McCoy v State of New York
Annotate this CaseDecided on July 16, 2007
Ct Cl
Loretta McCoy, Claimant, -v- State of New York, Defendant.
103334
S. Michael Nadel, J.
The claimant alleges that she suffered adverse employment action, in violation of the New York State Human Rights Law, when she was denied advancement in job title and ultimately terminated from her position at Bronx Children's Psychiatric Center.
The claim, served and filed during 2000, alleged that as a member of a suspect class, the claimant was denied a promotion to full-time teacher status at the facility, on the basis of her age and race. During 2004, the claimant sought and received permission to amend her claim to allege that she was fired without just cause and in retaliation for having commenced this litigation. At the conclusion of the trial, the claimant withdrew her claim for race discrimination.
In 1993, at the age of 43, Loretta McCoy was hired by Bronx Children's Psychiatric Center as a substitute teacher. She testified that she soon became interested in attaining a full- time teaching position at the facility. She first inquired about such a position in September 1993, but management informed her that she could not apply because she lacked State certification and a master's degree, both of which were required for the title. The record at trial established that teachers without the requisite credentials, were hired as "provisional" teachers, and were allotted a certain amount of time to gain the credentials needed to be considered for the position of "permanent" teacher.
During 1998, the claimant commenced filing grievances at the facility, which continued through May 22, 2002, a day before an incident which led to the termination of her employment.
At some point in 2000, the claimant applied for a full-time teaching position, and in November 2000, she obtained the position she sought. The record establishes, and the parties do not dispute, that this was an "at will" position, from which an employee may be terminated without reason, and without any required procedure.
On July 30, 2001, an incident involving a school field trip took place, to which the claimant assigns much import. It is the claimant's position that the incident led to ongoing difficulties she had with Christopher Meyers, the Director of Inpatient Services at the facility.
Dr. Meyers began working at the Center in 1995, and after holding a number of positions there, was named Director of Inpatient Services at the end of 1999. In this capacity, his responsibilities included the supervision of the full-time teachers.
The facts of the field trip incident are not in dispute. The claimant and another teacher, Tanya Jenkins, escorted a group of children from the Center on a field trip. The claimant was issued cash by the business office to be used for admission on the outing. The children were supplied with bag lunches that were prepared at the Center. Apparently the children did not like the sandwiches, believing that they were spoiled. For various reasons, the claimant had excess admission money and used it to buy the children new lunches at a fast-food restaurant, at a total cost of fifty-four dollars. When the claimant returned to the facility she presented Dr. Meyers with a receipt for the food and an explanation of what had occurred. Dr. Meyers then looked into the matter. It was determined that the sandwiches were not spoiled, that Ms. McCoy had not [*2]been authorized to use the money on food, and that she was required by the business office to repay the amount.
Dr. Meyers testified that he recalled a disagreement that he had with the claimant as the result of the school field trip. At some point he was informed by the business office that it would not accept the receipt for the food that the claimant had purchased because she had not requested that the money be used for lunches. He informed the claimant that she would have to repay the money because the business office thought that was the proper thing to do.
On January 17, 2002, the claimant filed a grievance, complaining that Dr. Meyers "continually confronted and harrassed [sic]" her "with requests to perform duties" that were not in her "job specifications," and requesting that he "cease and desist" and "hire individuals whose job specifications include the duties being requested of" her. At trial, the claimant testified that this grievance actually concerned Dr. Meyers' repeated requests that she repay the money used to buy the lunches.
On May 16, 2002, Ms. McCoy was issued a "Written Counseling" from Dr. Meyers, which indicated that she had spent State funds without authorization, had been told on a number of occasions to reimburse the State, and continued to refuse to reimburse the money. According to Dr. Meyers, the claimant repeatedly refused to pay back the money, and finally after nearly a year, he issued her a counseling memo for not complying with requests to repay the money. Dr. Meyers explained that this counseling was the only administrative action that he ever took with respect to the claimant, that it was supervisory in nature, and that it did not result in any type of disciplinary action against Ms. McCoy. He added that from the time he became Director of Inpatient Services to the May 23, 2002 incident that led to her discharge, there were no disciplinary actions taken against the claimant and there were no adverse changes in her employment status or benefits. On May 22, 2002, the claimant filed a grievance stating that Dr. Meyers treated her unprofessionally and counseled her improperly.
On May 23, 2002, an incident occurred which led to the termination of the claimant's employment at the Center. A child in Ms. McCoy's classroom made an allegation that the claimant had threatened to throw a chair at him. The claimant testified that this child had exhibited "impulsive" behavior, and that a number of days earlier had picked up and thrown a desk, nearly striking another child. Concerned that the child might repeat this behavior, she requested that the child be assigned to one-on-one supervision, but no action was taken in regard to her request. According to the claimant, sometime during the morning of May 23, the child picked up a chair in a threatening manner, and she told him to put it down. When the child finally put down the chair, Linda Cheek, a therapy aide assigned to the classroom, brought him to "step-down," which is an area where an agitated child is allowed to calm down under staff supervision. The claimant testified that she never threatened the child.
