In Alvarado v. Nordstrom, Inc., No. 16-971-CV, 2017 WL 1175654 (2d Cir. Mar. 29, 2017) (Summary Order), the court vacated the district court’s dismissal of plaintiff’s retaliation claim under the NYC Human Rights Law. It affirmed its dismissal, however, of plaintiff’s race discrimination and hostile work environment claims (as well as his retaliation claims under federal and state law).
As to the surviving retaliation claim, the court explained:
Given that all the NYCHRL requires to survive summary judgment is a showing that retaliation plays some role in the adverse employment action, we hold that the question of whether Daniel was a sufficiently close comparator to Alvarado such that their disparate treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the evidence presented at summary judgment, written reprimands seem to have been infrequently given even for bad behavior in public. For instance, there is no evidence in the record that any employees received a written reprimand following the altercation between Alvarado, Daniel, and José Bravo, a Hispanic colleague, that Smyth had to break up and which led to Daniel’s insubordination towards Smyth on the salesfloor. Even though written reprimands were rarely given, and Daniel had engaged in numerous instances of minor insubordinations and other combative behavior vis-à -vis her co-workers for which she had received few written reprimands, Alvarado immediately received a written reprimand for his single act of insubordination towards Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in an adverse employment action as a matter of law, we hold that there exists a question of fact for a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand. Accordingly, we vacate the decision of the district court with respect to Alvarado’s NYCHRL retaliation claim, and we remand for further proceedings consistent with the order.
In dismissing plaintiff’s hostile work environment claims, the court noted that comments by three co-workers did not rise to the federal “severe and pervasive” standard[1]While the Alvarado case uses the word “and” in describing the standard, there is ample authority that the standard is “severe or pervasive.” This includes Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000), which Alvarado cited and discussed., and that defendants met the burden of proving the “affirmative defense of triviality” under the NYC Human Rights Law.
For example, one co-worker’s “one race-based comment against Alvarado is still not enough to render all of her aggressive behavior (to which some of her straight, African-American colleagues were also subjected) race-based, and [comments by two other colleagues] remain merely petty even if they are hurtful.”
| ↩1 | While the Alvarado case uses the word “and” in describing the standard, there is ample authority that the standard is “severe or pervasive.” This includes Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000), which Alvarado cited and discussed. |
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