Cook v Emblemhealth Servs. Co., LLC

[*1] Cook v Emblemhealth Servs. Co., LLC 2018 NY Slip Op 50451(U) Decided on March 16, 2018 Supreme Court, New York County Jaffe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
Supreme Court, New York County

Michael Cook, Petitioner,

against

Emblemhealth Services Company, LLC, Laura Albert, Benjamin Nodar, Defendants.



150911/2013



For plaintiff:

Christopher Brennan, Esq.

Ziegler, Ziegler & Associates LLP

570 Lexington Ave., 24th fl.

New York, NY 10022

212-319-7600

For defendants:

Michael C. Schmidt, Esq.

Cozen O'Connor

277 Park Ave.

New York, NY 10172

212-453-3937
Barbara Jaffe, J.

The following e-filed documents, listed by NYSCEF document number were read on this application for summary judgment.

By notice of motion, defendants move pursuant to CPLR 3212 for summary dismissal of claims brought against them by plaintiff for discrimination and retaliation pursuant to the state and city human rights laws, and against defendant Albert for intentional infliction of emotional distress. Plaintiff opposes.

I. FACTS

A. Undisputed pertinent background

Plaintiff is a registered nurse with a career in the United States Navy and more than 20 years of nursing experience. (NYSCEF 38). In May 2012, he applied for a supervisory position with defendant Emblemhealth (id.), and was interviewed, hired, and supervised by defendant Nodar, Emblemhealth's director of clinical appeals (NYSCEF 33, 38). Plaintiff supervised 12 [*2]staff members and monthly audited their work. (Id.). During an employee's first four months, introductory employment period evaluation forms were to be completed after two months and after four months. Thereafter, the employee's retention remains subject to review. (NYSCEF 32).

On July 17, 2012, approximately 60 days after plaintiff was hired, Nodar evaluated him and recommended his retention through the end of his four-month introductory period, rating him as meeting standards in three of the five evaluation categories, and not meeting standards in "job knowledge" and "teamwork. As pertinent here, Nodar wrote:

Since this is Michael's first job as a supervisor for a managed care organization, he needs to develop a better understanding of the work culture, departmental vision and goals. His leadership style is very authoritarian which is necessary depending on the situation. However, Michael would benefit by adapting a more participative style with his staff . . .Michael's direct communication style is generally a strong point, but occasionally his approach is too critical and aggressive. He might get better results from others by focusing on elements of their ideas that he does like, then building from there . . .Because Michael has great potential in developing his leadership role, he has been instructed to attend several Emblemhealth Leaders of People classes . . .I look forward to seeing Michael develop as a leader here at Emblemhealth. He has begun to take steps in that direction by actively seeking feedback from his peers as well as his boss.

(NYSCEF 35).

In comments solicited by Emblemhealth, plaintiff stated that he took "great offense" to the description of his communication style as critical and aggressive because "as a black American; often times this characterization is such a stereotype to define individuals of a group," denied having ever been "critical or aggressive towards [sic] anyone in [his] personal or professional life," and expressed concern about the sections of the evaluation reflecting a rating that he did not meet standards. (Id.).

On September 17, 2012, plaintiff finalized his monthly audit, which showed an error in the work product of defendant/supervisee Albert, a white woman. (NYSCEF 38). The next morning, Albert angrily approached plaintiff at his work station, denying any error, and went to retrieve records supporting her position. Upon her return, she raised her voice, and plaintiff suggested they continue the conversation in a nearby meeting room. There, refusing to admit error, Albert stated that she wanted her work product "reviewed by an expert." Plaintiff agreed to obtain a review of her work by his supervisors, and left the meeting room. Several supervisory-level employees, including Nodar, reviewed Albert's work and confirmed that there was an error. (Id.).

Two days later, on September 19, 2012, Nodar met with plaintiff and Albert, and informed them that he agreed with plaintiff's assessment of Albert's work product. In response, Albert pointed her finger at plaintiff, yelling and angrily referring to him as "that man." After Albert left the meeting, plaintiff told Nodar that he was shocked that he had not admonished Albert for treating him in such an insubordinate and unprofessional manner. (Id.).

That afternoon, Nodar forwarded plaintiff the following email he had sent to Albert:

Hi Laura,In review of our conversation this morning, it was inappropriate and unprofessional to refer to Michael as "that man." He is your supervisor and fellow employee and should be treated with respect.Thank you, Ben

(Id., NYSCEF 36).

