COULDN’T THEY RISE TO THE CHALLENGEAfter C. Kirby sued Carlo’s Bakery 42nd & 8th LLC alleging, among other things, “employment discrimination” under New York State and New York City Human Rights Laws, a New York County Supreme Court Justice granted Carlo’s request to dismiss four of Kirby's claims. But, on appeal, the Appellate Division, First Department, unanimously reversed and reinstated them.
While her first cause of action was labelled a “hostile workplace” claim, the AD1 thought it “sufficiently stated a cause of action for employment discrimination.” Kirby, a Black woman, claimed she upset her supervisor when she called Human Resources for some advice, and that he purportedly said to her the night before her termination, "Why did you call HR? Blacks ... I should have never hired her."
Kirby was also found to have asserted a claim for unpaid overtime; alleging that she worked over 40 hours a week and was never compensated for any overage.
Her claim that she should have been paid weekly was also found to be viable as her duties comprised those of a "manual worker,” as delineated by New York Labor Law § 191. [In particular, Kirby noted, among other things, that “she was responsible for opening and closing the store, sorting and moving inventory, cleaning the store, and waiting on customers — and stating that she spent more than 25% of her working time performing physical labor.”]
Clearly, the AD1 thought Kirby’s assertions were far from half-baked.
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