THOMAS v. MINTZ (2020)

Order, Supreme Court, New York County (Carmen Victoria St. George, J.), entered August 2, 2018, which granted defendant's motion to dismiss the complaint alleging discrimination, retaliation, and hostile work environment under the New York State Human Rights Law (HRL) and the New York City HRL, unanimously modified, on the law, to deny the motion as to the retaliation claim, and otherwise affirmed, without costs.

Under the lenient notice pleading standard afforded to employment discrimination cases, the complaint states a cause of action for retaliation (see Petit v. Department of Educ. of the City of N.Y., 177 A.D.3d 402, 403, 113 N.Y.S.3d 30 [1st Dept. 2019], citing Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74 [1st Dept. 2009]). It alleges that plaintiff filed a discrimination complaint in December 2010, that defendant Jonathan Mintz was notified of the complaint in November 2011, and that six months later plaintiff was charged with departmental misconduct that allegedly had occurred more than a year earlier.

The complaint fails to state causes of action for discrimination and a hostile work environment, because it does not allege that defendants' actions occurred under circumstances that give rise to an inference of discrimination (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004]; Massaro v. Department of Educ. of the City of N.Y., 121 A.D.3d 569, 993 N.Y.S.2d 905 [1st Dept. 2014], lv denied 26 N.Y.3d 903, 2015 WL 5150744 [2015]). It does not allege facts that would establish that similarly situated persons who were male or were not of African American descent were treated more favorably than plaintiff was (see Askin v. Department of Educ. of City of N.Y., 110 A.D.3d 621, 973 N.Y.S.2d 629 [1st Dept. 2013]). Instead, the complaint merely asserts the legal conclusion that defendants' adverse employment actions and plaintiff's termination were due to race and gender (see Askin, 110 A.D.3d at 622, 973 N.Y.S.2d 629). The hostile work environment cause of action fails for the additional reason that the handful of potentially insensitive comments made by her superior over the course of a few years do not rise to a level that is actionable under either the State or the City HRL (see Forrest, 3 N.Y.3d at 311, 786 N.Y.S.2d 382, 819 N.E.2d 998; Williams v. New York City Hous. Auth., 61 A.D.3d 62, 79–80, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009]).

We have considered plaintiff's remaining arguments and find them unavailing.