Absent setting out sufficient allegations of unlawful discriminatory acts in the CPLR Article 78 complaint, a petitioner's claim of unlawful discrimination will not survive the defendant's motion to dismiss
The petitioner [Plaintiff] in this action contended that such acts as her supervisor's adjusting her time card to reflect a late arrival at work, telling Plaintiff that as a probationary employee she could be terminated at any moment and giving the Plaintiff a negative performance review were due to her disability.
Supreme Court granted the defendants-respondents' [Defendants] motion to dismiss Plaintiff Article 78 complaint alleging her employer's hostile work environment as not viable within the meaning of the New York City Human Rights Laws. Supreme Court held that Plaintiff's examples "were not sufficient allegations of discriminatory acts."
Plaintiff appealed the Supreme Court's decision. The Appellate Division unanimously affirmed the lower court's ruling.
Citing Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, the Appellate Division opined that Plaintiff's complaint failed to state a cause of action for hostile work environment under New York City's City Human Rights Law* because it does not allege that Defendants' actions occurred under circumstances that gave rise to an inference of discrimination.
Further, said the court, Plaintiff's complaint did not allege facts that would establish that she was treated less well than similarly situated probationary employees because of her disability. Rather, said the court, Plaintiff's complaint merely "asserts the legal conclusions that the [Defendants'] actions ... were due to her disability."
In the words of the Appellate Division, "Absent sufficient allegations of discriminatory acts, plaintiff's claim against [the individually named] defendant cannot be sustained pursuant to the City Human Rights Law and was properly dismissed by the Supreme Court."
* See Administrative Code of City of New York §8-107.
The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06976.htm