Thomas v Mintz

[*1] Thomas v Mintz 2018 NY Slip Op 51169(U) Decided on August 1, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 1, 2018
Supreme Court, New York County

Deborah Thomas, Plaintiff,

against

Jonathan Mintz, Commissioner New York City Department of Consumer Affairs and the City of New York, Defendants.



103397/2011



Plaintiff: Stewart Lee Karlin, 111 John Street, 22nd Floor, New York, NY 10038

Defendants: Zachary W. Carter, Corporation Counsel of the City of New York, 1000 Church Street, Room 2-139, New York, NY 10007, Of counsel- Kerrin A. Bowers
Carmen Victoria St. George, J.

This is an employment discrimination action by plaintiff Deborah Thomas, seeking a declaratory judgment and monetary relief against defendants Jonathan Mintz, the Commissioner of New York City Department of Consumer Affairs and the City of New York. Plaintiff alleges that she is entitled to such relief because she was subject to discrimination, retaliation, and a hostile work environment based on her sex and race in violation of the New York State Human Rights Law ("SHRL") (New York State Executive Law § 296) and the New York City Human Rights Law("CHRL") (New York City Administrative Code § 8-107). Currently, defendants move to dismiss the complaint pursuant to CPLR § 3211 (a)(7).

Background

1. SDHR Complaint — March 4, 2003

Plaintiff is employed by the New York City Department of Consumer Affairs and identifies herself as an African American black female.[FN1] On or about March 4, 2003, plaintiff filed a discrimination complaint based on race and sex with the New York State Division of Human Rights ("SDHR"). After an investigation, the SDHR found probable cause and referred the matter to a public hearing. On December 19, 2007, an administrative law judge ("ALJ") [*2]issued a decision dismissing plaintiff's SDHR complaint. Notably, the ALJ concluded that plaintiff failed to produce evidence sufficient to prove that her stated reasons for defendants' decision not to promote her were a pretext for unlawful race or sex discrimination.

Plaintiff alleges that beginning in 2008, she faced "threats and retaliatory actions from management staff" as a result of her filing the SDHR complaint (Mintz complaint ¶¶ 9-10). Plaintiff claims that these threats and actions include: (1) Assistant Commissioner Mona Bector telling her that she does not care if plaintiff went back to SDHR and filed another complaint (Id. at ¶ 11) ; (2) her 2009 performance appraisal being done by First Deputy Commissioner Pico, who had only supervised plaintiff for four months (Id. at ¶ 14); and (3) Mona Bector telling her in 2010 that she did not like her and that she cannot stand civil services employees because they complain too much about their rights and they are lazy (Id. at ¶ 13)

On or around September 22, 2010, plaintiff requested medical leave,[FN2] which was granted.

Thereafter, plaintiff's doctor wrote a letter stating that she was cleared to return to work at the end of her medical leave on or about October 22, 2010. Prior to plaintiff's return from medical leave, defendants instructed plaintiff to see Dr. Azariah Eshkenazi, a psychiatrist, to determine when she was fit to return to work. While Dr. Eshkenazi found plaintiff was unfit to return to work, plaintiff's psychiatrist Dr. Antal Borbley, found otherwise and issued a report stating plaintiff was fit to return to work. Plaintiff claims that defendants do not refer other employees returning from leave to psychiatric evaluation as standard practice absent psychiatric or psychological reasons. According to the complaint, the "referral was part of the campaign by Mona Bector and Alba Pico to harass plaintiff" because she filed the SDHR complaint (Id. at ¶ 24).

Pursuant to New York Civil Service Law Section 72 ("Civil Service Law § 72"), defendants sent plaintiff a letter, dated October 27, 2010, which indicated their intention to place plaintiff on a leave of absence effective November 10, 2010.[FN3] The stated basis for the leave of absence was that plaintiff was not mentally fit to perform the duties of her position. Plaintiff sets forth that this letter was in retaliation for her filing of the SDHR complaint of discrimination. Plaintiff was afforded the opportunity of a hearing with the New York City Office of Administrative Trial and Hearings ("OATH") pursuant to Civil Service Law § 72 to contest the intended leave of absence. However, the OATH hearing was subsequently withdrawn as Dr. Eshkenazi found plaintiff medically fit to return to work. Even though the OATH proceeding was withdrawn, plaintiff states that it was initiated in retaliation for filing the SDHR complaint of discrimination.

