Race, National Origin Discrimination Under the City Law Survive Summary Judgment

In Otero v Dist. Council 37, No. 161421/2013, 2019 WL 3451794 (N.Y. Sup Ct, New York County July 30, 2019), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s discrimination claim under the New York City Human Rights Law.

After summarizing the relevant legal framework, case law, and standards for evaluating NYCHRL claims, the court found that plaintiff sufficiently demonstrated disparate treatment under the statute:

In an affidavit prepared as part of Plaintiff’s opposition to HHC’s motion, Plaintiff alleges that he was denied favorable work assignments in comparison to his Caucasian colleagues, and also did not receive the same support when working on assignments (NYSCEF doc No. 205, ¶¶ 12-13). He claims his supervisor spoke to him in a threatening and demeaning manner, and punished him for infractions, such as reporting late to work, that Caucasian coworkers were allowed to commit with no consequences (Id. at ¶¶ 14-16). Plaintiff also claims coworkers used epithets directed at his ethnicity[.]

Although some of Plaintiff’s claims, such as that he was denied the ability to work overtime, are refuted by HHC with documentary evidence (NYSCEF doc No. 213), Plaintiff’s general allegations of the treatment he was subjected to by coworkers must be taken as true at this juncture. Under the City HRL, Plaintiff’s allegations that he and other Latino workers were treated less favorably are sufficient to raise an inference of discrimination (Williams, 61 AD3d at 76-77; Hernandez v Kaisman, 103 AD3d 106, 113 [1st Dept 2012]). As the non-moving party, Plaintiff is entitled to the benefit of all favorable inferences. Under the Williams standard, the determination of whether the conduct described by Plaintiff actually occurred must be made by a finder of fact. HHC’s arguments for why Plaintiff did not experience disparate treatment are not appropriate for resolution in a summary judgment motion. For example, HHC argues that the other laborers mentioned by Plaintiff, despite having the same job title, do not share equal responsibilities. However, the question of whether two employees are similarly situated in such an action is a question for the jury (see Feingold v New York, 366 F3d 138, 154 [2d Cir 2004]). Plaintiff has thus sufficiently stated a cause of action for disparate treatment under the City HRL.

Having reached this conclusion, the court also found that plaintiff demonstrated a hostile work environment claim, since – under prevailing case law – the standards for disparate treatment and hostile work environment claims are similar.