In Small v. New York City Department of Education et al, 1:21-cv-1527-GHW, 2023 WL 112546 (S.D.N.Y. Jan. 5, 2023), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims that he was subject to unlawful discrimination, in that he was terminated because of his perceived sexual orientation, in violation of Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law.
The court summarized the law, and applied it to the facts, as follows:
Small has adequately pleaded his Title VII, NYSHRL, and NYCHRL discrimination claims. Title VII prohibits an employer from discriminating in ‘compensation, terms, conditions, or privileges of employment, because of an individual’s race, color, religion, sex or national origin. The NYSHRL and NYCHRL similarly prohibit employers from discriminating based on race, color, sex, gender, and sexual orientation. Discrimination on the basis of perceived sexual orientation is also prohibited under all three statutes.
To state a prima facie case of discrimination under Title VII, a plaintiff must allege (1) that she is a member of a protected class, (2) that she was qualified for the position, (3) that she suffered an adverse employment action, and (4) [that she] can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. And a complaint that plausibly alleges each of the required elements under Title VII also properly states NYSHRL and NYCHRL claims.
Small has met his pleading burden under Title VII—and, accordingly, has properly pleaded his discrimination claim under all three statutes. The first three elements of Small’s claim are indisputably met. First, Small sufficiently alleges that he is a member of a protected class based on his perceived sexual orientation. Second, given his years of experience teaching for the DOE, Small has alleged that he was qualified for his position. And third, Small has adequately pleaded that he was subject to an adverse employment action because he was terminated.
As for the final element, Small has met his pleading burden of sustaining a minimal burden of showing facts suggesting an inference of discriminatory motivation. The ultimate issue in an employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment decision was motivated at least in part by an impermissible reason, i.e., a discriminatory reason. A plaintiff can meet that burden through direct evidence of intent to discriminate or by indirectly showing circumstances giving rise to an inference of discrimination. A plaintiff may prove discrimination indirectly either by showing that the employer’s stated reason for its employment action was pretext to cover up discrimination or by otherwise creating a mosaic of intentional discrimination by identifying bits and pieces of evidence that together give rise to an inference of discrimination. At the pleading stage a plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.
In his amended complaint, Small has pleaded facts that create an inference of discrimination based on the sequence of events leading to the plaintiff’s discharge. To do so, Small has added a crucial allegation to his prior complaint: His amended complaint directly asserts that [school principal Valerie] Paul told two parents, in January or February 2020, that she did not like Small “because [he is] gay.”
That claim casts Small’s allegations about Paul’s actions in lead-up to his discontinuance, and the termination itself, in a significantly different light than they otherwise might appear. Because Small’s original complaint did not contain any evidence that Paul harbored anti-gay animus, that complaint failed to “allege any facts that give rise to an inference that Paul’s failure to discipline [A.B.]” or “that the disciplinary action, and Small’s ultimate firing,” were motivated by Small’s perceived sexual orientation. But if, as Small now alleges, Paul stated that she did not like Small because of his perceived sexual orientation, then a reasonable factfinder could find that Paul’s actions—including terminating Small—were taken at least in part for a discriminatory reason. At this stage, that is sufficient to sustain Small’s discrimination claim.
Based on this, the court held that plaintiff plausibly pleaded his discrimination claims under Title VII, NYSHRL, and the NYCHRL.
In reaching this conclusion, the court relied on Second Circuit caselaw standing for the proposition that a discrimination plaintiff may prove discrimination indirectly by “creating a mosaic of intentional discrimination by identifying bits and pieces of evidence that together give rise to an inference of discrimination.”