Wednesday, November 16, 2016

A motion to dismiss a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law.

Practice point:  The Appellate Division modified the order granting the City's motion to dismiss pursuant to CPLR 3211(a)(7), reinstating plaintiff's claims relating to facially timely allegations, as well as his claim relating to the alleged ongoing policy of preventing him from searching inmates.

The Appellate Division found that plaintiff, a correction officer and captain during the relevant time periods, has adequately alleged a claim for sexual orientation-based discrimination in violation of the New York City Human Rights Law. Plaintiff's allegations that he is an openly gay man and was qualified for the positions of correction officer and captain meet the first two elements of his discrimination claim. Plaintiff's allegations that he was written up, twice suspended, and ultimately demoted meet the third element of disadvantageous treatment. Defendant's argument that plaintiff has not alleged that he was treated worse than similarly situated captains - as opposed to correction officers - is unavailing. Suspension and demotion are, prima facie, adverse employment actions. Defendant's argument is, effectively, that those actions were warranted by plaintiff's conduct while a captain, but this argument goes more properly to the second leg of the McDonnell Douglas burden-shifting framework, namely, rebuttal of a prima facie claim of employment discrimination by showing a legitimate, nondiscriminatory reason for the adverse action. It is misplaced at this early procedural stage.

Case:  James v. City of New York, NY Slip Op 07400 (1st Dep't November 10, 2016)

Here is the decision.

Tomorrow's issue: Resolving contractual ambiguity.