2. EEO Complaint — December 17, 2010

On or about December 17, 2010, plaintiff alleges that she "initiated another EEO complaint claiming gender and race discrimination and retaliation"[FN4] (Id. at ¶ 36) She claims that Mintz became aware of the EEO complaint on or about, November 30, 2011. Plaintiff alleges in her complaint that, in retaliation for her filing of the EEO complaint, she was subsequently brought up on charges of misconduct for making a false statement and engaging in unprofessional conduct, which resulted in an Article 75 proceeding. Plaintiff states that she was in part found guilty of the charges and the ALJ recommended a sixty-day suspension. According to the plaintiff, Mintz declined to follow the recommendation of the ALJ and imposed a penalty of termination because of her EEO activity and race and gender discrimination. Thereafter, plaintiff appealed to the New York Civil Service Commission ("CSC") and on December 30, 2013, the CSC reversed the termination and reinstated the sixty-day suspension with time served.

Plaintiff commenced this action on March 18, 2011 and later filed and served an Amended Complaint on September 28, 2017. Plaintiff's complaint contains two causes of action. The first sets forth that plaintiff was subject to disparate, discriminatory, and retaliatory treatment and a hostile work environment due to her race and gender, in violation of the SHRL. The second cause of action states that defendants violated the CHRL by subjecting plaintiff to a hostile work environment as well as disparate, discriminatory, and retaliatory treatment due to her race and gender.

Currently, defendants move under CPLR § 3211(a)(7) to dismiss plaintiff's amended complaint on the grounds that plaintiff fails to state a cause of action for discrimination, hostile work environment, or retaliation under the SHRL and CHRL.

Discussion

In determining whether a complaint is sufficient so as to withstand a motion to dismiss pursuant to CPLR § 3211, the Court must "accept the complaint's factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory" (Amsterdam Hospitality [*3]Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 421, 433 [1st Dept 2014]). However, allegations consisting of bare legal conclusions, as well as factual claims that are inherently incredible or flatly contradicted by documentary evidence" are not presumed true (Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009]). The only question before the court is whether plaintiff has alleged a prima facie case (see Brathwaite v Frankel, 98 AD3d 444, 445 [1st Dept 2012]).

1. Discrimination

For a cause of action invoking protections under both the State and City Human Rights Laws, a plaintiff must assert that she is a member of a protected class, that she was qualified for her position, that she suffered an adverse employment action, and that the adverse action was due to circumstances that could be deemed discriminatory (see Executive Law § 296; Administrative Code § 8-107; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; O'Halloran v Metro. Transp. Auth., 154 AD3d 83, 100-101 [1st Dept 2017]). Once plaintiff satisfies this burden, the burden shifts to the employer to articulate some "legitimate, non-discriminatory reason" for the adverse action taken (Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of ADL-CIO, 6 NY3d 265, 270-271 [2006]). If defendants produce such evidence, the plaintiff must then show that the "legitimate reasons proffered by defendant[s] were merely a pretext for discrimination" (see Ferrante v American Lung Ass'n, 90 NY2d 623, 629-630 [1997]).

