In Pierluissi v. City of New York, No. 153439/2023, 2025 WL 928908 (N.Y. Sup Ct, New York County Mar. 26, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s race discrimination claims under the New York State and City Human Rights Laws.
From the decision:
Both the NYSHRL and NYCHRL make it unlawful for an employer to refuse to hire or to discriminate against an individual in compensation or in terms, conditions, or privileges of employment because of that person’s race or national origin (see Executive Law § 296 [1] [a]; Administrative Code of City of NY § 8-107 [1] [a]). Under the NYCHRL, it is an unlawful discriminatory practice for an “employer” to discriminate against “any person … in compensation or in terms, conditions or privileges of employment” (Administrative Code, § 8-107 [1] [a]).
To support a prima facie case of employment discrimination under both the NYSHRL and the NYCHRL, a plaintiff generally has the initial burden of demonstrating: (1) that she or he is a member of a protected class; (2) that she or he was qualified to hold the position; (3) that she or he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 [2006]; accord Ayers v Bloomberg, L.P., 203 AD3d 872, 874 [2d Dept 2022]).
Under the NYSHRL, “[a]n adverse employment action requires a materially adverse change in the terms and conditions of employment” and “must be more disruptive than a mere inconvenience or an alteration of job responsibilities” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004] [citation and quotation marks omitted]).
The NYCHRL does not require a plaintiff to “establish that she or he was subjected to a ‘materially adverse’ change to terms and conditions and employment, but only that she or he was subject to an unfavorable change, or treated less well than other employees on the basis of a protected characteristic” (Golston-Green v City of New York, 184 AD3d 24, 38 [2d Dept 2020]). In other words, a plaintiff need only show that she or he was treated differently from others in a way that was more than “petty slights or trivial inconveniences” (Williams v New York City Hous. Auth., 61 AD3d 62, 80 [1st Dept 2009]). Nonetheless, the NYCHRL is not a “general civility code,” and plaintiff must still demonstrate “that the conduct is caused by a discriminatory motive” (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 [2d Cir 2013]).
Plaintiff has sufficiently pleaded a discrimination cause of action under both the NYSHRL and the NYCHRL. There is no dispute that as a Hispanic, plaintiff is a member of a protected class due to either his race or national origin (Village of Freeport v Barrella, 815 F3d 594, 607 [2d Cir 2016]; see e.g. Vega v Hempstead U.F.S.D., 801 F3d 72, 88-89 [2d Cir 2015] [plaintiff’s Hispanic ethnicity was a motivating factor in the employment decisions]).
Plaintiff has also sufficiently alleged that he is qualified for the promotions that he claims he was denied due to his race. In the complaint, plaintiff sets forth his multiple awards, merits, and citations based on his performance and involvement as a rescue worker during the 911 World Trade Center attacks, as well as his high performance reviews prior to his transfer to the Times Square Unit (see complaint, ¶¶ 20-22, 29).
In addition, plaintiff alleges that, as a result of defendants’ racial animus, he was denied promotions, suffered lost past and future wages, lost career, and business opportunities, suffered damage to his name and reputation, and was denied overtime (see id., ¶¶ 77, 87, 99, and 102). This court finds that these allegations are sufficient to plead the adverse employment action element (see Forrest, 3 NY3d at 306 [holding that “ ‘(a) materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities or other indices … unique to a particular situation’ ”] [citation omitted]). As is relevant to the more lenient NYCHRL standard, this court finds that plaintiff also sufficiently alleges that he was treated less well than his white colleagues as a result of his race. More specifically, plaintiff sets forth examples of white officers who are similarly situated to plaintiff, but who, unlike plaintiff, were afforded the opportunity to be promoted, and received greater overtime as well as positive evaluations, which result in the ability to transfer to specialized and more lucrative units (see complaint, ¶¶ 77, 79).
The court rejects defendants’ argument that plaintiff fails to sufficiently allege that he was subjected to adverse employment actions under circumstances that give rise to an inference of discrimination. Defendants point to plaintiff’s allegations that he was asked if he needed something told to him in Spanish (complaint ¶¶ 36-42), was asked if he was a “goomba” (id., ¶¶ 147-154), and was called a “dumb spic” (id., ¶¶ 221-225), as well as Fills’ statement, directed to plaintiff, that “[y]our kind never listens … [w]hat is it don’t you understand? Do I need to tell you [i]n Spanish?” (id., ¶¶ 36-42). Defendants argue that these remarks are no more than “petty slights and trivial inconveniences,” which do not constitute discrimination.
This court disagrees, as on their face, a reasonable person might find that these remarks “have a negative racial connotation” (Wooten v Reconstruction Home, Inc., 2005 WL 1502149, * 11, 2005 US Dist LEXIS 44738, at * 32 [ND NY 2005]; see also Winston v Verizon Servs. Corp., 633 F Supp 2d 42, 53 [SD NY 2009] [finding that a statement such as “you people cannot do anything right” could permit a reasonable jury to find discriminatory motivation”]). Additionally, it is important to acknowledge that a greater context may exist where if combined with certain comments or phrases could lead a reasonable jury to draw an inference of discrimination (see Whitehurst v. 230 Fifth, Inc., 998 F Supp 2d 33, 253 [SDNY 2014]; Griffin v. Ambika Corp., 103 F.Supp.2d 297, 314 [SDNY 2000]; Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 204 [1st Dept 2015][“It is true that discrimination seldom announces itself openly”]).
The court further held that plaintiff sufficiently alleged claims for hostile work environment and retaliation.