleged sexual harassment, the plaintiff was assigned double the normal workload, subjected to increased scrutiny of her work and reprimands for minor errors, and ultimately demoted a few months later, sufficiently stated a cause of action to recover damages for unlawful retaliation for the plaintiff's complaints of sexual harassment in violation of the NYCHRL (see Ananiadis v Mediterranean Gyros Prods., Inc., 151 AD3d 915, 920; Fletcher v Dakota, Inc., 99 AD3d 43, 51-52; Williams v New York City Hous. Auth., 61 AD3d at 71). However, the complaint failed to allege that the plaintiff ever complained about the alleged age discrimination, and thus the court properly granted dismissal of the cause of action alleging unlawful retaliation based on complaints of age discrimination.

Single Racial Slur May Be Enough To Establish Harassment

Castleberry v. STI Group, ___F.3d___(3d Cir. July 14, 2017), is an important case to be aware of. This case was brought by two against their staffing agency (STI) and the client company where they worked (Chesapeake). Plaintiff's allegations were as follows:

"Plaintiffs allege that, when they arrived at work on several occasions, someone had anonymously written 'don't be black on the right of way' on the sign-in sheets. They also assert that although they have significant experience working on pipelines (and more so than their non-African-American coworkers), they were only permitted to clean around the pipelines rather than work on them. They claim that, when working on a fence-removal project, a supervisor told Castleberry and his coworkers that if they had 'n[****]r-rigged' the fence, they would be fired. Seven coworkers confirmed that occurred. Following this last incident, Plaintiffs reported the offensive language to a superior and were fired two weeks later without explanation. They were rehired shortly thereafter, but then terminated again for 'lack of work.'"

The court then goes on to hold that a single slur can be actionable, reasoning:

"The Supreme Court's decision to adopt the 'severe or pervasive' standard-thereby abandoning a 'regular' requirement - lends support that an isolated incident of discrimination (if severe) can suffice to state a claim for harassment ... Otherwise, why create a disjunctive standard where alleged "severe" conduct - even if not at all 'pervasive' - can establish a plaintiff's harassment claim? Defendants would have us read that alternative element out of the standard. We may not do so."

Stray Comments Not Enough To Establish Sexual Harassment

Johnstone v. Monticello, ____F. Appx.____(2d Cir. April 28, 2017), is an interesting sexual harassment case. Though the facts are a bit unusual, it demonstrates the difficulty in establishing a case of sexual harassment.

The plaintiff, a police officer, arrested the Mayor for driving under the influence. The Mayor allegedly referred to the police officer as a “racist,” a “cracker,” a “white mother fucker,” a “member of the KKK,” and a “Nazi,” and called an African American officer a “sellout,” an “Uncle Tom,” and a “token.” What is unusual is that these alleged remarks occurred while the arrest was being processed and hence, this is not your typical employment case. Nevertheless, the court applied the stray remarks doctrine and dismissed the case, reasoning:

Johnstone fails to plead facts sufficient to establish a hostile work environment claim. Since one consideration is the frequency of the alleged abuse, his reliance on a single incident over the course of a nearly 30-year career weighs heavily against  him, although that alone is not dispositive. More significant is that an abusive tirade by a person arrested for driving under the influence is not sufficient “to alter the conditions,” id. at 373, of Johnstone’s employment. The Supreme Court has cautioned that the Title VII analysis  requires careful consideration of the social context  in which particular behavior occurs and is experienced  by its target. A professional football player’s working environment is not severely or pervasively  abusive, for example, if the coach smacks him on the buttocks as he heads onto the field--even if the same  behavior would reasonably be experienced as abusive  by the coach’s secretary (male or female) back at the office.  Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 11 (1998). Jenkins’s alleged comments were severe, but they were not made in the context of an employer addressing an employee in the workplace; they were made by an apparently intoxicated  citizen who was belligerent because he was being taken into  custody and processed for violating the law. Being subjected  to an intoxicated and verbally abusive perpetrator does not alter the conditions of a police officer’s employment or create an actionably hostile work environment, even if the person arrested happens to be the mayor.