In Tihan v Apollo Management Holdings, L.P., No. 15121, 152196/19, 2021-00637, 2022 N.Y. Slip Op. 00365, 2022 WL 174477 (N.Y.A.D. 1 Dept. Jan. 20, 2022), the New York Appellate Division, First Department, unanimously affirmed a lower court’s decision dismissing plaintiff’s religion- and national origin-based employment discrimination claims.
In this case, plaintiff – a Muslim man of Turkish origin – alleges that his former employer and supervisors unlawfully discriminated against him on the basis of creed and national origin and retaliated against him by placing him on a performance improvement plan (PIP) and ultimately terminating his employment following his internal discrimination complaint.
As to plaintiff’s discrimination claims, the court held:
Defendants proffered legitimate, nondiscriminatory reasons for placing plaintiff on a PIP and later terminating his employment, as his 2015 and 2016 performance evaluations show that he frequently had contentious interactions with colleagues and vendors and that he failed to carry out all the duties of his role.
Plaintiff failed to raise a triable issue of fact as to whether discrimination played any part in defendants’ reasons for their adverse actions against him, under the City Human Rights Law, as the evaluations showed that his work performance was lacking, and there is no evidence that he was treated differently than similarly situated, non-Muslim and non-Turkish employees.
Stray remarks about his being a “loud Turk” do not support an inference of discrimination under the circumstances. In any event, plaintiff’s speculation that discrimination must have been the reason for the PIP and his termination is insufficient to defeat summary judgment. Since plaintiff’s discrimination claim fails under the City Human Rights Law, no claim will lie under the State Human Rights Law or Title VII of the Civil Rights Act of 1964.
Plaintiff’s retaliation claim fared no better. Specifically, the court held, defendants’ evidence showed that “plaintiff had failed to meet expectations two years in a row before being placed on a PIP and terminated” and “the decision to place plaintiff on a PIP was made before he lodged his internal discrimination complaint”, justifying the conclusion that plaintiff “failed to demonstrate that defendants’ proffered reason for their adverse actions were pretexts or motivated at least in part by retaliation.”