In Alegre v. The City of New York, No. 157532/2022, 2024 WL 2747895 (N.Y. Sup Ct, New York County May 28, 2024), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s race discrimination claims asserted under the New York State and City Human Rights Laws.
From the decision:
Plaintiff’s complaint and amended complaint interpose causes of action for race discrimination, hostile work environment, and arrest history discrimination under both the NYSHRL and the NYCHRL. To state a cause of action for race discrimination under the NYSHRL, a plaintiff must plead factual allegations that the plaintiff (1) is a member of a protected class, (2) was qualified to hold the position, (3) was terminated or subjected to another adverse employment action, and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Harrington v City of New York, 157 AD3d 582, 584 [1st Dept 2018]). Under the NYCHRL, a plaintiff must plead the same elements, but may satisfy their burden on the third element by pleading factual allegations they that they were treated differently or worse than other employees (Harrington, 157 AD3d at 584).6
The City argues that Plaintiff has not stated a cause of action for race discrimination because he failed to plead his race and because Plaintiff did not plead an actionable adverse action, specifically, a constructive discharge or sufficient details regarding denial of a promotion. On the contrary, Plaintiff’s failure to plead his race is not fatal to his claim because the information in the complaint is sufficient to infer that he is not white (see Greenidge v. City of New York, 2023 NY Slip Op 33506[U] [Sup Ct, NY County 2023]), and because his amended complaint includes this information (see NYSCEF Doc No. 10, amended complaint ¶ 10). The proposed amended complaint also alleges that “Asians are treated worse in the NYPD trial room in that they often received harsher punishments than their white colleagues” (id. ¶ 108). This is sufficient to satisfy the first element of the cause of action. Plaintiff also sufficiently pleads that he was qualified to hold the position, which is demonstrated by his thirteen years of employment as an NYPD officer (id. ¶ 66).
With respect to the third element, Plaintiff’s allegation that he was told at a GO-15 that “if he did not vest and retire he would be terminated” (amended complaint ¶¶ 73, 79) is sufficient to plead a constructive discharge (see Lopez v S.B. Thomas, Inc., 831 F2d 1184 [2d Cir 1987][Trier of fact might find that employer’s statement alone suffices to establish a constructive discharge where employer told plaintiff that he would be fired at the end of the 90-day probationary period no matter what he did to improve his allegedly deficient performance]). Although the speaker of the statement is not specifically identified, the NYPD is no doubt in possession of records which indicate the time, place, and attendees at the GO-15 and, therefore, the allegation that the statement occurred at the GO-15 is sufficient to give the City requisite notice of the claim. A constructive discharge is considered an adverse employment action (see Dall v St. Catherine of Siena Med. Ctr., 966 FSupp 2d 167, 177 [EDNY 2013]). Finally, the many comparators identified by the Plaintiff are sufficient to plead circumstances giving rise to an inference of discrimination (see e.g., amended complaint ¶¶ 118-130), particularly with respect to officer Garcia, a Hispanic male who also pled guilty to disorderly conduct and remained employed by the NYPD (amended complaint ¶¶ 87, 173-176; see Shah v Wilco Sys., Inc., 27 AD3d 169, 177 [1st Dept 2005][“While their circumstances do not have to be identical, there should be a reasonably close resemblance of facts and circumstances. What is key is that they be similar in significant respects”][internal quote and citations omitted]).
The court further held that plaintiff sufficiently alleged claims for hostile work environment under the state and city law.