Plaintiff loses federal discrimination claim but might win city law claim

If you handle discrimination cases in New York City, you know there is a big difference between the federal and city laws addressing these claims. Federal law applies certain legal principles that make it harder to win. The city law was enacted in response to federal law, as the City Council doesn't like the numerous hurdles in place for discrimination plaintiffs. In some cases, the plaintiff might win under the city law but lose under federal law. This has potential to be one of those cases.

The case is Harge v. City of New York, a summary order issued on December 7. Plaintiff was a New York City police officer who says the white officers conspired to end his employment because of his race by tarnishing his reputation and undermining his professional successes. As a result, plaintiff says, he was denied a promotion, received command disciplines (CD's) and was removed from the DWI conditions post. 

Plaintiff loses the federal claim because he acknowledges that some of the allegations in the CD's were true, i.e., he was unprepared for traffic court on one occasion, and did not sign out of court on another occasion). There was also evidence that plaintiff was off-post on a regular basis. The Court of Appeals (Calabresi, Lynch and Livinston) finds plaintiff cannot show these justifications for the discipline and adverse actions were a pretext for discrimination. Nor can plaintiff sue for a hostile work environment, as the Court says the bad treatment in the form of undesirable work assignments, poor evaluation scores and certain disciplinary action, was not motivated by racial animus. While there were some racial comments, they were too isolated to support such a claim. We see that kind of analysis under federal law all the time.

Here is where things get interesting. The district court did not separately analyze plaintiff's discrimination claims under the New York City Human Rights Law, which as noted carries a better evidentiary framework for plaintiffs. Instead, the trial court lumped all claims together. That is improper. The city law claims get a separate analysis. The Court of Appeals does not resolve those claims but remands the case to state court to decide them, as there is no longer any federal jurisdiction now that the federal claims are gone. The city law claims will be dismissed without prejudice for plaintiff to litigate them in State Supreme Court. 

A funny thing happened during oral argument in this appeal. One of the appellate judges asked plaintiff's counsel why lawyers continue to bring discrimination claims in federal court even though federal judges often dismiss these claims and the city law is more plaintiff-friendly. The truth is that many plaintiffs' lawyers are simply more comfortable in federal court, and the cases move faster in federal court than state court. Plaintiff's counsel acknowledged those reasons, but he added that, as one of his law professors told him years ago, "federal court has cleaner bathrooms." The judges on the Court of Appeals laughed at this rare moment of levity in that courtroom.