Title VII Race Discrimination Claim (Based on “Lazy”, “Inferior” Remarks) Survives Against City of New York

In Adeniji v. The City of New York et al, 19-CV-8032, 2022 WL 254939 (S.D.N.Y. Jan. 27, 2022), the court, inter alia, held that plaintiff sufficiently alleged race discrimination against the City of New York asserted under Title VII of the Civil Rights Act of 1964.

Among other things, the court discussed and applied the “stray remarks” doctrine, and disagreed with defendant that plaintiff’s allegations of discrimination were merely “conclusory.”

The court explained:

The City contends that Plaintiff offered “nothing more than conclusory statements” regarding the alleged discrimination, that “he fails to give any specific examples or provide even a discussion as to the bases for the alleged different treatment,” and that he “provides no further detail about the alleged environment.” (City’s Mem. 4–5.)8 This is an overstatement, and ignores relevant allegations plausibly alleging discrimination. I find that Plaintiff has met the “minimal burden” of plausibly alleging facts that provide “at least minimal support for the proposition that the employer was motivated by discriminatory intent,” Vega, 801 F.3d at 87 (internal quotation marks omitted).9

“In and around November 2014, [Plaintiff] earned praise in his first evaluation for good performance from his direct supervisor, Estella Dong.” (CCHR Compl. ¶ 10.) However, things changed after Plaintiff’s Asian American co-worker Cathy told Dong to “check on [Plaintiff],” (id. ¶ 14-15), and after Plaintiff complained about the incident to the DoF director Chan, (id. ¶ 18). “After this meeting [with Chan], [Plaintiff] was severely harassed by Ms. Dong.” (Id. ¶ 20.) Plaintiff alleges that during his second performance evaluation, Dong told him that he was “inferior” and that “African-Americans are lazy.” (Id. ¶ 35.) Although “[c]ourts in the Second Circuit routinely dismiss discrimination claims where the only allegations made in support are stray remarks by non-decisionmakers wholly unconnected to the adverse employment action underlying the claim,” Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416, 2019 WL 3202747, at *5 (S.D.N.Y. July 16, 2019), the remarks here were different in nature. “In determining whether a remark is probative [of discriminatory intent], [courts] have considered four factors: (1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149–50 (2d Cir. 2010) (cautioning that none of these factors are dispositive). These remarks were made by Dong, Plaintiff’s direct supervisor, who evaluated Plaintiff and put him on a performance improvement plan. (See CCHR Compl. ¶¶ 10, 36-38.) Dong made the remarks during Plaintiff’s performance evaluation, telling him that “African Americans are lazy,” and that as a result, Plaintiff “would not progress at DoF.” (Id. ¶ 35.) After Dong made these comments, Plaintiff received a less favorable evaluation in March 2015, was put on a performance evaluation plan on April 9, 2015, received a poor evaluation in July 2015, and had his employment terminated on July 24, 2015. (Id. ¶¶ 36–39.) Therefore, these remarks were not “stray remarks,” but instead were “the employer’s criticism of [Plaintiff’s] performance in ethnically degrading terms,” Littlejohn, 795 F.3d at 312, followed by adverse employment actions, which gives rise to an inference of discrimination.

*7 Moreover, although a singular discriminatory comment alone may not always be sufficient to establish an inference of discrimination, see Jowers v. Family Dollar Stores, Inc., No. 09 Civ. 2620(WHP), 2010 WL 3528978, at *3 (S.D.N.Y. Aug. 16, 2010) (dismissing Title VII claim where Plaintiff’s sole complaint of discrimination was one single racially derogatory remark), here Plaintiff has pleaded a “sequence of events leading to [his] discharge,” Littlejohn, 795 F.3d at 312. To begin with, at the time Plaintiff was employed by DoF, the department primarily consisted of Asian Americans, and he was the only African American male in his department. (CCHR Compl. ¶ 27.) His supervisor Dong made Plaintiff an outcast from the department by asking others not to speak with Plaintiff and telling others that she “did not like speaking to him.” (Id. ¶¶ 21, 26.) Dong also arbitrarily criticized Plaintiff’s work and refused to meet him when he came for help, but gave “female Asian American employees … assistance and leniency with mistakes.” (Id. ¶ 29.) Moreover, Plaintiff never witnessed security guards at DoF escort any other employee out of the building as they did to him. (Id. ¶¶ 40 & 41.) Bearing in mind the “elusive nature of intentional discrimination,” Vega, 801 F.3d at 86 (internal quotation marks omitted), I find that Plaintiffs has plausibly pleaded that racial discrimination is at least a motivating factor in his employment termination. Therefore, I decline to dismiss Plaintiff’s racial discrimination claims under Title VII.

The court additionally, inter alia, dismissed plaintiff’s plaintiff’s claim of sex discrimination (as insufficiently alleged), as well as his race discrimination claim asserted under 42 U.S.C. § 1981 (which, as interpreted by the Second Circuit, does not provide a private right of action against state actors).

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