Lefort v Kingsbrook Jewish Med. Ctr.

[*1] Lefort v Kingsbrook Jewish Med. Ctr. 2019 NY Slip Op 51018(U) Decided on June 20, 2019 Supreme Court, Kings County Baynes, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 20, 2019
Supreme Court, Kings County

Claudia Lefort, Plaintiff,

against

Kingsbrook Jewish Medical Center, DOES 1-10, Defendants.



505520/14



Attys for Plaintiff

Stewart & Musell

212.784.0785

Attys for Defendant

Kelly, Drye & Warren

212.808.7800
Johnny L. Baynes, J.

In this action alleging gender/pregnancy discrimination and retaliation in violation of New York Executive Law, Article 15 § 296 et seq. (the "NYS Human Rights Law" or "NYSHRL") and New York City Administrative Code § 8-101 et seq. (the "NYC Human Rights Law" or "NYCHRL"), the Defendants, Kingsbrook Jewish Medical Center et al. ("Kingsbrook") interposed a CPLR § 3212 motion to dismiss the complaint on summary judgment. The motion is supported by a December 11, 2018 attorney affirmation and supporting exhibits, as well as the December 11, 2018 affidavits of John McKean, Harold McDonald, Michele Flourney, and a Memorandum of Law.

Kingsbrook's motion is also supported by what purports to be the "Supplemental Affirmation" of Barbara Hoey shepherding in McKeon's February 17, 2016 deposition, and Renee Warshofsky Altholz' February 13, 2019 affidavit (the "Altholz Affidavit") in "further support" of Kingsbrook's motion. Plaintiff opposes the motion via her attorney's January 16, 2019 affirmation, which in turn shepherds in Plaintiff's deposition, and by a memorandum of [*2]law. Kingsbrook then submitted a Reply Memorandum of Law.[FN1]

Procedurally, Kingsbrook's "Supplemental Affirmation" was interposed without leave of this Court, and accordingly ordinarily should be disregarded. CPLR § 2214(c). See, e.g., Flores v. Stankiewicz, 35 AD3d 804, 805, 827 N.Y.S.2d 281 (2d Dep't 2006) ("The Supreme Court should not have considered the plaintiff's alleged documentary proof as it was submitted in counsel's self-entitled "Supplemental Affirmation in Opposition," which was, in effect, an improper sur-reply); Ostrov v. Rozbruch, 91 AD3d 147, 155, 936 N.Y.S.2d 31 (1st Dep't 2012) ("Supplemental affirmations ... should be sparingly used to clarify limited issues, and should not be utilized as a matter of course to correct deficiencies in a party's moving or answering papers"). The McKeon affidavit is, however, considered along with Kingsbrook's Reply memorandum of law, solely with respect to matters replying to allegations made by the Plaintiff in opposition to Kingsbrook's motion, and not with respect to new theories and arguments not previously raised.

Next, Kingsbrook's foregoing Altholz Affidavit "in further support of the motion," states that Plaintiff's claims are "simply untrue." Accordingly, said affidavit could be deemed an admission that material facts are in dispute, thus weighing against Kingsbrook's summary judgment motion's claim that no such facts are in dispute. Altholz, however, is a witness rather than a principal of Kingsbrook, and her statements are essentially opinions rather than true statements of fact. Accordingly, they will not serve as a basis for denying the motion.

General Considerations

/i>

Turning next to the merits of the case, in considering the underlying motion, it is well established that summary judgment is a drastic remedy and is particularly disfavored in discrimination cases since "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means." Ferrante v. American Lung Ass'n, 90 NY2d 623, 631 (1997). The non-moving party's version of facts must be assumed for purposes of the motion, and such facts "must be viewed in the light most favorable to the non-moving party. Chiara v. Town of New Castle, 2 N.Y.S.3d 132, 139 (2d Dep't 2015). Also, the rules of evidence should be cautiously applied on summary judgment motions, in view of the existence of many exceptions to general rules, which are generally best determined upon evidence offered at a trial. See State of New York v. Metz, 241 AD2d 192,201 (1st Dep't 1998). Evidence, otherwise excludable at trial, may be considered to deny a summary judgment motion provided it is not the sole basis for the court's determination. Wertheimer v. New York Property Insurance Underwriting Association, 85 AD2d 540,541 (1st Dep't 1981). Plaintiff's burden to initially establish a prima facie discrimination case "is not onerous," Texas Dept. of Commun. Affairs v. Burdine, 450 U.S. 248 (1981), and direct evidence is not necessary. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.), cert. denied, 506 U.S. 826, 113 S. Ct. 82, 121 L. Ed. 2d 46 (1992). Accordingly, the below facts are based upon Plaintiff rather than Kingbrook's pleadings, all of which are accepted as true for purposes of Kingsbrook's motion.