That evening, Albert called Emblemhealth's human resources "hotline," and spoke to a representative for at least 30 minutes. (NYSCEF 34, pp. 120-22). The next morning, September 20, 2012, she went "directly" to Emblemhealth's human resources department, where she spoke with Ken Rotondo. (Id., p. 127). That same morning, plaintiff emailed Nodar about Albert's conduct, stating that it made him feel "disrespected" and "marginalized," and that:

[Nodar's] vocal concern with Laura Albert being upset over the fact and witnessed unprofessional and disrespectful behavior is reminisce[nt] of historical facts of the role of victimization and lynching which took place in our nation's darkest moments.

(Id.).

Rotondo summoned plaintiff to his office and informed him that Albert had accused him of, among other things, touching her arm to prevent her from leaving a meeting room on September 18. Rotondo questioned plaintiff about the alleged improper touch, and plaintiff denied it. At the end of the meeting, Rotondo handed plaintiff a termination letter. In total, plaintiff was employed at Emblemhealth for approximately four months and was fired before the expiration of his introductory period. (NYSCEF 38).

On January 30, 2013, plaintiff commenced this action, alleging, pursuant to the state and city human rights laws, that defendants subjected him to unlawful discrimination and retaliation. He also advances a cause of action against Albert for intentional infliction of emotional distress. (NYSCEF 18, 31).

B. Plaintiff's deposition

At his deposition, plaintiff testified that when he was told that he was fired, he was "bombarded" with Albert's allegations, giving him no opportunity to raise the issue of discrimination. (NYSCEF, p. 167). Rotondo questioned plaintiff about the alleged improper touch, and plaintiff denied it. Rotondo told plaintiff that he was a "problem." (Id.).

C. Albert's deposition

At her deposition, Albert recounted her September 17 meeting with plaintiff, alleging that at that time, he touched her wrist. While plaintiff's touch was a "guiding" one, and neither violent nor grabbing, Albert does not like any man touching her physically during stressful moments, as she had been previously assaulted. When pressed to recall the race of the two men who allegedly assaulted her, she stated that they were Hispanic. (NYSCEF 34., pp. 38-39). She feared plaintiff during the meeting because he is very intense, invades her personal space, and has a "very harsh tone." (Id., pp. 19, 85).

Albert denied having yelled at plaintiff, but admitted having behaved insubordinately toward him during their September 19 meeting with Nodar, and that during the meeting, she said nothing about the alleged touching given her focus on her alleged error. (NYSCEF 34, pp. 83, 87). She agreed that there should have been "consequences" for her insubordination. (Id.).

At some point, Albert was instructed by her superiors to work from home (Id., pp. 72-73), and after plaintiff was fired, she was told she could return to work (Id., p. 95). In April 2013, Albert left Emblemhealth for a new job. (Id., pp. 83, 87).

D. Nodar's deposition

At his deposition, Nodar testified that he had hired plaintiff because the interview went well, and plaintiff had both an impressive resume and a background in the Navy. (NYSCEF 33, p. 37). At his meeting with plaintiff and Albert, both were loud, but Albert was louder. (Id., p. [*3]44). After the meeting, plaintiff told him that he felt that Albert's behavior was inappropriate. (Id., p. 128). Nodar confirmed Albert's error and explained his failure to admonish Albert immediately about her insubordination as based on his management style whereby he "allow[s] the person to vent, calm down the situation, and then have a calm conversation afterwards." (Id., p. 123).

Nodar recalled two occasions before he conducted plaintiff's evaluation where employees complained to him of plaintiff's harsh tone, causing him to characterize plaintiff's leadership style as authoritarian. (Id., pp. 77-78). He may also have asked other staff members about plaintiff, and relied on their comments in writing the review. (Id.).

According to Nodar, if an employee claims that his or her performance review is affected by racial discrimination, Nodar reports it to his supervisor or human resources, and as he would consider it important if anyone in the unit behaved in a discriminatory manner, he would have reported plaintiff's comments regarding his review. (Id., pp. 45, 49). He did not, however, recall whether he brought plaintiff's comments about his performance evaluation to anyone's attention, and acknowledged that plaintiff had accused him of racism, which upset him. (Id., pp. 49-54).

After the incident with Albert, Nodar was asked his opinion about terminating plaintiff, and he recommended that plaintiff be fired based on his performance review and his alleged touching of Albert. (Id., pp. 141-143).

