In Luo v. AIK Renovation Inc. et al, 2023-cv-5878 (LJL), 24 WL 4444283 (S.D.N.Y. Oct. 8, 2024), the court, inter alia, denied defendant’s motion for summary judgment on plaintiff’s hostile work environment claim asserted under the New York State and City Human Rights Laws.
From the decision:
Under the NYCHRL, the conduct at issue must be “caused by a discriminatory motive; ‘it is not enough that a plaintiff has an overbearing or obnoxious boss.’ ” Dillon, 85 F. Supp. 3d at 657 (quoting Mihalik, 715 F.3d at 110). And even when the conduct is discriminatory, it is an affirmative defense to liability that “the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.” Mihalik, 715 F.3d at 111 (quoting Williams, 872 N.Y.S.2d at 41 (internal quotation marks omitted)). However, the plaintiff need not show an environment that is “permeated with discriminatory intimidation, ridicule, and insult.” Banks, 81 F.4th at 261 (quoting Cruz, 202 F.3d at 570). Forcing an targeted employee to suffer unwanted conduct based on a targeted characteristic is understood in and of itself to “impose[ ] a different term or condition of employment” on the employee. Mihalik, 715 F.3d at 110.
Because the NYCHRL has no frequency requirement, “even a single comment may be actionable in the proper context.” Mihalik, 715 F.3d at 113. A comment which, for example, “signal[s] views about the role of [a protected group] in the workplace” might be reasonably regarded as more than a “petty slight or trivial inconvenience.” Williams, 872 N.Y.S.2d at 41 & n.30. “[S]ummary judgment still can be an appropriate mechanism for resolving NYCHRL claims” and “courts may still dismiss ‘truly insubstantial cases,’ where the defense is clear as a matter of law.” Mihalik, 715 F.3d at 111.
The NYCHRL standard does not change the fact that the mimicking incidents mentioned by Plaintiff were stray remarks not directed at Plaintiff’s protected class. These remarks would not lead a reasonable fact-finder to conclude that Plaintiff was treated “less well” in the workplace on the basis of his race or national origin. Bilitch, 148 N.Y.S.3d at 245.
However, a jury which credited Plaintiff’s account of his interactions with Renosis regarding the prospective Chinese employee could reasonably find that Plaintiff was treated “less well” in the workplace because he was Chinese. Although the record is not clear whether Renosis was Plaintiff’s supervisor in a technical sense, Renosis was senior to Plaintiff and there is evidence he was charged by Nejasmic to supervise his work. Dkt. No. 37-3 ¶ 2; Dkt. No. 37-8 at 17-18, 21. According to Plaintiff, when Plaintiff brought in a Chinese employee to interview with Renosis, Renosis kept Plaintiff and the employee waiting for an hour and a half. Dkt. No. 37-3 ¶ 11. When Plaintiff prompted Renosis to interview him, Renosis stated “[w]ho f***ing can compete with the f***ing Chinese?” and refused to interview the employee. Id. Renosis’s statement, combined with his alleged action of refusing to interview the employee, can be inferred to express the view that Chinese employees are not welcome at AIK. A jury could reasonably infer that if Plaintiff had been of a different nationality and had brought a compatriot to interview, Renosis would have interviewed the employee and done so promptly, without wait. Implying to Plaintiff that he is not welcome because of his race and refusing to interview his referral because of Plaintiff’s race and that of his referral constitutes differential treatment. This creates a dispute of material fact as to whether liability exists under the NYCHRL.
Renosis’s alleged actions are not the type of “truly insubstantial” conduct that any reasonable factfinder would consider a “petty slight or trivial inconvenience.” Williams, 872 N.Y.S.2d at 41. Courts have sometimes found remarks to be insubstantial when they are “not facially racially derogatory.” Golston-Green, 123 N.Y.S.3d at 669, 671 (supervisor stated he wouldn’t “hold the plaintiff’s hand and sing ‘Kum Ba Yah’ ”); see Milord-Francois, 635 F. Supp. 3d at 329 (supervisor “questioned Plaintiff on why she looked angry” and commented on her “fucking scowl face”). Remarks may also be insubstantial if they can easily be brushed off as “petty” and inconsequential. Gittens-Bridges v. City of New York, WL 8825342, at *2 (2d Cir. Dec. 21, 2023) (supervisor referred to plaintiff as “old school secretary without computer skills” and “mommy”); Alvarado v. Nordstrom, Inc., 685 F. App’x 4, 8 (2d Cir. 2017) (summary order) (colleagues made isolated race-based and sexual-orientation-based insults as part of general animosity between them and Plaintiff).
But here the remark is facially racial. Though it can be construed as complimentary, in the context of Renosis’s refusal to interview the employee it expresses a negative attitude towards Chinese workers; one that, in Plaintiff’s telling, Renosis immediately acted upon by failing to interview a prospective employee. Renosis’s conduct “signal[s] views about the role of [Chinese people] in the workplace,” putting it in a category that courts have suggested is actionable. See Mihalik, 715 F.3d at 113 (quoting Williams, 872 N.Y.S.2d at 41 n. 30). Courts have held that similar comments directly expressing discriminatory animus, even if not frequent or pervasive, create a triable issue of fact under the NYCHRL. See Karupaiyan v. CVS Health Corp., 2023 WL 5713714, at *20, 25 (S.D.N.Y. Sept. 5, 2023) (supervisor’s referred to plaintiff as a “black apple” and “old black Madrasi”); Golston-Green, 123 N.Y.3d at 671 (supervisor stated that he “did not like women on this job because they have babies”); DeLuca v. Sirius XM Radio, Inc., 2017 WL 3671038, at *21 (S.D.N.Y. Aug. 7, 2017) (supervisor called plaintiff a “dyke” and her work “gay”).
Accordingly, summary judgment for defendant was not warranted.