Schliserman v PA Consulting Group Inc.

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Schliserman v PA Consulting Group Inc. 2013 NY Slip Op 33287(U) December 18, 2013 Supreme Court, New York County Docket Number: 601631/04 Judge: Barbara R. Kapnick Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. SCANNED ON 12/27/2013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY BARBARA R. KAPNICK ~-R-ES_E_N_T_:~ \]~IV: Index Num.tJer: 601631/2004 IV) J S.C PART Justice INDEX N O . - - - - - SCHLISSERMAN, NEIL T. vs. PA CONSULTING GROUP SEQUENCE NUMBER : 012 ~ 3°/ MOTION DATE _ _ __ MOTION SEQ. NO. - - - SUMMARY JUDGMENT The following papers, numbered 1 to _ _ , were read on this motion to/for _ _ _ _ _ _ _ _ _- ' - - - - Notice of Motion/Order to Show Cause - Affidavits - Exhibits Answering Affidavits - Exhibits _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ I No(s)._ _ _ __ I No(s). - - - - 1No(s). - - - - - Upon the foregoing papers, it is ordered that this motion is w u j::: en :::> .., 0 l- o f\LED w 0::: 0::: w LL w 0::: ....I OE.~ 2. 0 2.Q13 ¢ ¢ z en <( >- ....I~ :::> 0 LL I- u w ~ 0::: en w C!> z 0::: - en ~ - w en <( U z 0 0 ....I ....J 0 LL w :c ·~ ~ 1- j::: 0::: 0 0 :!: LL Dated: BARBARA R. KAPNJ D NON-FIN~. ~~ITION 1. CHECK ONE: . ¢......... ¢............ ;;:.. ¢..................... ¢...... ¢........... @CASE DISPOSED 2. CHECK AS APPROPRIATE: ................ ¢.......... MOTION IS: %GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: .................................... ¢........... 0 SETTLE ORDER 0DONOTPOST ,J.S.C. QGRANTED IN PART O'oTHER 0 SUBMIT ORDER 0 FIDUCI ~RY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK: PART 39 ---------------------------------------x NEIL T. SCHLISSERMAN, RHEA A. COOK, and MICHAEL A. PEREIRA, DECISION/ORDER Index No. 601631/04 Motion Seq. No. 012 Plaintiffs, - against PA CONSULTING GROUP INC. and PA HOLDINGS LIMITED, Defendants, ----------------------------------------x BARBARA R. KAPNICK, J.: In this action, plaintiff Rhea A. Cook ("Cook") has sued her former employer, recover damages defendant for PA Consul ting Group alleged discrimination based on sex and nFtLEO· 1 ("PA") , and defamation Inc. to employment P~ now moves for l I summary judgment dismissing the Second Amended Co*plaint in its entirety, with prejudice. DEC 20 2.013 NEW'fQRt~oi-- \ . 1 COUNTY CLERt01'-0fRCI! Background The following facts are taken, except where otherwise noted, from defendant's Statement of Mater.ial Facts, which plaintiff has not disputed. 1 It is undisputed that by prior orders of the Court, plaintiffs' causes of action for wrongful discharge, breach of contract, tortious interference, declaratory judgment, misrepresentation and shareholder oppression, were dismissed, as were all the claims of plaintiff Michael Pereira. Neil Schlisserman subsequently discontinued his remaining claims, and the action as against defendant PA Holdings Limited was also disconti·nued. Plaintiff Rhea Cook's causes of action for defamation and employment discrimination against PA Consulting Group Inc. are, therefore, the only remaining claims. [* 3] Defendant PA Consul ting Group, Inc. ("PA") , a U.S. subsidiary of U.K.-based PA Holdings Limited ("PA Holdings"), is a management consulting firm, specializing in technology for businesses, and is chiefly involved in "implementation consulting," that is, helping clients "do whatever they need to be doing" "strategy consulting," or, giving advice). 43:20, Oct. 17, 2008; Wigton Dep. (as opposed to (Moynihan Dep. 42:13- 19:13-22, Dec. 15, 2009.) PA employs consultant scientists, and occasionally invests in ideas developed by the consultants. (Moynihan Dep. 44:25-46:18.) Cook was employed by PA as U.S. Marketing Manager from November 1999 until her termination on September 18, 2003, and worked primarily (Cook in PA's Princeton, New Jersey and New York City offices. Dep. 48:12-15, 52:9-20, Feb. 15, 2007; Second Am. Compl. ~ 11.) Plaintiff's direct supervisor was Dr. Adam Adams, PA's Global Head of Marketing, who also hired plaintiff. Feb. 15, 2007.) (Cook Dep. 55:15-56:8, Plaintiff received regular salary increases and bonuses throughout her employment with PA, and performed her work satisfactorily. At the time that plaintiff was hired, she received certain documents (Lalik Aff. Ex. 36), including PA's Service Manual, which contained PA's equal opportunity and sexual harassment policies. (Lalik Aff. Ex. 37.) During her employment with PA, plaintiff also 2 [* 4] received copies of PA' s Employee Handbook, which included PA' s nondiscrimination policy, and the Code of Conduct which contained a "Conflicts of interest" section, which provided that "PA employees should avoid all situations that might give rise to a conflict with the interests of PA or its clients, whether actual or perceived," and directed that "[a] 11 outside interests must be disclosed to PA PA." would then decide whether the outside interest "is compatible with PA's best interests, and whether it will be allowed". (Lalik Aff. Ex. 21, In or around March 2002, Schlisserman Government plaintiff began working with Neil ("Schlisserman"), and Public ~10.) a managing Services practice, consultant and Michael in PA's Pereira ("Pereira"), a principal consultant in PA's Product and Process Engineering ( "P&PE") practice, working with Princeton's explore a and other PA employees who were Plasma Physics Research Laboratory to new sterilization process, ref erred to as "cold ion deposition sterilization," or "plasma sterilization." Schlisserman and Pereira asked plaintiff possibilities for practical to meet uses of with them to the plasma discuss the sterilization technology and to consider presenting the technology to PA as an investment opportunity. marketing. Plaintiff became involved to assist in (Cook Dep. 85:13-86:6, Sept. 23, 2008.) 3 [* 5] She discussed the plasma sterilization project with John Buckley ("Buckley"), PA's head of technology, and, at her request, (Cook Dep. he visited the Princeton lab to review the technology. 90:7-92:3, Sept. 23, 2008.) ("MacAndrew"), a At some later time, Dr. Alec MacAndrew high-ranking PA executive and the global P&PE practice leader, also visited the Princeton lab. 93: 9, Sept. enthusiastic 23, 2008.) about the According project to and (Cook Dep. 92:17- plaintiff, thought that Buckley it was warranted further investigation to "assess the soundness" of the opportunity to commercialize the plasma sterilization technology. 