Female Crane Operator Sufficiently Alleges Gender Discrimination (Wrongful Termination)

In Schindler v. Plaza Constr. LLC, 2017 NY Slip Op 07182 (App. Div. 1st Dept. Oct. 12, 2017), the court affirmed the denial of defendant’s motion to dismiss plaintiff’s – a female licensed crane operator – gender discrimination claim under the New York City Human Rights Law.

From the decision/order:

Even if Plaza is not plaintiff’s employer or joint employer within the meaning of the City HRL, it may be held liable to the extent it “aid[ed], abet[ted], incite[d], compel[led] or coerce[d]” the alleged discrimination (Administrative Code of City of NY § 8-107[6]). Plaza’s objection that plaintiff failed to allege the requisite “community of purpose” is unavailing (see Estatico v Department of Educ. of City of N.Y., 2014 NY Slip Op 33611[U], *10 [Sup Ct, NY County 2014]; Tate v Rocketball, Ltd., 45 F Supp 3d 268, 273 [ED NY 2014]). Plaintiff has clearly pleaded facts suggesting that Plaza bore the requisite discriminatory intent, and that it “compel[led] or coerce[d]” the alleged discriminatory employment decisions (Administrative Code § 8-107[6]; cf. Estatico, 2014 NY Slip Op 33611[U], *11 [motion to dismiss granted where the plaintiff failed to allege discriminatory intent]; see Tate, 45 F Supp 3d at 273). The nature of plaintiff’s employer’s intent and involvement may be inferred from the fact that plaintiff’s employer was the entity ultimately responsible for the allegedly discriminatory employment decisions.

Plaintiff also sufficiently alleged the necessary elements of a gender discrimination claim, including that she was terminated “under circumstances giving rise to an inference of discrimination” (Melman v Montefiore Med. Ctr., 98 AD3d 107, 113 [1st Dept 2012]). Specifically, plaintiff alleged that a Plaza employee complained that she was “inadequate” before he had any opportunity to observe her work, when all he knew about her was that she was a woman, and thereafter continually harassed and insulted her. Although the alleged ensuing harassment and insults did not explicitly reference plaintiff’s gender, the inference of gender-based discrimination is supported by the allegation that plaintiff was almost immediately replaced by a man (see Commodari v Long Is. Univ., 89 F Supp 2d 353, 375 [ED NY 2000], affd 62 Fed Appx 28 [2d Cir 2003]; Krebaum v Capital One, N.A., 138 AD3d 528, 528 [1st Dept 2016]), as well as by the allegation that she was given a false reason for her termination – i.e., that her crane was being taken out of operation when in fact it continued to operate but with a [*2]new, male operator[.]

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