The Appellate Division affirmed a motion court's dismissal of petitioner's [Plaintiff] CPLR Article 78 petition in which she alleged that she was the victim of unlawful discrimination, worked in a hostile work environment, and suffered retaliation within the meaning of the New York City Human Rights Law.
Citing see Harrington v City of New York, 157 AD3d 582, the Appellate Division said although Plaintiff's claim "sufficiently pleaded the first two [the four required] elements of discrimination, i.e. her membership in a protected class and qualification for the position," she failed to [1] "adequately allege that she was treated differently or worse than her colleagues of other races, religions, and national origins under similar circumstances" and [2] "that the treatment occurred under circumstances giving rise to an inference of discrimination."
The Appellate Division opined "Plaintiff failed to identify any similarly situated colleagues who were treated more favorably because they were not Black, Christian, or Haitian." Although Plaintiff argued that she was the subject of disparate treatment as compared to a white and Jewish coworker "who was allegedly not subject to any scrutiny, was repeatedly promoted, and was permitted to work overtime," Plaintiff failed to demonstrate that she and her coworker were "similarly situated in all material respects".
Plaintiff's complaint simply stated "the coworker was less qualified and less experienced than [Plaintiff]" rather than allege coworker had the same job title as Plaintiff, had the same responsibilities or job requirements as Plaintiff, reported to the same supervisors as Plaintiff, or that she was even employed in the same unit as Plaintiff. To the extent the complaint alleged that Plaintiff was the only employee with her title who was required to clock out at lunch, she never alleged that any of her colleagues had any disputes with supervisors about wanting to work through lunch.
Plaintiff also failed to plead any facts showing that she was treated differently because of her race, religion, or national origin. Plaintiff's complaint did not allege that any of Plaintiff's colleagues or supervisors made any explicitly or implicitly invidious comments about her race, religion, or country of origin but merely claimed that on one occasion "a supervisor stated to her that she was being mistreated by a different supervisor because of her race." In the words of the Appellate Division, "[s]tray remarks such as [this], even if made by a decision maker, do not, without more, constitute evidence of discrimination."
Observing that Plaintiff was promoted in 2017, a position that she continues to hold, by the same individuals Plaintiff now claims unlawfully discriminated against her, the Appellate Division said "undercuts an inference that these individuals discriminated against her".
As to Plaintiff's hostile work environment claim, the court said "this failed for the same reason." Although Plaintiff's complaint alleged that her supervisors regularly and unjustifiably criticized her work and engaged in other behaviors, even assuming that the alleged acts or omissions amounted to more than petty slights and trivial inconveniences, the Appellate Division held that the evidence "is not sufficient to establish that [Plaintiff's] supervisors' behavior was motivated because of her protected status, such as her race, religion, or national."
As to Plaintiff allegations of retaliation following her filing a notice of claim and the charge of discrimination whereby her supervisors instituted a rule where she was required "to clock out during her lunch hour and enforced the agency's overtime cap", the Appellate Division concluded that Plaintiff "failed to plead sufficient facts as to why these mandates would dissuade a reasonable employee from complaining about discrimination, or why it constituted anything more than a trivial harm."
Click HERE to access the Appellate Division's decision posted on the Internet.