Plaintiff's Version of the Facts

Plaintiff successfully worked for Kingsbrook as an executive level Community Access Coordinator ("CAC") from 2006 to 2013, and consistently earned the highest marks in her performance reviews. As of 2009, she also accepted part-time per diem assignments for Kingsbrook as a social worker, which she did, despite not wanting to, solely to earn more money for her family. Her per diem supervisor, however, similarly hailed her as a "great" employee during conversations with Kingsbrook's Vice President of Human Resources, John McKeon ("McKeon"), and like her CAC supervisor, consistently praised her work as outstanding.

In the Fall of 2012 Plaintiff informed her CAC supervisor, Joan Collet ("Collet"), that she was pregnant, and in December of that year she requested Maternity Leave. In January of 2013, Collett was replaced by Plaintiff's new supervisor, Delicia Segree ("Segree") who also assumed supervision of two other CAC's. By this time, Plaintiff was "visibly pregnant," and her Maternity Leave was granted on February 6, 2013.

According to Plaintiff, Segree made "frequent discriminatory comments . . . regarding her pregnancy and upcoming leave." As examples thereof, Plaintiff states that Segree repeatedly suggested that she should stop working due to her pregnancy, despite Plaintiff's assurances that she was "more than capable of fulfilling her job responsibilities while pregnant." Also, on one occasion, while alone in an elevator, Segree stated that it was "unfortunate" that Plaintiff was pregnant because of the projects that the department would be undertaking. On several occasions, Segree questioned whether Plaintiff would be physically capable of handling certain projects during the latter stages of her pregnancy, and on at least two occasions Segree offered "unsolicited assistance with [Plaintiff's] resume." Plaintiff maintains that such unsolicited offers evidenced Segree's desire that she resign. Plaintiff reported Secree's forgoing comments to Kingsbrook's Human Resources Department which apparently deemed no remedial action appropriate.

In March of 2013, the first month of Plaintiff's Maternity Leave, Kingsbrook hired a new employee, Geneva Farrow ("Farrow"), to fulfill Plaintiff's responsibilities. Farrow was introduced to the other CAC, Durand Spruill ("Spruill"), and w.hen Spruill asked what would happen when Plaintiff returned, Segree responded "We'll deal with it when she gets back."

On June 26, 2013, Plaintiff returned to work from her Maternity Leave and upon arriving was sent to Kingsbrook's Human Resources Department where McKeon and Segree abruptly fired her. Within five days thereof, Kingsbrook informed Plaintiff that her position had been eliminated but offered to convert her part-time per diem social work, that she had been performing since 2009, into a short-term full-time position which she was told could potentially become permanent (the "July 2013 Offer"). Plaintiff declined the July 2013 Offer.

On August 13, 2013, Plaintiff's attorney sent Kingsbrook a letter alleging that it had discriminated against her on the basis of gender, and that the social work offer was not comparable to her former CAC management position. On August 22, 2013 and September 17, 2013, Kingsbrook re-offered Plaintiff essentially the same full-time social worker position (the "August 2013 Offer" and September 2013 Offer").

After commencing this action, Plaintiff continued to perform her part-time per diem work where, unlike her executive level CAC position, she was required to submit timesheets to be paid. On March 18, 2014, Plaintiff was terminated from this part-time per diem work after an incident involving a medical emergency with her infant son. On that day, Plaintiff contacted her colleague, Deon Bell ("Bell"), rather than her supervisor, and induced Bell to sign Plaintiff's name on her undisputedly accurate timesheet. Several days later, on March 26, 2014, Plaintiff [*3]was called into her supervisor's office where she was accused of "fraudulent behavior" and summarily fired. Plaintiff later learned that Bell, who Plaintiff feels was more at fault for carrying out Plaintiff's request, only received a one-day suspension.

In the interim, Plaintiff learned that despite being informed that her CAC position was being phased out, her two former CAC colleagues, Spruill and Farrow, continued to work for Kingsbrook. Plaintiff concedes that the CAC title was renamed to Community Relations Manager ("CRM"), and that the advertised qualifications for the position were modified. When Plaintiff requested her former CAC position back, she was advised that she no longer qualified for the newly named CRM position, even though the responsibilities of the CRM position ostensibly remained the same as those of the CAC position.

