In Motayne v. Specialty Food Association et al, No. 157671/2023, 2025 N.Y. Slip Op. 50091(U), 2025 WL 339817 (Sup Ct, Jan. 23, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claims of race-based discriminatory termination asserted under the New York State and City Human Rights Laws.
From the decision:
Here, defendants do not dispute that plaintiff is a member of a protected class—whether based on her race, age, sex, or age—and suffered an adverse employment action. However, at this initial stage, they contend that she has failed to show she was qualified for her position or that she suffered the adverse action under circumstances giving rise to an inference of discrimination. The Court disagrees. First, plaintiff has adequately alleged that she was qualified for her role in SFA by citing her 27-year employment record and through the numerous references to either having to correct the work of others or training others to use certain platforms within the company. (See NYSCEF doc. no. 1 at ¶¶87-89.) Second, defendants argue that a comparison between plaintiff’s job description and that of Kolody’s when he received the promotion reveals that he did not, in fact, replace her. Yet defendants have made no attempt to demonstrate that the attached exhibits showing the purported differences in the two positions—Exhibits B and C (NYSCEF doc. nos. 9 and 10)—constitute “documentary” evidence, which, as described above, must be of undisputed authenticity, unambiguous, and essentially undeniable. (See VXI Lux Holdco S.A.R.L v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]; Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010].) Among other issues, the attachments themselves do not specify (1) who within SFA created the job descriptions, (2) when they did so (the attachments contain no date), and (3) whether the job descriptions were published to a wider audience. Further, neither exhibit, individually, utterly refutes plaintiff’s factual allegations; in fact, both require the others’ presence for the Court to make a comparison as to their similarities, thereby making this evidence qualitatively different from the types of records the First Department has generally concluded withstand the “unambiguous, authentic, and undeniable”-test. (See Prott v Lewin & Baglio, LLP, 150 AD3d 908 [2017] [finding that judicial records and records reflecting out-of-court transactions such as mortgages, deeds, and contracts are properly considered documentary evidence because their contents are essentially undeniable].)
Defendants next argue that, even if Squatrito stated, “I know other Black women and they speak much clearer than you,” the allegation is not sufficient to give rise to an inference of race-based discrimination. In support, they cite Thomas v Mintz (182 AD3d 490, 491) and Hudson v Merrill Lynch (138 AD3d 511) for the proposition that a “handful of insensitive comments” or other “stray remarks,” even if made by the ultimate decision maker, do not rise to the level that is actionable under the NYSHRL and the NYCHRL. However, a review of the lower court opinion in Mintz (2018 NY Misc. LEXIS 3282 [Sup Ct. NY County 2018]) reveals that at no point did a supervisor and/or manager make a statement equivalent to the one attributed to Squatrito. As such, defendants have not established that the complained-of statement here is analogous to the “handful of insensitive comments” in Mintz. As to Hudson v Merrill Lynch, the same problem applies: defendants have not shown the “stray remarks” at issue there are analogous to Squatrito’s comment. Moreover, the First Department affirmed the lower court’s determination as to summary judgment, finding that it had properly applied the McDonnell-Douglas burden-shifting analysis after finding the plaintiff’s underperformance to be a non-pretextual reason for termination. (Merrill Lynch, 138 AD3d at 516.) In light of the non-pretextual reason for dismissal, it concluded that no reasonable jury could find that gender discrimination played a role in the adverse employment decisions. (Id.) By contrast, defendants SFA and Squatrito only seek dismissal based on the pleading standards of CPLR 3211.
Lastly, unlike the stray remarks in Melman v Montefiore Med. Ctr. (98 AD3d 107 [1st Dept 2012]), which did not “imply any sinister aspersions,” or those in Dozier v Federal Express, Inc. (2018 NY Misc 3058 [Sup Ct, NY County 2019]), here, plaintiff alleges that Squatrito directed his comment directly to her under circumstances in which he was openly considering terminating her. (See NYSCEF doc. no. 1 at ¶¶90,96 [Squatrito yelling “I can’t wait to get rid of you” and Kolody heard discussing his recommendation to Squatrito to fire her].)
The court included that “[u]nder these circumstances, in which plaintiff alleges she satisfactorily performed her job duties, her supervisor made race-based comments to her, and she was replaced by a white individual, the Court finds that she has adequately alleged that she was terminated, or treated less well, based on race under the NYSHRL and NYCHRL.”