Supreme Court granted City of New York's [City] and another named defendant's, a police sergeant [Sergeant], post-answer motion to dismiss Plaintiff's complaint of unlawful discrimination, dismissing the Plaintiff's complaint alleging racial discrimination within the meaning of New York City' Human Rights Law (City HRL).
The Appellate Division unanimously reversed, on the law, without costs, the City's and the Sergeant's motions and reinstated the Plaintiff's complaint.
The Appellate Division held that Plaintiff had stated a cause of action for racial discrimination under the City HRL, noting that Sergeant had made many statements, both in the office of the NYPD Auto Crimes Unit and on a text thread with his subordinates including Plaintiff, criticizing racial justice protests in the National Football League [NFL] by Colin Kaepernick and other NFL players. On one occasion, Plaintiff, who is Black, told Sergeant "that the players had a constitutional right to protest" Sergeant responded "yeah, . . .but it's my right . . . if I want to like [B]lack people." Sergeant also shared articles about Black NFL players committing crimes and described them as "perps."
Citing Golston-Green v City of New York, 184 AD3d 24, the Appellate Division opined that viewing the record in the light most favorable to Plaintiff, it cannot be said as a matter of law "that the [Sergeant's] conduct of the [Plaintiff] complained of was truly insubstantial" or amounted to "a petty slight or trivial inconvenience". In the words of the Appellate Division, Sergeant's remark that he has a "right [whether] to like [B]lack people," directed at Plaintiff "was facially discriminatory and is alone sufficient to defeat summary judgment".
Noting under the City's HRL Sergeant had a "right to express his . . . views" on matters of public concern, provided, however, that in so doing "he [did] not discriminate against his [subordinates] employees based on a protected characteristic."
Concluding that Plaintiff's hostile work environment claim was timely as the record contains text messages Sergeant had sent concerning Black NFL players through January 26, 2019, and the complaint was filed on December 13, 2021, within the period allowed under the statute of limitations, the Appellate Division noted that Sergeant's "earlier comments are actionable because they were 'part of a single continuing pattern . . . extending into the [limitations] period'".
The Appellate Division also held that to "the extent [Plaintiff] claims that the assignment to the potentially dangerous arrest was unlawful because of his restricted duty status, that claim was untimely as the result of Plaintiff's failure to comply with the requirements of General Municipal Law §205-e. The Appellate Division then opined that the arrest assignment at issue may be have "amounted to unequal treatment based on race".
Click HERE to access the Appellate Division's decision posted on the Internet.