Based upon the foregoing allegations, plaintiff sufficiently alleges that she was a member of a protected class and appears to have been qualified for her position.[FN5] The Court then turns first to the adverse employment action element. The Appellate Division, First Department describes an adverse employment action as one which "requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation" (Messinger v Girl Scouts of U.S.A., 16 AD3d 314, 314-315 [1st Dept 2005][citation omitted]). Some of the allegations complained of by the plaintiff including the decision to send her to the defendants' psychiatrist, the October 27, 2010 letter indicating defendants' intention to place her on a leave of absence, the OATH proceeding, and the Article 75 proceeding, without more information, cannot be deemed adverse employment actions. First, it is unclear why plaintiff sought and was granted medical leave. Plaintiff's complaint and opposition papers merely state that defendants referred plaintiff to a psychiatric evaluation without any symptoms or behavior by plaintiff that justified it. Section 72 of the New York City Office Civil Service Law states in relevant part:

"When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the [*4]appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. Written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination. If, upon such medical examination, such medical officer shall certify that such employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority shall notify such employee that he or she may be placed on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. Such notice shall also contain the reason for the proposed leave and the proposed date on which leave is to commence, shall be made in writing served in person or by first class, registered or certified mail, return receipt requested upon the employee" (Civil Service Law § 72[1]).

Given the lack of information surrounding plaintiff's request for medical leave, this Court cannot say one way or another if defendants' actions following her requested leave was warranted under Civil Service Law § 72.

To the extent plaintiff argues the statements allegedly made by Mona Bector and her 2009 performance appraisal being done by Commissioner Pico constitute adverse employment actions, this court disagrees (Forrest, 3 NY3d at 307, citing Fridia v Henderson, 2000 WL 172779 [SD NY 2000][excessive work, denials of requests for leave with pay and a supervisor's general negative treatment of plaintiff are not materially adverse changes in terms of conditions or privileges of employment); Katz v Beth Israel Med. Ctr., 2001 WL 11064, at *9 [SD NY Jan 3, 2011] ["[b]eing yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments do not rise to the level of adverse employment actions"]). However, this Court finds that Mintz's decision to terminate plaintiff in spite of the ALJ's recommendation of suspension constitutes an adverse employment action (see Forrest, 3 NY3d at 307 ["termination constitutes an adverse action"]).

The Court now turns to the fourth element of a prima facie claim of employment discrimination under the State and City HRL, namely that plaintiff was either terminated or treated differently under circumstances giving rise to an inference of [sex or race] discrimination" (Askin v Department of Educ. of the City of NY, 110 AD3d 621, 622 [1st Dept 2013]). Even construing the complaint liberally, plaintiff has failed to provide specific facts demonstrating that her sex or race was the determining factor for any of the employment actions she purported to be adverse (Id. at 622 [the plaintiff's allegations consisting of only that she was a member of a protected class and was treated less well "amount to mere legal conclusions, and do not suffice to make out this element of her claim" under both CHRL and SHRL]). Moreover, there is no affidavit from the plaintiff herself elaborating on how these supposed actions by the defendants was affected by discriminatory animus. Likewise, plaintiff's amended complaint does not allege that defendants, or anyone else, made comments regarding her race or gender. The Court notes that plaintiff's opposition makes reference to an allegation allegedly included in her EEO complaint that plaintiff was "forced to sit in the back of meeting rooms, which plaintiff viewed to be racially demeaning behavior" (plaintiff's opp at 9). However, it is unclear what the outcome was of said EEO complaint as the only mention of it in plaintiff's amended complaint is [*5]"[o]n or about, December 7, 2010, plaintiff initiated another EEO complaint claiming gender, and race" (Mintz complaint ¶ 36; see also FN 4). To the extent plaintiff contends that she plead a prima facie case of discrimination, this Court points out that plaintiff's opposition cites no authority in support if this contention but rather plaintiff provides a three-page recitation of the history of the CHRL, "the liberal construction of the CHRL," and its "uniquely broad" nature. This Court recognizes that discrimination claims under the CHRL are construed more liberally than claims under the SHRL.[FN6] However, even with this liberal standard, the Court finds no direct evidence of discrimination alleged whatsoever. Therefore, the Court dismisses plaintiff's discrimination claims under the SHRL and CHRL.