93:13-94:17, Sept. 23, (Cook Dep. 2008.) In early August 2002, Schlisserman sent an e-mail to Buckley and MacAndrew, ("Karlberg"), and copied plaintiff, Pereira and Gregg Karlberg Schlisserman's immediate supervisor, to provide an update on the plasma sterilization project, noting that it was not as far along as he had hoped, continue supporting the and asking whether they wanted to project or would prefer that he, Pereira and plaintiff seek outside funding to move the project forward. (Lalik Aff. Ex. 28.) MacAndrew responded feasability . them." (Id.) that By e-mail dated November 8, 2002, "unless PPPL can demonstrate basic I'm not interested in investing anything with Schlisserman forwarded MacAndrew's e-mail to Dan Walsh ("Walsh"), Pereira's supervisor and U.S. practice leader for 4 [* 6] the P&PE practice, and noted that PA apparently is passing on the plasma sterilization project. (Id.) thought "that is a good read." (Id.) Walsh responded that he After learning that PA was not interested in investing in the plasma sterilization project, Schlisserman, Pereira, and plaintiff (collectively, "the three"), with the knowledge of Karlberg (Karlberg Aff. 1 4), continued their efforts, on their own time, to seek investment capital for the development of the plasma sterilization technology. Dep. 122:2-15, Feb. 13, 2007.) In late 2002, the three discussed forming an entity to pursue funding plasma sterilization project, and, number, was created, for the development of the in January 2003, they (See Lalik Aff. Exs. 62, 63.) established PlaZtec Inc. L.L.C. PlaZtec website (Schlisserman and a post office box, telephone and bank account were opened for the company. also drafted a business plan and purchased a computer. A The three Through the spring of 2003, they continued to make efforts to solicit interest and investments in the sterilization technology. On May 29, 2003, MacAndrew received the following e-mail from an anonymous sender (the "anonymous email") : From: pa_uk_consultant 2 [mailto:pa_wc_ consultant@hotrnail.com] Sent: 28 May 2003 23:26 To: Alec MacAndrew Subject: our USA plasma sterilisation project wish to I sterilisation know why the ion plasma project out of Princeton 5 [* 7] University in the USA that you had us br ly study and PA had considered funding - - and if my recollection serves we had the exclusive right to pursue for some period of time under a written agreement with that institution - is reliably and widely rumoured to have been developed surreptitiously in the USA offices by Mssrs. [sic] M. Pereira, N. Schlisserrnan and apparently several other colleagues, possibly including a partner. Apparently they have in fact formed an entity, built a web page (www.plaztec.com), solicited funds, and commenced operations even whilst being in PA's employ. Did we not, on intake, have each of them execute our standard non-compete instruments &c. How is it that we have paid them to take this opportunity away from us? (Lalik Aff. Ex. 30.) MacAndrew forwarded the e-mail to Walsh (see Lalik Aff. Ex 72), who in turn forwarded it to Schlisserman and Pereira, asking them for "an explanation . . . that satisfies me that there is not an explicit conflict of interest and a potential violation of the code of conduct.u MacAndrew, Karlberg Id. and Schlisserman responded to Walsh, copying plaintiff, denying any allegations of wrongdoing and explaining what he, Pereira and plaintiff had done with respect to forming PlaZtec and pursuing funding for the plasma sterilization project. Id. Plaintiff then sent an e-mail to Schlisserman, Walsh, Pereira, MacAndrew and Karlberg, unethical" had occurred, asserting that and stating that 6 nothing "sinister or she was available to [* 8] (See Lalik speak to Walsh in the Princeton office the next day. Aff. Ex. 7 4.) When she spoke to Walsh, she told him that the sender of the e-mail was "taking some information that was similar but not at all accurate, Schlisserman. and . and - - framing even though she was not identi upu to clarify sterilization project, Pereira ,, ultimately me . 158:20-25, 160:21-161:9, Sept. 23, 2008.) "stepped Mr. and (Cook Dep. According to plaintiff, ed in the anonymous e-mail, the Mr. activities around the she plasma and explained that "if something untoward has been happening, why would [she] stand upu and identify herself. (Cook Dep. 162:8-163:5, Sept. 23, 2008.) Plaintiff testified that the only people she knew who received the anonymous e-mail were MacAndrew, Walsh, she herself may Pereira, Schlisserman, and maybe Karlberg, and have resources department. MacAndrew also may ("Wigtonu), PA's U.S. member her of unemployment sta hearing. sent it to (Cook Dep. have sent Julie Davern, 146:8-148:8, the e-mail when PA was Sept. human 23. 2008.) Wigton who sent it to a preparing MacAndrew also PA' s Annette to head of human resources, in forwarded for it plaintiff's to PA' s IT department to attempt to identify the sender. MacAndrew took charge of an investigation of the anonymous email and its allegations, after conferring with Adams and Andrew Hooke ("Hooke"), a PA partner in charge of Schlisserrnan's practice, 7 [* 9] and Wigton was brought in to help with the investigation. MacAndrew's request, At the three prepared a package of information responding to the allegations of the anonymous e-mail. (Lalik Aff. Ex. 81; see also Lalik Aff. Exs. 77, 78, 79, 82.) By letter dated July 18, 2003, MacAndrew and Hooke wrote to Schlisserman, informing him that the investigation into the allegations of the anonymous e-mail was concluded, and that they found that the "key assertions" made in the e-mail - - "that PA ever had an exclusive right to the technology, that you developed the technology surreptiously, that you commenced operations and that PA was paying you to take an opportunity away from PA" were unfounded. (Lalik Aff. Ex. 84.) The letter goes on, however, to note that "you should have realized that this activity . might have caused, or be perceived to be, an ethical or business conflict and you should have proceed in writing." (Id.) sought agreement to Finally, the letter states that "we cannot agree to any further involvement on your part in the Plasma Sterilization Project, therefore we would like you to confirm, in writing to us, that you have ceased all activity in connection with this project and dissolved the company." identical statements, dated July 23, from MacAndrew and Adams. dated August 5, 2003, (Id.) A letter with the 2003, was sent to plaintiff (Lalik Aff. Ex. 134.) In an e-mail Schlisserman advised MacAndrew and Wigton 8 [* 10] that the three had not yet had an opportunity to discuss the letters they received, and they would get back to him "pertaining to next steps." (Lalik Aff. Ex. 85.) On September 11, 2003, MacAndrew sent an e-mail to the three, and copied it to Adams, Hooke and Wigton, advising the three that, having not heard from them in almost seven weeks, he was insisting that each of them advise him and their line managers within one week that they had ceased all activity in the plasma sterilization project and dissolved PlaZtec. (MacAndrew Dep. 147:9-148:8, Feb. 2, see