Vietnamese Plaintiff Plausibly Alleges Employment Discrimination by Citing Examples of Bosnian Favoritism

In Lai v. Deiorio Foods Inc., 2016 WL 814930 (NDNY Feb. 29, 2016), the court held that the (pro se) plaintiff plausibly alleged claims of employment discrimination and retaliation.

Plaintiff, a Vietnam-born naturalized U.S. citizen, alleged that her Bosnian supervisor “discriminated [against], harassed, intimidated, and threatened her on a regular basis” and that she was constructively discharged.

This case underscores that Title VII of the Civil Rights Act of 1964 is “not limited to discrimination against members of any particular race” but rather prohibits “[d]iscriminatory preference for any group, minority or majority.”

As for the first element of a prima facie case of discrimination – membership in a protected class – plaintiff did not, and was not required to, “allege that she was discriminated against because of her Vietnamese heritage.”

She did, however, “allege facts to suggest that she was discriminated against because she was not Bosnian, the preferred national origin of her line supervisor”, which was sufficient to allege the first element of her prima facie case.

Plaintiff also sufficiently alleged the fourth element of a prima facie case, namely, that “the adverse action took place under circumstances giving rise to [an] inference of discrimination.”

The law:

A plaintiff may raise an inference of discrimination for the purposes of establishing a prima facie case by showing that the employer treated plaintiff less favorably than a similarly situated employee outside his protected group. However, a plaintiff must be similarly situated in all material respects to the individuals with whom she seeks to compare herself. Whether two employees are similarly situated is ordinarily a question of fact for the jury.

Plaintiff’s complaint met this standard:

[T]he Second Amended Complaint contains sufficient factual examples to satisfy Plaintiff’s minimal burden of alleging discriminatory treatment. Plaintiff alleges that Kucevic, a supervisor, favors individuals who share her Bosnian heritage and formed a “clique” with Plaintiff’s co-workers who spoke the same language as Kucevic. The clique made false accusations against Plaintiff and corroborated each other’s statements. Plaintiff alleges that Kucevic “set her up to fail” by refusing to allow Plaintiff’s coworkers to help her on the production line. Plaintiff alleges that Bosnian workers did not face this type of treatment.

The court also held that plaintiff’s retaliation claim survived defendants’ motion to dismiss:

Plaintiff filed a hostile work environment grievance with her union on November 11, and was suspended four days later. Moreover, Plaintiff alleges that she was suspended by Wilson after naming Burnett and Wilson in her EEOC complaint. The official EEOC charge of discrimination was issued on January 21; Plaintiff was suspended on February 7; and her employment was terminated on February 13. The temporal proximity between Plaintiff’s protected activity and this series of adverse employment actions is sufficient to give rise to an inference of retaliatory animus sufficient to survive a motion to dismiss.

The court, however, dismissed plaintiff’s breach of contract claim, which was based on the defendant’s handbook, noting that a “general statement of equal opportunity and nondiscrimination contained in an employee handbook … is nothing more than a statement of existing law concerning discrimination, [and] may not serve as a basis for a breach of contract claim.”

It also dismissed plaintiff’s promissory estoppel claim, noting that “it is well established that New York law does not recognize promissory estoppel in the employment context.”