Dr. Meyers testified that he learned about the May 23, 2002 allegation during the school day, at which time he reported the matter to John Montalto, Director of Risk Management and Quality Assurance at the facility, and told him to investigate the allegation. Mr. Montalto testified that he first learned that there had been an allegation made against the claimant in a meeting with Mark Bienstock, the Executive Director, and Dr. Meyers, at which time he was directed by them to investigate the matter. Mr. Montalto's investigation included interviews with all the five or so children in the classroom at the time of the incident, Ms. Cheek, and lastly, Ms. [*3]McCoy. With the exception of the claimant's statement, which was taken on May 28, 2002, the other statements were compiled on May 23, 2002.
Ms. Cheek testified that on May 23, 2002, she was assigned to the claimant's classroom, and was engaged in one-to-one supervision of one of the children. At some point during the morning, she observed another child pick up a chair and threaten the claimant with it. She testified that the claimant told the child to put the chair down, but the child did not respond, at which point Ms. Cheek approached the child and told him to put down the chair. The child dropped the chair and "bolted" out of the classroom. Ms. Cheek followed him and brought the youngster to "step-down." Ms. Cheek stated that she briefly told the staff there what had occurred and returned to the classroom. She testified that the claimant did not threaten the child. Mr. Montalto acknowledged that Ms. Cheek informed him that she did not hear the claimant threaten the child.
Dr. Meyers testified that Mr. Montalto had concluded that by a preponderance of the evidence, the allegations against Ms. McCoy were founded. According to Dr. Meyers, he discussed the matter with Mr. Bienstock who, as the Executive Director, would make the ultimate decision to terminate an employee. In this instance, Dr. Meyers testified, once he learned that the allegations against Ms. McCoy were founded, he supported Mr. Bienstock's decision to terminate her employment. Other than the claimant's general denial that she threatened the child, Dr. Meyers did not recall if he became aware of her version of what occurred that day. He noted that it would not have been his job to determine whether or not the claimant had threatened the child, and that his only input would have been to advise the Executive Director, if asked, of the action that should be taken once an allegation had been determined by Mr. Montalto to be founded. Dr. Meyers testified that the decision to terminate Ms. McCoy's employment was based solely on the May 23, 2002 incident.
Mr. Montalto testified that at the end of the day of May 23, he met with Mr. Bienstock and Dr. Meyers, and perhaps some others, and presented them with the witness statements he had obtained up to that point, and met with them again on May 24 to submit additional statements. At the time, he had not yet interviewed the claimant. He testified that he did not present them with the conclusion that there was a preponderance of the evidence supporting the allegation against the claimant.
Mr. Montalto was questioned about a post-incident computer generated report. He stated that he did not remember inputting the data into the document, but he noted that his initials appeared in the "user" annotation on the form. Mr. Montalto testified concerning the entry in the section of the report titled "Initial Investigation Findings" which reads: "Mr. Montalto found that the preponderance of evidence suggests that Mr. [ ]'s allegations were founded." He said that if those words had been entered by him, it would have been done only after consulting with others, such as Dr. Meyers or Mr. Bienstock. He said he did not have the authority to come to that conclusion.
The claimant testified that she first learned of the allegation against her on May 28, 2002. That day, Mr. Montalto questioned her about the May 23 incident, at which time her statement was taken. The statement is consistent with her trial testimony, denying the accusation. Later that day, Dr. Meyers presented the claimant with a memo informing her that she was being placed on administrative leave. She asked him why she was being punished for something she [*4]did not do. According to the claimant, Dr. Meyers told her that an accusation was made against her, and it was his prerogative to place her on administrative leave.
Mr. Bienstock testified that he knew the claimant as an employee of the facility. He recalled the allegation made by the child and that he had to make a determination of the consequences. He explained that in such instances, a special investigation is conducted, followed by a written report prepared by the investigator summarizing the facts. He did not recall if he saw a written report of the incident or if he read any of the witness statements. Mr. Bienstock did, however, recall the investigator meeting with him and giving him a verbal summary of the investigation. He stated that he may have conferred with Dr. Meyers, but did not recall if Dr. Meyers offered his opinion about what had occurred or about the punishment that the claimant was to receive.
In a May 28, 2002 letter from Mr. Bienstock, Ms. McCoy was advised that she had been placed on administrative leave, and in a May 29, 2002 letter from Mr. Bienstock, the claimant was notified that her employment at the facility would be terminated as of June 6, 2002.
