In Bell v. SL Green Realty Corp. et al, 19 Civ. 8153, 2021 WL 516575 (SDNY Feb. 11, 2021), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s race discrimination claim asserted under 42 U.S.C. § 1981.
From the decision:
The Complaint alleges that Plaintiff is Hispanic. “[T]he existence of a Hispanic ‘race’ has long been settled with respect to § 1981.” See Vill. of Freeport v. Barrella, 814 F.3d 594, 604 (2d Cir. 2016). The Complaint also alleges that Plaintiff’s employer, SL Green discriminated against her because she is Hispanic and would not have done so but for her race. Plaintiff and other Hispanic employees were fired and denied bonuses, while other, non-Hispanic employees were not. See Littlejohn, 795 F.3d at 312-13 (“[A]n inference of discrimination … arises when an employer replaces a terminated or demoted employee with an individual outside the employee’s protected class.”). The Complaint also alleges that Plaintiff’s supervisor fabricated the circumstances of the incident leading to her discharge and told Plaintiff that workers “do not need to listen to her because no Hispanic should be given attention to.” See id. at 312 (inference of discrimination can arise from circumstances including “the sequence of events leading to the plaintiff’s discharge”). The supervisor’s race-based motive is buttressed by an allegation that another individual similarly was discharged for being Hispanic when there was no reason for her to be fired. The Complaint’s other allegations provide “relevant background evidence.” See Vega, 801 F.3d at 88. Plaintiff alleges that when she asked why she was required to kneel to clean areas that did not require a person to be kneeling, her supervisor responded, “That’s what I have YOUR people for, not mine.” These allegations together are sufficient to plead that, but for her race, Plaintiff would not have been discharged or denied bonuses. Additionally, SL Green does not dispute that termination and denial of bonuses can qualify as adverse employment actions. See Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 236 (2d Cir. 2015); see also Sanders v. N.Y.C. Hum. Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). The Complaint thus states a viable § 1981 race discrimination claim.
The court also, inter alia, rejected defendant’s argument that an earlier arbitration decision finding that plaintiff was terminated for “just cause”, reasoning that “[t]he arbitrator’s finding as to ‘just cause’ was not appealed and confirmed by any court.:
It also declined to consider (at this stage) defendant’s additional argument that plaintiff’s termination may have been motivated by reasons other than race, since “those other reasons are not alleged in the Complaint.”