Justice Lawrence Knipel
Decided: Nov. 6, 2009

Defendants move pursuant to CPLR 3211 to dismiss the first, second, third and fourth causes of action in the complaint for failure to state a cause of action.

In his complaint, plaintiff alleges that he was employed by defendant law firm since May 2000 as a network manager of the computer system, responsible for making sure the operations were working properly. Plaintiff, an orthodox Jew, told the law firm that he had to leave early on Fridays and could not work on the Sabbath or Jewish holidays. Plaintiff came early and stayed late as needed to complete his work. In August 2006, it is alleged, defendant Shari Jackowitz was hired as plaintiff’s supervisor and she took an immediate dislike to plaintiff, moving his office to a small cubicle while an employee who worked under plaintiff was placed in plaintiff’s office. Plaintiff’s title was changed from network manager to systems manager; the new supervisor complained when he took his lunch break; and in December 2006 plaintiff was told to look for a new job. In January 2007 plaintiff, who had never before received a negative evaluation, received a below-average grade. On March 22, 2007, plaintiff’s employment was terminated.

The first cause of action alleged that defendants were harassing plaintiff due to his religious beliefs. They put him in a cubicle, took away his privileges, monitored his phone conversations, and encouraged him not to continue observing his religious tenets. The second cause of action alleged that in violation of State and City Human Rights Laws, defendant Jackowitz tried to make plaintiff leave his job by telling him his performance was below average and telling him maybe religious observance is not for him. The third cause of action alleged that defendant Shechtman, with design to inflict emotional anxiety, invoked a derogatory and demeaning slur, namely “Jewboy,” thereby causing emotional pain and mental anguish. The fourth cause of action alleges that defendant Locker, with design to inflict emotional anxiety, said to plaintiff in a demeaning manner on early Fridays “You’re leaving so early?” The fifth cause of action alleges that as a result of this harassment due to plaintiff’s religion, he suffered emotional distress, anguish and humility and suffered from depression and anxiety, losing interest in working in the field of computers.

In this motion, defendants argue that the first through fourth causes of action should be dismissed because these claims fail to state a cause of action against defendants for a hostile work environment under State and City Human Rights Laws. According to defendants, a claim for hostile work environment is only actionable if plaintiff can demonstrate that the work the work environment was permeated with discriminatory intimidation, ridicule and insult, which was so severe or pervasive, that it altered the conditions of employment. Defendants argue that “The legal standard applied to a hostile environment claim under the New York State Human Rights Law and the New York City Human Rights Law is the same as that applied under Title VII.” Statements which are merely offensive, it is contended, fall “far below” the necessary threshold to be deemed severe for purposes of a hostile work environment claim.

In opposition, plaintiff argues that defendants are applying the wrong standard, since, pursuant to a 2009 case issued by the Appellate Division, First Department (Williams v. NYCHA, 61 AD3d 62), the New York City Human Rights Law, as amended in the 2005 Restoration Act, was intended to be applied broadly and went “beyond either the state or federal civil rights laws.” Moreover, it is argued, the facts as presented in the complaint meet the threshold of the severe and pervasive test.

In reply, defendants argue that the Appellate Division, Second Department, has not yet interpreted the Restoration Act. Moreover, it is contended, Williams itself involved sexual harassment, and applying it to other forms of discrimination “would open the floodgates to unlimited litigation.”

The core of the Restoration Act was the revision of Administrative Code §8-130, the construction provision of the New York City Human Rights Law, which states “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether the federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.” (Williams v. NYCHA. supra, 61 AD3d at 66). “As a result of this revision, the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights law have comparable language” which analysis must be targeted to understanding and fulfilling its uniquely broad, remedial purposes (Williams, id). The Restoration Act stated that the provisions of the City HRL were construed too narrowly to ensure protection of the civil rights of all persons covered by the law, and mandated that the interpretations of the state or federal provisions may be viewed as a floor below which the City law cannot fall rather than a ceiling above which the local law cannot rise. The act provided that the discrimination complained of need not result in an ultimate action with respect to employment, provided that the discriminatory act or acts complained of must be reasonable likely to deter a person from engaging in protected activity. Noting that there is a wide spectrum falling between “severe or pervasive” on one hand and “merely offensive” on the other, and interpreting the City HRL in its broader and more remedial sense, the court, in considering a purported act of sexual harassment, held that questions of severity and pervasiveness were applicable to damages, but not to the question of liability (id at 76). However, the court recognized that employers could avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (id at 79-80).

Regarding the law to be applied by a trial-level court where the Appellate Division in another judicial department has ruled, the “general principle of appellate procedure * * * necessary to maintain uniformity and consistency” is that trial courts are required to follow precedents set by the Appellate Division of another department until the Court of Appeals or the Appellate Division in the trial court’s department pronounces a contrary rule (see Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [The Appellate Division is a single statewide court divided into departments for administrative convenience]; accord, People v. Turner, 5 NY3d 476 [a 1914 Third Department case, York City, supra, and in furtherance of the broad and remedial purpose of the City’s human rights law, plaintiff does not have to satisfy that test. Rather, the complaint must be sustained as stating a cause of action unless the conduct complained of consisted of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.

Plaintiff here alleges that due to his religion, defendants, inter alia, put him in a cubicle, put another employee of lower rank in his office, took away his privileges, monitored his phone conversations, and encouraged him not to continue observing his religious tenets. Affording plaintiff the benefit of all favorable inferences, it cannot be said that the allegations of the complaint constitute petty slights or trivial inconveniences, and, thus, the complaint should not be dismissed for failure to state a cause of action.

The distinction which defendant implicitly seeks to draw between sexual harassment and religious persecution is without merit. To limit Williams to its facts, namely sexual harassment, is without support in law or logic. Although a First Department case, Williams is nevertheless binding on this court, at least until the Second Department issues a contrary ruling (see Mountain View Coach Lines v. Storms, 102 AD2d 663, 664). The Second Department cases cited by defendants, Barnum v. New York City Transit Auth. (62 AD3d 736) and Beharry v. Guzman (33 AD3d 742), are unavailing, since they were decided under the New York State Executive Law, not the City’s human rights law.

Accordingly, the motion to dismiss is denied.

The foregoing constitutes the decision and order of this court.

Decision of the Day

Employment

Lampner v. Pryor Cashman

10894/07

Supreme Court, Kings County

Justice Lawrence Knipel

Decided: Nov. 6, 2009