Discussion
An employer may lawfully discharge an at will employee "for any reason or for no reason, but not for a statutorily impermissible reason"(Matter of State Div. of Human Rights v County of Onondaga Sheriff's Dept., 71 NY2d 623, 630 [1988]). This concept is embodied in the New York State Human Rights Law (Executive Law § 290, et seq.), which makes it unlawful for an employer to discriminate against any person based on various factors including age, race, creed, color, and sex (Executive Law § 296 [1] [a]). The standard for recovery under section 296 of the Executive Law is in accord with the federal standards under title VII of the Civil Rights Act of 1964 (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265 [2006]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]) as well as federal case law (see Reed v A.W. Lawrence & Co., Inc., 95 F3d 1170, 1177 [2d Cir 1996] ["New York courts rely on federal law when determining claims under the New York Human Rights Law"]; see also Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 n 3 [2004], citing Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 26 [2002]), and similarly requires a three part analysis: First, a claimant must establish by the preponderance of the evidence a prima facie case of discrimination. Second, once a prima facie case is made, the burden shifts to the defendant to set forth a lawful nondiscriminatory explanation for the action taken. Third, should the defendant meet this burden, a claimant must then show that the reasons advanced were pretextual (see Stephenson, 6 NY3d at 270; Forrest, 3 NY3d at 305).
Age Discrimination
The claimant alleges that she received less favorable treatment from her employer because of her age. In order to make out a prima facie claim of age discrimination, she must establish that: (1) she is a member of the class protected by the statute; (2) she was qualified for the position she sought; (3) she was terminated from employment or suffered other adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of unlawful discrimination (see Forrest, 3 NY3d at 305).
"An adverse employment action requires a materially adverse change in the terms and conditions of employment," such as termination of employment, a demotion, loss of benefits, or other indices of the particular employment situation (Forrest, 3NY3d at 306). [*5]
As for the allegation that Ms. McCoy was denied promotion — from substitute to full-time teacher — due to her age, she has offered no evidence that she suffered any form of adverse employment action. Rather, the record establishes that she was appointed to the position she sought, shortly after she applied for it. Under the circumstances, the mere fact that younger individuals may have attained the position before Ms. McCoy was eventually promoted does not give rise to an inference of unlawful discrimination. As for her termination from employment, the claimant did not even attempt to demonstrate that the adverse action was because of her age, focusing instead on retaliation as the alleged cause for her discharge.
Retaliation
In order to establish a prima facie claim of retaliation, a claimant must show that: (1) she has engaged in protected activity; (2) the employer was aware that she participated in such activity; (3) she suffered an adverse employment action based upon her activity; and (4) there is a causal connection between the protected activity and the adverse action (see Forrest, 3 NY3d at 313). As relevant here, Executive Law § 296 (1) (e) forbids "any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under [the Human Rights Law]."
The claimant alleges that as a result of having commenced this lawsuit against the State, and having filed a number of grievances at the facility, she was terminated from her employment, and that the termination was based on a false pretext.
The claimant has failed to establish a causal connection between any protected activity and the adverse employment action (see e.g. Forrest, 3 NY3d at 313, citing Francis v Chemical Banking Corp., 213 F3d 626 [2d Cir 2000], cert denied 532 US 949 [2001]). Causality is not established simply because her termination from employment occurred at some point after the lawsuit was commenced and the grievances were filed (see Forrest, 3 NY3d at 313-314). A causal connection may be established either "(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the [claimant] by the defendant" (Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2000]; see also Pace Univ. v New York City Commn. on Human Rights, 85 NY2d 125, 129 [1995]). As for indirect causal proof, "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close'" (Clark County School Dist. v Breeden, 532 US 268, 273 [2001], citing Richmond v ONEOK, Inc., 120 F3d 205, 209 [10th Cir 1997] [holding three-month period insufficient to establish causal connection]; Hughes v Derwinski, 967 F2d 1168, 1174-1175 [7th Cir 1992] [holding a four-month period insufficient]; see also Williams v City of New York, 38 AD3d 238 [1st Dept 2007] [holding that there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of job title in June 2000]).
Here, the delay of approximately one and one-half years between the filing of the lawsuit and the adverse employment action negates any causal connection based on the temporal proximity of the events. Though two grievances were filed in 2002 that complained of Dr. [*6]Meyers' treatment of the claimant, there was no allegation in the grievances that his behavior was in retaliation for having engaged in protected activity. "Filing a grievance complaining of conduct other than unlawful discrimination as [the claimant] did is simply not a protected activity subject to a retaliation claim under the statutes at issue here" (Forrest, 3 NY3d at 313 n 11). Nor did the claimant proffer any evidence that the defendant carried out a pattern of discrimination against other employees engaged in similar protected activity, or offer any other form of circumstantial proof (see Pace Univ., 85 NY2d at 129, citing DeCintio v Westchester County Med. Ctr., 821 F2d 111, 115 [2d Cir 1987], cert denied 484 US 965 [1987]). Any effort to link the commencement of the lawsuit in 2000, to the field trip incident of July 2001, then to Dr. Meyers' requests that the claimant repay the lunch money, and then to her termination from employment in May 2002, strains the legal concept of the chain of causation.
