National Origin (Yemeni) Discrimination, Hostile Work Environment, Retaliation Claims Sufficiently Alleged Against CUNY

In Alshami v. City University of New York, No. 15573, 160183/19, 2021-03967, 2022 N.Y. Slip Op. 02053, 2022 WL 867839 (N.Y.A.D. 1 Dept., Mar. 24, 2022), the court held that plaintiff sufficiently alleged discrimination based on national origin (Yemeni), hostile work environment, and retaliation in violation of the New York State Human Rights Law.

From the decision:

Construing the pleadings liberally on this motion to dismiss (see Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 [1st Dept. 2009], lv denied 19 N.Y.3d 807, 2012 WL 2381349 [2012]), plaintiff adequately alleges a claim for discrimination on the basis of national origin (Yemeni) in violation of the State HRL.1 Although plaintiff’s allegations that his supervisors gave him unfavorable work assignments and unfair criticism do not constitute adverse employment actions (see Messinger v. Girl Scouts of U.S.A., 16 A.D.3d 314, 315, 792 N.Y.S.2d 56 [1st Dept. 2005]), his assertion that he was denied a promotion to sergeant on at least two occasions adequately supports that element of his claim (see Santiago–Mendez v. City of New York, 136 A.D.3d 428, 429, 26 N.Y.S.3d 514 [1st Dept. 2016]; see also Blanco v. Brogan, 620 F. Supp. 2d 546, 554 [S.D. N.Y.2009]). Moreover, his allegations that a coworker made derogatory remarks about Yemenis in the presence of his supervisors, that such remarks were ignored or condoned, and that non-Yemeni campus peace officers, who were less qualified than he, were promoted to the sergeant position, supports the fourth element of his claim, i.e. that the adverse action occurred under circumstances giving rise to an inference of discrimination (see Santiago–Mendez, 136 A.D.3d at 429, 26 N.Y.S.3d 514; Emengo v. State of New York, 143 A.D.3d 508, 509, 40 N.Y.S.3d 30 [1st Dept. 2016]).

Plaintiff has also stated a cause of action for hostile work environment, as his coworker’s multiple derogatory remarks about Yemenis, sometimes made in the presence of plaintiff’s supervisors, along with the allegedly unfounded write-ups, unfavorable assignments, and denial of a promotion, were sufficiently severe and pervasive to support that cause of action (see Demir v. Sandoz Inc., 155 A.D.3d 464, 466, 65 N.Y.S.3d 9 [1st Dept. 2017]; Godino v. Premier Salons, Ltd., 140 A.D.3d 1118, 1120, 35 N.Y.S.3d 197 [2d Dept. 2016]). Plaintiff also alleges that defendants knew about the comments and failed to take appropriate action (see e.g. Matter of State Div. of Human Rights v. Dom’s Wholesale & Retail Ctr., Inc., 18 A.D.3d 335, 336, 795 N.Y.S.2d 537 [1st Dept. 2005]).

Plaintiff has sufficiently alleged retaliation by showing that: (1) he engaged in protected activity in December 2016 when he filed a complaint stating that his supervisor was discriminating against him, (2) defendants were aware that he participated in such activity, (3) he was denied a promotion in February and May 2017, and (4) there is a causal connection between the protected activity and the adverse action (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312–313, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004]; see Executive Law § 296[7]).

The court did note, however, that, because plaintiff’s claims accrued before the enactment of N.Y. Executive Law § 300 – which, among other things, requires its provisions to be “construed liberally” – the standard for the discrimination claim under the State HRL differs from (and is not as broad as the New York City Human Rights Law.

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