2. Retaliation

To establish a claim of unlawful retaliation under the SHRL and the CHRL, a plaintiff must show that (1) she is engaged in a protected activity; (2) the employer was aware of the activity; (3) the employer took adverse action against the plaintiff, or under the CHRL, the employer's actions were reasonably likely to deter the person from engaging in protected activity; and (4) a causal connection existed between the protected activity and the alleged retaliatory action (see Forrest, 3 NY3d at 312-313; Asabor v Archdiocese of NY, 102 AD3d 524, 528 [1st Dept 2013]; Fletcher v The Dakota, Inc., 99 AD3d 43, 51-52 [1st Dept 2012]). "Protected activity" refers to "actions taken to protest or oppose statutorily prohibited discrimination" (Aspilaire v Wyeth Pharmaceuticals, Inc., 612 F Supp 2d 289, 308 [SD NY 2009]; see also Brook v Overseas Media, Inc., 69 AD3d 444, 445 [1st Dept 2010] [referring to protected activity under CHRL as "opposing or complaining about unlawful discrimination"]). A causal connection may be established either indirectly, by showing that the adverse closely followed in time the protected activity, or directly, through evidence of retaliatory animus, such as verbal or written remarks (Gordon v New York City Bd. of Educ., 232 F3d 111, 117 [2d Cir 2001]); Pace Univ. v New York State Commn. on Human Rights, 85 NY2d 125, 129 [1995]).

However, "[t]he cases that accept mere temporal proximity between an employer's knowledge of the protected activity and an adverse employment action as sufficient evidence of causality uniformly hold that the temporal proximity must be 'very close'" (Clark County Sch. Dist. v Breeden, 532 US 268, 273-74 [2001]; see Walder v White Plains Bd. of Educ., 2010 WL 3724464, * 14, 2010 US Dist LEXIS 100831, * 50-51 [SD NY 2010]; Rommage v MTA Long Is. R.R., 2010 WL 4038754, *15, 2010 US Dist LEXIS 104882, *46 [ED NY 2010]). Courts have consistently held that as little as a few months between the protected activity and the alleged retaliation breaks any causal connection as a matter of law (see e.g. Del Pozo v Bellevue Hosp. Ctr., 2011 WL 797464, *7, 2011 US Dist LEXIS 20986, *27 [SD NY 2011] [five months is "too attenuated" to show causation]; Hollander v American Cyanamid Co., 895 F2d 80, 85-86 [2d Cir 1990][three and a half months too long to establish retaliation]; Garrett v Garden City Hotel, Inc., 2007 WL 1174891, *20-21, 200 US Dist LEXIS 31106, *69 [ED NY 2007][two and a half months precludes finding a causal connection]; Cunningham v Consolidated Edison, Inc., 2006 [*6]WL 842914, *19, 2006 US Dist LEXIS 22482, *55 [ED NY 2006] [passage of two months between the protected activity and the adverse employment action seems to be the diving line]; Carr v Westlb Admin., Inc., 171 F Supp 2d 302, 310 [SD NY 2001] [four month lapse of time insufficient]; Nicastro v Runyon, 60 F Supp 2d 181, 185 [SD NY 1999][retaliation claims "routinely dismissed" when as few as three months elapse between protected activity and alleged retaliation]; see also Williams v City of New York, 28 AD3d 238 [1st Dept 2007] [eighteen month gap defeats claim of causal connection]).