E. Rotondo's affidavit

In an affidavit dated November 10, 2016, Rotondo states that shortly after plaintiff began working at Emblemhealth, Rotondo began receiving complaints about him by employees in plaintiff's department, which Rotondo characterized as "conflicts between [plaintiff] and his co-workers related to his management style and the fact that others were perceiving him to be condescending and abrasive in his approach to them." Rotondo was also advised by Nodar about complaints from several employees about plaintiff's management style, but because plaintiff was a new employee and had no prior experience in insurance administration, Rotondo and Nodar agreed to coach and work closely with him to determine whether he should be retained by Emblemhealth. Although he and Nodar worked with plaintiff and met with him occasionally, they continued to receive complaints about his management style. (NYSCEF 24).

After receiving plaintiff's comments and although unaware that anything had been said or done relating to plaintiff's race, Rotondo spoke with plaintiff about his allegation and with Nodar and other employees. However,

[plaintiff] did not provide any additional details concerning any alleged discrimination, other than his apparent belief that portions of his evaluation were somehow discriminatory, and no one corroborated anything that suggested discrimination of any kind toward [plaintiff], let alone because of his race . . . [Rotondo's] investigation did not find any race-based discrimination of [plaintiff] at all.

(Id.).

Rotondo received other complaints about plaintiff's management, and heard Albert's complaint about plaintiff through the employee hotline. According to Rotondo, Albert felt bullied by plaintiff, especially during their private meeting. He spoke to her and investigated her complaint, which resulted in other employees in plaintiff's department corroborating her description of plaintiff's treatment of his subordinates and expressing similar concerns about his "condescending and abrasive" communications with them. (Id.).

Rotondo then met with plaintiff to discuss the investigation in order to determine whether [*4]plaintiff should remain at Emblemhealth following the end of his introductory period. According to Rotondo, plaintiff was not receptive to his suggestions about improving his management style, and "became extremely loud and aggressive" with him. After Nodar recommended that plaintiff be terminated, he was fired in September 2012. (Id.).

F. Other affidavits

Defendants also submit affidavits from three people who worked with plaintiff at Emblemhealth. One individual states that plaintiff spoke to her in an extremely condescending and belittling way, that his management style was abrasive, and that she complained to Nodar about it. Another was upset with plaintiff's management style and his way of acting and speaking to her in a condescending, abrasive manner, and she also complained to Nodar. Two recall the incident with plaintiff and Albert, and that Albert told them that plaintiff had touched her wrist or hand and/or attempted to prevent her from leaving the room. (NYSCEF 25-26, 28).

II. RELEVANT CONTENTIONS

Defendants contend that plaintiff's termination constitutes a legitimate business decision based on his management style, about which they began receiving complaints shortly after he was hired. They assert that the evidence reflects their concerns about his management style, including the performance review, which was positive but contained constructive criticism, and Albert's testimony, in which she recalls plaintiff's consistently harsh tone and demeanor. Albert maintains that there is no basis for his claim of intentional infliction of emotional distress, as Albert's conduct does not amount to the outrageous behavior required to meet this standard. (NYSCEF 27).

Defendants contend that plaintiff's reliance on racially-coded terms and stereotypes constitutes no substitute for admissible evidence that race was a motivating factor in his termination, and observe that because Nodar hired and fired plaintiff, his termination is presumptively not discriminatory. (Id.).

Plaintiff contends that he acted courteously and professionally in his role, and that normal interactions with his staff were deemed authoritarian and aggressive solely because of his race, as these qualities are consistent with "the hackneyed stereotype of the 'angry black man.'" He asserts that the words "very authoritarian," "critical," and "aggressive," used by Nodar in his performance evaluation, have historically been used to stereotype and marginalize black people in supervisory roles, adding that Nodar's reaction to Albert's insubordination was shockingly casual, as she had screamed at, belittled, and disrespected him, and that Rotondo exhibited little interest in hearing the account from plaintiff's perspective, and had written the termination letter even before the meeting began. He also argues that Albert's claim of physical abuse is false, as she did not report it during the September 19 meeting with Nodar, and because Emblemhealth's conduct in allowing him to work in close proximity to her for two days following the alleged incident reflects that she reported no such abuse until after she was admonished by Nodar. He also denies having had a sufficient opportunity to respond to Albert's allegations. (NYSCEF 38).

