Summary Judgment for Kingsbrook Jewish Medical Center in Pregnancy Discrimination Case

In Lefort v. Kingsbrook Jewish Med. Ctr., the Supreme Court, New York County dismissed Lefort’s discrimination claims under the New York City Human Rights Law on summary judgment.

Some highlights from the opinion include a nice summary of the standards for summary judgement of a discrimination claim:

Turning next to the merits of the case, in considering the underlying motion, it is well established that summary judgment is a drastic remedy and is particularly disfavored in discrimination cases since “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means.” Ferrante v. American Lung Ass’n, 90 NY2d 623, 631 (1997). The non-moving party’s version of facts must be assumed for purposes of the motion, and such facts “must be viewed in the light most favorable to the non-moving party. Chiara v. Town of New Castle, 2 N.Y.S.3d 132, 139 (2d Dep’t 2015). Also, the rules of evidence should be cautiously applied on summary judgment motions, in view of the existence of many exceptions to general rules, which are generally best determined upon evidence offered at a trial. See State of New York v. Metz, 241 AD2d 192,201 (1st Dep’t 1998). Evidence, otherwise excludable at trial, may be considered to deny a summary judgment motion provided it is not the sole basis for the court’s determination. Wertheimer v. New York Property Insurance Underwriting Association, 85 AD2d 540,541 (1st Dep’t 1981). Plaintiff’s burden to initially establish a prima facie discrimination case “is not onerous,” Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981), and direct evidence is not necessary. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.), cert. denied, 506 U.S. 826, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Accordingly, the below facts are based upon Plaintiff rather than Kingbrook’s pleadings, all of which are accepted as true for purposes of Kingsbrook’s motion.

Next, the court discusses the employment history and relevant facts the case. According to the plainiff’s version of events, Lefort was an executive level employee from 2006 to 2013 with consistently good performance. She also did part time work for Kingsbrook as a social worker. When she became visibly pregnant, her boss, Segree, frequently made discriminatory comments related to her pregnancy and medical leave.

According to plaintiff’s version, while on leave related to her pregnancy, her employer, Kingsbrook hired a new employee to handle her job duties. When she returned from leave, she was sent to human resources, where Segree and a human resources employee fired her abruptly, later informing plaintiff her position had been eliminated but offered her full-time work as a social worker, which plaintiff declined, and Kingsbrook offered her the same position twice more.

After filing her action in court for discrimination, plaintiff continued to work part time as a social worker for Kingsbrook where she was required to submit timesheets. About a year later, she was fired from this position after incident involving a medical emergency with her infant son. On that day, plaintiff reportedly induced another co-worker to sign her name on an undisputedly accurate timesheet. Thereafter, she was accused of fraudulent behavior and fired.

Plaintiff discovered that her old position had been renamed and was being advertised, and plaintiff conceded that qualifications for the position were modified, even though the responsibilities of the position remained ostensibly the same. Plaintiff was told she no longer qualified for the position. Later, Kingsbrook offered her the job, despite having previously told her she was not qualified for it, and despite accusing her of fraud during her last termination. Plaintiff rejected the offer, claiming that she already accepted a position from a new employer that “does not discriminate against pregnant women”.

the court describes the pleading standard for a discrimination case is as follows:

 employment discrimination cases are generally reviewed under a “notice pleading standard,” Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 885 N.Y.S.2d 74 (2009) meaning that the plaintiff need not plead specific facts, but only need give defendant “fair notice” of the nature and grounds of her claims. Id.

Then it goes on to describe a prima facie case of discrimination under state and federal law, and the burden shifting approach used in such cases.

To establish a prima facie case under the NYSHRL, the plaintiff must show (1) that she belongs to a protected class; (2) that her employer took an adverse employment action against her; (3) that she was qualified for her position; and (4) that the adverse action took place under circumstances giving rise to an inference of discrimination. Stephenson v. Hotel Emp.’s & Rest. Emp.’s Union Local 100 of the AFL-CIO, 6 NY3d 265 270 (2006). If the employee establishes the foregoing prima facie case, then the burden shifts to the employer to rebut her case by showing it had a “legitimate, non-discriminatory reason” for the adverse employment action. Id., at 271. If the employer proves that it had such a legitimate, non-discriminatory [*4]reason for its adverse employment action, then the burden of proof shifts back to the employee to come forward with evidence that the employer’s stated reasons were actually pretexts to cover up discriminatory motives. Id.

As for an adverse action, the court found that

examples of such a materially adverse employment actions under the federal Americans with Disabilities Act have included, aside from termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities. Applying the foregoing precedents, this Court deems Kingsbrook’s termination of Plaintiff’s CAC position, followed by an offer of full-time employment as a non-executive, but still professionally licensed social worker to be an adverse employment decision, despite the fact that the salary remained the same in the social worker profession, which itself requires a graduate degree, is arguably no less prestigious.

