Opinion
8262 Index 156566/13
01-31-2019
Sidney SIMS, Plaintiff–Appellant, v. TRUSTEES OF COLUMBIA UNIVERSITY in the City of New York, Defendant–Respondent.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant. Putney, Twombly, Hall & Hirson LLP, New York (Mary Ellen Donnelly of counsel), for respondent.
Stewart Lee Karlin Law Group, P.C., New York (Stewart Lee Karlin of counsel), for appellant.
Putney, Twombly, Hall & Hirson LLP, New York (Mary Ellen Donnelly of counsel), for respondent.
Richter, J.P., Manzanet–Daniels, Tom, Kahn, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered November 2, 2017, which granted defendant's motion for summary judgment dismissing the complaint alleging claims under the New York State Human Rights Law (State HRL) ( Executive Law § 296 ) and the New York City Human Rights Law (City HRL) (Administrative Code of City of N.Y. § 8–107) for discrimination, retaliation, and hostile work environment, unanimously modified, on the law, to deny the motion to dismiss the hostile work environment claims, and otherwise affirmed, without costs.
Plaintiff's claims of retaliation were properly dismissed. Plaintiff never complained to defendant that he was discriminated against because of his race, age, or disability (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312–313, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; Singh v. State of N.Y. Off. of Real Prop. Servs., 40 A.D.3d 1354, 1357, 837 N.Y.S.2d 378 [3d Dept. 2007] ). Even if his letters to Human Resources were considered complaints they only showed that he experienced a "continuation of a course of conduct that had begun before [he] complained" ( Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 129, 946 N.Y.S.2d 27 [1st Dept. 2012] ).
Plaintiff's claims of discrimination were also properly dismissed. He contends that he was micromanaged, assigned excessive work, written up for insubordination, threatened with discipline should he fail to meet expectations, and denied the use of a second locker to which the evidence demonstrates he was not entitled, none of which constitute an "adverse employment action" under the State HRL (see Forrest, 3 N.Y.3d at 306, 786 N.Y.S.2d 382, 819 N.E.2d 998 ), or "disadvantaged" him under the City HRL ( Chin v. New York City Hous. Auth., 106 A.D.3d 443, 444, 965 N.Y.S.2d 42 [1st Dept. 2013], lv denied 22 N.Y.3d 861, 2014 WL 591245 [2014] ). However, the court should not have dismissed plaintiff's hostile work environment claims. Plaintiff submitted evidence that his supervisors repeatedly made racially derogatory comments, including calling him "Bubbles," which he testified was a reference to Michael Jackson's pet chimpanzee, and referring to him as "boy" using a Southern accent. Plaintiff also asserts that he was told that he was "too old for the job," that he worked like he "just came back from surgery," and that he had "too many worker's comp cases and ... should resign." According to plaintiff, the supervisors' comments were continuous in nature and occurred on a regular basis. This evidence, viewed in the light most favorable to plaintiff, raises issues of fact as to whether plaintiff was subjected to a hostile work environment based on race, age and disability under both the State and City HRLs (see Gordon v. Bayrock Sapir Org. LLC, 161 A.D.3d 480, 481, 76 N.Y.S.3d 157 [1st Dept. 2018] ).