III. ANALYSIS

Plaintiff's claims arise from allegations of racial coding, a concept through which it is recognized that certain terms, while non-discriminatory on their face, may "invoke racist concepts already planted in the public consciousness" (Lloyd v Holder, 2013 WL 6667531, at *9 [SD NY 2013], app dismissed 14-559 [2d Cir 2014]), and that the true meaning of words may depend on context (Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 205 [1st Dept 2015]; John v Kingsbrook Jewish Med. Ctr./Rutland Nursing Home, 2014 WL 1236804, at *13 [*5][ED NY 2014] affd sub nom 598 F Appx 798 [2d Cir 2015]), and/or on "inflection, tone of voice, local custom, and historical usage" (Ash v Tyson Foods, Inc., 546 US 454, 456 [2006]).

In Cadet-Legros v New York Univ. Hosp. Ctr., the Court summarily dismissed a race discrimination claim, finding that the plaintiff had failed to establish that the defendant's nondiscriminatory reason for termination constituted a pretext for discrimination, notwith-standing her allegation that her supervisors directed racially coded language at her. While the Court recognized that a plaintiff alleging discrimination must be allowed to "present a wide range of indirect evidence of discrimination, including the fact that a defendant (or its agent or employee) used coded language, that is probative of discriminatory intent," it also held that the court must examine the language and, in some cases, its historical usage, in addition to the context in which it was used. Summary judgment must be denied if a defendant fails to prove that no reasonable jury could conclude that the statement in context was racially-coded, while it must be granted if the plaintiff fails to provide proof that could lead a reasonable jury to conclude that the statement reflected the use of language in a racially-coded way. (135 AD3d 204-205 [2015]).

At issue in Lloyd v Holder, supra, was the employer's use of words such as lazy, shiftless, incompetent, entitled, slacking off, and dumb, which the plaintiff described as projecting racial stereotypes and which the Court described as potentially "'dog-whistle racism' — the use of code words and themes which activate conscious or subconscious racist concepts and frames." (2013 WL 6667531, at *9). While the Court recognized that certain facially non-discriminatory terms may invoke racist concepts, such terms are not deemed "code words" unless they activate or symbolize "racial implications or animus." (2013 WL 6667531, at 10). If words are facially neutral, the plaintiff must submit other evidence of discrimination.

A. State HRL discrimination and retaliation

1. Discrimination

Under the state HRL, to establish a prima facie case of employment discrimination, the plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she suffered adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Johnson v N. Shore Long Is. Jewish Health Sys., Inc., 137 AD3d 977, 978 [2d Dept 2016]).

On a motion for summary dismissal, "defendants must demonstrate either the plaintiff's failure to establish every element of intentional discrimination or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual." (Forrest, 3 NY3d at 305; Johnson, 137 AD3d at 978). In opposition, the plaintiff must "raise a triable issue of fact as to whether the reason proffered by the defendant was merely pretextual." (Andaya v Atlas Air, Inc., 146 AD3d 740, 741 [2d Dept 2017]). It is insufficient to show that an employer made "an unwise business decision," "an unnecessary personnel move," or that it "acted arbitrarily or with ill will." (Miranda v ESA Hudson Valley, Inc., 124 AD3d 1158, 1161 [3d Dept 2015]). The plaintiff must show that discrimination was a motivating factor, and may not do so by "refuting or questioning the defendant's articulated reason" for termination. (Id.).

Here, it is undisputed that plaintiff belongs to a protected class and was qualified for the position, and it is well-settled that termination constitutes an adverse action. Thus, those issues are not addressed and instead, the initial question is whether the defendants (1) establish that [*6]plaintiff's termination did not occur under circumstances giving rise to an inference of discrimination, or (2) offer legitimate, nondiscriminatory reasons for their challenged actions and show that no material issues of fact exist as to whether those reasons were pretextual. (See Forrest, 3 NY3d at 307-08 [turning to question of pretext, as first two elements undisputed, and termination "clearly" constituted adverse action]).

a. Defendants' prima facie showing

As evidence that plaintiff's termination was prompted by legitimate, nondiscriminatory reasons, defendants offer Nodar's performance evaluation, in which he expressed concerns about his management style, and Nodar's testimony, in which he stated that the allegedly racially-coded words in the evaluation were drawn from complaints made by plaintiff's colleagues, as opposed to his own alleged racism. They submit affidavits from plaintiff's coworkers who were upset by plaintiff's management style and complained to Nodar about it. They also rely on Rotondo's affidavit, in which he states that after plaintiff submitted his rebuttal to the performance evaluation, he followed up with him and investigated the discrimination claim, but found no evidence of racial discrimination. Rotondo also received complaints about plaintiff's communication style.