also Lalik Aff. Ex. 2010; distributed, At the time this e-mail was 86.) plaintiff was out on medical undergo an emergency appendectomy; checking her e-mails from home leave, having had to she testified that she began on Sunday, September 14, and probably would have received MacAndrew's e-mail around that date. (Cook Dep. 202:7-204:3, Sept. 23, 2008.) from home, on September 15. She began working again, 21:12-22:23, (Cook Dep. Nov. 18, 2009.) On September 18, 2003, Schlisserman sent a lengthy response to MacAndrew on behalf of ·the three, they wanted addressed regarding PlaZtec." before detailing several issues that they "take (Lalik Aff. Ex. 87.) any conclusive steps In particular, the three were not satisfied with PA's efforts to identify and take action 9 [* 11] against the sender of the anonymous e-mail, with PA's conclusion that the three should have realized that their activities might have caused or been perceived as an ethical or business conflict, and with the suggestion that they did not in fact have approval to pursue outside funding for the plasma sterilization project. Schlisserman MacAndrew testified requested, that they did because not they had dissolve not (Id.) PlazTec, received as any communication about the identity of the sender of the anonymous email. (Schlisserman Dep. 64:2-65:17, Sept. 18, 2008.) witnesses deposed, including MacAndrew, plaintiff, None of the Schlisserman, Pereira or others who were aware of the e-mail, knew who the sender was, and the identity of the author/sender of the anonymous e-mail was never determined. MacAndrew did not respond to Schlisserman's September 18 e-mail, and, the issues raised by instead, the three were notified that their employment was terminated, effective September 18, 2003. (Lalik Aff. Ex. 138.) On September 19, 2003, the day after plaintiff's employment was terminated, held at the Princeton office. a staff meeting was Plaintiff claims that she was told about the meeting by an administrative assistant and that employees at the meeting were told that she had been fired for cause and for stealing intellectual property, (Cook Dep. 43:3-23, 46:4-19, Nov. 18, 2009), but she could not remember who said that to her, and did 10 [* 12] not know what actually was said at the meeting. 48:22.) (Id. at 46:20- Several employees who were at the meeting were deposed by plaintiff, including Walsh, head of the Princeton office. He testified that he told staff at the meeting that the three were terminated because PA had determined that conflict of interest, activities. and they chose not they had an outside to end their outside (Walsh Dep. 135:23-136:14, Oct. 1, 2008.) PA partner Edward Cunningham testified that the meeting was called because other employees were wondering what happened, and staff were told that the three interest. were asked to (Cunningham Dep. leave because 26:10-27:24, of Oct. a 17, conflict of 2008.) PA partner Philip Sweetman testified that Walsh addressed the staff and told them that involvement in the outside terminated as a result. three work, were and asked they (Sweetman Dep. to chose discontinue not 32: 5-18, to their and Feb 3, were 2010.) Stephen Kerr testified that Walsh announced that the three had left the company, but did not provide details. (Kerr Dep. 83:8-21, Oct. 27, 2008.) Plaintiff brought this action completion of pre-trial discovery, in May 2004. After the and earlier motion practice, defendant now moves for summary judgment dismissing the remaining claims. 11 [* 13] Discussion It is well settled that to prevail on a motion for summary judgment, the moving party must, by submitting evidentiary proof in admissible form, establish the cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment." CPLR 3212(b); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); see also Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). shifts Once such showing has been made, the burden to the opposing party who must show, also by producing evidentiary proof in admissible form, that genuine material issues of fact exist which require a trial of the action. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Zuckerman, 49 NY2d at 562. While the evidence must be viewed in a light most favorable to the non-moving party, NY3d 931, bare 932 Branham v. (2007)), its affirmative Loews Orpheum Cinemas, Inc. , 8 "the opposing party must assemble and lay proof to demonstrate that genuine triable issues of fact exist." Kornfeld v. NRX Tech., (lst Dep't 1983), aff'd, 62 NY2d 686 (1984). 93 AD2d 772, 773 "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a material question of fact. 49 NY2d at 562. Zuckerman, Further, as defendant correctly notes, "'[f]acts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted.'" 12 Madeline D' Anthony [* 14] Enters., Inc. v. Sokolowsky, 101 AD3d 606, 609 (1st Dep't 2012) (quoting Kuehne & Nagel v. Baiden, 36 NY2d 539, 544 (1975)). Defamation Defamation, whether in the form of libel or slander, generally is defined as the making of a false statement which "tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory substantial Group, number opinion of 89 NY2d 1074, citation omitted); of the 1076 him [or community." (1997) in the Golub v. minds of a Enquirer/Star (internal quotation marks and see also Geraci v. (2010); Foster v. Churchill, her] Probst, 87 NY2d 744, 751 15 NY3d 336, 344 (1996); Rinaldi v. Holt, Rinehart & Winston, 42 NY2d 369, 379 (1977). "The elements are a false statement, published without privilege or authorization to a third party, . and it must either cause special harm or constitute defamation per se." Dillon v. City of New York, 261 AD2d 34, 38 (1st Dep't 1999); see also O'Neill v. New York Univ., 97 AD3d 199, 212 (1st Dep't 2012); Salvatore v. Kumar, 45 AD3d 560, 563 (2d Dep't 2007), lv den 10 NY3d 855 (2008). Defamation per se, limited to certain categories of statements considered "so noxious" that damages are presumed and need not be proven, see Yonaty v. Mincolla, 97 AD3d 141, 143-44 (3d Dep't 2012), lv den 20 NY2d 855 (2013) includes statements "that tend to injure another in his or her trade, business or profession." 