Cohen v Queensboro Oral Surgery Assoc.
Annotate this CaseDecided on April 27, 2011
Supreme Court, Queens County
Minerva Gonzalez Cohen, Plaintiff,
against
Queensboro Oral Surgery Associates, and DR. HOWARD A. OCHS, DMD., Defendants.
183302009
Robert J. McDonald, J.
The following papers numbered 1 to16read on this motion by Queensboro Oral Surgery Associates and Dr. Howard A. Ochs, to dismiss the complaint pursuant to CPLR 3212.
Papers
Numbered
Notice of Motion - Affidavits - Exhibits........................................1-7
Answering Affidavits - Exhibits.....................................................8-10
Reply Affidavits..............................................................................11-16
Upon the foregoing papers it is ordered that the motion is denied.
Plaintiff in this age discrimination action alleges that she was terminated from her employment due to her age and that she suffered a hostile work environment while in the employ of defendants. Defendants move to dismiss the complaint on the ground that plaintiff's termination was for a valid non-discriminatory reason and that plaintiff was not subject to a hostile work environment. In short, defendant contends that plaintiff cannot establish a prima facie case. Plaintiff opposes the motion.
Facts [*2]
Plaintiff began her employment with Queensboro Oral Surgery Associates (QOSA) on or about October 1983, and was terminated from her employment with QOSA on August 20, 2008. Plaintiff was 58 years of age when she was terminated. Plaintiff worked for QOSA for almost twenty-five (25) years. At the time of her termination, plaintiff earned approximately fifty-two thousand dollars ($52,000.00) per year, plus a contribution to her Money Purchase Plan/Profit Sharing Plan. Plaintiff worked approximately 30 hours per week, including Saturdays. Plaintiff received a pay raise in every second year of her employment. Plaintiff's duties included, but were not limited to: assisting the doctor(s) during surgical procedures, setting up instrument trays, operating technical equipment, taking patient x-rays, ordering medical equipment, processing insurance claims, interfacing with suppliers, working reception and general administrative duties.
QOSA was founded by Dr. Sanford Blecker, who was plaintiff's manager and employer for twenty-four (24) years until his retirement in or about August, 2007. It is alleged that for all of plaintiff's 25 years of employment with QOSA she received ongoing compliments on her work from Blecker, her fellow coworkers and the patients, many of whom had years of rapport with plaintiff. It is further alleged that plaintiff received a glowing letter of reference from Dr. Blecker after her termination.
On or about August, 2006, Blecker sold the firm to defendant Ochs, and began working on an intermittent basis in a "supervisory/winding down" capacity. On or about August, 2007, Dr. Blecker retired and never worked at the clinic again. Dr. Ochs immediately became the sole executive manager of the firm and its employees, including plaintiff. Prior to Blecker's departure, plaintiff and Dr. Ochs had a cordial and professional relationship. It is alleged that commencing on Dr. Blecker's departure, Dr. Ochs initiated a campaign of harassment against plaintiff creating a hostile work environment for her. The harassing conduct included but was not limited to: Ochs suddenly scrutinizing plaintiff's work, when he had not done so prior to Blecker's departure; Ochs' berating and yelling at plaintiff in front of work colleagues; Ochs humiliating plaintiff; Ochs treating plaintiff in a derogatory manner causing her to suffer discriminatory harassment. It is alleged that Dr. Ochs would repeatedly reprimand plaintiff in a loud and demeaning manner for conduct which did not merit a reprimand, while coworkers were not similarly reprimanded. For example, it was not plaintiff's job to send out bills and statements to overdue accounts, it was Allas' job. However, it is alleged that, Ochs would often approach plaintiff and ask if she had done the billing; plaintiff would respond that it was not her job to do the billing and Dr. Ochs would yell "Do it and do it now!" Dr. Ochs would not reprimand Allas for not completing the billing.
Plaintiff alleges that on October 30, 2007, after she informed Dr. Ochs that she needed a few hours off during the day to go to a breast surgeon, who worked limited hours, Dr. Ochs yelled at her in front of her colleagues that "You go to a lot of doctors." Plaintiff explained to Dr. Ochs that she had had a breast tumor removed and needed to be monitored with yearly visits. Dr. Ochs, it is alleged, yelled again, "You sure go to a lot of doctors."
On August 20, 2008, Dr. Ochs summoned plaintiff to his office and proceeded to deride [*3]and criticize her about why there was no ink in the x-ray printer. She informed him that for the last two months, it had not been her job to order ink; Ramirez was responsible for that. Dr. Ochs responded that plaintiff was "lazy"; told her that he was not satisfied with her performance and then shouted "get out, get out". Plaintiff insisted that she receive a termination letter before she left the office in order to collect unemployment insurance benefits. She alleges that she did not yell at him in response to his yelling or otherwise act in an insubordinate manner.