Defendants thereby establish that the basis for plaintiff's termination was not only Albert's allegation of an improper touch, but their ongoing concern as to plaintiff's management style, and observe that he was fired at the end of his introductory period, at which time a decision was to be made as to whether to retain or fire him, and that by then, his management style had not improved and the incident with Albert had occurred.

Taken together, these facts constitute, prima facie, a legitimate, nondiscriminatory reason for plaintiff's termination. (Radler v Catholic Health Sys. of Long Is., Inc., 144 AD3d 781 [2d Dept 2016] [defendants demonstrated that legitimate, nondiscriminatory reason for firing plaintiff, namely, dissatisfaction with work performance, was not pretext for discrimination]; Tibbetts v Pelham Union Free School Dist., 143 AD3d 806 [2d Dept 2016] [defendant met burden by showing it terminated plaintiff's employment due to complaints about plaintiff]; Singh v State Off. of Real Prop. Servs., 40 AD3d 1354, 1356 [3d Dept 2007] [on motion for summary judgment in Title VII action, defendant established, through performance evaluations and supervisors' deposition testimony, that it legitimately terminated plaintiff due to unsatisfactory job performance]).

Moreover, as Nodar hired plaintiff and later recommended his termination, defendants are entitled to the presumption against discrimination when the same person hires and fires the employee. That presumption is probative here given Nodar's mostly positive initial evaluation of plaintiff and the circumstance that plaintiff was fired within his four-month introductory period. (See Dickerson v Health Mgt. Corp. of Am., 21 AD3d 326 [1st Dept 2005] [when hirer and firer are same, and termination occurs within relatively short time after hiring, strong inference arises that discrimination not determinative factor; as individuals who hired plaintiff also fired him within nine-month time span, strong inference existed that discrimination unlikely]).

b. Triable issue

In arguing that defendants' reason for his termination is pretextual, plaintiff relies on the following: (1) the use by Nodar of racially-coded language in the evaluation; (2) Emblemhealth's failure to investigate his complaint about the language; (3) that his complaint about the incident with Albert, her use of racially-coded language, and his reference to the history of lynching were not investigated; and (4) that he was terminated based on Albert's uncorroborated allegation [*7]while she remained employed. Plaintiff also contends that an inference of discrimination is raised by the fact that he was fired within two days of his having accused Nodar of racist behavior toward him during their meeting with Albert and that Emblemhealth credited the word of a white woman over his. (NYSCEF 38).

In Cadet-Legros v New York Univ. Hosp. Ctr., the Court held that the two statements at issue, "a leopard does not change its spots" and that the plaintiff had engaged in "tirades," did not, in and of themselves, have a discriminatory meaning, regardless of their context, and found that the word "tirade" was race-neutral. (135 AD3d 204-205 [2015]).

Here, Nodar's use of the facially non-discriminatory terms "very authoritarian," "critical," and "aggressive" and the context in which they were used provide no basis for finding the terms racially-coded, nor do they constitute evidence of discrimination. (See Thelwell v City of New York, 2015 WL 4545881, at *10 [SD NY 2015] [under state and city HRLs, few instances of defendants' purported use of the words "angry" and "abrasive" did not rise to the level of racial code words such as "boy" or "thug;" no contextual evidence that the terms "angry" or "aggressive" were racially charged, and plaintiff's subjective interpretation of critical but facially nondiscriminatory terms did not "itself" reveal discriminatory animus]; Humphries v City Univ. of New York, 2013 WL 6196561, at *9 [SD NY 2013] [on motion to dismiss, use of words "aggressive, agitated, angry, belligerent, disruptive, hands on hip, hostile, threatening," which allegedly invoked stereotype of "angry black woman," did not support claim of racial discrimination as not accompanied by other "concrete factual allegations"]; Lloyd, 2013 WL 6667531, at *9 [Title VII claim dismissed as, among other reasons, plaintiff offered no evidence other than alleged code words]; Nolley v Swiss Reinsurance Am. Corp., 857 F Supp 2d 441 [SD NY 2012] [rejecting argument that description of plaintiff as "aggressive" was racially coded language in context in which it was used; word "aggressive" racially neutral and supervisors described plaintiff as aggressive in context of recounting plaintiff's tone and behavior during vehement conversations and when describing complaints from others whom actually used term "aggressive"]; see also Cuttino v Genesis Health Ventures, Inc., 2006 WL 62833 [D Conn 2006] [finding that description of plaintiff as aggressive and intimidating insufficient to overcome showing of legitimate reason for termination]).

