In Espinoza v. CGJC Holdings LLC d/b/a Joe and Pat’s Pizzeria and Restaurant et al, 23cv9133 (DLC), 2024 WL 3520662 (S.D.N.Y. July 23, 2024), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s various discrimination claims asserted under federal law (namely, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and 42 U.S.C. § 1981), as well as under the New York State and City Human Rights Laws.
As to federal law, the court explained:
Espinoza has alleged facts sufficient to support a hostile work environment based on race, gender, sexual orientation, and disability. Regarding gender, allegations that “overtly sexual or sexist comments, sexual innuendos, and gender-based disparagements were regularly directed at women … or made about women in general,” along with allegations that “most managers did nothing to discourage that objectionable conduct — and that some managers participated in such conduct,” are sufficient to support a hostile work environment claim. Moll, 94 F.4th at 234. Here, the FAC details a barrage of such comments, directed both at Espinoza and at customers by owners as well as the bartender who was one of Espinoza’s supervisors. “[T]o avoid dismissal under FRCP 12(b)(6), a plaintiff need only plead facts sufficient to support the conclusion that she was faced with harassment of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citation omitted). Espinoza has done so here.
As for race and her § 1981 claim, the FAC alleges that Gennaro repeatedly made racist comments about multiple ethnicities, including Espinoza’s own; that he used a racist slur to refer to a Latinx delivery driver in Espinoza’s presence; and that he complained to Espinoza about employees speaking Spanish and stated that the Restaurant should not hire people who speak Spanish. Repeated use of slurs may alter the conditions of employment and create an abusive working environment. See Rivera v. Rochester Genesee Regional Transp. Authority, 743 F.3d 11, 21 (2d Cir 2014); see also Whidbee v. Garzarelli Food Specialties, 223 F.3d 62, 70-71 (2d Cir. 2000) (hostile work environment claim survived summary judgment where plaintiff alleged “a stream of racially offensive comments over the span of two to three months”). Indeed, “perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet … by a supervisor in the presence of his subordinates.” Rivera, 743 F.3d at 24 (citation omitted).
Finally, Espinoza alleges that she was discriminated against because of her IBS, which she asserts is a disability protected by the ADA. She identifies the owners’ mocking of her disability as a violation of her rights under the ADA. The FAC adequately states a claim for hostile work environment under the ADA. It alleges that the Restaurant has more than 15 employees and that Espinoza’s IBS imposed a substantial limitation on one or more of her life activities. It further alleges that the owners frequently mocked Espinoza for her disability in front of other employees and that Ciro’s “constant insults” about her disability made Espinoza uncomfortable and hesitant to use the bathroom at work. These facts sufficiently allege both the subjective and objective components of a hostile work environment claim.
Defendants argue that the FAC does not plausibly allege a hostile work environment “given her admission that she was terminated on the basis of her disparaging Instagram Story post.” This argument misses the mark. The hostile work environment claims seek damages for the defendants’ wrongful conduct during the months of employment, not for the termination of employment. In opposition to this motion to dismiss, the plaintiff abandons any discrimination claim based on a separate adverse action.
Having found that plaintiff stated hostile work environment claims under federal law, “it follows that she has done the same under the NYCHRL’s more lenient standard, as well as the NYSHRL’s now-identical standard.” [Internal quotation marks omitted.]