Discussion
Executive Law § 296[1][a] provides: It shall be an unlawful discriminatory practice . . . [f]or an employer or licensing agency, because of an individual's age . . . to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
The standards for recovery under section 296 of the Executive Law are similar to the federal standards under title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.; see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; see also Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]). A three part analysis is required to determine whether plaintiff has met her burden to establish a discrimination claim under Executive Law (Human Rights Law) § 296. First, plaintiff must demonstrate by a preponderance of the evidence a prima facie case of discrimination (Ferrante, supra; see also Texas Dept. of Community Affairs v Burdine, 450 US 248 [1981]).
"To support a prima facie case of age discrimination under the Human Rights Law, plaintiff must demonstrate (1) 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 age discrimination" (see Ferrante, 90 NY2d at 629).
Second, the burden then shifts to the defendants to rebut plaintiff's prima facie case of discrimination with a legitimate reason for the firing (see Ferrante, supra; St. Mary's Honor Center v Hicks, 509 US 502, 506-507 [1993]). "The burden that shifts to the defendant . . . is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendants need not persuade the court that they were actually motivated by the proffered reasons. It is sufficient if the defendants' evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff" (Burdine, 450 US 248, 254 [1981], supra [citation omitted]).
Third, plaintiff must show by a preponderance of the evidence that defendants' reasons are pretextual (see Ferrante, supra; McDonnell Douglas Corp. v Green, 411 US 792, 802-806 [1973]). Moreover, the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff (see Hicks, 509 US 502, 511 [1993], supra; Reeves v Sanderson Plumbing Products, Inc., 530 US 133, 143 [2000]; Burdine, 450 US 248, 253 [1981], supra). [*4]
In the case at bar, plaintiff was 58 years of age at the time of termination and thus was a member of the class protected by Human Rights Law § 296. Plaintiff was actively discharged from employment. There was evidence presented by plaintiff that she was qualified for the job of surgical/dental assistant. Plaintiff argues that she was replaced or the intention was to replace her with younger workers. While plaintiff was replaced with two younger people, Jennifer Ramirez and Zairah Pena, there was not enough evidence presented upon submission to establish a prima facie case that defendants intended to replace plaintiff with younger employees. Ms. Ramirez was hired before plaintiff was terminated and was doing plaintiff's job allegedly because of plaintiff's inability to perform to defendants' satisfaction. Moreover, Ms. Ramirez' duties were significantly altered to include tasks which were not previously performed by anyone and which were totally separate and apart from those performed by plaintiff. Ms. Pena was hired to perform work that Ms. Ramirez had done before Ms. Ramirez was given a completely new set of responsibilities. Neither replaced plaintiff. Defendants submit that plaintiff's job tasks were absorbed by those who had been forced to do them previously because of plaintiff's inability, unwillingness or unacceptable delay in performing the tasks. Ramirez and Pena both submitted affidavits indicating the same. There was also an affidavit from defendant Howard Ochs which establish that plaintiff's allegations regarding being replaced by younger workers was false.
Defendants met their burden of proving that there were legitimate reasons for terminating plaintiff. They demonstrated that plaintiff was terminated for insubordination, which is a legitimate nondiscriminatory reason (see Trieger v Montefiore Medical Center, 15 AD3d 175 [2005]; Weiner v Cataldo Waters & Griffith Architects P. C., 200 AD2d 942 [1994]). Dr. Ochs' affidavit establishes that plaintiff's insubordination on the day of her termination capped off [months] of dissatisfaction. Defendants also submit that plaintiff was ineffective in performing her assigned tasks at work, specifically her delay in submitting insurance claim forms, and that she engaged in too many personal telephone calls at work.
On this motion for summary judgment, plaintiff is only required to identify a disputed material issue of fact with respect to whether or not defendant's articulated basis for the dismissal was merely a pretext for discriminatory action (see, Miller Brewing Company v State Division of Human Rights, 66 NY2d 937 [1985]; Brooks v Blue Cross of Northeastern NY, 195 AD2d 814 [1993]). Among the proof submitted by plaintiff is evidence tending to establish that Dr. Ochs' statements upon his examination before trial regarding his reasons for terminating plaintiff may not have been truthful.
Plaintiff in her rebuttal case submitted an affidavit from herself and her spouse purporting to "clarify" her deposition testimony. Upon her clarification, plaintiff avers that she did not know why Dr. Ochs treated her differently at the time and that she later learned of her younger replacements and then felt that Dr. Ochs had discriminated against her based upon her age.
In plaintiff's affidavit she avers, as follows: She trained many of the surgical assistants at defendants' office. Initially she began working for Dr. Blecker approximately 25 years ago as Dr. Blecker's assistant and that she knows every procedure and every surgical instrument in the office [*5]which was like second nature to her. When the office moved from Main Street to its current location, she was asked to take on some of the front office duties in addition to assisting in oral surgery and that she did so. About a year and a half later, a front office worker named Jean Raia retired and no one was hired to replace her so plaintiff then worked the front office even more and began doing insurance forms with Reyda Allas who later became office manager. After Dr. Blecker retired in August, 2007, plaintiff was also asked to do some inventory and order certain supplies which she did. She also helped with intake when needed. Because of her performance, she received a bonus every year.