As for an inference of discrimination, the court found:

As far as the fourth element of a NYSHRL claim, namely, whether the circumstances gave rise to an inference of discrimination, Segree’s particular words, which Plaintiff characterizes as “frequent discriminatory comments,” are facts the import of which could lead to several different conclusions. When so confronted with facts from which several different conclusions may be drawn, the inferences must be viewed in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513—14, 91 L.Ed.2d 202 (1986). Thus, this Court must liberally construe the facts, and draw all reasonable inferences in plaintiff’s favor. Nonnon v. City of New York, 9 NY3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007).

As a result, the court determined plaintiff had made out a prima facie case of pregnancy discrimination under state and federal law.

The court then turned to the NYCHRL claims. It laid out a nice formulation of the law:

With respect to Plaintiff’s NYCHRL claims, the City’s law is generally deemed more liberal than its federal or State counterparts, and proscribes, among other things, any “discriminat[ion] against [a] person in compensation or in terms, conditions or privileges of employment,” because of that person’s disability. N.Y.C. Admin. Code § 8-107(1)(a). Unlike Title VII or the NYSHRL, the NYCHRL expressly creates direct liability for employment discrimination by the employer’s employees and agents. N.Y.C. Admin. Code § 8-107(1)(a). The NYCHRL also provides a broader standard for the imputation of employee conduct to an employer. Specifically, employer liability under the NYCHRL can arise in three circumstances: (i) where the offending employee “exercised managerial or supervisory responsibility” … (ii) where the employer knew of the offending employee’s unlawful discriminatory conduct and acquiesced in it or failed to take “immediate and appropriate corrective action”; and (iii) where the employer “should have known” of the offending employee’s unlawful discriminatory conduct yet “failed to exercise reasonable diligence to prevent it.”N.Y.C. Admin. Code § 8-107(13). See, also Zakrzewska v. New School, 14 NY3d 469, 479, 902 N.Y.S.2d 838, 928 N.E.2d 1035 (2010). The New York State Court of Appeals has further clarified with respect to NYCHRL claims, that an employer may not invoke the “Faragher/Ellerth” defense, namely, that the employer had reasonable anti-harassment policies in place, but the plaintiff failed to take advantage of available procedures or otherwise avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Zakrzewska v. New School, 14 NY3d 469, 479, 902 N.Y.S.2d 838, 928 N.E.2d 1035 (2010). Noting that the plain language of the NYCHRL precludes the Faragher-Ellerth defense, the NYCHRL imposes strict liability on employers for the discriminatory acts of managerial employees. Zakrzewska, supra.

Thus, while in many ways, the NYCHRL parallels State law prohibiting discrimination by employers, subdivision (13) of section 8-107 of the NYCHRL, unlike the State law, creates an interrelated set of provisions to govern an employer’s liability for an employee’s unlawful discriminatory conduct in the workplace.

Accordingly, the merits of NYCHRL claims must be analyzed separately and independently from any federal and state law claims and NYCHRL’s provisions even more broadly construed in favor of plaintiffs, to the extent that such a construction is reasonably possible. See, e.g., Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir.2013).

What remains clear, however, is that while the NYCHRL has made it easier to establish a prima facie discrimination inquiry, the Second Department has ruled that NYCHRL claims are still subject to the same burden-shifting requirements as a State Law claim, Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 740 (2d Dep’t 2013), and the employer may still present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination. See Melman v. Montefiore Med. Ctr., 98 AD3d 107, 128 (1st Dep’t 2012). Thus, simply “meeting the minimal requirements of a prima facie case . . . does not equate to creating a triable issue of fact in the face of admissible evidence that the employer had legitimate, non-discriminatory reasons for the challenged decisions.” Id.

The court then analyzed Kingsbrook’s proffer of a reason for its actions, which in essence boiled down to the fact that another executive, McDonald, had made the decision to restructure the department and Mcdonald had no knowledge of plaintiff, her pregnancy or her leave. The court cited:

In Hitter v. Paris Int’l Corp., 267 AD2d 223, 699 N.Y.S.2d 490 (2d Dept. 1999), the Second Department ruled that the Supreme Court erred in denying that the defendant established its prima facie entitlement to dismissal of the action where, as here, the plaintiff failed to present evidence that defendant’s president knew of her pregnancy before he terminated her employment. See, also, e.g., Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 498 N.Y.S.2d 776 (1985).

As to plaintiff’s termination from her social worker job, the court said:

With respect to Plaintiff’s termination from her per diem social work, Kingsbrook established, and Plaintiff has not refuted, that such termination was in response to her own admitted misconduct. Kingsbrook’s post-termination re-employment offers arguably belie Plaintiff’s supervisor’s opinion that her conduct was “fraudulent,” however, whether or not such conduct was “fraudulent,” it violated Kingsbrook’s bookkeeping and wage calculations from which Kingsbrook sought government and insurance reimbursements, and arguably could have exposed Kingsbrook to liability for not taking punitive action.