That plaintiff interpreted Nodar's language as being racially charged does not satisfy his burden. (Thelwell, 2015 WL 4545881, at 10 [absent evidence that use of words "angry" or "abrasive" racially charged or that racial epithet used to describe plaintiff, plaintiff's subjective interpretation of words as constituting racially discriminatory stereotype insufficient]; Humphries, 2013 WL 6196561, at *9 [plaintiff's subjective interpretation of use of critical but facially non-discriminatory terms does not in and of itself establish discriminatory animus; while terms used allegedly referred to "angry black women" stereotype, no one referred to plaintiff as angry black woman or otherwise used language explicitly referring to plaintiff's race or skin color]).

Moreover, the tone of Nodar's evaluation is positive, and while he describes plaintiff's leadership style as "very authoritarian," he also praises his communication. Nodar also gave plaintiff a satisfactory ranking in three of the five categories, and expressed his belief that plaintiff had "great potential" in developing into a leader at Emblemhealth. (See e.g., Moza v New York City Health and Hosps. Corp., 2017 WL 1251096 [ED NY 2017] [that supervisor gave plaintiff favorable review in past corroborates testimony that plaintiff's poor performance was real reason for later negative evaluation rather than invidious motive]).

Nodar's description of plaintiff's communication and management style was relevant to the evaluation, as among the qualities assessed under the "teamwork" category is whether the employee "listens to other and values opinions" and "welcome newcomers and promotes a team atmosphere." (See e.g., Chen v City Univ. of New York, 2014 WL 1285595 [SD NY 2014], affd 805 F3d 59 [2d Cir 2015] [while plaintiff argued that supervisor's comment about her lack of collegiality was irrelevant to evaluation, evaluation in fact required assessment of employee's qualities of personality and character]).

Even if defendants failed to investigate plaintiff's complaints, plaintiff offers no evidence showing that such a failure was due to discrimination, rather than for some other reason. (See Iscenko v City of New York, 2017 WL 2880553 [SD NY 2017] [employer's failure to follow internal procedures does not, in and of itself, establish that employer was motivated by illegal discriminatory intent; "(f)ailure to follow internal procedures may as likely be the product of neglect or personal hostility, as some unlawful discriminatory motive."]). Nodar's failure to reprimand Albert at the time she showed disrespect to plaintiff does not constitute evidence that he did so for discriminatory reasons, and plaintiff offers no basis to discredit the explanation given that he prefers to let people calm themselves before reprimanding them. In any event, Nodar admonished Albert shortly after the incident.

While plaintiff offers ample evidence that Albert was insubordinate, and she concedes as much, he offers no evidence from which to infer that her insubordination was a product of racial discrimination or that her use of the term "that man," while distancing and disrespectful, has a historical or contemporary racial meaning. (See Cadet-Legros, 135 AD3d at 205-06 [discrimination claim under city HRL failed; 'tirade' not probative of pretext, as word has no historically racial meaning and is entirely race-neutral]). Moreover, even if Albert falsely accused plaintiff of touching her wrist, her allegation bears little to no relation to times when black men were falsely accused of crimes committed against white women and lynched by a mob. (See id. [phrase "a leopard does not change its spots" not racially coded, even though used in racist fashion at turn of 20th century, as plaintiff offered no evidence that expression "is imbued with racial meaning in contemporary parlance"]).

In any event, as Albert had no role in the decision to terminate plaintiff, her comments, in and of themselves, and even if deemed to be racially charged, are insufficient to establish discriminatory intent. (See Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004] [racial epithets uttered by non-decisionmakers do not establish discriminatory intent or inference of discrimination]; Radler v Catholic Health Sys. of Long Is., Inc., 144 AD3d 781 [2d Dept 2016] [comments made by individual not involved in decision to terminate plaintiff's employment did not give rise to discriminatory inference]).

