Retired Marine States Military Status, Race, and National Origin Discrimination Claims

In Lapaix v. City of New York (decided Aug. 12, 2014), the Southern District of New York held that plaintiff – a retired Marine Colonel – adequately pleaded various employment discrimination claims. Here’s plaintiff’s complaint.

Initially the court held that plaintiff stated military status discrimination claims under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and the New York State Human Rights Law.

The court recited the legal standard for discrimination under USERRA:

An employer engages in a prohibited act under USERRA if the person’s membership … in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership. 38 U.S.C. § 4311(c)(1). Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration. Discriminatory motivation may be proven through direct or circumstantial evidence, including … an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses.

Applying this standard, the court held that plaintiff adequately pled a USERRA discrimination claim:

[Plaintiff’s] Complaint alleges that Plaintiff was treated differently than other employees because of his military status; that Plaintiff was forced to undergo psychological evaluations that other employees at DCAS [the Department of Citywide Administrative Services] did not when facing similar workplace investigations; that Plaintiff was forced to take a leave of absence during investigations unlike similarly situated non-military employees; and that Plaintiff’s return from redeployment and poor treatment were close in time. [D]iscriminatory intent under the USERRA may be inferred from proximity in time between the employee’s military activity and the adverse employment action[.] These facts, taken together, are sufficient to state a claim that Plaintiff’s military status was a motivating factor in adverse employment actions taken against Plaintiff.

As to plaintiff’s USERRA retaliation claim, plaintiff was required to “show that (1) he was engaged in protected activity; (2) that the employer was aware of that activity; (3) that the plaintiff suffered an adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse action.”

He did so:

The Complaint alleges that Plaintiff repeatedly asked to be reinstated to his former position at DCAS, and that he wrote to the Commissioner of DCAS to complain about the failure to reinstate him. The Complaint further alleges that Plaintiff’s career was harmed by his employer’s failure to put him back in the position he left when he was deployed, and that as a result of his complaints to Commissioner Handy, he was subjected to unwarranted investigations. Accordingly, the Complaint sufficiently alleges that Plaintiff was engaged in a protected activity, that the employer knew of the activity, that he suffered adverse employment actions, and that there was a causal connection between the activity and the action.

The court also held that plaintiff adequately alleged claims for race and national origin discrimination under Section 1981 and the New York State and City Human Rights Laws.

Specifically, plaintiff alleged that: plaintiff belonged to a protected class (i.e., black and of Haitian national origin); plaintiff was qualified for the position; plaintiff suffered from adverse employment actions (including demotions and burdensome investigations); plaintiff was treated less well than a Caucasian employee; and defendants treated another nonwhite and non-American employee less well because of his race and national origin. (Because plaintiff sufficiently alleged racial and national origin discrimination under the New York State Human Rights Law, he necessarily stated claims under the more lenient New York City Human Rights Law.)

However, the court dismissed plaintiff’s Section 1983, State Human Rights Law, and City Human Rights Law retaliation claims, as well as his claim under Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978) based on an alleged failure to train.