Candiotti v Little Lamb Preschool

[*1] Candiotti v Little Lamb Preschool 2010 NY Slip Op 50576(U) Decided on March 30, 2010 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2010
Supreme Court, Richmond County

Elizabeth Candiotti, Plaintiff(s),

against

Little Lamb Preschool and DR. PATRICIA POLOVY, Defendant(s).



101835/2008

Judith N. McMahon, J.

Plaintiff commenced this action on or about April 21, 2008, alleging that defendants Little Lamb Preschool (hereinafter "LLP") and Dr. Patricia Polovy discriminated against her in terminating her employment because of her disability in violation of the New York City Human Rights Law. It is undisputed that the plaintiff, Elizabeth Candiotti, began her employment with the defendants in May 2000 and remained there until February 27, 2007, when she was allegedly improperly terminated because of her disability. At the time of the alleged discrimination, the plaintiff served as the Educational Director of defendant LLP and worked part-time, usually Tuesday, Wednesday and Thursday from approximately 8:00 a.m. to 3:00 p.m. In or about November 2005, the plaintiff was diagnosed with breast cancer, a health impairment and disability as defined by New York City Human Rights Law § 8-102, and was given accommodations from defendants, the terms of which are disputed.

On February 27, 2007, the plaintiff reported to work and left shortly thereafter after suffering an attack of irritable bowel syndrome [FN1]. Thereafter, the plaintiff was terminated for, inter alia, her failure to notify anyone she was leaving. Plaintiff contends that part of her reasonable accommodation for her disability included the ability to leave without notification and as such, the termination was improper. Defendants contend that plaintiff received two letters alleged to be written warnings, the first was in January 2007, after she allegedly issued letters to teachers threatening their termination and the second letter, left on plaintiff's desk on February 27, 2007, addressed her alleged ignoring of coworkers during preparation of reports for the Department of Education. Plaintiff also allegedly received numerous verbal warnings for her failure to notify anyone of her early departures and poor performance evaluations.

Procedurally, after her termination, the plaintiff filed for disability benefits with the New York State Department of Labor, which denied her claim. She then appealed that decision, which was upheld by the Administrative Law Judge. Thereafter, the plaintiff filed a Charge/Complaint with the New York State Division of Human Rights, but requested that the [*2]action be dismissed to pursue her claims in state court. The plaintiff commenced this action on or about April 21, 2008, alleging she was discriminated against by defendant LLP and that defendant Dr. Polovy, aided and abetted in the unlawful discrimination. Presently, issue has been joined and discovery is complete. The defendants are now moving for summary judgment seeking to dismiss the complaint in its entirety.

Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegard v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard "the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v. Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

It is well settled that "[i]n order to carry his or her ultimate burden in a . . .discrimination case, a plaintiff must show that the adverse employment decision was motivated in some part by an impermissible reason'" (Nelson v. HSBC Bank, 41 AD3d 445, 446 [2d Dept., 2007]). Plaintiff must establish his or her prima facie case of discrimination by a preponderance of the evidence (Ferrante v. American Lung Assoc, 90 NY2d 623, 629 [1997]). The plaintiff must prove "that she is a member of the class protected by the statute; (2) that she was actively or constructively discharged; (3) that she was qualified to hold the position from which she was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of . . . discrimination" (id., Balsamo v. Savin Corp., 61 AD3d 622, 623 [2d Dept., 2009]; Nelson v. HSBC Bank, 41 AD3d at 446).

The burden then shifts to the defendant/employer to prove, through admissible evidence that "legitimate, independent, and nondiscriminatory reasons to support its employment decision" were present (Ferrante v. American Lung Assoc., 90 NY2d at 629). The burden then shifts back to the plaintiff to prove that defendants alleged reasons were merely a pretext for discrimination (Balsamo v. Savin Corp., 61 AD3d 622, 623 [2d Dept., 2009]; Nelson v. HSBC Bank, 41 AD3d at 446).

In other words, "[t]o establish its entitlement to summary judgment in [a] . . . discrimination case, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether the explanations proffered by the defendant were pretextual" (Nelson v. HSBC Bank, 41 AD3d at 446 [citations omitted]; Ferrante v. American Lung Assoc., 90 NY2d at 629-630 [stating that a pretext may be found where plaintiff can prove that the reasons offered by defendant/employer are both false and that discrimination was the real reason"]). However, it is clear that plaintiff need not prove his or her claims to defeat a summary judgment motion (id.).

Here, the defendants, LLP and Dr. Polovy have presented sufficient admissible evidence [*3]to establish that the termination of the plaintiff was based upon legitimate, nondiscriminatory reasons (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Nelson v. HSBC Bank, 41 AD3d at 446; Ferrante v. American Lung Assoc., 90 NY2d at 629-630). In particular, the defendants have submitted that written warning letters were issued to plaintiff, along with verbal warnings for her leaving without notification. Defendants provided ample evidence that the plaintiff had performance-based issues which ultimately resulted in her termination and not her disability, namely, breast cancer.

In opposition to the defendant's prima facie showing the plaintiff has successfully raised numerous triable issues of fact as to whether the proffered "performance" and "leaving without notification" reasons are merely a pretext for discriminating against the plaintiff because of her breast cancer (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Nelson v. HSBC Bank, 41 AD3d at 446). The plaintiff has raised issues as to whether part of plaintiff' "reasonable accommodations" included her leaving without notification, and further, that plaintiff's performance was excellent throughout her employment. As is well established "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive" and such is the case in the instant matter (Ferrante v. American Lung Assoc., 90 NY2d at 629-630). As such, summary judgment is clearly unwarranted where, as here, numerous issues of fact exist surrounding the alleged discrimination which must be decided by a jury (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Ferrante v. American Lung Assoc., 90 NY2d at 629-630).

Accordingly, it is

ORDERED that the defendants Little Lamb Preschool and Dr. Patricia Polovy's motion for summary judgment seeking to dismiss the complaint in its entirety is hereby denied.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: March ____, 2010E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:There is dispute as to whether the plaintiff suffered from IBS prior to her breast cancer diagnosis or whether this was a side effect from chemotherapy.