Race Discrimination, Hostile Work Environment Claims Continue; Associational Disability Discrimination Claim Dismissed

In Toombs v. N.Y. City Hous. Auth., No. 16-CV-3352-LTS, 2017 WL 1169649 (S.D.N.Y. Mar. 27, 2017), the court held that plaintiff plausibly alleged race discrimination, hostile work environment, and retaliation, but dismissed her failure-to-accommodate “associational” disability discrimination claim under the Americans with Disabilities Act.
Plaintiff, a black female NYC Housing Authority Caretaker, alleged “that she suffered unlawful discrimination on the basis of her race and familial status, the promotion of a hostile work environment, and retaliation for lodging complaints, and also claims that Defendants failed to accommodate her as the parent of a disabled child.” Specifically, plaintiff alleged (among other things) that a Hispanic man (a superintendent at the Riis Houses (where plaintiff worked) stated at an August 2013 staff meeting attended by plaintiff and several other black employees, “I want you out of here so I can bring in my people” and “terminated, or ordered the termination of, at least six (6) Black employees since becoming Superintendent and replaced them with Hispanic employees.”
Race Discrimination

As to her Title VII race discrimination claim, the court explained that where, as here, direct evidence of discrimination is not alleged, “what must be plausibly supported by facts alleged in the complaint is that the plaintiff is a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.”

Here, plaintiff did so:

The August 2013 alleged statement by Lopez, Plaintiff’s allegation that “the culture at NYCHA in general and Jacob Riis Houses in particular is discriminatory in nature and there is a clear preference [for] Hispanic employees to the detriment of Black employees similar to Plaintiff,” and that “[t]he discrimination against Black employees in general, and against Plaintiff in particular, [was] continuous from on or about August 2013, when Mr. Lopez became the Superintendent at the [ ] Riis Houses, until her unlawful termination on May 26, 2015” all provide at least “at least minimal support for the proposition that [Defendants were] motivated by discriminatory intent.”

Hostile Work Environment

The court also held that plaintiff sufficiently alleged a hostile work environment claim:

Under a totality of the circumstances analysis, Plaintiff has sufficiently pled facts to support her allegation of a hostile work environment, as the incidents she has alleged are plausibly “more than episodic.” See Littlejohn, 795 F.3d at 320-21. Plaintiff’s allegations of unfavorable treatment of Black workers in comparison to Hispanic workers, false disciplinary charges and counseling memoranda, and termination of several Black employees, in light of the alleged statement by Lopez to the predominantly Black group of employees that he wanted them out, are sufficient at the pleading stage to frame a claim of pervasive race-based workplace hostility. (See Am. Compl. ¶¶ 29-30, 35, 64-81, 89.) The frequency of the allegedly discriminatory conduct and the “pervasive” nature of the facts alleged in the Amended Complaint plausibly support at this pleading stage an inference that Defendants unreasonably interfered with Plaintiff’s work performance.


Next, it held that plaintiff plausibly alleged a retaliation claim by alleging sufficient temporal proximity between her “protected activities” and the ”adverse action”:

Plaintiff has plausibly alleged that Defendants discriminated or took an adverse employment action against her by terminating her because she opposed an unlawful employment practice or that her opposition was a “but-for” cause of Defendants’ adverse actions. See Vega, 801 F.3d at 90. Plaintiff pleads that she engaged in at least two “protected activities,” including submitting a complaint to the Chair and Chief Executive Officer of NYCHA on or about March 26, 2015, and filing a complaint with the NYSDHR on or about May 18, 2015, within a two-month period of her May 26, 2015 termination. (See Am. Compl. ¶¶ 89, 91.) Plaintiff has plausibly pleaded a connection between her termination and those two “protected activities,” as a “retaliatory purpose” can be demonstrated “indirectly by timing”—here, the alleged adverse action occurred within two months or less of the “protected activities.” See Vega, 801 F.3d at 90; Day, 2015 WL 10530081, at *13. Plaintiff’s retaliation allegations are thus “sufficient to survive a motion to dismiss on the issue of causation.”

Associational Discrimination

The court dismissed, however, plaintiff’s claim that defendants “violated the ADA by ignoring and/or denying Plaintiff’s requests for a reasonable accommodation of her association with, and role as caregiver for, her minor son.” The court explained:

In the Second Circuit, there are “three types of situations or theories that would give rise to a claim of associational discrimination: 1) ‘expense,’ in which an employee suffers adverse action because of his association with a disabled individual covered by the employer’s insurance, which the employer believes (rightly or wrongly) will be costly; 2) ‘disability by association,’ in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) ‘distraction,’ in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person.” Id. (brackets and citations omitted). The ADA’s bar on associational discrimination does not, however, require that employers provide an “employee without a disability with a reasonable accommodation because that duty only applies to qualified applicants or employees with disabilities.” 29 C.F.R. § Pt. 1630.8, app. at 349.

Plaintiff’s ADA associational discrimination claim is not facially plausible, even when all reasonable inferences from the facts alleged in the Amended Complaint are drawn in her favor. See Iqbal, 556 U.S. at 678. As the ADA’s bar on associational discrimination does not require that employers provide employees such as Toombs, who are not themselves disabled, with reasonable accommodations, Defendants were under no obligation to provide Plaintiff with one. See 29 C.F.R. § Pt. 1630.8, app. at 349; Graziadio, 817 F.3d at 432 n.10. Plaintiff does not allege that any adverse action was taken against her in connection with her request for transfer. She merely alleges that she was denied favorable treatment, and does not allege that similarly situated employees with non-disabled children were given transfers to facilitate dependent care. To the extent she intends to cite her termination as an adverse action, she fails to state an ADA claim because she alleged no facts demonstrating that the termination was motivated by any one of the “three types of situations or theories that would give rise to a claim of associational discrimination:” “expense,” “disability by association,” or “distraction.”

Finally, the court dismissed plaintiff’s claims of familial status discrimination (as that protected class was added to the NYS Human Rights Law after plaintiff’s termination) and hostile work environment under the NYS and NYC Human Rights Laws (in light of those statutes’ election-of-remedies provisions).
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