Thus, Kingsbrook’s explanations and evidence that discrimination played no part it its adverse employment actions against Plaintiff rebut her prima facie case, and constitute prima facie bases for entitlement to dismissal of Plaintiff’s NYCHRL and the NYSHRL claims, unless Plaintiff rather than Kingsbrook meets her now heightened burden of showing some evidence that they were actually pretexts rather than the purported nondiscriminatory business decision, designed to cover up least partial actual discriminatory motives.

The court then turns to plaintiff to present evidence that Kingsbrook’s proffered reasons for its acts were pretext, none of which it finds compelling:

In arguing that Kingsbrook’s forgoing explanations and evidence were pretexual, Plaintiff offers a series of arguments and theories. Thus, for example, Plaintiff argues that Kingsbrook’s claim that her CAC position was eliminated, and the qualifications thereof changed as a “business decision” is belied by the fact that Farrow and her fellow CAC and her informant, Carlatta Roache Harris (“Harris”) continued working for some time in that same capacity.

Plaintiff concedes that Harris was herself pregnant at the time that Harris replaced her, but argues that Harris resigned because she feared that she too would be treated adversely. [*7]Plaintiff makes the foregoing argument, however, without any corroborating affidavit from Harris to that effect, or any other actual evidence, however flimsy. Thus, while such hearsay speculations sufficed for purposes of establishing the minimal requirements of setting forth a prima facie case, they do not suffice to rebutt evidence of a non-discriminatory business decision. Had Plaintiff offered such a corroborating affidavit, or other evidence contradicting, for example, McDonald’s attestation that he did not know any of the CAC’s or anything about their backgrounds, it might have weighed against summary judgment.

Next, the court considers plaintiff’s pretext evidence as to her termination from her social worker job:

Plaintiff next argues in support of her claim that she was terminated from her per diem position as a pretext for retaliation for her CAC termination litigation, that her colleague who executed her request that she sign Plaintiff’s timesheets for her “engaged in similar, if not more problematic, conduct by completing [Plaintiff’s] timesheet [but] was only given a one-day suspension.” Thus, Plaintiff argues that the only reason for the discrepancy in the “grossly disproportionality” of their punishments is that “Bell had not threatened legal action against Kingsbrook.”

In the opinion of this Court, however, the conduct proscribed under both this State and City’s anti discrimination laws is disparate treatment in connection with fulfillment of one’s responsibilities, and not for disproportion punishments for irrefutably wrongful conduct. It is not the province of this court to sit as “super personnel” department and second guess the strength of causes for termination, absent some proof of impermissible motive. See, e.g., Melman v. Montefiore Med. Ctr., 98 AD3d 107,120-21 (1st Dep’t 2012); Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 966 (1st Dep’t 2009).

Plaintiff did not dispute the affidavit of the supervisor who terminated her from her part-time social work position that she had no knowledge that Plaintiff had threatened litigation in August of 2013, as for example, through an email or memorandum evidencing communication of the litigation to that department, through which the supervisor’s awareness arguably could be imputed. Had Plaintiff presented evidence contradicting such testimony, however flimsy, it would have weighed against summary judgment and in favor of leaving that determination to a jury. Instead, Plaintiff merely hypothesizes that it “strains credulity” that such supervisor did not know about her litigation, however, “mere conclusions of hope of unsubstantiated allegations or assertions are insufficient” to raise a material question of fact. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Again, the question is not whether Kingsbrook made the best or even a sound business decision. It is whether a reasonable factfinder could conclude that Kingsbrook’s articulated reasons for terminating Plaintiff was a pretext to disguise some other discriminatory motive. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 308 n. 5 (2004). It matters not whether Kingbrook’s reasons for terminating Plaintiff was a good reason, a bad reason, or a petty one. What matters is whether or not it was a discriminatory reason. Id.

Thus, even with respect to the more liberal NYCHRL, meeting the minimal requirements [*8]of a prima facie case does not equate to creating a triable issue of fact in the face of admissible evidence that the employer had legitimate, non-discriminatory reasons for the challenged decisions.” Melman v. Montefieore Med. Ctr., 98 AD3d 107, 128 (1st Dep’t 2012) (“[E]ven after the passage of the [Local Civil Rights Restoration Act of 2005], not every plaintiff asserting a discrimination claim will be entitled to a jury.” Id. Summary judgment is appropriate where, as here, the actual evidence of discriminatory intent in response to proof of legitimate non-discriminatory business decisions, is so slight that no rational jury could find in Plaintiff’s favor.

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