NEW YORK (LN) — The Appellate Division, First Department, on May 19 reversed the dismissal of a racial discrimination lawsuit and denied a supervisor's motion for summary judgment, holding that the sergeant's comments about the detective's size and race were not merely "petty slights" but actionable conduct that must be decided by a jury.
The court held that Sergeant Martin Toczek's statements, made between 2016 and 2019, included a remark that was "facially discriminatory" and a comparison of the plaintiff's physique to that of a white detective that a jury could interpret as invoking racist tropes.
"Viewing the record in the light most favorable to plaintiff, it cannot be said as a matter of law 'that the conduct complained of was truly insubstantial' or amounted to 'a petty slight or trivial inconvenience,'" the court wrote, citing Golston-Green v City of New York.
The dispute centers on comments Toczek made in the Auto Crimes Unit and in text messages with subordinates, including plaintiff Otis Taylor. The court noted that Toczek frequently criticized racial justice protests by Colin Kaepernick and other NFL players.
When Taylor, who is Black, told Toczek that the players had a constitutional right to protest, the court said Toczek replied, "yeah, . . .but it's my right . . . if I want to like [B]lack people."
Toczek also shared articles about Black NFL players committing crimes and described them as "perps," the court said.
The appellate panel ruled that Toczek's remark about having a "right [whether] to like [B]lack people" was "facially discriminatory" and alone sufficient to defeat summary judgment.
The court further held that it is a jury issue whether Toczek's other comments about the NFL reflected racial animus. "A reasonable juror could conclude that, once Toczek signaled that his objection to the protests was at least in part about race, every other reference to the protests and the NFL became infused with racial animus," the opinion stated.
The court also addressed an incident on January 30, 2019, when Toczek directed Taylor to accompany two white detectives in apprehending an arrestee with a history of assaulting police officers who tried to arrest him.
Taylor was on restricted duty due to a shoulder injury and could not carry a gun or shield. The court said Toczek told Taylor not to worry because the arrestee "had a history of assaulting police officers who tried to arrest him" but would not fight Taylor.
"Toczek told plaintiff not to worry because, '[w]hen he sees you, he's not going to fight, look how big you are,' and further suggested that the arrestee would not assault plaintiff 'because, look at [Fox], look at him and look at you,'" the court wrote, referencing white detective Dan Fox.
Taylor is 6'7" and weighs about 260 pounds. He suffered a serious injury during the arrest and retired with accidental disability benefits.
The court said a reasonable juror could interpret Toczek's statements contrasting Taylor's appearance with Fox's as referring at least in part to race.
"Furthermore, a reasonable juror could interpret Toczek's assertion that plaintiff's appearance, including his size, would deter violence from the arrestee, as an attempt to invoke the 'classic and common racist trope that Black men are inherently threatening or dangerous,'" the court wrote, citing Matter of Putorti [New York State Commn. on Jud. Conduct].
The court declined to decide as a matter of law whether Toczek's comments were merely permissible references to Taylor's size, ruling instead that disentangling whether the statements were permissible references exclusively to size or were invoking race-based stereotypes is a question for the jury.
The court also ruled that Taylor's hostile work environment claim was timely, as the complaint was filed on December 13, 2021, within the statute of limitations, and earlier comments were part of a continuing pattern extending into the limitations period.
The court noted that while Taylor's claim regarding his restricted duty status was foreclosed by failure to comply with General Municipal Law § 205-e, he could still claim under the City HRL that the arrest assignment amounted to unequal treatment based on race.