On October 2, 2014, Kingsbrook finally offered Plaintiff the CRM position (the "October 2014 Offer") despite having previously advised her that she was unqualified for it, and despite her per diem supervisor having accused her of billing fraud. Plaintiff, however, rejected the October 2014 Offer for the CRM position because, she states, she had "already accepted a position from another employer that does not discriminate against pregnant women."

Plaintiff essentially maintains first that Kingsbrook terminated her from her original CAC position on the basis of pregnancy discrimination, second that renaming her CAC position as CRM and changing the job description were pretexts to cover up the discrimination, and third that her termination from her part time per diem work was in retaliation for suing to get her old CAC job back. Plaintiff maintains that she was justified in rejecting Kingsbrook's various offers because they were for short-term employment in non-comparable positions, and that said re-employment offers go to the issue of damages rather than liability.

NYS and NYC Human Rights Laws

The New York Human Rights Law, Executive Law § 290, et seq ("NYSHRL") and the New York City Human Right Law, N.Y.C. Admin. Code Title 8 ("NYCHRL"), require that plaintiffs meet their initial burden of establishing a prima facie case of discrimination and this State's analysis of NYSHRL claims is the same as analyses of similar claims brought under federal law. Mittl v. NYS Div. of Human Rights, 100 NY2d 326, 763 N.Y.S.2d 518 (2003)(citing Ferrante v. American Lung Ass'n, 90 N.Y.S 623, 629, 665 N.Y.S.2d 25 (1997)). Specifically, the NYSHRL provides the same protections as the federal Pregnancy Discrimination Act of 1978 ("PDA") which was enacted as an amendment to Title VII of the Civil Rights Act of 1964 ("Title VII"), to clarify that pregnancy discrimination is a form of gender discrimination, prohibited by Title VII. 42 USC § 2000e(k). See Saks v. Franklin Covey Co., 316 F.3d 337, 343 (2d Cir.2003). In addition, employment discrimination cases are generally reviewed under a "notice pleading standard," Vig v. New York Hairspray Co., L.P., 67 AD3d 140, 885 N.Y.S.2d 74 (2009) meaning that the plaintiff need not plead specific facts, but only need give defendant "fair notice" of the nature and grounds of her claims. Id.

To establish a prima facie case under the NYSHRL, the plaintiff must show (1) that she belongs to a protected class; (2) that her employer took an adverse employment action against her; (3) that she was qualified for her position; and (4) that the adverse action took place under circumstances giving rise to an inference of discrimination. Stephenson v. Hotel Emp.'s & Rest. Emp.'s Union Local 100 of the AFL-CIO, 6 NY3d 265 270 (2006). If the employee establishes the foregoing prima facie case, then the burden shifts to the employer to rebut her case by showing it had a "legitimate, non-discriminatory reason" for the adverse employment action. Id., at 271. If the employer proves that it had such a legitimate, non-discriminatory [*4]reason for its adverse employment action, then the burden of proof shifts back to the employee to come forward with evidence that the employer's stated reasons were actually pretexts to cover up discriminatory motives. Id.

Here, there is no question that Plaintiff established the first and third elements of a prima facie NYSHL discrimination case, namely that she belongs to a protected class and was well qualified for both her CAC executive and part-time per diem social work positions.

With respect to the second element of a prima facie NYSHRL case, namely, whether Plaintiff's termination followed by a series of offers beginning only five days later, at the same pay rate, constitutes an "adverse employment action," the standard for such a conclusion under federal law is that the plaintiff endured a 'materially adverse change' in the terms and conditions of employment." See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.2000); Davis v. N.Y.C. Dep't of Educ., 804 F.3d 231, 235—36 (2d Cir.2015). A "materially adverse change," in turn, is a change in working conditions that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, supra, at 640. As noted, the NYSHRL claims analysis is the same as analyses of similar claims brought under federal law, Ferrante v. American Lung Ass'n, supra, and examples of such a materially adverse employment actions under the federal Americans with Disabilities Act have included, aside from termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities.

Applying the foregoing precedents, this Court deems Kingsbrook's termination of Plaintiff's CAC position, followed by an offer of full-time employment as a non-executive, but still professionally licensed social worker to be an adverse employment decision, despite the fact that the salary remained the same in the social worker profession, which itself requires a graduate degree, is arguably no less prestigious.

