New York Law Journal
By Jason Grant
January 26, 2021
In a reversal of the lower court, a state appeals court has reinstated a claim for racial employment discrimination leveled by a Black former assistant manager against the hugely popular Carlo’s Bakery location near Times Square and that store’s senior general manager.
The reinstatement of the state law and city law-based claim comes despite the plaintiff apparently mislabeling her lawsuit’s discrimination cause of action as one rooted in a “hostile workplace,” when her complaint describes a single incident and a next-day firing.
Wrote a unanimous panel of the Appellate Division, First Department court in reinstating Chontay Kirby’s first and only cause of action for discrimination in her 11-page complaint, “Although plaintiff’s first cause of action is labeled as one for ‘hostile workplace,’” the lower court “was not bound by that designation and plaintiff has sufficiently stated a cause of action for employment discrimination under both the New York State and New York City Human Rights Laws,” citing Matter of Local 621 v New York City Dept. of Transp., 178 AD3d 78 and Vig v New York Hairspray Co., L.P., 67 AD3d 140.
According to Kirby’s lawsuit complaint, which shows it was filed on her behalf by the Law Offices of James F. Sullivan in Manhattan, she made a call on Nov. 4, 2020, to human resources for the Carlo’s Bakery Times Square store at 42nd Street and Eighth Avenue in Manhattan. (The larger Carlo’s Bakery organization is today a successful national chain of dessert shops associated with food television’s “Cake Boss,” Bartolo ”Buddy” Valastro Jr. It appears Kirby’s lawsuit is brought only against the chain’s Times Square location, named as defendant Carlo’s Bakery 42nd & 8th LLC.)
At the time, Kirby had been working as a manager at the Times Square store for about a year, says the complaint, and she decided to phone H.R. to ask for clarification about “what to do,” after her direct supervisor gave very little information when she’d asked him for instructions about how to handle pick-up orders that remained in store at closing time.
That same day, Kirby allegedly got a call from her supervisor, the lawsuit’s named individual defendant, John Pernini, and he allegedly said to her over the phone, in part, ”Why did you call HR? Blacks…I should have never hired her,” according to Kirby’s 2021-filed complaint.
The next day, on Nov. 5, 2020, Kirby was “feeling uneasy regarding her conversation” with senior general manager Pernini, and she called out sick. Pernini then allegedly sent a text to Kirby that day “informing her that she needed to call Human Resources,” and “upon calling Human Resources, [she] was informed that she was being terminated allegedly due to her calling in sick,” the complaint said.
In reversing Manhattan Supreme Court Justice Nancy Bannon’s 2022 decision that had dismissed Kirby’s employment-discrimination cause of action, the five-justice First Department appellate panel detailed why Kirby had “sufficiently stated a cause of action for employment discrimination” under state and New York City law such that the claim shouldn’t have been tossed out at the motion-to-dismiss stage.
“Plaintiff [Kirby] alleges that she is a member of a protected class; that she was qualified for the position by, among other things, having a decade of experience in leadership roles; and that she was subject to an adverse employment action under circumstances giving rise to an inference of discrimination,” the panel wrote, citing Moore v Bronx-Lebanon Hosp., 50 AD3d 286.
“Specifically, 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.’” the panel said.
The panel, comprised of Justices Rolando Acosta, Troy K. Webber, Peter Moulton, Martin Shulman and John Higgitt, also reversed Bannon’s ruling to the extent it had dismissed three other claims in Kirby’s lawsuit, all for various alleged Carlo’s Bakery and Pernini violations of state Labor Law.
“Affording plaintiff [Kirby] the benefit of every possible favorable inference, we find that she has sufficiently stated a claim for unpaid overtime under the Labor Law by alleging that she worked more than 40 hours per week and that defendants never paid her for the overtime,” wrote the justices.
They also said, “Plaintiff’s claim based on defendants’ failure to pay her weekly also is sufficiently pleaded, as she alleges that she was a nonexempt employee under Labor Law § 190, and that defendants were required to pay her each week as a manual worker under New York Labor Law § 191.”
The panel further wrote that Kirby “states a claim based on defendants’ failure to give her a wage notice in accordance with Labor Law § 195(1)(a) by alleging that defendants failed to give her a notice apprising her of her regular pay day.”
Bannon, in her March 2022 decision dismissing four of the Kirby lawsuit claims, issued a terse opinion that “granted” dismissal of the claims “for the reasons stated in the defendants’ motion papers.”
In a memorandum in support of dismissal filed by the defendants, they’d argued, in part, “In conjuring breaches and slights against her, Kirby asserts, further, a cause of action for a hostile work environment … Such a cause of action is premised upon an allegation that she was subjected to a single comment made by her immediate superior … and thereafter chose not to return to work.
“In concocting this narrative,” continued the memorandum, “Kirby has demonstrably failed to plead any pervasive or systematic behavior or comments by her employers to give rise to any inference of a hostile work environment,” adding that “the one incident alleged with any degree of specificity, a supposed one-time lone ‘racial’ comment made to Plaintiff by her immediate superior, is nothing more than conclusory and is insufficient to support a claim of a hostile work environment or any other kind of race discrimination.”
Bannon denied a fifth and final lawsuit claim from Kirby that alleged a failure to provide her with accurate wage statements under the Labor Law.
Stephen Bergstein of Bergstein and Ullrich in New Paltz represented Kirby in the appeal, according to the First Department opinion. He couldn’t be reached for comment.
Joseph Dimitrov, an attorney at Litchfield Cavo, was counsel to Carlo’s Bakery 42nd & 8th LLC and Pernini in the appeal. He also couldn’t be reached.
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