Here, plaintiff alleges that she engaged in two protected activities: (1) filing an SDHR complaint on March 4, 2003 and (2) making an EEO complaint on December 17, 2010. Defendants do not contest that plaintiff was engaged in a protected activity when she filed the SDHR complaint, and that they were aware of the activity. Defendants, however, do challenge the third and fourth factors that no adverse employment actions occurred, and no causal connection exists. Plaintiff contends that she "began to face threats and retaliatory actions from management staff as a result" beginning in 2008. As defendants argue, the statements made by Mona Bector in 2008 and 2010, and plaintiff's 2009 performance evaluation completed by Commissioner Pico, do not constitute adverse employment actions under the human rights statutes (see Gaffney v City of New York, 101 AD3d 410, 410 [1st Dept 2012] [disciplinary memos, threats of unsatisfactory ratings not adverse actions]; Mejia v Roosevelt Is. Med. Assoc., 95 AD3d 570, 572 [1st Dept 2012] ["reprimands and excessive scrutiny do not constitute adverse employment actions in the absence of negative results such as decrease in pay or being placed on probation"]; Dauer v Verizon Communications Inc., 613 F Supp 2d 466, 461 [SDNY 2009] [increased scrutiny is not an adverse employment action]; Bennett v Watson Wyatt & Co., 136 F Supp 2d 236, 248 [SDNY 2001] ["reprimands, threats of disciplinary action and excessive scrutiny do not constitute adverse employment actions"]). Insofar as plaintiff claims that the defendants' decision to send her to their psychiatrist and issuance of the letter indicating an intention to place her on a leave of absence are considered adverse employment actions, the Court reiterates its position outlined above as it pertains to these actions. Specifically, absent additional information, this Court cannot conclude one way or another whether these employment actions could be construed as adverse.

Even assuming arguendo that the defendants' decision to send plaintiff to their psychiatrist and the events that transpired after that (i.e., the leave of absence letter, the OATH hearing, the Article 75 proceeding, etc.), constituted adverse employment actions, the first alleged retaliatory action arose in October 2010.[FN7] As such, the first alleged retaliatory act began more than seven years after the SDHR complaint was filed. In this regard, as defendants' point out, if plaintiff were to argue that that the SDHR complaint was continual in nature due to the fact that the public hearing was held in February and March of 2007, this was still more than three and a half years prior to any alleged adverse employment actions. Notably, plaintiff did not advance this argument in her opposition. Instead, plaintiff merely stated that she "has clearly alleged retaliatory conduct under the CHRL motion to dismiss standard" (plaintiff's opp at 9). Regardless if the alleged retaliation occurred seven years or three and a half years, this Court finds that the direction to see defendants' psychiatrist and the sequence of events that followed in connection with plaintiff's medical leave, are too remote to show a causal relationship.

Plaintiff's additional claim that, following her EEO complaint made on or about December 17, 2010, she was subjected to Article 75 disciplinary charges on June 15, 2012, is also unsupported by evidence of a causal connection. Similar to the reasons outlined above, the Article 75 disciplinary charges are too remote from the protected activity to show a causal connection. Even if plaintiff were to allege that Mintz's alleged knowledge of the EEO complaint on or about November 30, 2011, could serve to establish the required causal connection, this Court notes that the six-and-a-half-month time gap undercuts any causal connection between the alleged protected activity and the employment action. It bears mentioning, that plaintiff did not set forth this argument. Instead, plaintiff simply recites the alleged facts in the amended complaint without any analysis to the relevant law. In light of the foregoing, this Court dismisses plaintiff's retaliation claims under the SHRL and CHRL.

3. Hostile Work Environment

Plaintiff has failed to state a hostile work environment claim under the SHRL and CHRL. The legal standard for a hostile work environment claim requires plaintiff to show that "she has been treated less well than other employees because of her protected status or that discrimination was one of the motivating factors for the defendant's conduct" (Chin v New York City Hous. Auth., 106 AD3d 443, 445 [1st Dept 2013]; Williams, 61 AD3d at 75-78). Among other things, plaintiff claims sporadic hostile behavior directed towards her, including the comments by Mona Bector, the referral to see defendants' psychiatrist, and defendants' letter indicating their intent to place plaintiff on a leave of absence. While plaintiff may have found these incidents and comments offensive, her interactions with defendants taken together did not create an environment "permeated with discriminatory intimidation, ridicule and insult" (Forrest, 3 NY3D at 310). Here, plaintiff offers this court no factual allegations to suggest that race-based or gender-based discrimination resulted in a hostile work environment (Llanos v City of New York, 129 AD3d 620, 620 [1st Dept 2015] ["plaintiff's failure to adequately plead discriminatory animus is fatal to her claim of hostile work environment"]). Accordingly, defendants are granted dismissal of plaintiff's hostile work environment claims under the SHRL and the CHRL.