Before Dr. Blecker retired, plaintiff had a "cordial and professional relationship with Dr. Ochs, even though he would sometimes treat her poorly by, for example, yelling at her in front of the young assistants. After Dr. Blecker retired, Dr. Ochs began to scrutinize plaintiff's work and did not do this to anyone else; he suddenly wanted plaintiff to handle all of the ordering for medical and office supplies. At the time, plaintiff was already assisting in surgery, working on insurance claims and answering telephones on reception. Plaintiff avers that when she told Dr. Ochs that she already had a lot of work to do and many more responsibilities than the other staff, he responded that "It's your job, just do it!" Plaintiff further avers that the defendant would hover over her and badger her in front of the other workers and sarcastically ask if she had finished a particular assignment.
Sometimes, plaintiff avers, she was so busy that she would take her lunch at her desk rather than take a properly allotted lunch hour in the break room downstairs. This act made her more visible and Dr. Ochs would constantly interrupt her lunch or whatever she was working on and demand that she immediately assist him in surgery even though other assistants would be available.
After plaintiff was fired, Ramirez was promoted from receptionist and took over plaintiff's other job duties. In addition, Dr. Ochs hired Pena, an even younger woman, to work on reception. Plaintiff avers that at the time of the harassment, she did not know why the doctor treated her so differently.
Plaintiff avers that the affidavit of Dr. Ochs is replete with untruthful answers. For example, he states that Jean Raia was "called upon to make up for [plaintiff's] lapses in submitting insurance claims." This is not true because she only took over the insurance work after Raia retired; they never worked together on the insurance forms except when Raia trained plaintiff in them.
Plaintiff avers that Dr. Ochs never told her that he was dissatisfied with her work during the nine or so years that she had assisted him. She did not make many personal telephone calls from the office using her mobile telephone. As to the backlog with insurance claims, plaintiff admits that at times she did get backlogged but that so did Reyda and Dr. Ochs never yelled or screamed at her. [*6]
Finally, on the day that she was terminated she was not being insubordinate. She had returned from vacation on the day she was terminated when Dr. Ochs stormed in and asked why there was no ink in the x-ray printer. She informed him that for the last two months, it had not been her job to order ink; Ramirez was responsible for that. Dr. Ochs responded that plaintiff was "lazy"; told her that he was not satisfied with her performance and then shouted "get out, get out". Plaintiff insisted that she receive a termination letter before she left the office in order to collect unemployment insurance benefits. She had not yelled at him or otherwise acted in an insubordinate manner.
Briefly Richard Cohen, plaintiff's spouse, avers that he contacted plaintiff's former employer after the termination and that Dr. Ochs never mentioned that he fired plaintiff because he was unsatisfied with her work; that Dr. Ochs stated that plaintiff was a "valued and faithful worker", but that he "wanted to go in a different direction"; and that he wanted to give plaintiff a "mutually agreeable package". Dr. Ochs allegedly also requested that plaintiff sign a release, a copy of which was emailed to Cohen's email inbox. Dr. Ochs, in his examination before trial, denied sending the legal release.
Although defendant has submitted evidence that tends to negate plaintiff's proof, it must be remembered that the court's role in deciding a summary judgment motion is one of issue-identification, not issue-determination. Because plaintiff raised a triable material issue of fact as to whether the reason proffered for her discharge was a pretext for age discrimination, defendant's motion for summary judgment is denied.
A hostile work environment exists " [w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' " (Forrest v Jewish Guild for the Blind, supra at 310, quoting Harris v Forklift Systems, Inc., 510 US 17, 21 [1993]; see Beharry v Guzman, 33 AD3d 742, 743 [2006]; Schenkman v New York Coll. of Health Professionals, 29 AD3d 671, 673 [2006]; Kaptan v Danchig, 19 AD3d 456, 457-458 [2005]). In her complaint, plaintiff alleges how Dr. Ochs frequently yelled and berated her in front of other workers, and that this was ongoing and pervasive for months. Although the complaint cites particular incidents allegedly occurring within a short period of time after Dr. Blecker retired, it also refers to more than a handful of incidents. Given the frequency of this conduct, the additional affidavit and testimony of plaintiff regarding her resulting emotional distress, it appears there is a question of fact that a hostile work environment existed (see Matter of New York State Dept. of Correctional Servs. v State Div. of Human Rights, 28 AD3d 906 [2006]; Matter of Grand Union Co. v Mercado, 263 AD2d 923 [1999]).
Accordingly, the motion to dismiss is denied.
Dated: April 27, 2011 [*7]
Hon. Robert J. McDonald
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