Plaintiffs: don't forget to plead those City law claims.

For years, courts did not accept that Title VII and other federal civil rights statutes had to be interpreted differently from the more expansive New York City Human Rights Law. It got so bad that the City Council in 2005 and again in 2016 had to reaffirm that courts must analyze claims differently under the city law. The courts are getting the hang of it, as shown by this discrimination case that the Second Circuit resolved this week.

The case is Alvarado v. Nordstrom, a summary order decided on March 29. Plaintiff worked as a salesman specializing in high-end fashion. His deteriorating relationship with co-workers led to this lawsuit. He sued management for racial and sexual orientation discrimination, and retaliation. Here is what the Court of Appeals (Katzmann, Pooler and Lynch) did:

1. There is no hostile work environment claim because plaintiff only cites three comments by three co-workers over the course of about one year. In once instance, co-workers Daniel and Dalrymple said Alvarado would cook arroz con polio, a reference to his heritage. Another employee called plaintiff a "little bitch." Dalrymple also told another co-worker that he needed to "choose sides between the real girls and the queens." Other statements in the record show that Daniel called plaintiff a "miserable motherfucker." None of these statements, by themselves, are enough to create a hostile work environment, and in their totality, they are not enough because some of the offenders did not engage in further abusive treatment and, unlike other cases where courts have found a hostile environment, the offensive comments were not made by the same person. The court reaches the same result on the city law harassment claim.

2. Plaintiff also raises retaliation claims under federal and city law. Here is where the analysis diverges. After plaintiff complained about discrimination, he received a written reprimand. Even if the reprimand is an adverse action, it was not a pretext for retaliation under federal and state law, which are interpreted identically. The Second Circuit rejects plaintiff's argument that a comparable co-worker, Daniel, did not receive a reprimand for various acts of workplace misconduct. This is because the co-worker did not engage in comparable bad acts. The Court reasons:

Alvarado points to numerous instances of small acts of insubordination by Daniel, but he does not point to any evidence that would suggest any of these instances involved shouting or aggression towards a manager on the salesfloor comparable to Alvarado’s incident with Gonzales. The most similar instance, which is Daniel’s interaction with Cara Smyth, Jeffrey’s customer service manager, involved Daniel muttering something under her breath about Smyth while on the salesfloor and then denying that she had said anything. While there is little doubt that Daniel engaged in insubordinate conduct numerous times in the past, Gonzales described Alvarado as being “aggressive, assertive, dismissive[,] and insubordinate” towards Gonzales during their altercation on the Jeffrey salesfloor, and alleged that Alvarado put his thumb in Gonzales’s face. We conclude that Alvarado cannot rely on allegations of disparate treatment to support his retaliation claim because he has failed to show that he and Daniel are sufficient comparators when it comes to their actions of insubordination under the causation standard applicable to Section 1981 and NYSHRL claims.

3. The city law retaliation claim is a different story. Here is the standard for city law retaliation claims:

In order to succeed on a NYCHRL retaliation claim, a plaintiff “must show that []he took
an action opposing h[is] employer’s discrimination and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” “[N]o challenged conduct may be deemed nonretaliatory unless a jury could not reasonably conclude from the evidence that such conduct was reasonably likely to deter a person from engaging in protected activity.” “This assessment should be made with a keen sense of workplace realities, of the fact that the chilling effect of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct.” Under this standard, “summary judgment is [only] appropriate if the record establishes as a matter of law that . . . retaliation played no role in the defendant’s actions.”

Under the more lenient city law test that allows retaliation claims to proceed to trial if retaliation plays some role in the adverse action, plaintiff has a claim, and the district court ruling on this issue is reversed. To be clear, there is a retaliation case if retaliation plays "some" role. Under federal law, including Section 1981, you have to prove that retaliation was the "but for" cause of the adverse action, which is why plaintiff's retaliation claims under Section 1981 and state law were dismissed. There's a big difference between "some" motivation and "but for" motivation." The reasoning follows:

we hold that the question of whether Daniel was a sufficiently close comparator to Alvarado such that their disparate treatment would show Alvarado’s 2012 written reprimand was pretextual is more appropriately one for a fact finder. In reviewing the realities of the Jeffrey’s workplace as shown by the evidence presented at summary judgment, written reprimands seem to have been infrequently given even for bad behavior in public. ... Even though written reprimands were rarely given, and Daniel had engaged in numerous instances of minor insubordinations and other combative behavior vis-à-vis her co-workers for which she had received few written reprimands, Alvarado immediately received a written reprimand for his single act of insubordination towards
Gonzales. Viewing the facts pled in the light most favorable to Alvarado and under the
NYCHRL standard that summary judgment is only appropriate when retaliation plays no role in an adverse employment action as a matter of law, we hold that there exists a question of fact for a jury to determine as to whether retaliation played some role in Alvarado’s written reprimand.