In Lopez v. Trahan, No. 155637/2020, 2024 WL 3070014 (N.Y. Sup Ct, New York County June 20, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s claims of employment discrimination – based on age and race – asserted under the New York State and City Human Rights Laws.
From the decision:
Here, it is not in dispute that Plaintiff is a member of a protected class based on (a) age; (b) race; and (c) gender. Defendants cannot seriously argue they are entitled to summary judgment on the second element, which requires a showing that Plaintiff was qualified for her job. There are numerous fact affidavits from colleagues and a patient detailing that Plaintiff was a diligent and loyal worker. Moreover, there are no negative performance reviews in the record. At a minimum, this creates an issue of fact.
Under the NYSHRL, an adverse employment action includes (a) being demoted in title and (b) subjected to abusive and derogatory remarks about an accent or age (Demir v Sandoz Inc., 155 AD3d 464, 466 [1st Dept 2017]; Krebaum v Capital One, N.A., 138 AD3d 528 [1st Dept 2016]). Likewise, verbal abuse in the presence of co-workers and physical violence may give rise to a discrimination and hostile work environment claim under the NYSHRL (Walker v Triborough Bridge and Tunnel Authority, 220 AD3d 554, 555 [1st Dept 2023]). Here, Defendants ask this Court to find that Plaintiff did not suffer an adverse employment action when there are non-party fact witness affidavits who state they witnessed Dr. Trahan physically push and grab Plaintiff, throw patient charts at Plaintiff, regularly mock Plaintiff’s Puerto Rican accent, yell at Plaintiff, regularly call Plaintiff an “old hag,” repeatedly yell at Plaintiff “you’re too old for this,” prevent Plaintiff from scheduling meetings with employees and even cancelling meetings Plaintiff had scheduled with employees despite Plaintiff being the “office manager.” (NYSCEF Docs. 42-44). Viewing the facts in the light most favorable to Plaintiff, as this Court must on Defendants’ motion for summary judgment, the Court finds there to be at a minimum triable issue of fact as to whether the above constitutes an adverse employment action.
Finally, the Court finds there to be sufficient evidence to create a triable issue of fact as to whether the adverse employment actions occurred under circumstances giving rise to an inference of discrimination as it relates to Plaintiff’s age and race. The record is rife with numerous witnesses testifying that Dr. Trahan made disparaging remarks about Plaintiff’s age and her Puerto Rican accent in front of patients and employees. Viewing the facts in the light most favorable to Plaintiff, these repeated disparaging remarks, made in front of multiple witnesses who have come forth with affidavits, creates a triable issue of fact as to whether adverse employment actions suffered by Plaintiff occurred under circumstances giving rise to an inference of discrimination.1 (see Rollins v Fencers Club, Inc., 128 AD3d 401 [1st Dept 2015] [board member’s alleged statements to executive director that “you’re at that age where you need more rest. You look tired” directly reflected age based discriminatory bias and raised inference of age-related bias]).
Because there are triable issues of fact which prevent granting Defendants’ motion for summary judgment dismissing the NYSHRL claims, the NYCHRL claims must necessarily survive as the NYCHRL is to be interpreted even more liberally and provide even more expansive protections than the NYSHRL (see New York Local Law 35 § 1). For the aforementioned reasons, the Court finds that Dr. Trahan’s purported derogatory remarks coupled with physical intimidation and violence, attested to by multiple witnesses, prevents this Court from dismissing the hostile work environment portion of Plaintiff’s Complaint.
Dr. Trahan’s argument that he was close to Plaintiff in age does not eliminate the triable issue of fact regarding his possible discriminatory animus (Rollins, supra citing O’Connor v Consolidated Coin Caterers Corp., 517 US 308, 312 [1996]). Likewise, although Dr. Trahan submits text messages which purportedly show a friendly relationship between himself and Plaintiff, this ignores Plaintiff’s deposition testimony wherein she stated she sent these texts to “sweeten him up” to avoid any hostile behavior in the workplace. The text messages are therefore insufficient to dispel of triable issues of facts. Likewise, Defendants’ “same actor inference” argument is insufficient to grant summary judgment due to the lapse in time from Plaintiff’s hiring to the allegedly discriminatory acts (Tirschwell v TCW Group, Inc., 194 AD3d 665, 666 [1st Dept 2021] [1 ½ year passage between hiring and discriminatory act warranted denying summary judgment motion made on same actor inference argument]). The passage of time between Plaintiff’s hiring and the allegedly discriminatory acts far exceed the passage of time in Tirschwell, and therefore the Court is unable to grant Defendants summary judgment on this argument.
The court likewise held that plaintiff’s claim of intentional infliction of emotional distress survived, finding that a jury could find the alleged conduct “extreme and outrageous.”