In Silverthorne v. The City of New York, No. 507047/2023, 2024 WL 3312436 (N.Y. Sup Ct, Kings County July 05, 2024), the court granted the defendant’s motion to dismiss plaintiff’s claims of race/gender discrimination and hostile work environment asserted under the New York State and City Human Rights Laws.
From the decision:
Accepting the facts alleged in the FAC as true, and according plaintiff the benefit of every possible favorable inference, the FAC fails to allege circumstances giving rise to an inference of discrimination on the basis of race and/or gender. See Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C. 222 AD3d 706 (2d Dept 2023); Ayers v Bloomberg, L.P., 203 AD3d 872, 874 (2d Dept 2022); Cahill v State, 139 AD3d 779, 781 (2d Dept 2016): Askin v Department of Educ. of City of NY, 110 AD3d 621, 622 (1st Dept 2013). “[S]tray derogatory remarks, without more [as is the case here], do not constitute evidence of discrimination.” Wecker v. City of NY, 134 AD3d 474, 475 (1st Dept 2015); see also Aykac v City of NY, 221 AD3d 494, 495 (1st Dept 2023) (the individual defendant’s “few comments regarding plaintiff’s weight and his ‘malingering’ . . . constitute petty slights and trivial inconveniences”); Adolph v Hill-Kirby, 217 AD3d 436, 436 (1st Dept 2023) (“the few alleged remarks made by defendant . . . are insufficient to state a claim for harassment on the basis of plaintiffs disability”); accord Thelwell v City of NY, 2015 WL 4545881, *10 (SDNY July 28, 2015) (absent evidence that the use of words “angry” or “abrasive” was racially charged, or that a racial epithet was used to describe plaintiff, her subjective interpretation of words as constituting a racially discriminatory stereotype was insufficient), affd 733 Fed Appx 561 (2d Cir 2018).
Further, the vague and ambiguous allegations underpinning the FAC – that plaintiff was called “an angry Black woman” (without specifying as to when, where, and how many times she was so called) and that she was once blamed for some missing EMS equipment (again, without providing any accompanying detail) – are insufficient to provide the City defendants with adequate notice of – nor, more fundamentally, are capable of establishing a sufficient basis for – her claims for racial/gender discrimination and hostile work environment.
The decision also vacated the defendants’ default for failure to appear for the calendar call on the motion, noting that they demonstrated a reasonable excuse for said default.