13 Liberman v. Gelstein, 80 NY2d [* 15] 429, 435 (1992); see also 15 NY3d at Geraci, Metropolitan Museum of Art, 214 AD2d 250, 261 "'As a alleging threshold, defamation and constitutional, must demonstrate 344; (1st Dep't 1995). matter, the Herlihy v. a plaintiff allegedly statement was "of and concerning" him or her.'" defamatory Prince v. Fox Tel. Stas., Inc., 33 Misc 3d 1225(A) *14-15 (Sup Ct, NY Co. 2011), aff'd in part and mod in part 93 AD3d 614 (1st Dep't 2012) v. NBC Universal, Inc., 337 Fed Appx 94, 96 (quoting Diaz {2d Cir 2009)); see also Julian v. American Bus. Consultants, 2 NY2d 1, 17 (1956). Where the person defamed is not named in a defamatory publication, it is necessary, if it is to be held actionable as to him, that the language used be such that persons reading it will, in the light of the surrounding circumstances, be able to understand that it refers to the person complaining. Giaimo v. Literary Guild, 79 AD2d 917, 917 (1st (citation omitted); see also Smith v. Catsimatidis, Dep't 1981) 95 AD3d 737, 737 (1st Dep't 2012), lv den 20 NY3d 852 (2012); DeBlasio v. North Shore Univ. plaintiff's Hosp., claim 213 is AD2d 584, insufficient 584 if (2d the Dept "[A] 1995). allegedly def amatory statement referenced the plaintiff solely as a member of a group, unless the plaintiff can show 14 that the circumstances of the [* 16] publication reasonably give rise to the conclusion that there is a particular reference to the plaintiff." Diaz, 337 Fed Appx at 96. Further, "[t]ruth is an absolute defense to a cause of action based on defamation [, ] " Silverman v. Clark, 35 AD3d 1, 12 (pt Dept 2006); see also Dillon, 261 AD2d at 39, and "[s]ubstantial truth is all that is necessary to defeat a charge of libel." Peekskill Star Corp., 8 3 AD2d 2 94, 2 97 Shulman v. Hunderfund, 12 NY3d 143, 150 (2009}. Fairley v. ( 2d Dept 1981) ; see also "Generally, only statements of fact can be defamatory because statements of pure opinion cannot be proven untrue." 580, 584 (2012); see Thomas H. also Brian v. v. Paul B., 18 NY3d Richardson, 87 NY2d 46, 51 (1995); Sandals Resorts Intl. Ltd. v. Google, Inc., 86 AD3d 32, 38 (1st Dept 2011). "An expression of pure opinion is not actionable no matter how vituperative or unreasonable it may be . [when it] is accompanied by a recitation of the facts upon which it is based [or] undisclosed facts." (1986). does not imply Steinhilber v. that Alphonse, it is based 68 NY2d 283, upon 289 A statement of opinion may be actionable, however, when it "implies a basis in facts which are not disclosed to the reader or listener." Gross v. New York Times Co., 82 NY2d 146, 153 (1993); see also Steinhilber, 68 NY2d at 290; Rinaldi, 42 NY2d at 380-381. Such a "mixed opinion" is actionable not because it conveys a false opinion but because it implies that "the speaker [or writer] knows 15 [* 17] certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking [or writing]." Steinhilber, 68 NY2d at 290; see also Gross, 82 NY2d at 153-154. "Whether a particular statement constitutes an opinion or an objective fact is a question of law[,]" Mann v. Abel, 10 NY3d 271, 276 (2008), and depends largely on "the over-all context in which 'whether the reasonable reader the assertions were made and . [or listener] would have believed that the challenged statements were conveying facts about the at 51 (quoting Immuno AG v. . plaintiff.'" Moor-Jankowski, 77 Brian, 87 NY2d NY2d 235, 254 [1991], cert den 500 US 954 [1991]); see also Millus v. Newsday, 89 NY2d 840, 842 (1996); Sandals Resort Intl. Ltd., 86 AD3d at 41-42. The Court should consider "the content of the communication as a whole, as well as its tone and apparent purpose[,)" Brian, 87 NY2d at 51, and factor in "the identity, author." role and reputation of the Id. at 52. Even if a statement is defamatory, it also may be protected by See Rosenberg v. MetLife, Liberman, 80 NY2d at 437; Toker v. an absolute or qualified privilege. Inc., 8 NY3d 359, 365 (2007); Pollak, 44 NY2d 211, 218 (1978). "The absolute privilege generally is reserved for communications made by individuals participating in 16 [* 18] a public function, such as executive, quasi-judicial proceedings." legislative, judicial or 8 NY3d at 365; see also Rosenberg, 600 W. llSth St. Corp. v. Von Gutfeld, 80 NY2d 130, 135-36 (1992); Park Assocs. v. made during Knoll "[SJ tatements 59 Schmidt, the course NY2d of 205, a 209 judicial (1983). or quasi- judicial proceeding are clearly protected by an absolute privilege 'as long as questions such statements are material involved.'" Warmflash, P. C. A Rosenberg, v. Margrabe, qualified, or and pertinent to the 8 NY3d at 365; 38 AD3d 163, 170-71 conditional, see Sexter & (Pt Dept 2007) . privilege extends to a communication made by one person to another upon a subject in which both have an interest, or with respect to which both have a duty. See Foster v. Churchill, 87 NY2d 744, 751 (1996); Liberman, 80 NY2d at 437; Shapiro v. Health Ins. defendants applies, demonstrate the privilege that can Plan, 7 NY2d 56, this be "common overcome 60 (1959). interest" only if a Once privilege plaintiff establishes that defendants' statements were made with malice, that is, with spite or ill will or a knowing or reckless disregard for the statements' truth or falsity. See Liberman, 80 NY2d at 437- 438; Rosenberg, 8 NY3d at 365; Park Knoll Assocs., 59 NY2d at 211; Stillman v Ford, 22 NY2d 48, 53 (1968). 17 [* 19] Statements made "about an employee an employment context" may be protected by a qualified privilege. Dillon, 261 AD2d at 40; see also Loughry v. Lincoln First Bank, 67 NY2d 369, The common interest privilege has been appli 376 (1986). for example, to statements communicated to a limited number of employees "who had a legitimate interest knowing that a serious sanction had been imposed for the violation of a workplace Freest, 251 AD2d 953 rule [,]" Bisso v. (3d Dep't 1998), and to statements made to f member, staff members explaining the termination of another s \\ order to De dispel rumors and to resolve morale Han v. resulting from the unexplained termination. problems" State of New York, 186 AD2d 536, 537 (2d Dept 1992); see also, e.g., Bulow v. Women in Need, Inc., 89 AD3d 525, 526 (1st Dep't 2011) plaintiff's supervisor to co-workers that pla (remarks by iff engaged in inappropriate sexual behavior}; Priovolos v. St. Barnabas Hosp., 1 AD3d 12 6, 127 (1st Dep' t 2003) (statements about plaintiff's performance made in termination memo); Present v. Avon Prods., 253 AD2d 183, 187 (1st Dep' t 1999), lv dism 93 NY2d 1032 (1999) (statements by employees to management about another employee's alleged falsification of records}; Hollander v. Cayton, 605, 606 (2d Dep't 1988) 145 AD2d (statements that physician was unethical and had mismanaged cases made at regular hospital staff meeting); Gordon v. Allstate Ins. Co., 71 AD2d 850 (2d Dep't 1979) 18 (statement [* 20] at meeting of plaintiff's fellow insurance agents that he was fired for 'kiting'). Here, plaintiff's claim defamation based is on the "publication, republication and distribution" of the anonymous email, which did not mention plaintiff; comments about plaintiff's departure made by PA management at an employee meeting after she was terminated; and statements regarding her dismissal made by PA employees during plaintiff's unemployment hearings. Plaintiff does not dispute the fact that the anonymous e-mail did not mention her name. In fact, at her deposition, plaintiff unequivocally