Comments Were Too Remote in Time to Support Sexual Orientation Discrimination Claim Under NYC Human Rights Law

In Herrington v. Metro-North Commuter R.R. Co., decided June 17, 2014, the First Department affirmed the Supreme Court’s (Judge Rakower) dismissal of plaintiff’s gender discrimination, sexual orientation discrimination, and retaliation claims under the New York City Human Rights Law.

First, the court held that plaintiff failed to state a claim for discrimination based on sexual orientation under the NYCHRL. Specifically, plaintiff filed her complaint four years after the only alleged “inappropriate and offensive comments about her sexual orientation”.

Since the statute of limitations under the City HRL is three years under Administrative Code of City of NY § 8-502[d], the remarks were “too remote in time to support her discrimination claim.” She also couldn’t rely on the “continuing-violation” doctrine, since plaintiff failed to “allege[] facts comprising ‘a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint.'”

Second, plaintiff’s gender discrimination based on disparate pay was time-barred. She also failed to state a claim:

To the extent plaintiff, who was herself an assistant vice president, alleges that she was paid $5,000 more than two male assistant vice presidents who retired by 2012, but was paid $5,000 less than the man who replaced one of the retired men, she failed to state a cause of action. Since all four individuals, including plaintiff, were assistant vice presidents, and plaintiff has not otherwise distinguished among their responsibilities, she has failed to allege that she was paid less than similarly-situated male counterparts, as two of the three male assistant vice presidents were paid less than she was.

Third, plaintiff failed to state a claim for retaliation. The initial alleged protected activity in late 2008 was “far too removed from defendant’s alleged post-2009 (non-time-barred) actions to establish the requisite causal nexus between the protected activity and the adverse action.” In addition, “plaintiff’s contention that her April 2011 request for a salary review and increase constituted a protected activity lacks merit, as she makes no allegation that she informed defendant that she was being underpaid because of her gender.”

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