In Nezaj v. PS450 Bar and Restaurant et al, 22 Civ. 8494 (PAE), 2024 WL 815996 (S.D.N.Y. Feb. 27, 2024), the court, inter alia, held that plaintiff plausibly alleged a claim of gender discrimination under the New York City Human Rights Law.
In this case, plaintiff (a gay woman) alleges that defendants subjected her to a workplace culture “openly hostile towards women and LGBTQIA+ employees” and dominated by male managers who created a “fraternity-like ‘Boy’s Club’ and consistently treat[ed] female and LGBTQIA+ employees less well than they treated straight male employees” and ultimately fired her based on her gender and sexual orientation.
In this decision, the court rules on a motion to dismiss filed by defendant Miller (a manager). In sum, the court dismissed the claims against Miller alleging discrimination based on sexual orientation, but otherwise denies the motion to dismiss.
From the decision:
Here, the FAC [First Amended Complaint] alleges the following actions and omissions by Miller: (1) Miller declined to take any action after Nezaj, his subordinate, complained about a rude, misogynistic client, and laughed at Brooks’ teasing her concerning the incident; (2) notwithstanding Nezaj’s complaints, Miller deliberately did not provide Brooks with her December work schedule in advance, while providing other male managers with their December work schedules in advance; and (3) Miller refused to consider, and expressed annoyance at, Nezaj’s request that PS450 purchase hygiene products for female staff.
These allegations plausibly plead a claim of gender discrimination under the NYCHRL, i.e., differential treatment on the basis of gender.In the first incident, Miller refused to defend, and scoffed at, Nezaj, when she complained about a misogynistic client, and laughed when fellow supervisor Brooks, in Nezaj’s presence, joked about whether he should cause her to “do” “anything misogynistic” before leaving work that day. FAC ¶¶ 45–46. See, e.g., Davis v. Phoenix Ancient Art, S.A., 975 N.Y.S.2d 365 (N.Y. Sup. Ct. 2013) (upholding gender discrimination claim under NYCHRL that defendant-owner of art gallery laughed at and condoned clients’ comments about plaintiff’s sex life); Benzinger v. NYSARC, Inc. N.Y.C. Chapter, 385 F. Supp. 3d 224, 232 (S.D.N.Y. 2019) (finding, in context of 42 U.S.C. § 1981 claim, that laughter at racist jokes or slurs evidenced discriminatory intent in employment context and collecting cases). Miller’s dismissive response contrasted with PS450’s management’s alleged solicitude towards a male employee, for whom management had “stepped in when [the] male employee had complained about a rude client.” Id. ¶ 45. See, e.g., Nguedi v. Federal Reserve Bank of New York, No. 16 Civ. 0636 (GHW), 2017 WL 5991757, at *11 (S.D.N.Y. Dec. 1, 2017) (allegation that defendant “would help Caucasian employees to resolve issues like the [complained-of incident], but refused to help him and instead … laugh[ed] at him” supported finding that discrimination claim under NYCHRL was plausibly pled); Torre v. Charter Communications, Inc., 493 F. Supp. 3d 276, 286 (S.D.N.Y. 2020) (sustaining claim of discrimination under Title VII, the NYSHRL, and the NYCHRL that “similarly situated … male colleague[s]” were “paid more than [plaintiff] was, despite having [similar] responsibilities and equal or lesser credentials”); cf. Henry v. NYC Health & Hosp. Corp., 18 F. Supp. 3d 396, 409–10 (S.D.N.Y. 2014) (dismissing claim of gender discrimination where complaint failed even to describe “any purported comparator” or offer any “basis from which to infer that defendants’ treatment of [the plaintiff] was motivated by gender”). And the qualitative nature and stark quality of the different treatment of Nezaj and the male employee, as alleged, absolved Nezaj from having to plead—unlike, say, in a discrimination claim centered on promotion decisions—that she and the male employee had comparable qualifications or salary and seniority. See, e.g., Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (plaintiff did not need to plead facts about comparators’ “job function, experience, qualifications, [or] rate of pay[ ]” where employees were similarly situated as to disciplinary standards).
In the second incident, Miller withheld from Nezaj, PS450’s only female manager, the restaurant’s December schedule for her, dismissed her request for that schedule, and made last minute changes to it, while providing all male managers with their schedules in advances and not making last-minute changes to them. See FAC ¶¶ 37, 53–57. This allegation classically describes “differential treatment based on a discriminatory motive,” Gorokhovsky, 552 F. App’x at 102, sufficient to plead a claim under the NYCHRL. See, e.g., Villar v. City of N.Y., 135 F. Supp. 3d 105, 142 (S.D.N.Y. 2015) (plaintiff established prima facie showing of race discrimination under § 1981 where he was denied overtime as only Hispanic lieutenant, and Caucasian lieutenants were allowed to work overtime); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015) (plausible discrimination claim under Title VII where Hispanic employee alleged he was assigned more work than non-Hispanic co-workers).
The third incident presents a different scenario. As alleged, Miller spurned Nezaj’s request for feminine hygiene products, which she made to avoid having to leave the premises to purchase these, and he and Brooks mocked that request. FAC ¶¶ 59-60. Viewed in isolation, Miller’s response, while rude and uncivil, would not plead differential treatment by gender, as the FAC does not plead contrasting behavior towards requests for accommodation by men. However, in the context of the balance of the FAC, which alleges gendered putdowns and frat-like attempts to humiliate Nezaj by male PS450 defendants including Miller, this episode fairly makes out an act of gender discrimination in violation of the NYCHRL. See, e.g., Mitura v. Finco Services, Inc., No. 23 Civ. 2879 (VEC), 2024 WL 232323, at *4 (S.D.N.Y. Jan. 22, 2024) (supervisor’s comment asking plaintiff “[d]o you even still menstruate” in response to proposed implementation of a menstruation leave policy showed effort to humiliate based on gender); Sanderson v. Leg Apparel LLC, No. 19 Civ. 8423 (GHW), 2020 WL 7342742, at *8 (S.D.N.Y. Dec. 14, 2020) (Complaint adequately alleged unfavorable treatment on basis of protected characteristic where comment by defendant that client was plaintiff’s boyfriend after successful client call was “plausibly intended to diminish Plaintiff’s success.”); Williams, 872 N.Y.S.2d at 41 n.30 (conduct or comments which, in context, signal views about women in the workplace support gender-based discrimination claims under NYCHRL).
The court concluded that “[v]iewing the above alleged episodes singly and in combination, the Court finds that the FAC plausibly alleges that Miller himself treated Nezaj less well on account of her gender” and thus denied defendant’s motion to dismiss plaintiff’s claim of direct liability under the NYCHRL.
It further denied Miller’s motion to dismiss plaintiff’s claims of “aiding and abetting” gender discrimination, noting that plaintiff in her complaint “pleads actual participation by Miller in acts of gender discrimination by others.”