Brook v Overseas Media, Inc.

Brook v Overseas Media, Inc. 2010 NY Slip Op 00197 [69 AD3d 444] January 12, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 10, 2010

Helen Brook, Respondent,
v
Overseas Media, Inc., Appellant.

—[*1] Covington & Burling LLP, New York (Jason M. Zoladz of counsel), for appellant.

Frekhtman & Associates, Brooklyn (Arkady Frekhtman of counsel), for respondent.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 13, 2008, which, insofar as appealed from, denied defendant's motion to dismiss, for failure to state a cause of action, plaintiff's second cause of action for retaliatory discharge in violation of the New York City Human Rights Law, unanimously reversed, on the law, without costs, and the motion granted with respect to the second cause of action. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff's allegation that defendant terminated her employment "because of her perceived and/or actual disability and in retaliation for her having filed a Workers' Compensation claim" does not state a cause of action for retaliatory discharge under the New York City Human Rights Law (see Administrative Code of City of NY § 8-107 [7]). The mere filing of a claim for workers' compensation is not a "protected activity" within the meaning of that provision, because it does not constitute "opposing or complaining about unlawful discrimination" (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]; Jimenez v Potter, 211 Fed Appx 289, 290 [5th Cir 2006] [filing of a workers' compensation claim not a protected activity under title VII of the Civil Rights Act of 1964 (42 USC § 2000e-3 [a])]). Plaintiff's sole remedy for retaliatory discharge in violation of Workers' Compensation Law § 120 is to file a complaint with the Workers' Compensation Board (Rice v University of Rochester Med. Ctr., 46 AD3d 1421 [2007]). Even when the complaint is liberally construed to allege that plaintiff's employment was terminated in retaliation for requesting an accommodation for her disability, it does not state a cause of action because it fails to allege that she opposed her employer's discriminatory failure to make reasonable accommodation (see Forrest, 3 NY3d at 313; Iannone v ING Fin. Servs., LLC, 49 AD3d 391 [2008], lv dismissed 11 NY3d 808 [2008]; Unotti v American Broadcasting Cos., 273 AD2d 68 [2000]). Concur—Andrias, J.P., Saxe, Sweeny, Moskowitz and Abdus-Salaam, JJ. [Prior Case History: 2008 NY Slip Op 30714(U).]