Hu v. City of New York — 927 F.3d 81 (2019) · United States Court of Appeals for the Second Circuit · 2019

basis: pleaded; party: Hu, 888 Consulting, and NY Drilling against DOB defendants; theory: Race-based selective code enforcement; subject: party=Hu, 888 Consulting, and NY Drilling against DOB defendants; theory=Race-based selective code enforcement

This action centers primarily on Burkart's "personal vendetta" against Asians in general and Hu in particular. Burkart's racial animus stems from his belief that Asians were responsible for the downfall of a construction company that he owned prior to his employment at DOB. In particular, Burkart blames Asians for undercutting his rates to the point where he could no longer compete.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The first proffered comparator concerns work conducted at the 34th Avenue Jobsite. Specifically, the plaintiffs allege that Burkart issued them a violation "for having a pool of water" on the 34th Avenue Jobsite. Hu Appx. at A37 ¶ 190. Later, Burkart returned to the location when white workers were performing work on the jobsite. Even though these white workers were also working next to a pool of water, Burkart did not issue them a notice of violation or otherwise interrupt their work. Instead, Burkart reserved "such negative treatment for Asian workers." Id. at A39 ¶ 202.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

According to the plaintiffs' review of building code violations, Burkart issues 63 percent of his violations to Asian-run construction companies, workers, or sites, as compared to between 8 and 28 percent for other DOB inspectors.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

For the same reasons that we vacate the District Court's dismissal of the plaintiffs' LeClair claims, we vacate its dismissal of the plaintiffs' section 1981 claim for race-based interference with the plaintiffs' rights to make and enforce contracts. As the District Court correctly noted, "plaintiffs must meet the same pleading standard for their § 1981 claims as for their § 1983 claims under the Equal Protection Clause." Brown v. City of Oneonta, New York , 221 F.3d 329, 339 (2d Cir. 2000). Thus, to prevail on a section 1981 claim, a plaintiff must allege at least one instance in which he was treated differently from a similarly situated non-minority. Id. (citing Albert , 851 F.2d at 573 ). The section 1981 standard for determining whether a plaintiff and a comparator are similarly situated is identical to the similarity standard for a LeClair Equal Protection claim. Compare supra at 95-96, with Lizardo , 270 F.3d at 101 ( section 1981 race discrimination claim).

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Recognizing these parallels, the District Court dismissed the plaintiffs' section 1981 claim for the same reason that it dismissed their Equal Protection claims, namely, failure to plausibly allege differential treatment of a similarly situated comparator. We now vacate, on that issue, having concluded that the Amended Complaint does, in fact, state an Equal Protection claim under LeClair .

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)