testified that she was not alleging that the e-mail defamed her. that (Cook Dep. 142:9-12, Sept. 23, 2008.) plaintiff now claims, in her affidavit in To the extent opposition to defendant's motion, that she was confused during the deposition by counsel's line of questioning, and was precluded by defendant's counsel from explaining what she meant (Cook Aff. evidence does Nor does plaintiff now not support that claim. <J[ 10 n. 3), disavow her deposition testimony, except to assert that defendant "over-simplifies the issue." (Id.) In any event, plaintiff's burden of proving that the statements are "of and concerning" her "is not a light one [,]" Chicherchia v. Cleary, (2d Dep' t 1994) 207 AD2d 855, 855 (internal quotation marks and citation omitted), 19 [* 21] and it remains undisputed that the anonymous e-mail "itself fails to reveal any connection between any of the alleged defamatory matter and the plaintiff." Ltd. v. General Elec. Julian, 2 NY2d at 17; see also Afftrex, Co., 161 AD2d 855, 856 (3d Dept 1990) (allegedly defamatory statement about a company's former principal was not "of and concerning" company because it did not "reflect directly" on company) . Al though " [ t] he reference to the party alleging defamation may be indirect and may be shown by extrinsic facts . reference . where extrinsic facts are relied upon to prove such the party alleging defamation must show that it is reasonable to conclude that the publication refers to him or her and the extrinsic facts . . . were known to those who read or heard the Chicherchia, publication." 207 AD2d at 856; see also Gristede's Foods, Inc. v. Poospatuck (Unkechauge) Nation, 2009 WL 4547792, *13 (EDNY 2009). Plaintiff fails to show that readers of the anonymous e-mail, which refers generally to "several including a partner," would be other colleagues, possibly able to discern from the facts ref erred to in the e-mail that any def amatory statements were "of and concerning" plaintiff. Springer contrary, v. by Viking her Press, own See Salvatore, 45 AD3d at 563; see also 60 NY2d testimony, 916, 917 plaintiff (1983) stepped To forward the to identify herself as part of the group that was involved in the 20 [* 22] plasma project, only after the anonymous e-mail was received by MacAndrew and forwarded to others. The response to the allegations prepared for MacAndrew by Schlisserman, Pereira, and plaintiff also shows that plaintiff did not consider that the alleged defamatory words, i.e., "reliably and widely rumoured to have been developed surreptiously," were directed at her, that allegation only with as the response addresses respect to Schlisserman and Pereira. (See Lalik Aff. Ex. 81 at§ 2.2.) The "republication and dissemination" of the e-mail within PA also was limited to a few employees who had a common interest in the subject of the e-mail, qualified privilege. this, and was, therefore, protected by a In her opposition, plaintiff does not dispute or otherwise even address the privilege issue. She also offers no evidence, and does not argue, that the republication was motivated by malice. In view of the above findings, the Court need not reach the issue of whether the anonymous e-mail was protected opinion or was substantially true. terms, Nonetheless, the Court notes that, by its the e-mail was an inquiry based on rumors and speculation arising out of facts that were essentially true (formation of an entity, creation of a website, solicitation of funds), and does not imply that it was based upon undisclosed facts, and thus leads to 21 [* 23] the "conclusion that the e-mail must be treated as an expression of the writer's views and opinions, which he is asking the reader to consider." Sandals Resorts Intl. Steinhilber, 68 NY2d at 289. Ltd., 86 AD3d at 43; see also Further, as to any suggestion in the e-mail there might be a violation of PA's Code of Conduct, or that an opportunity had been "stolen" from PA, "a reasonable reader would understand the statements . . as mere allegations to be investigated rather than as facts." Brian, 87 NY2d at 53 (emphasis in original) . Similarly, the republication of the anonymous e-mail to PA employees was. done "not necessarily to convince the reader of -- plaintiff's [misconduct] but rather to demonstrate the need for an investigation that would establish the truth or falsity of the charges." Id. at 54. "The tone of the e-mail, as well, indicates that the writer is expressing his or her personal views, in that it reflects a degree of anger and resentment" about what the writer thinks might be going on. Sandals Resorts Intl. Ltd., 86 AD3d at 43. Turning to plaintiff's claim that she was defamed by comments made at testimony an employee about what meeting was said following was based her on termination, her hearsay, she and acknowledged that she did not know what actually was said (Cook Dep. 43:6-23, 45:22-48:22, Nov. 18, 2009); testimony from witnesses who attended the meeting indicates nothing defamatory was said. 22 In [* 24] any event, employees remarks made about her termination at were protected by a common interest a meeting of privilege, and, again, plaintiff presents no evidence to show that the remarks were made with malice. In addition, the republication of the anonymous e-mail, and any allegedly dismissal defamatory during her statements unemployment made hearing absolute privilege, and are not actionable. about were plaintiff's covered by an "[A]ny submission made in conjunction with a determination of unemployment benefits is . LaPorte v. protected by an absolute privilege." Greenwich House, 2010 WL 1779342, *7 (SDNY 2010); see also Burnett v. Trinity Inst. Homer Perkins Ctr., 2011 WL 281023, Inc., *5 (NDNY 2011); Allan & Allan Arts v. Rosenblum, 201 AD2d 136, 140 (2d Dept 1994); Noble v Creative Tech. Servs., 126 AQ2d 611, 613 (2d Dep't 1987). Employment Discrimination Plaintiff discrimination, asserts based two on causes sex and of action national for employment origin, and for retaliation, under the New York State Human Rights Law ("NYSHRL") , codified as Executive Law § 296 et seq. and the New York City Human Rights Law ("NYCHRL"), codified as Administrative Code of the City of New York (the "Administrative Code") claims that male, British employees 23 § 8-107 et seq. were given Plaintiff preferential [* 25] treatment, and that a similarly situated British, male employee would not have been fired like she was. 173: 3, Feb. 15, 2 0 0 7. ) (See Cook Dep. 172:6- Plaintiff also alleges that PA retaliated against her for complaining about a sexually explicit comment made by a British PA executive. Under employer the to NYSHRL fire or and the refuse NYCHRL, to hire it or is unlawful employ, or for an otherwise discriminate in the terms, conditions and privileges of employment, because of, origin. (1) (a). as