Therefore, in light of the foregoing, it is hereby

ORDERED that defendants' motion pursuant to CPLR § 3211(a)(7) for an order dismissing the amended complaint is granted; and it is further

ORDERED that the complaint is dismissed in its entirety.

This constitutes the decision and order of the Court.

Dated: August 1, 2018

ENTER:

____________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C. Footnotes

Footnote 1:Neither the complaint nor the moving papers identify plaintiff's job title or how long she has been employed by the Department of Consumer Affairs.

Footnote 2:The record before this court does not state why plaintiff requested medical leave.

Footnote 3:The complaint states that the letter dated October 27, 2010 communicated defendants' intent to terminate plaintiff effective November 10, 2010. While plaintiff does not submit a copy of this letter, the defendants attached a letter dated October 27, 2010 with the subject "Re: Notice of Intent to Implement Leave of Absence Pursuant to NY Civil Service Law Section 72" (see defendants' exhibit B). Assuming this is the same letter that plaintiff refers to in her complaint, the Court notes that this was not a termination letter but rather a letter notifying plaintiff of defendants' intent to place her on a leave of absence based on Dr. Azariah's finding that she was not mentally fit to perform the duties of her position (Id.).

Footnote 4:The Court notes that is unclear what the outcome of plaintiff's December 17, 2010 EEO complaint was. Plaintiff submits a memorandum in opposition to defendants' motion to dismiss and attaches "true and correct copies of plaintiff's EEO complaints as "Exhibit 1." While plaintiff's EEO complaint appears to be included, there are two other memorandums attached to exhibit 1. Plaintiff's opposition papers make a single general reference to these documents without any explanation or clarification as to what they are. Page 1 of Exhibit A appears to be plaintiff's December 17, 2010 EEO complaint. The complaint asserts "racial and demeaning behavior" in connection with an incident that occurred on December 16, 2010. Plaintiff alleges that after arriving at an Enforcement training meeting, she was greeted by Mona Bector, who told her to "sit in the back." Plaintiff further states that there was no one else siting in that area, so she sat alone until after the meeting began, when another member sat down next to her. Plaintiff alleges that she felt degraded and embarrassed and likens her treatment to that of Rosa Parks. Page 2 appears to be a memorandum from David Cho, EEO Officer to Commissioner Jonathan Mintz. The memorandum is dated November 30, 2011 "DRAFT" and the subject is EEO Complaint of Deborah Thomas. Among other things, the memorandum discusses a meeting between Mr. Cho and the plaintiff in which they discussed her December 17, 2010 EEO complaint. Notably, the memorandum states "[w]hen asked about the Complaint, Ms. Thomas without hesitation denied that the alleged incident was in any way racially motivated. When asked about the unmistakable language of the allegation, Ms. Thomas recanted and again clarified that there was no EEO issue . Consistent with our previous conversation, Ms. Thomas agreed that each and every event alleged in the Memo was devoid of reference to, or motivation against, a protected class, including EEO retaliation" (see exhibit 1 at 3). Plaintiff fails to address any of this in her opposition papers. There is also a third memo included under exhibit 1, however, it is not legible, and plaintiff fails to offer any clarification.

Footnote 5:Notwithstanding the fact that the motion papers fail to identify plaintiff's job title, defendants do not contest plaintiff's qualifications.

Footnote 6:The Court notes that the result of her discrimination claim is the same under both the CHRL and the SHRL, even under the scope of the Local Civil Rights Restoration Act of 2005, that requires "all provisions of the City HRL be construed 'broadly in favor of discrimination plaintiff, to the extent that such a construction is reasonably possible'" (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 [1st Dept 2011] [emphasis in original], quoting Albunio City of New York, 16 NY3d 472,477-78 [2011]).

Footnote 7:Referring to the date in which defendants referred plaintiff to their psychiatrist.