In Clermont v. OTG Concessions Management LLC, 24-cv-6590 (BMC), 2025 WL 2664022 (E.D.N.Y. Sept. 17, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of race discrimination asserted under 42 U.S.C. § 1981.
In sum, plaintiff, a Hispanic woman who worked as a JFK Airport barista, alleged (among other things) that her supervisor made discriminatory remarks to her, including that “all Spanish people are stupid.”
From the decision:
To state a claim for discrimination under Section 1981, a plaintiff must allege (1) the plaintiff is a member of a racial minority; (2) defendant’s intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute’s enumerated activities. Considering the second requirement, that the defendant intended to discriminate on the basis of race, a plaintiff must initially plead that, but for race, it would not have suffered the loss of a legally protected right. An employer is liable under Section 1981 where the action complained of was that of a supervisor.
Here, plaintiff alleges that she is Hispanic and the discrimination she alleges relates to Section 1981’s enumerated activities, namely the right to make and enforce contracts, which includes conditions of a contractual relationship, such as employment. Defendant asserts that where plaintiff’s Section 1981 discrimination claim falters is the intent requirement: that the amended complaint fails to plausibly allege that discrimination was the but-for cause of plaintiff’s loss of her legally protected right to continue her employment relationship.
Plaintiff alleges that, in the month leading up to her termination, she was yelled at twice by her supervisor, both times with discriminatory statements about plaintiff’s Hispanic identity. Then, when she reported these instances to higher-up managers, they either did nothing or told plaintiff to “take a shot of whiskey and that it would all be okay.” Considering these discriminatory comments, linked to plaintiff’s ability to perform her job and made by a decisionmaker over plaintiff’s employment in close temporal proximity to plaintiff’s termination, as well as the fact that other decisionmakers made light of the situation and took no action when plaintiff came to them with these incidents, plaintiff has adequately pled that she would not have been fired but for the fact that she is Hispanic. See Knox v. CRC Mgmt. Co, 134 F.4th 39, 48 (2d Cir. 2025) (discriminatory comments made not long before the plaintiff’s firing plus supervisors’ failure to take action on the plaintiff’s complaint about racial harassment were sufficient to make out a prima facie case of discriminatory discharge under Section 1981).
Plaintiff’s claim that she was terminated for taking short term disability leave does not defeat her claim that, but for being Hispanic, she would not have been fired. See Banks v. Gen. Motors, LLC, 81 F.4th 242, 275 (2d Cir. 2023) (“[T]here can be more than one ‘but-for’ cause of an adverse employment action.” (citing Bostock v. Clayton Cnty., 590 U.S. 644, 656 (2020)).
(Cleaned up.)
Based on this, the court held that dismissal was not warranted.