relevant here, an Executive Law § 296 (1) individual's sex or national (a); Administrative Code § 8-107 It is also unlawful under the statutes for an employer to retaliate against an employee who has opposed or complained about discrimination prohibited by the statute. Executive Law§ 296 (7); Administrative Code § 8-107 (7). To establish a prima facie case of employment discrimination: [a] plaintiff must show that ( 1) she is a member of a protected class; (2) she was qualified to hold the position; ( 3) she was terminated from employment or suffered another adverse employment action; and ( 4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 (2004) (citing Ferrante v. American Lung Assn., 90 NY2d 623, 629 (1997)); 24 [* 26] see also Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 n.2 (2006); Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 965 (1st Dep' t 2009), lv den 14 NY3d 701 (2010). To establish a claim of unlawful retaliation, a plaintiff must show that she participated in a protected activity known to defendants, an adverse employment action was taken against her, and a causal connection existed between the adverse action and the protected activity. See Forrest, 3 NY3d at 312-13; Hernandez v. Bankers Trust Co., 5 AD3d 146, 148 (1st Dep't 2004); Romney v. New York City Tr. Auth., 8 AD3d 254, 254 activity" refers to action unlawful discrimination. Overseas Media, Inc., Employment taken (2d Dep't 2004). to oppose See Forrest, or "Protected complain 3 NY3d at 313; about Brook v. 69 AD3d 444, 445 (1st Dep't 2010). discrimination claims brought under the NYSHRL generally are analyzed pursuant to the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 US 792 (1973) for cases brought pursuant to Title VII of the Civil Rights Act of 1964. at 270; Forrest, 3 NY3d at Under McDonnell Douglas, 305 n.3; See Stephenson, 6 NY3d Ferrante, 90 NY2d at 629. the plaintiff has the initial burden of establishing a prima facie case of employment discrimination. 25 411 [* 27] US at 802; see also Stephenson, 6 NY3d at 270; Ferrante, 90 NY2d at 629; Melman v. Mont ore Med. Ctr., 98 AD3d 107, 113-14 (1st Dep't 2012); Cuccia v. Martinez & Ritortor P.C., 61 AD3d 609, 610 (1st Dep' t 2009}, lv den 13 NY3d 708 Westchester Sq. Med. Ctr., Bailey v. (2009); 38 AD3d 119, 122-23 New York (1st Dep't 2007). Plaintiff's burden at this stage has been described as "de minimus" or "minimal." See St. Mary's Honor Ctr. v. Hicks, 509 US 502, 506 (1993); Melman, 98 AD3d at 115; Wiesen v. New York Univ., 304 AD2d 459, 460 (1st Dep't 2003); Health & Hosp. Corp., see also DeNigris v. New York 861 F Supp 2d 185, 194 (SDNY 2012) . . Once the plaintiff has established a prima facie case, burden shifts to City the employer to rebut the presumption the of discrimination by demonstrating that there was a legitimate and nondiscriminatory reason for its employment decision. If that showing is made, the burden shifts back to the plaintiff to prove that the employer's reason was a pretext for discrimination. Texas Dept. of Community Affairs (1981); Ferrante, v. Burdine, 450 US 248, See 253 90 NY2d at 629-30; Melman, 98 AD3d at 114. Both the NYSHRL and the NYCHRL require that their provisions be "construed liberally" to accomplish the remedial purposes of prohibiting discrimination. Code § 8-130; Executive Law § 300; Administrative see Matter of Binghamton GHS Employees Fed. 26 Credit [* 28] Union v. State Div. of Human Rights, 77 Williams v. New York City Hous. Auth., 2009), lv den 13 NY3d 702 (2009). independent liberal construction NY2d 12, 61 AD3d 62, 18 (1990); 65 (1st Dep't The NYCHRL further requires "an analysis targeted to understanding and fulfilling . . . the City HRL's 'uniquely broad and remedial' purposes, which go beyond those of counterpart State or federal civil rights Administrative Code § law." Williams, 61 AD3d at 66; see 8-130; Albunio v. City of New York, 16 NY3d 472, 477-78 (2011); Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 (1st Dep't 2011), lv den 18 NY3d 811 (2012); Nelson v. HSBC Bank USA, 87 AD3d 995, 996-997 (2d Dep't 2011). While recognizing the mandate to independently analyze claims brought under the NYCHRL, courts have continued to apply the same analytical standards as are applied to claims brought under federal and state law, framework. 2012); including the McDonnell See Gordon v. Kadet, Carryl v. MacKay Shields, Dep't 2012); Melman, York, Co., 2012 WL 4044619, 95 AD3d 606, LLC, 98 AD3d at 113-14; 66 AD3d 170, 196-97 *6 Douglas burden-shifting 606-607 93 AD3d 589, Phillips v. (1st Dep't 589-90 (1st City of New (1st Dep't 2009); Benson v. Otis Elev. (SONY 2012); Cuttler v. Harris, Shriver and Jacobson, LLP, 2012 WL 1003511, 2012). 27 Fried, *8 n.5 Frank, (SONY [* 29] Recently, "whether, in the Bennett, and to what extent" First Department the McDonnell considered Douglas framework should continue to be applied to claims brought under the NYCHRL. 92 AD3d at 34. While upholding the McDonnell Douglas standard as basically sound, the Court questioned whether it made "sense to examine at the summary judgment stage whether an initial prima facie case has been made out." 92 Bennett, AD3d at 39. Recognizing that the McDonnell Douglas framework was never intended to be rigid or mechanistic, but, rather, is an orderly way to evaluate evidence, id. at 36 n.5, the Court instructed that when a defendant has offered evidence of a nondiscriminatory basis for its actions, "a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out" in the first place. 45; see 2012). Furfero v. St. John's Univ., 94 AD3d 695, 697 Id. at (2d Dept Instead, the court should "proceed directly to looking at the evidence as a whole" to determine if it raises triable issues of fact as to whether defendant's non-discriminatory reason for its actions was a pretext for unlawful discrimination. Bennett, 92 judgment in AD3d at 45. Courts also urge caution in granting employment discrimination cases, employer's discriminatory intent 28 summary because direct is rarely evidence of an available. See [* 30] Ferrante, 90 NY2d at 631; Bennett, 92 AD3d at 43-44. Nonetheless, see summary judgment remains available in discrimination cases, Ferrante, 90 NY2d at 631; Sibilla v. Follett Corp., 2012 WL 1077655, *5 (EDNY 2012), and is appropriate when "the evidence of discriminatory intent is so slight that no rational jury could find Spencer v. in plaintiff's favor." 