In Diolosa v. Regency Intern. Business Corp., No. 158730/2016, 2025 WL 257217, 2025 N.Y. Slip Op. 30233(U)(N.Y. Sup Ct, New York County Jan. 21, 2025), the court, inter alia, denied defendants’ motion for summary judgment dismissing plaintiff’s claim of race/national origin discrimination under the New York City Human Rights Law (NYCHRL).
After summarizing the black-letter law, the court applied it to the facts:
As for evidence of racial/national origin discrimination for example, plaintiff testified:
I had told Dick the owner, Dick Merhige, that he lived a few blocks from my cousin in Brooklyn. And he said to me, Yeah, I live with the rest of those paisans, the killers and the murderers, your whole bunch. And I looked at him and said, We are not killers and murderers. And he said, Oh, yes, you are.
Plaintiff also submits testimony from himself and former Regency co-workers, Angela Orrino and Kathy Mascia, all of whom recount when Richard Merhige, told Orrino, also of Italian heritage to, “go into the kitchen and make her meatballs”.
Having found that defendants proffered a “legitimate and nondiscriminatory reason for plaintiff’s termination” (poor performance), the court turned to the issue of pretext:
Plaintiff offers several pieces of evidence in support of his argument that the reasons defendants have given for his firing were a pretext for discrimination. First, while plaintiff argues that the fact that the company replaced him with a younger, non-disabled, woman of a different ethnic background, indicating that his firing was discriminatory, this alone does not raise an issue of fact regarding defendants’ alleged discriminatory intent. While it is true that defendants “hired a younger[, non-disabled woman] around the time of plaintiff’s termination, [she was given] a different [job] title,” and had experience working with systems which plaintiff did not ( **9 Sanders v Cooperatieve Rabobank U.A., 226 AD3d 606, 607 [1st Dept 2024]). “The elimination of plaintiff’s role and hiring of other employees with different responsibilities and skills does not raise an inference of discrimination (id.).
However, plaintiff does proffer evidence that his firing for poor work performance was pretextual. Plaintiff’s submission of his positive performance reviews are not probative because they are from 2004 — 2007 and he was fired in 2014 (see E.E.O.C. v Bloomberg L.P., 967 F Supp 2d 816 [SDNY 2013] [past positive performance reviews do not create a triable issue of fact regarding plaintiff’s current performance]). However, he also submits a recommendation letter written for him by Jim Dolan shortly after he was terminated wherein Dolan states he was “an exemplary employee and an excellent Accounts Payable Manager … [who] proved himself to be extremely conscientious and honest” (NYSCEF Doc No 87). Viewing the evidence in the light most favorably to plaintiff, and because summary judgment is appropriate in NYCHRL cases, “only if the record establishes as a matter of law that a reasonable jury could not find the employer liable under any theory” (Mihalik, 715 F3d at 113), defendant’s motion will be denied as plaintiff has raised a triable issue of fact regarding the legitimacy of the reason given for his firing given by defendant employers.
The court likewise found that plaintiff satisfied his burden on his claims of age and disability discrimination (but not gender discrimination).