“Bubbles” Chimp Hostile Work Environment Claim Resurrected From Summary Judgment Dismissal

In Sims v Trustees of Columbia University, No. 156566/13, 8262, 2019 N.Y. Slip Op. 00672, 2019 WL 385366 (N.Y.A.D. 1 Dept., Jan. 31, 2019), the Appellate Division, First Department held that the lower court properly dismissed plaintiff’s discrimination and retaliation, but not plaintiff’s hostile work environment, claims.

As to plaintiff’s hostile work environment claims, the court held:

[T]he court should not have dismissed plaintiff’s hostile work environment claims. Plaintiff submitted evidence that his supervisors repeatedly made racially derogatory comments, including calling him “Bubbles,” which he testified was a reference to Michael Jackson’s pet chimpanzee, and referring to him as “boy” using a Southern accent. Plaintiff also asserts that he was told that he was “too old for the job,” that he worked like he “just came back from surgery,” and that he had “too many worker’s comp cases and … should resign.” According to plaintiff, the supervisors’ comments were continuous in nature and occurred on a regular basis. This evidence, viewed in the light most favorable to plaintiff, raises issues of fact as to whether plaintiff was subjected to a hostile work environment based on race, age and disability under both the State and City [Human Rights Laws][.]

The court held that plaintiff’s retaliation claims were properly dismissed, noting that “[p]laintiff never complained to defendant that he was discriminated against because of his race, age, or disability” and that “[e]ven if his letters to Human Resources were considered complaints they only showed that he experienced a continuation of a course of conduct that had begun before [he] complained[.]”

It also held that plaintiff’s discrimination claims were properly dismissed, noting that while plaintiff “contends that he was micromanaged, assigned excessive work, written up for insubordination, threatened with discipline should he fail to meet expectations, and denied the use of a second locker to which the evidence demonstrates he was not entitled,” these incidents did not “constitute an ‘adverse employment action’ under the State HRL … or ‘disadvantage[]’ him under the City HRL.”