Turning to direct causal proof, the claimant has not established that the defendant acted out of retaliatory animus. In the first place, subsequent to commencement of legal action in 2000, the claimant was shortly thereafter promoted to the position she sought. Moreover, there is no proof that prior to the time she was placed on administrative leave following the child's accusation, the claimant received any form of disciplinary action or adverse change in her employment status. The claimant contends, however, that Dr. Meyers' repeated requests that she repay the lunch money is evidence of retaliatory animus. The record does not support that conclusion. First, the law provides redress for retaliation for engaging in protected activity, and the claimant's unauthorized purchase of lunch for the children, no matter how well intentioned, is not statutorily protected activity. Second, the request to pay back the money, no matter how unfair the claimant perceived it to be, is not evidence of retaliatory animus. In contrast, cases finding direct evidence of retaliatory animus involve situations in which employees, having engaged in specific protected activities, suffered adverse employment consequences for doing so (see e.g. Wright v Stern, 450 F Supp2d 335, 374 [S.D.NY 2006] [finding direct evidence where plaintiff alleged supervisors said they "frowned upon" complaining and asked plaintiff not to file a lawsuit]; Watson v O'Neill, 365 F3d 609, 613 [8th Cir 2004] [finding direct evidence where supervisor allegedly commented that plaintiff would never excel because of filing an affidavit in a co-worker's EEOC complaint]; Fabela v Socorro Independent School Dist., 329 F3d 409, 416 [5th Cir 2003] [finding direct evidence where employer terminated plaintiff after filing an EEOC complaint]; Matter of Little v Gaines Elec. Contr., Inc., 36 AD3d 1056, 1057 [3d Dept 2007] [finding a causal nexus between the claimant's efforts to obtain workers' compensation benefits and the employer's allegedly retaliatory conduct]). To be sure, "proof of an employer's retaliatory motive may be elusive" (Matter of City of New York v New York State Div. of Human Rights, 225 AD2d 421, 423 [1st Dept 1996], citing Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6 [1979]). In the end, however "the burden of persuasion of the ultimate issue of discrimination always remains with the [claimant]" (Stephenson, 6 NY3d at 271), and speculation as to what might have motivated Dr. Meyers' actions does not amount to direct proof of retaliatory animus.
Although the claimant has not made out a prima facie case of retaliation, the record does establish a nondiscriminatory explanation for the termination of her employment. The evidence sufficiently establishes that Ms. McCoy was suspended and then discharged because of the child's allegation that she had threatened him. It was adduced at trial that the Center carried out an investigation into the child's allegation, gathered evidence that included corroboration of the [*7]accusation by some of the witnesses, and apparently concluded that Ms. McCoy threatened the child. While the testimony of some of the defendant's employees at trial was less than forthcoming as to who actually determined that the child's accusation was founded, and while it is apparent from the record that Ms. McCoy perceived that she was being treated unfairly, she failed to establish that she was terminated from her employment for any statutorily impermissible reason. Even if management at the Center arrived at an incorrect conclusion as to what happened in the classroom, and Ms. McCoy's version of events is what actually occurred that day, such a mistake does not transform a plausible determination into a discriminatory act.
The claimant points to a number of satisfactory job performance evaluations in order to lend support to her theory that the termination was based on false pretext. Contrary to her contention, pretext is not established by evidence of prior favorable performance evaluations (see Matter of Scott v Workers' Compensation Bd. of State of NY, 275 AD2d 877 [3d Dept 2000]; Matter of Weir v State of NY Thruway Auth., 231 AD2d 836 [3d Dept 1996]; Schwaller v Squire Sanders & Dempsey, 249 AD2d 195 [1st Dept 1998], citing Ezold v Wolf, Block, Schorr & Solis-Cohen, 983 F2d 509, 528 [3d Cir 1992], cert denied 510 US 826 [1993]), especially when the claimant's job performance is not at issue.
The record suggests that there was a breakdown in the professional relationship between Ms. McCoy and Dr. Meyers following the field trip incident, but as noted by the Court of Appeals, "mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code' " (Forrest, 3 NY3d at 309, quoting Faragher v City of Boca Raton, 524 US 775, 788 [1998]).
In accordance with the foregoing, the claim is dismissed.
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