In Kiseleva v. Mark Greenspan et al, 23-CV-9496 (VEC), 2024 WL 4635463 (S.D.N.Y. Oct. 31, 2024), the court, inter alia, held that plaintiff sufficiently alleged discrimination in violation of 42 U.S.C. § 1981, based on her Slavic Eastern European Eurasian (SEE) heritage.
From the decision:
Kiseleva has adequately alleged that the misclassification of her as an independent contractor, the discrepancies in maternity pay, and the refusal to allow her opt out of working on Saturdays occurred under circumstances giving rise to an inference of discrimination; she has not adequately raised an inference of discrimination as to Defendants’ refusal to pay her a bonus.
An inference of discrimination can arise from … the more favorable treatment of employees not in the protected group. Littlejohn, 795 F.3d at 312. To adequately allege a Section 1981 claim premised on disparate treatment, “a plaintiff must allege at least one instance in which he was treated differently from a similarly situated non-minority.” Hu, 927 F.3d at 101. Although “the plaintiff’s and comparator’s circumstances must bear a reasonably close resemblance,” they need not be “identical.” Id. at 96 (quoting Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014)). A plaintiff adequately alleges disparate treatment if she alleges facts from which the Court can plausibly infer that “she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Id. (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)).
Kiseleva alleges that non-SEE6 employees, including four to six non-SEE injectors, were classified as employees if they worked full-time and did not have other employment. Am. Compl. ¶¶ 47–50, 54. She, however, was classified as an independent contractor even though she should have been classified as an employee and even though Defendants offered her a position as an employee. Id. ¶¶ 41, 50. At this stage, the only material consideration is whether Kiseleva has adequately alleged that she was treated differently from at least one comparator. See Hu, 927 F.3d at 96, 101. Kiseleva has met that burden. Similarly, Kiseleva has also alleged sufficient facts to raise an inference of discrimination as to maternity pay. According to the Amended Complaint, Kiseleva and a non-SEE injector were both promised $6,000 in maternity pay; Plaintiff received $4,000 and the comparator injector received $6000. Am. Compl. ¶ 64.7 Likewise, non-SEE personnel, including one person who worked Saturdays at another facility, could choose not to work on Saturday, whereas Kiseleva and other SEE personnel could not opt out of this company-wide requirement. Id. ¶¶ 79, 81–83. Because this requirement allegedly applied to all personnel, Kiseleva has met her burden by identifying at least one instance in which a non-SEE employee was treated differently, regardless of that employee’s position.
[Internal quotation marks omitted.]
The court did, however, find that plaintiff did not sufficiently allege facts raising an inference of discrimination as to Defendants’ failure to pay her a bonus, noting that plaintiff was “not similar in all material respects to the individuals to whom she compares herself.”