In Wickes v. Westfair Electric Co., 2021 WL 217318 (S.D.N.Y. Jan. 20, 2021), the court, inter alia, dismissed plaintiff’s race discrimination claim asserted under 42 U.S.C. § 1981.
In sum, plaintiff – who describes herself as a Native American woman – asserts that after she was hired as an apprentice mechanic by defendant, she became the sole woman at her worksite and was subjected to pervasive harassment, retaliation, and a hostile work environment because of her race, sex, and age.
Plaintiff identified several incidents with coworkers and supervisors that she claims constitute discrimination, sexual harassment, and retaliation, including calling her derogatory names; singling her out and treating her differently than her male coworkers; sabotaging her work product; targeting her partner for his association with her; reassigning her partner and forcing her to work alone while male coworkers remained partnered; trivializing her complaints; giving her assignments below her ability and paygrade; having her take instructions from apprentices with less experience and seniority; terminating her employment; and cancelling of her medical insurance.
As to plaintiff’s Section 1981 race discrimination claim, the court summarized the black-letter law as follows:
To establish a claim under Section 1981, a plaintiff must allege facts to support the following elements: (1) that she is a member of a racial minority; (2) the defendants’ intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute’s enumerated activities. Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 1999). Under Section 1981, only intentional racial discrimination is prohibited. Id.; see also Albert v. Carovano, 851 F.2d 561 (2d Cir. 1988) (“Essential to an allegation under Section 1981 are allegations that the defendant’s acts were purposefully discriminatory and racially motivated.”). The statutes’ “enumerated activities” include rights “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all the laws and proceedings for the security of persons and property.” Brown, 221 F.3d at 339 (quoting 42 U.S.C. § 1981). To survive a motion to dismiss, a plaintiff asserting a Section 1981 claim must allege specifically the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent. Mahmud v. Kaufmann, 496 F. Supp. 2d 266, 272-73 (S.D.N.Y. 2007); Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994). Mere naked assertions devoid of facts upon which a court could find racial discrimination fail to state a claim under Rule 12(b)(6). See Martin v. N.Y. State Dep’t of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
Applying the law, the court held:
Plaintiff offers a single conclusory allegation in her Complaint that she experienced intentional employment discrimination on the basis of her race as “Native American” by checking that box on the form Complaint. The only other allegation in her pleading arguably concerning her race is her recollection of a conversation either on December 14, 2018 or in January 2019 with Eliot Hecht, who is not a defendant in this action, and who appears to be affiliated with Plaintiff’s union, Local 3. During that conversation, Plaintiff alleges that she relayed to him her observation that on all of her jobs, “the first people laid off are always minority men and myself … its [sic] just me and the ‘brown people,’ ” to which Mr. Hecht allegedly stated “that is an unfortunate reality of this business.” Plaintiff fails to allege any facts that Defendants treated her disparately than similarly situated employees that were not Native American and fails to allege discrimination based on an enumerated activity. [Citations omitted.]
Based on this, the court found that plaintiff failed to plead a plausible claim under Section 1981 and, thus, must be dismissed.