In Ayende v. The City of New York, No. 153423/2022, 2023 WL 5531761, 2023 N.Y. Slip Op. 32970(U) (N.Y. Sup Ct, New York County Aug. 28, 2023), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s disability discrimination claims.
From the decision:
Plaintiff must state a prima facie cause of action for employment discrimination by pleading that: (1) they are members of a protected class; (2) they are qualified to hold the position; (3) they suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 ; see also Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 ). However, the NYCHRL is not a “general civility code,” and a plaintiff must still show “that the conduct is caused by a discriminatory motive”.
Plaintiff has sufficiently plead a prima facie case that she is being forcibly retired by defendants because she is perceived to be disabled; by showing that the perceived disability is a protected class pursuant to NYCHRL; that she was qualified for her position; and, that the circumstances of her forced retirement give rise to an inference of discrimination (see Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1st Dept 2009] [“a plaintiff alleging employment discrimination ‘need not plead [specific facts establishing] a prima facie case of discrimination’ but need only give ‘fair notice’ of the nature of the claim and its grounds”] [internal citations omitted]).
While defendants submit plaintiff’s medical records and her records from NYPD’s psychological evaluations to show that she is not qualified for her position, these records only create questions of fact that are for a jury to decide. As such, these records do not qualify as documentary evidence to support dismissal pursuant to CPLR 3211 (a) (1)
It also held that plaintiff sufficiently alleged a hostile work environment, noting her allegations “that she was threatened at many of the PES meetings that she would be ‘surveyed off’ due to her mental health status.”