Press v Veterinary Ctrs. of Am.

[*1] Press v Veterinary Ctrs. of Am. 2006 NY Slip Op 50124(U) [10 Misc 3d 1079(A)] Decided on February 2, 2006 Supreme Court, Richmond County Gigante, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 2, 2006
Supreme Court, Richmond County

ELLEN PRESS, Plaintiff,

against

VETERINARY CENTERS OF AMERICA - ANIMAL HOSPITAL OF STATEN ISLAND, MANHATTAN VETERINARY GROUP, P.C. And VCA ANTECH, INC., Defendants.



11888/04

Robert J. Gigante, J.

Defendants Veterinary Centers of America - Animal Hospital of Staten Island, Manhattan Veterinary Group, P.C. and VCA Antech, Inc. (hereafter "VCA") move by notice of motion

for summary judgment dismissing the complaint. Plaintiff Ellen Press (hereafter "Press") opposes the motion.

Plaintiff commenced this action seeking money damages pursuant to the New York State Executive Law §§290, 292 and 296, and New York City Administrative Code §§8-101 and 8-107, alleging (in her first and second causes of action) that she was discriminated against and disparately treated based on age when VCA terminated her employment. In her third cause of action, plaintiff alleges that she was subjected to a hostile work environment at VCA, where [*2]emotional distress was negligently inflicted upon her.

VCA operates, inter alia the Staten Island Animal Hospital located at 640 Willowbrook Road, Staten Island, New York. On October 25, 1999, plaintiff applied for a receptionist position at VCA, but after accepting an offer of employment by Pamela Schuech (hereafter "Schuech"), an office manager at VCA, she quit citing personal reasons. Thereafter, in February of 2000, Schuech contacted plaintiff to see if she was still interested in the receptionist position, whereupon she was hired by VCA as an "at-will" employee. As a receptionist, plaintiff was responsible for answering telephones, scheduling appointments, making follow-up calls and receiving patients when they

were dropped off for surgery.[FN1] It is undisputed that plaintiff was 44 years old at the time she was hired, and that she reported directly to Schuech throughout the course of her employment with VCA.

On December 28, 2002, Nicholas Galeno (hereafter "Galeno"), a veterinary assistant, complained to Schuech regarding two separate incidents involving plaintiff.. The first involved a puppy defecating in the waiting room. Galeno alleged that despite the fact that it was everyone's job to keep the hospital clean, plaintiff instructed him to clean the floor while she remained at her desk in an otherwise empty waiting room. In addition, Galeno alleged that later that same day plaintiff rudely admonished him "don't tell me how to do my job" in the presence of a customer. On January 3, 2003, Schuech told plaintiff of the allegations, whereupon Press denied speaking rudely to Galeno and intimated that he was lying. In an effort to assuage the situation between her employees, Schuech scheduled a meeting with plaintiff, Galeno and herself for January 7, 2003, to which plaintiff agreed. However, the meeting never occurred as plaintiff insisted that Galeno first needed to apologize. In addition, Press secretly tape-recorded her conversation with Schuech, during which plaintiff suggested to her supervisor that she ought to read some books on human behavior and lying. Despite her best efforts, and notwithstanding the representation by Schuech that she was not taking sides, plaintiff refused to listen to what Galeno had to say and allegedly told Schuech "if you want to believe his excuses, I can't tell you what to do".

On January 8, 2003, Schuech scheduled another meeting between plaintiff and Galeno. This time the meeting was also attended by Dr. Irwin Ruderman (hereafter "Ruderman"), the medical director of the Staten Island Hospital. It appears that plaintiff surreptitiously recorded this meeting as well. Despite their best efforts to reassure plaintiff of their impartiality, She now accused both Schuech and Ruderman of siding with Galeno, and the meeting allegedly ended with plaintiff pulling the tape recorder out of her lab coat and exclaiming, "I have it all on tape". Following a discussion between Ruderman and Dana Cremen , VCA's Regional Operations Director, it was decided that plaintiff's behavior both prior to and during the attempted meetings was unacceptable, and she was terminated on January 9, 2005, for insubordination and unprofessional behavior. Press was 47 years old at the time of her termination. [*3]

This action was commenced by the filing and service of a summons and complaint on or about June 23, 2004. Issue was joined by the service of an answer on or about July 26, 2004. Discovery is complete and a note of issue was filed on June 23, 2005.

In support of its application, VCA alleges the following points. First, it maintains that plaintiff's age discrimination claim must be dismissed since she has offered no evidence that the reason provided for her termination was false, or that age played any role in the determination. Second, it alleges that plaintiff's retaliation claim is legally deficient since she did not engage in a protected activity and cannot prove that VCA's articulated reason for discharge was a pretext for retaliation. Third, it claims that plaintiff's allegations of a hostile work environment must be dismissed as a matter of law because she was not subjected to severe or pervasive conduct because of her age. Fourth, it contends that the complaint is legally insufficient to state a claim for the negligent infliction of emotional distress. In essence, VCA alleges that all of plaintiff's claims suffer from the same fatal flaw, i.e., a total lack of any supporting evidence. In any event, VCA claims that even if all of plaintiff's factual allegations were to be accepted as true, no triable issue of fact is presented under the controlling law.

