Hostile Work Environment Claim Survives Dismissal

In Montgomery v. Elrac, Enterprise Holdings, Inc., No. 25814/2016E, 2019 WL 4929889, 2019 N.Y. Slip Op. 32896(U) (N.Y. Sup Ct, Bronx County Sep. 03, 2019), the court held, inter alia, that plaintiff stated hostile work environment claims under the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL). This decision illustrates the difference between these two statutes – namely, the breadth of the NYCHRL relative to the NYSHRL.

Plaintiff, a black, gay female, asserts that her supervisor (Zais) made the following discriminatory comments:

  • Lincoln was the worse president cause he freed slaves.
  • The reason the government is so bad because of no confederacy.
  • Bmcc is a pre program school for Rikers Island; mainly from the projects of the Bronx.
  • Plaintiff cannot come up in the company cause she doesn’t have the look or the speech (Amended Complaint ¶ 15)
  • Referencing blacks as porch monkeys.

She also alleges that management favored the other employees (such as her supervisor, who was promoted even though he lacked the educational requirements for the position), and that her supervisor accused plaintiff of being on drugs at work and stealing from the workplace, and remarked that “women’s place being in the home and not at work”.

She claims that she was terminated after complaining about her supervisor’s conduct, after which defendants told her co-workers that she was terminated for theft (thus defaming her).

As to plaintiff’s discrimination claims, the court held that while plaintiff’s supervisor could not be held individually liable under the NYSHRL (absent any allegations that the supervisor “had an ownership interest in plaintiffs employer or that he had the authority to do more than carry out personnel decisions made by others”), he could be found liable under the City Law (since plaintiff alleged that the supervisor “was acting in a supervisory capacity”).

The court dismissed plaintiff’s discrimination claims, noting that there was “no allegation that Zais had any role in terminating plaintiff, or that after her termination, her position was filled by a person other than female, black, or gay employee.”

It also dismissed plaintiff’s hostile work environment claims under the NYSHRL, but that that claim survived under the comparatively broader NYCHRL.

The court explained:

[T]he NYCHRL must “be construed more broadly than federal civil rights laws and the State HRL” (Williams v New York City Hous. Auth., 61 AD3d at 74 [1st Dept 2009]; see Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). Under the NYCHRL a plaintiff need not show that the harassment was “severe and pervasive,” but she must show that she was subjected to conduct that amounted to more than “petty slights and trivial inconveniences,” because of her membership in a protected category (Williams v New York City Hous. Auth., 61 AD3d at 80). The primary focus under the NYCHRL is on whether the alleged harassment “constitutes inferior terms and conditions based on gender [or race]” (id. at 75). Under either the NYSHRL or the NYCHRL, the plaintiff must demonstrate that the abusive conduct was motivated by animus toward a protected class (see La Marca-Pagano v Dr. Steven Phillips. P.C., 129 AD3d 918 [2nd Dept 2015]; **10 see also Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 204 n5 [1st Dept 2015]). A plaintiffs claim must be viewed holistically (see Suri v Grey Global Group, Inc., 164 AD3d at 114).

Here, plaintiff predicates her claim that she was subjected to a gender and race-based hostile work environment on the alleged comments made by Zais, which, although not severe and pervasive, could be determined to be more than petty slights and trivial inconveniences.