1270173, *5 (EDNY 2010) In the Inc., (internal quotation marks omitted); see also Melman, 590; Bennett, Int'l Shoppes, 2010 WL and citation 98 AD3d at 127-128; Carryl, 93 AD3d at 92 AD3d at 46. instant case, plaintiff's causes of action for employment discrimination and retaliation are based on allegations that she was "extolling compelled to watch a the leadership ~ Christian' men (Compl. role film featuring played by PA' s British founder and 'Good 49); "[u]pon information and belief, none of the British or ostensibly 'Good Christian' men" working in PA's New York City office during the time that plaintiff worked there were fired, but other women, non-Christian, non-British employees were (id. <J[ 51) ; British executives in PA' s U.S. off ice used "pejorative and expletive words that were personally offensive to female employees" explicit and (id. demeaning" 53) ; she was verbal and written <Jr partners and management (id. British PA executive, ~ subjected to statements "sexually by male 52), including an e-mail sent by a in July 2003 29 (id. <Jr~ 55-57); and after she [* 31] complained about the executive's e-mail, PA improperly revealed her identity, she "encountered derision and undue suspicion from other PA employees" (id., ~~ ~~ 59-61), and PA retaliated against her (id. 62-63) . In support of the above allegations, plaintiff testified at her deposition discrimination. about several Plaintiff specific described a instances remark of made alleged by a male speaker at a meeting in late 2000 attended by PA partners, which referred to another man as "a C word"; she also testified, however, that no one at the meeting, women, which included about had any response to the remark. Feb. 15, 2007.) 20 men and 3 (Cook Dep. 1 7 6 : 3-1 7 9 : 4 , About a month later, as she testified, plaintiff used the "f" word during a meeting with a consultant and a PA head of marketing, 182: 2.) and was This, immediately reprimanded. according to plaintiff, because a "man was allowed to say was (Id. disparate at 180:9- treatment one of the most obscene words in the English language" and she was criticized for "a less egregious act." (Id. at 182:6-18.) One other specific comment described by plaintiff was in an email sent in July 2003 by PA partner Gary Miles ("Miles"), who, responding to a conference organizer's request that PA pay a fee to speak at a conference, stated that "we don't pay to speak," and 30 [* 32] compared the request for money to charging Cameron Diaz for the pleasure of having sex with her. 151.) {Compl. ~~ 55 56; Lalik Aff. Ex. Plaintiff reported the incident to Wigton, the head of human resources, and the same day, Jonathan Moynihan, PA' s Executive Chairman (Moynihan Dep. 24:7-8, Oct. 17, 2008), wrote to Miles that remarks like the one referring to sex with Cameron Diaz must stop. (Lalik Aff. informed that (Lalik Aff. that Ex. Ex. 153.) Miles subsequently resigned, disciplinary 158.) action would be taken after being against him. Plaintiff then complained again to Wigton had stated that he knew she had she had heard that Miles complained about him, and she was upset that her identity had been revealed. (Lalik Aff. Exs. 156, 157.) by Wigton and Moynihan. deposition, someone at plaintiff Her concerns were addressed (Lalik Aff. Exs. 156, 157, 158.) testified PA told Miles that that she did not she had complained. know At her whether (Cook Dep. 113:6-9, Nov. 18, 2009.) Plaintiff discrimination, provided another example of alleged which occurred sometime before May 2001, sex when a British manager changed an evaluation plaintiff had given to a woman employee under her direct supervision. After plaintiff gave the employee a score of "3," the British manager changed the score to "2,,, based on negative comments about the employee from someone who had little experience working with the employee. 31 (Cook Dep. [* 33] 185:25-188:17, Feb. 15, 2007.) Plaintiff protested the change, and (Id. at the review eventually was changed back to a score of "3." 195:18-24.) Plaintiff claims that this was discrimination because there was no reason "to discount her detailed and emphatic review" of the employee. plaintiff (Id. complained to at 191:9-20.) Wigton Around that PA this had a same time, "misogynistic culture," and that she was being ignored by the British office. (Id. at 196:3-8, 202:2-203:5.) Plaintiff could not recall anything specific she might have said to Wigton (id. at 203:19-204:18), and she did not claim, at that time, that she was being discriminated against based on sex. (Id. at 197:11-14.) She testified, however, that during a round of lay-offs after September 11, 2001, she "took issue" when talented a woman "white employee foreign was man" laid off, in the instead of a Boston office, less whose nationality was unknown to plaintiff. (Id. at 204:25-206:3.) As plaintiff told in Washington" recalled, that she she might thought have the decision "a graphics to retain guy the male employee was based on sex, but did not say anything to anyone in human resources. (Id. at 207:23-210:4.) As to the film featuring PA's founder, which plaintiff viewed prior to and during a senior management meeting held in or around November 2000, about a year after she started working at PA (id. at 229:3-25), plaintiff testified 32 that she felt the film was [* 34] "inappropriate," and objected to usin~ it at the management meeting because it was "so white and so British" and would offend women and minorities because "[t]he overtones are restrictive and exclusive." (Id. at 230:24-231:13, 236:22-237:19.) At her deposition, plaintiff acknowledged that "Good Christian men" was not a direct quote from the film, but, rather, represented her impression that there was "some reference to Christianity that I didn't think was appropriate." (Id. testified after that at 232:16-234:20, seeing a She also 239:4-240:25.) photograph management meeting in the fall of 2000, taken at a senior she mentioned to Wigton that it showed an "outrageously greater proportion" of men than women in testimony, the senior plaintiff ranks. had no (Id. at evidence support her sex discrimination claim. 212: 7-13.) other than By the her own above to (Id. at 212:14-24.) With respect to her claim that she was discriminated against because she is American, and not British, plaintiff chiefly relies on evidence that David Ganesh, a British partner, was sent back to the U. K. office after allegedly harassing women in the Boston office, and argues that he was given preferential treatment because he was not immediately fired for misconduct, but, instead, given an opportunity to return to the U.K. office and resign. at 213:24-214:18, 220:2-223:24.) was (Id. Plaintiff also contends that, in early 2002, when PA laid off some employees, individuals from the 33 [* 35] U. K. were brought over "to do what clearly American hires could have done." (Id. at 224:4-13.