Plaintiff also does not establish that Emblemhealth's decision apparently crediting Albert's version of the incident over his, or the belief that Albert told the truth despite his denial, was based on discriminatory animus, absent any other evidence of discrimination. (See Miranda v ESA Hudson Val., Inc., 124 AD3d 1158, 1161 [3d Dept 2015] [even if plaintiff was falsely accused of misconduct or defendant mistakenly held him accountable for error, plaintiff did not demonstrate that stated reason for terminating him was pretext for discrimination]; Nolley v Swiss Reinsurance Am. Corp., 857 F Supp 2d 441 [SD NY 2012] [even if other employee lied during confrontational call with plaintiff, plaintiff did not create triable issue regarding employer's issues with plaintiff's performance or motives in firing plaintiff for his failure to perform]).

Plaintiff thus fails to demonstrate that defendants' decision to fire him at all or fire him instead of Albert was racially motivated. That the incident with Albert and plaintiff's complaint about it occurred within two days of his termination also constitutes insufficient proof of discrimination. (See Forrest, 3 NY3d at 313-4 [plaintiff cannot avoid summary dismissal by relying on fact that sequence of events at issue took place in short period or that termination occurred after complaints made]; Nolley, 857 F Supp 2d at 460-462 [plaintiff did not show termination was result of discrimination; while he was fired approximately three months after complaining that supervisor was racially biased, immediately prior to termination plaintiff had confrontational call with supervisors and had previously been put on notice of performance deficiencies]).

2. Retaliation

To establish a prima facie case of unlawful retaliation, a plaintiff "must show that (1) he has engaged in protected activity, (2) his employer was aware that he participated in such activity, (3) he suffered an adverse employment action, and (4) there is a causal connection between the protected activity and the adverse action." (See Asabor v Archdiocese of New York, 102 AD3d 524, 528 [1st Dept 2013]). On a motion for summary judgment, "the defendant need only establish, prima facie, the absence of any of these elements." (Macchio v Michaels Elect. Supply Corp., 149 AD3d 716, 718 [2d Dept 2017]). Defendant may challenge the sufficiency of the fourth element by establishing a non-retaliatory reason for the adverse action, and in opposition, the plaintiff must raise a triable issue of fact as to whether the stated reason for the adverse action was a pretext for retaliation, and whether, absent a retaliatory motive, the defendant's decision to terminate her would have occurred. (Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 25 [1st Dept 2014]).

As the facts at issue in plaintiff's retaliation claim are identical to those set forth above, he fails to show that defendants' decision to terminate his employment was causally connected to either of his complaints of discrimination. (See Andaya v Atlas Air, Inc., 146 AD3d 740, 741 [2d Dept 2017] [retaliation claim dismissed as defendant established plaintiff was terminated for legitimate, nonretaliatory reasons, and plaintiff failed to raise triable issue]; see also Chen v City Univ. of New York, 805 F3d 59 [2d Cir 2015] [as defendant conducted annual review of plaintiff at same time as other employees, timing of its decision to not reappoint her after review, which occurred shortly after her filing of discrimination complaint, did not support inference that she would have been reappointed had she not filed complaint; concerns about plaintiff's performance would have been raised at review regardless of complaint]).

B. City HRL

The city HRL is "to be more broadly interpreted than similarly worded federal or State antidiscrimination provisions." (Singh v Covenant Aviation Sec., LLC, 131 AD3d 1158, 1161 [2d Dept 2015]). On a motion for summary dismissal of a discrimination case brought pursuant to it, where a defendant offers evidence in admissible form of one or more nondiscriminatory motivations for its actions, "the court should . . . turn to the question of whether the defendant has [shown] there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action." (Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 205 [1st Dept 2015]; see also Bennett v Health Mgmt. Sys., Inc., 92 AD3d 29, 39—40 [1st Dept 2011], lv denied 18 NY3d 811 [2012]).

If the defendant meets its burden, the plaintiff must show that the proffered non-discriminatory motivation is pretextual (Cadet-Legros, 135 AD3d at 200), or that "regardless of [*8]any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination" (Bennett, 92 AD3d at 39). Where the plaintiff offers evidence of pretext, which is defined as "some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete" (Watson v Emblemhealth Health Servs., 2018 NY Slip Op 00123, 2017 NY Slip Op 00123 [1st Dept]), it should "in almost every case indicate to the court that a motion for summary judgment should be denied (Cadet-Legros, 135 AD3d at 200). The plaintiff's disagreement with his employer's actions does not raise an inference of pretext. (Melman v Montefiore Med. Ctr., 98 AD3d 107, 121 [1st Dept 2012]).

