Discrimination Claim Against NYC, Based on Involuntary Overtime, Reassignment, and Replacement, Sufficiently Alleged

In Thomas v. The City of New York, No. 150877/2021, 2021 WL 3624928 (N.Y. Sup Ct, New York County Aug. 10, 2021), the court, inter alia, held that plaintiff sufficiently alleged a claim for race discrimination under the New York City Human Rights Law.

From the decision:

A plaintiff states a claim of discrimination under the NYCHRL by alleging: (1) that he or she is a member of a protected class; (2) that he or she was qualified for the position; (3) he or she was treated differently or worse than other employees; and (4) that the adverse or different treatment occurred under circumstances giving rise to an inference of discrimination (Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). “To state a claim for discrimination under the NYCHRL, a plaintiff must only show differential treatment of any degree based on a discriminatory motive” (Gorokhovsky v New York City Hous. Auth., 552 Fed Appx 100, 102 [2d Cir 2014] citing Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 114 [2d Cir 2013]).

The parties do not dispute that as a black woman, plaintiff is a member of a protected class and that she is qualified for her position. Instead, the City argues that plaintiff failed to sufficiently plead that he suffered an adverse employment action and, if so, whether the circumstances give rise to a discriminatory inference. Here, plaintiff sufficiently alleges that the City “took an action that disadvantaged” her (Harrington, 157 AD3d at 585). Plaintiff’s allegations that she was assigned to involuntary overtime and required to perform patrol duties instead of her normal administrative duties, without deference to her seniority, when the white male NCOs with less seniority were given accommodations in scheduling and overtime give rise to an inference of discrimination. Further, the plaintiff[‘s] reassignment to patrol, and subsequent replacement [by a] male, while taking into consideration the other facts alleged herein, give rise to an inference of discrimination (see Franchino v Terence Cardinal Cook Health Care Ctr., Inc., 692 F Appx 39, 41-42 [2d Cir 2017] [“an inference of discrimination also arises when an employer replaces a terminated or demoted employee with an individual outside the employee’s protected class”]).

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