In opposition, plaintiff avers that she was not rude to Galeno and never made the statement attributed to her. In addition, she relates a different set of facts surrounding the incident concerning the "soiling" of the waiting room. According to plaintiff, she merely "went into the back and informed Galeno that [she] needed assistance in cleaning up the defecation". On the issue of age discrimination, plaintiff alleges that "Schuech failed to meet with Galeno in the same manner that she [met] with [plaintiff] and [Schuech] failed to discipline Galeno in the same manner in which she [was] disciplined", i.e., by terminating her employment. Plaintiff claims that she was one of the oldest employees in her position, and that she was discriminated against because of her age alleging that both Schuech and Galeno are substantially younger. However, plaintiff admits that she never filed a formal complaint with VCA's Human Resources Department. As to the alleged hostility in her work environment, plaintiff claims that she felt threatened to the point where she felt compelled to tape record the January 2003 meetings, where, she alleges, she "clearly complained about the unjust [and] disparate treatment afforded to [her] and [the] younger employee, Galeno". Finally, plaintiff alleges that defendants' conduct "caused" her to avoid being in Galeno's presence "without. . .a witness. . .[in order] to protect herself. Purportedly, this also caused her "emotional distress".

Discussion

Under New York State Executive Law § 296 (1) and New York City Administrative Code § 8-107, it is unlawful for an employer to discharge an employee because of age. In the matter of enforcement, discrimination cases in New York are governed by the same general principles that apply to similar claims made under federal law (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305; Morse v Wyoming County Community Hosp & Nursing Facility., 305 AD2d 1028 [4th Dept 2003]).

Here, since it is not disputed that plaintiff is a member of a protected class (see 29 USC § 621 et seq.), in order to establish a prima facie case of age discrimination, she would be required to establish by a preponderance of the evidence (1) that she was discharged from a position for which she was qualified, and (2) that the discharge occurred under circumstances which lead to an inference of discrimination (Mitti v New York State Div of Human Rights, 100 NY2d 326, [*4]330). Where a complainant has satisfied this burden, the burden of proof shifts to the employer to rebut the presumption with evidence that the discharge was for a legitimate, non-discriminating reason (id. at 330). Should the presumption be rebutted, a successful plaintiff would then be required to prove that the proffered reasons were pretextual (e.g., by demonstrating that they were false), and that age discrimination was the real reason for his or her discharge (Forrest v Jewish Guild for the Blind, 3 NY3d at 305; Ferrante v Am. Lung Assn., 90 NY2d 623, 629).

It is beyond cavil that age discrimination has no place in our society. For this reason, anti-discrimination laws have been enacted and are to be strictly enforced. However, it is equally clear that not every termination involves employment discrimination, as an actionable discharge is one which rests upon unequal treatment based upon age or some other prohibited factor.

Assuming arguendo in the context of defendants' motion that plaintiff's proof at bar is legally sufficient to raise a presumption that she was discharged under circumstances giving rise to an inference of discrimination, VCA has established its prima facie right to dismissal of the complaint by offering a legitimate reason for discharge based upon her conduct leading up to and during the attempted meetings of January 7th and 8th both of which were aborted by plaintiff's disruptive behavior and an apparent reluctance to work with her supervisors in attempting a good faith resolution of her apparent difficulties with a fellow employee. In opposition, plaintiff has failed to raise a triable issue of fact concerning either the falsity of defendants' reasons for terminating her employment or the alleged discriminatory reason for defendants' actions (see Hemingway v Pelham Country Club, 14 AD3d 536 [2d Dept 2005]; Morse v Wyoming County Community Hosp. & Nursing Home Facility, 305 AD2d at 1029-1030 ).

With respect to her third cause of action, plaintiff has also failed to adduce sufficient evidence to rebut defendants' prima facie showing that she was not subjected to a hostile work environment or that defendants' conduct was sufficiently outrageous to support a cause of action for the negligent infliction of emotional distress upon her.

Accordingly it is

ORDERED that defendants' motion for summary judgment is granted in its entirety, and the complaint is dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R ,

Robert J. Gigante, J.S.C.

Dated: February 2, 2006

cd Footnotes

Footnote 1:Upon employment, plaintiff was given a copy of VCA's employee handbook which included "insubordination" among the grounds for termination and stated that any complaint regarding unlawful harassment should be reported in writing as soon as possible to its Human Resources Department.