Disability-Based Hostile Work Environment Claim Survives Dismissal

In Pesantez v. The City of New York, No. 154734/2022, 2023 WL 4401359 (N.Y. Sup Ct, New York County July 07, 2023), the court, inter alia, held that plaintiff sufficiently alleged a hostile work environment claim (in part).

From the decision:

Plaintiff has not sufficiently plead all of his hostile work environment claims under the New York City Human Rights Law (“NYCHRL”) (NYC Admin. Code § 8-101, et. seq.). “Under the NYCHRL, a plaintiff claiming a hostile work environment need only demonstrate that he or she was treated ‘less well than other employees’ because of the relevant characteristic. The conduct alleged must, however, exceed what a reasonable victim of discrimination would consider petty slights and trivial inconveniences” (Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1003 [2d Dept 2021] [citations omitted]).

Here, much of the conduct the plaintiff complains about does not even rise to the level of petty slights and trivial inconveniences. In particular, plaintiff complains of the individual defendants stating that plaintiff is a malingerer who is faking his injuries. However, these statements are merely expressions of the doctors’ medical determination. “The NYPD’s medical determinations, whether ‘correct’ or not, cannot constitute a basis for the plaintiff’s claim that he was discriminated against on the basis of disability” (Aykac v City of New York, 2022 N.Y. Slip Op. 33639[U], 19 [NY Sup Ct, New York County 2022]). Furthermore, Dr. Miller informing plaintiff that he had only been approved for an MRI of his shoulder and not his back is insufficient. This would not constitute harassment as the plaintiff was allowed to amend his initial report, and he received the appropriate authorization which allowed plaintiff to avoid paying for the back MRI out of pocket. This does not constitute harassment as plaintiff was provided with the remedy he sought. Accordingly, these are not actionable as harassment.

However, the same cannot be said for plaintiff’s allegations that the defendant doctors have threatened to survey plaintiff off the job if he doesn’t return to work, despite it being work that plaintiff is allegedly unable to physically perform. Repeated threats to fire an employee based on a protected characteristic may be sufficient to state a hostile work environment claim.

[Cleaned up.]

The court additionally held that plaintiff sufficiently “plead that he requested an accommodation and that the defendants neither provided him with an accommodation or engaged in the required cooperative dialogue.”

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