In Ruiz v. Armstrong, No. 508834/2017, 2024 WL 514006 (N.Y. Sup Ct, Kings County Feb. 02, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s claims of race and national origin discrimination asserted under the New York State and City Human Rights Laws.
From the decision:
[A]t the motion to dismiss phase, a plaintiff does not need to prove discrimination or even allege facts establishing every phase of the prima facie case, but must allege that “give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of the Title VII litigation” Littlejohn, supra at 311 -12. See, Alvarez v. N.Y.C. Dept. Of Educ., 2021 US Dist LEXIS 73056 (S.D.N.Y 2021) at 20-21; Felix v Metro Transp. Auth., 2017 U.S. Dist. Lexis (S.D.N.Y 2017)(plaintiff must have minimal support for the proposition that the employer was motivated in part by discrimination). The requirements for establishing a prima facie case under McDonnell Douglas do not apply to the pleading standard on a motion to dismiss.” Powell v. Delta, supra, 145 F. Supp. Ed at 196 quoting Swierkiewicz, supra, 534 U.S. at 511. “Rather, because “a temporary “presumption” of discriminatory motivation” is created under the first prong of the McDonnell Douglas analysis, a plaintiff “need only give plausible support to a minimal inference of discriminatory motivation.” Vega v. Hempstead U.F.S.D., 801 F. 3d 72, 84 (2d Cir. 2015) quoting Littlejohn, supra. 795 F.3d at 307, 312.
There is no dispute that as a Hispanic, plaintiff is a member of a protected class due to either his race and national origin. Freeport, supra, at 607; Vega v. Hempstead U.F.S.D.,supra, 801 F.3d 72 at 88-89 (plaintiff’s Hispanic ethnicity was a motivating factor in the employment decisions); Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 15-16 & n.3, 23 (2d Cir. 2012); Felix, supra; Santiago-Mendez v City of New York, 136 A.D.3d 428, 428 (1st Dept. 2016); Valentin v Fox Bus. Network, 2016 NY Slip Op 30372(U), 2016 N.Y. Misc. LEXIS 699, *12 (Sup. Ct. N.Y. Co. 2016) race). A number of courts have addressed the confusion or uncertainty as to whether “Hispanic” is better characterized as a race or a national origin, and have ultimately concluded it is a non issue. In Freeport, supra, the Second Circuit found that Title VII “protected characteristics” or “protected classes”– are not mutually exclusive; that under Title VII “race” encompasses ethnicity;” that claims based on race and national origin “may substantially overlap or even be indistinguishable depending on the specific facts of a case” and that “a claim of discrimination based on Hispanic ethnicity or lack thereof may also be cognizable under the rubric of national-origin discrimination, depending on the particular facts of each case.” 814 F. 3d at 607-08. See, Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp. 2d 455, 459 (S.D.N.Y 1998) (Alonzo’s claims of racial discrimination are reasonably related to his claims of national origin discrimination as they fall within the reasonable scope of EEOC investigation); Serrano v. N.Y. State Dept. of Envtl. Conservation, 2013 U.S. Dist. LEXIS 178939 (N.D.N.Y. 2013) (since Plaintiff asserted an EEOC national origin charge and described herself as Hispanic, the national origin charges are reasonably related to racial claims). See also U.S. v. Brennan, 650 F.3d 65 (2d Cir. 2011) (considering “Hispanic” to be a national origin).
The fourth requirement – some minimal evidence suggesting an inference that the employer acted with discriminatory motive can be satisfied by a showing that an employer replaced a terminated employee with an individual outside the employee’s protected class. Littlejohn, supra at 312-313. See, Zimmerman v. Assocs. First Capital Corp. 251 F.3d 376, 381 (2d Cir. 2001) (“[T]he mere fact that a plaintiff was replaced by someone outside the protected class will suffice for the required inference of discrimination at the prima facie stage of the Title VII analysis.” Plaintiff’s replacement by Williams, who is white, is sufficient to make out a prima facie case of racial discrimination); Fleming v. MaxMara USA, Inc, 371 Fed. Appx. 115 (2d Cir. 2010); De la Cruz v. NYC Human Res. Admin, 82 F. 3d 16, 20 (2d Cir. 1996)(plaintiff satisfies the fourth prong of the prima facie case since as Puerto Rican he is a member of the protected class, and he was replaced by a black female); Murphy v. City of Newburgh; 2018 U.S. Dist. LEXIS 165548, *1 (S.D.N.Y 2018) (“Plaintiff’s replacement by DeMora, who is not African American, is sufficient to make out a prima facie case of racial discrimination); Henderson v Montefiore Med. Ctr, 2013 U.S. Dist. LEXIS 39585 (S.D.N.Y. 2013); Grella v. St. Francis Hosp., 149 A.D.3d 1046, 1048 (2d Dept. 2017) (fact that employee was replaced by a substantially younger employee gave rise to inference of discrimination sufficient to make a prima facie case of age discrimination).
The fact that Stephanie Kushner, a “white female from Long Island” allegedly replaced plaintiff as a teacher following his termination gives rise to an inference of discrimination since she was outside plaintiff’s protected class. Plaintiff also claims that Melissa Zinker, a white special education who was similarly situated, was not terminated, and that out of the roughly 75 teachers at Hawthorne, only one is Hispanic and one is black. In discrimination cases, “[s]tatistics are valuable,” Baldwin v Cablevision Sys. Corp., 61 A.D.3d 961 (1st Dept. 2009)(disparity that within a course of a year the number of black officials and managers at Cablevision dropped at more than five times the rate as that of white officials and managers (41.6% versus 8.1%) could support an inference that the personnel reductions at Cablevision were affected by considerations of race, and suffices to raise a triable issue on the discriminatory termination claim). While statistical analysis is rarely “sufficient to defeat summary judgment, it can provide circumstantial evidence of an inference of discrimination in support of a prima facie case.” Zito v. Fried, Frank, Harris, Shriver & Jacobson, 869 F.Supp. 2d 378, 395-96 (S.D.N.Y. 2012); Hudson v. Merrill Lynch & Co., | 2014 NY Slip Op 31048(U) 2014 N.Y. Misc. LEXIS 1881 (Sup. Ct.N.Y. Co. 2014).
Based on this, the court concluded that “plaintiff’s allegations of discrimination by virtue of his being terminated from the position and replaced by a white teacher are sufficient to meet the fourth prong and withstand a motion to dismiss under with the State or City HRLS.”