Employment Discrimination (Ancestry, Association, Religion), Retaliation, and FMLA Claims Survive Summary Judgment; Hostile Work Environment Claim Properly Dismissed

In Macchio v. Michaels Elec. Supply Corp., 2017 NY Slip Op 02636 (App. Div. 2d Dept. April 5, 2017), the court held that plaintiff presented sufficient evidence of pretext to survive summary judgment on his discrimination, retaliation, and FMLA claims, but that his hostile work environment claim was properly dismissed.

In this case,

plaintiff alleged, among other things, that, throughout his employment at Michaels, he was subjected to discriminatory epithets directed at his Italian–American ancestry, his association with African–Americans, and his affinity for African–American culture. He further alleged that he was denied raises and promotions because he is Catholic and the owners and managers of the business, including Marvin Greenberg and others, are Jewish.

As to his discrimination and retaliation claims asserted under the New York State Human Rights Law and New York City Human Rights Law (NYSHRL and NYCHRL, respectively), the court explained:

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the first and second causes of action insofar as they alleged discrimination and retaliation in violation of the NYSHRL and the NYCHRL, and the third cause of action pursuant to the NYSHRL and the NYCHRL, by proffering, among other things, a legitimate, nondiscriminatory reason for the plaintiff’s termination. The defendants cited, among other things, the plaintiff’s disciplinary record, which included numerous infractions. The plaintiff, however, raised triable issues of fact, inter alia, on the issue of pretext, by referring to his good disciplinary record for the first three years of his employment, followed by frequent citations for disciplinary issues which commenced only after he allegedly began complaining of discriminatory treatment on the basis of association, ancestry, and religion. Under these circumstances, the Supreme Court erred in determining that the plaintiff failed to raise triable issues of fact regarding so much of his first through third causes of action as alleged discrimination and retaliation in violation of the NYSHRL and NYCHRL.

The court, however, held that the lower court properly dismissed plaintiff’s ancestry- and association-based hostile work environment claim: “Although the plaintiff alleged that he had been subjected to racial and ethnic epithets, he proffered no evidence in response to the defendants’ prima facie showing sufficient to raise a triable issue of fact.”

Finally, the court upheld the lower court’s finding that there were triable issue of fact as to plaintiff’s cause of action assertion violations of the Family & Medical Leave Act (FMLA) – namely, whether two companies may be considered together under the “single employer doctrine” or the “joint employer doctrine” to reach the 50 employees necessary to meet the FMLA’s protection threshold.

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