This same standard applies where a defendant, on a motion for summary dismissal of claims of retaliation brought pursuant to the city HRL, offers evidence of nondiscriminatory motivations for its actions. (Brightman v Prison Health Serv., Inc., 108 AD3d 739, 741 [2d Dept 2013]).

1. Discrimination

Even under this more liberal city standard, plaintiff fails to offer evidence that defendants' reasons for terminating him were a pretext for discrimination, absent proof that any of the reasons were false, misleading, or incomplete or were motivated at least in part by discrimination.

2. Retaliation

Plaintiff complained twice to Nodar of discriminatory conduct in the workplace, accusing Nodar himself of racism, and Nodar also recommended his termination, which occurred shortly after plaintiff lodged his complaints. Moreover, according to plaintiff, Rotondo said, at the meeting during which he was terminated, that plaintiff was a "problem." Taken together, this evidence raises triable issues of fact as to whether plaintiff's termination was in retaliation for his complaints of racism. (See Ananiadis v Mediterranean Gyros Prod., Inc., 151 AD3d 915, 920 [2d Dept 2017] [under state and city HRLs, close temporal proximity between reduction in salary and unwanted sexual advances, in combination with employer's statement that pending lawsuit interfered with plaintiff's work performance, raised triable issue of fact as to retaliation]).

C. Claims against individual defendants

An individual employee may be held liable as an "employer," pursuant to either the state or city HRLs when she has an "ownership interest or any power to do more than carry out personnel decisions made by others." (Patrowich v Chem. Bank, 63 NY2d 541, 543-44 [1984]; Matter of New York State Div. of Human Rights v ABS Elecs., Inc., 102 AD3d 967, 969 [2d Dept 2013], lv denied 24 NY3d 901 [2014]; Kaiser v Raoul's Rest. Corp., 72 AD3d 539, 540 [1st Dept 2010]; Priore v New York Yankees, 307 AD2d 67, 74 [1st Dept 2003], lv denied 1 NY3d 504).

As plaintiff neither alleges nor offers evidence that Albert has an ownership interest in Emblemhealth or any power to do more than carry out personnel decisions made by others, his HRL claims against her fail. (See Brotherson v Modern Yachts, Inc., 272 AD2d 493, 494 [2d Dept 2000] [plaintiff offered insufficient evidence to raise triable issue of fact as to whether individual defendant had ownership interest in corporate defendant or requisite authority to be subjected to personal liability]).

However, as Nodar hired plaintiff, eventually reprimanded Albert after she challenged plaintiff's authority, and recommended his termination, plaintiff raises triable issues of fact as to whether Nodar had the power to do more than carry out personnel decisions made by others. Plaintiff has thus shown that Nodar may be held individually liable under the state and city HRLs. (See Asabor v Archdiocese of New York, 102 AD3d 524, 529 [1st Dept 2013] [defendant [*9]could be held liable under state HRL, as he had authority to make high-level managerial decisions, including decisions to hire personnel and manage inter-office "problems"]; Kaiser, 72 AD3d at 540 [two individual defendants, who were owners and officers of the co-defendant corporate restaurant, could be held liable for violations of the State HRL]).

D. Intentional infliction of emotional distress

To establish intentional infliction of emotional distress, a plaintiff must show:

"(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." (Chanko v Am. Broad. Cos., Inc., 27 NY3d 46, 56 [2016]).

Even if plaintiff's allegations here are all construed as true, they do not constitute the extreme and outrageous conduct required to support a claim for intentional infliction of emotional distress. (See Herlihy v Metro. Museum of Art, 214 AD2d 250, 263 [1st Dept 1995] [while use of ethnic slurs "clearly reprehensible," it did not sustain cause of action for intentional infliction of emotional distress, limited to "only the most egregious of acts"]).

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that defendants' motion for summary judgment is granted except as to plaintiff's claim of retaliation under the New York City Human Rights Law and as to individual liability against defendant Benjamin Nodar; and it is further

ORDERED, that plaintiff's claims under the New York State Human Rights Law, his discrimination claim under the New York City Human Rights Law, and his claims against defendant Laura Albert are hereby severed and dismissed, and the remainder of the action shall continue.

Dated: March 16, 2018

Barbara Jaffe, J.S.C.

Claim of retaliation under New York City Human Rights Law