“Dope” T-Shirt Employment Discrimination Dismissal Affirmed

In Biggan v. City of New York et al, No. 13359, 2019-5666, 21758/14, 2021 N.Y. Slip Op. 01501, 2021 WL 966681 (N.Y.A.D. 1 Dept., Mar. 16, 2021), the court, inter alia, unanimously affirmed the dismissal of plaintiff’s employment discrimination claim.

From the decision:

Plaintiff, a former custodian for the New York City Police Department (N.Y.PD), alleged that, in May 2013, two NYPD police officers, defendants Nicholas Konner and John Repetti, approached her at work and directed her to wear an oversized t-shirt with the words “I’m Dope” on it. She alleged that Repetti directed her to stand next to Konner and then took a picture of her in the outfit, and that both officers laughed at her during the incident. Plaintiff alleged that, as a result of defendants’ conduct, her emotional and psychological state deteriorated and she required psychiatric hospitalization. She alleged that defendants created a hostile work environment and failed to accommodate her physical and mental disabilities.

Defendants met their prima facie burden of showing that the officers’ conduct was an isolated incident that constituted a “petty slight[ ] or trivial inconvenience[ ]” (Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560, 560 [1st Dept 2017] [internal quotation marks omitted] ); see also Ellison v. Chartis Claims, Inc., 178 AD3d 665, 669 [2d Dept 2019], lv dismissed 35 NY3d 997 [2020] ). Defendants submitted evidence showing that plaintiff was friends with the officers and regularly received free t-shirts from Repetti and other officers in the precinct. Moreover, Konner testified that plaintiff had asked him for the t-shirt, that he had given the t-shirt to two other officers, and that he told her the words “I’m Dope” meant “I’m fresh.” Furthermore, defendants submitted evidence showing that, contrary to plaintiff’s interpretation, the t-shirt featured the title of a New York-based rapper’s mixtape and conveyed a positive message having nothing to do with intellectual disability.

Plaintiff’s evidence fails to show that discrimination was a motivating factor for defendants’ conduct (see Chin v New York City Hous. Auth., 106 AD3d 443, 444–445 [1st Dept 2013], lv denied 22 NY3d 861 [2014] ). She admitted that neither Konner nor Repetti had treated her poorly in the past, and that she was not upset about the t-shirt until her sister misguidedly told her that the words depicted meant “I’m stupid.”

To be sure, a single comment or incident may be actionable under the City Human Rights Law (HRL) if made in circumstances where such comment or incident would signal views about the role of disabled people in the workplace (see Hernandez, 103 AD3d 106, 115 [1st Dept 2012] ). However, the isolated incident here, and the circumstances surrounding it, do not meet this threshold (see Golston–Green v. City of New York, 184 AD3d 24, 42–43 [2d Dept 2020] ).

The court also affirmed the dismissal of plaintiff’s disability discrimination (reasonable accommodation), noting that plaintiff was granted the accommodation she sought for her knee impairment, and that the facts here did not compel a finding that defendants violated the obligations, borne by employers, “to reasonably accommodate a disability that it knew or should have known about.”

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