} Even assuming, without deciding, could meet the minimal discrimination, evidence, requirements that plaintiff's evidence for a prima defendant submits admissib including depos ion , facie case of largely undisputed transcripts, affidavits, and documents, that PA terminated plaintiff's employment after she, and Schlisserman and Pereira, did not comply with PA's instructions to stop all work on the plasma sterilization project and dissolve PlaZtec. request The evidence of plaintiff's refusal to comply with PA's is sufficient demonstrate to nondiscriminatory reason for plain ti Morelli Ratner PC, 73 AD3d 591, 591 a 's termination. legitimate, See Clark v. (1st Dep't 2010); Baur v. 2008 WL 5110976, *4 (SONY 2008). Rosenberg, Mine, Falkoff & Wol Thus, proceeding to consider all the evidence as a whole, and further viewing all the evidence in a plainti fact light most favorable to , plaintiff fails to show that material genuine issues of st as to whether defendant's stated reason was pretextual. See Bendeck v. NYU Hosps. Ctr., 77 AD3d 552, 554 (unsupported assertions (1st Dep't 2010) insufficient to show pretext). deposition, plaintiff acknowledged that MacAndrew directed stop her work on the plasma s At her r to lization project and that she did 34 [* 36] not. (Cook Dep. 243:23-244:19, 20:7, Nov. 18, 2009.) . 15, 2007; Cook Dep. 19: 21- Schlisserman also testified that the three did not dissolve their company, despite MacAndrew' request, because they wanted the anonymous author of the e-mail to be identified first. (Schlisserman Dep. 64: 2-65: 17, Sept. 18, 2008; Lalik Aff. Evidence also shows that plaintiff repeatedly stated to Ex. 87.) other people, because she that including former colleagues, (and two other colleagues) that she was fired "pushed back on a request [PA] made regarding the independent company that we've been trying to fund over the last several weeks." (Lalik Aff. Ex. 140; Cook Dep. 65:3-10, Nov. 18, 2009; see also Lalik Aff. Ex. 139.) Plaintiff's disagreement with defendant's conclusion work on the plasma ste her lization project did or could create the appearance of a conflict of interest and must stop, does not show that defendant's proffered reason was pretextual. AD3d at challenge " ' [A] 121. employer's inference that does decision discrimination.'" the Id. not, to the without [adverse action] See Melman, 98 correctness of an more, give rise was due to to the (quoting Kelderhouse v. St. Cabrini Home, 259 AD2d 938, 939 ( 3d Dept 1999) (emphasis in original) ; see also Forrest, 3 NY3d at 308 (holding that the mere assertion that stated reason was false is not enough 35 to raise issue of pretext) . [* 37] Plaintiff also "does not raise a jury issue merely by showing that the employer's decision was arbitrary or unsupported by the facts." Ioele v. Alden Press, 145 AD2d 29, 36 (1st Dep't 1989). Nor can plaintiff demonstrate pretext based on her conclusory assertion that she would not have been dismissed if she were a man (Cook Dep. 244:20-245:25, Feb. 15, 2007), especially when two male colleagues were red at the same time for the same reason, or based on her unsupported belief that it was "easier" for PA to fire her because she was American. (Id. 245:16 1) Under the circumstances, even if defendant's decision to terminate plaintiff while she was still at home following surgery, could be considered harsh, the court's "function is not to substitute [its] business judgment for that of the employer." Citibank v. 227 AD2d 322, 325 also Melman, Plain ti (l~ New York State Div. of Human Rights, Dept 1996), lv den 88 NY2d 815 (1996); see 98 AD3d at 121; Baldwin, 65 AD3d at 966. also offers insufficient evidence to show that PA engaged in a pattern and practice of discrimination against women and non-British employment. employees in the Plaintiff does not terms and conditions of lege that she, individually, was discriminated against in terms of salary or bonuses or promotions, and evidence shows, as she asserts, that she received increases and bonuses and generally good evaluations. claims, however, that PA fired women, 36 regular Plaintiff and American and minority [* 38] employees, "with regularity and impunity," and gave preferential treatment to, and rarely terminated, British or Anglo-Saxon male employees. (Cook Aff. ':!I<Jl 19-20.) By her own admission, however, this was an "assumption," and not something she "could say for sure." (Cook Dep. 257:5-258:4, Feb. 15, 2007.) In support of her claim disparate treatment, plaintiff also submits an affidavit of Nancy Wolman, who worked as PA' s Human Resources Manager for the Boston and Princeton off ices, from around 1992 to 2000. (Spanos Aff. "witnessed an insidious individuals at PA," Ex. policy including, preferential treatment E.) Wolman attests that of disparate "[i]n certain to British men. (Id.<][ treatment cases," 5.) she of giving The only example she provides of such disparate treatment, however, involves the treatment of David Ganesh. Ganesh was not a simi is not relevant. As this Court has previously found, rly situated employee and thus his situation (Decision/Order on mot. seq. no. 011, dated October 28, 2011.) To the extent that plaintiff contends that a discriminatory environment was created by British executives' "marked propensity for using derogatory language particularly offensive to female employees," this claim is based on evidence only one incident, involving Gary Miles' corrunent related to paying for sex, a remark 37 [* 39] that plaintiff testified was not "personally" offensive to (Cook Dep. 96:15-21, Nov. 18, establish a hostile environment, 2009), and is Similarly, her assertions di ff icul t by an influx of British employees, "misogynist to under either the NYSHRL or the NYCHRL. there was a insufficient r that her job was made more culture" at PA, fail and that she felt to raise triable issues of fact as to whether PA discriminated against her based on sex or national origin. Plaintiff's retaliation claim also fails because she has not rebutted PA's termination. legitimate, nondiscriminatory reasons for her See Williams, 38 AD3d at 238; Pace v. Ogden Servs. Corp., 257 AD2d 101, 105 (3d Dep't 1999). Plaintiff does not, in any event, clearly allege in her Complaint, or otherwise identify, what retaliatory actions occurred, other than asserting that her identity was improperly revealed, after she complained about Miles' e-mail, which made her subject to "derision and undue suspicion from other PA employees." (Compl. <Jl<Jl 60-63.) Notably, at her deposition, plaintiff acknowledged that she did not know "one way or the other" whether the issue with Miles played any role in the decision to terminate her employment. Nov. 18, 2009.) 38 (Cook Dep. 114:23-115:3, [* 40] Accordingly, for all the reasons stated above, it is hereby ORDERED that defendant's motion for summary judgment is granted and the Complaint is dismissed, without costs or disbursements; and it is further ORDERED that the Clerk shall enter judgment accordingly. This constitutes the decision and order of this Court. Dated: December jg',~ o~ \ .. e. 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