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In this case, the plaintiff worked for a bakery. She went over her supervisor's head and spoke to Human Resources about a work-related issue. Her supervisor was offended at this gesture and made a racial comment. Plaintiff is Black. She was fired shortly thereafter. The trial court dismissed the case under CPLR 3211, but the Court of Appeals has reinstated the case.
The case is Kirby v. Carlo's Bakery, issued on January 10. I argued the appeal. Under the CPLR (and federal practice), defendants often try to have the case dismissed before the parties litigate the facts in discovery. They can do this if the complaint, on its face, does not assert a claim. That's what happened here, and Supreme Court dismissed the case without any legal analysis, simply stating that it was granting the motion to dismiss for the reasons set forth in the defendant's brief.
The First Department summarizes the case this way: "when plaintiff's supervisor, Pernini, found out she went to HR, he said this to plaintiff: plaintiff, a Black woman, alleges that her supervisor, defendant John
Pernini, irritated that she had telephoned Human Resources for advice, allegedly stated to her the night before her termination, 'Why did you call HR? Blacks . . . I should have never hired her.'” Plaintiff was fired a few days later. Defendants claimed she was fired for calling in sick, but the complaint does not concede that was the real reason.
The case is reinstated and will proceed to discovery because plaintiff sufficiently pleads that she was fired because of her race, as Pernini's comment permits the inference that she was fired because of her race.
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