As far as the fourth element of a NYSHRL claim, namely, whether the circumstances gave rise to an inference of discrimination, Segree's particular words, which Plaintiff characterizes as "frequent discriminatory comments," are facts the import of which could lead to several different conclusions. When so confronted with facts from which several different conclusions may be drawn, the inferences must be viewed in the light most favorable to the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513—14, 91 L. Ed. 2d 202 (1986). Thus, this Court must liberally construe the facts, and draw all reasonable inferences in plaintiff's favor. Nonnon v. City of New York, 9 NY3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 (2007).

Accordingly, while the ultimate determination of whether Segree's foregoing comments to Plaintiff were "discriminatory" would be best left to a jury, for purposes of deciding whether Plaintiff established a prima facie case, this Court will initially presume the negative connotation subscribed by Plaintiff. Thus, Plaintiff has set forth a prima facie case under the NYSHRL.

With respect to Plaintiff's NYCHRL claims, the City's law is generally deemed more liberal than its federal or State counterparts, and proscribes, among other things, any "discriminat[ion] against [a] person in compensation or in terms, conditions or privileges of employment," because of that person's disability. N.Y.C. Admin. Code § 8-107(1)(a). Unlike Title VII or the NYSHRL, the NYCHRL expressly creates direct liability for employment discrimination by the employer's employees and agents. N.Y.C. Admin. Code § 8-107(1)(a). The NYCHRL also provides a broader standard for the imputation of employee conduct to an employer. Specifically, employer liability under the NYCHRL can arise in three circumstances: (i) where the offending employee "exercised managerial or supervisory responsibility" ... (ii) where the employer knew of the offending employee's unlawful discriminatory conduct and acquiesced in it or failed to take "immediate and appropriate corrective action"; and (iii) where the employer "should have known" of the offending employee's unlawful discriminatory conduct yet "failed to exercise reasonable diligence to prevent it."N.Y.C. Admin. Code § 8-107(13). See, also Zakrzewska v. New School, 14 NY3d 469, 479, 902 N.Y.S.2d 838, 928 N.E.2d 1035 (2010). The New York State Court of Appeals has further clarified with respect to NYCHRL claims, that an employer may not invoke the "Faragher/Ellerth" defense, namely, that the employer had reasonable anti-harassment policies in place, but the plaintiff failed to take advantage of available procedures or otherwise avoid harm. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Zakrzewska v. New School, 14 NY3d 469, 479, 902 N.Y.S.2d 838, 928 N.E.2d 1035 (2010). Noting that the plain language of the NYCHRL precludes the Faragher-Ellerth defense, the NYCHRL imposes strict liability on employers for the discriminatory acts of managerial employees. Zakrzewska, supra.

Thus, while in many ways, the NYCHRL parallels State law prohibiting discrimination by employers, subdivision (13) of section 8-107 of the NYCHRL, unlike the State law, creates an interrelated set of provisions to govern an employer's liability for an employee's unlawful discriminatory conduct in the workplace.

Accordingly, the merits of NYCHRL claims must be analyzed separately and independently from any federal and state law claims and NYCHRL's provisions even more broadly construed in favor of plaintiffs, to the extent that such a construction is reasonably possible. See, e.g., Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102, 109 (2d Cir.2013).

What remains clear, however, is that while the NYCHRL has made it easier to establish a prima facie discrimination inquiry, the Second Department has ruled that NYCHRL claims are still subject to the same burden-shifting requirements as a State Law claim, Brightman v. Prison Health Serv., Inc., 108 AD3d 739, 740 (2d Dep't 2013), and the employer may still present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination. See Melman v. Montefiore Med. Ctr., 98 AD3d 107, 128 (1st Dep't 2012). Thus, simply "meeting the minimal requirements of a prima facie case . . . does not equate to creating a triable issue of fact in the face of admissible evidence that the employer had legitimate, non-discriminatory reasons for the challenged decisions." Id.

Taking the forgoing precedents into account, even if Plaintiff had not set forth a prima facie case under both the NYSHRL, she would have done so under the NYCHRL. The burden of proof, however, is then shifted to Kingsbrook with respect to Plaintiff's NYSHRL and NYCHRL claims to prove by a preponderance of evidence not only that it had legitimate non-discriminatory bases for terminating both of Plaintiff's positions, but at least with respect to her NYCHRL claims, that discrimination played no part in its adverse employment actions against her.

This Court is of the opinion that Kingsbrook has met its shifted burden of establishing by a preponderance of the evidence that it had legitimate non-discriminatory bases for terminating both of Plaintiff's positions and that discrimination played no part in its adverse employment [*5]actions against Plaintiff. Specifically, Kingsbrook submitted the unrebutted December 11, 2018 affidavit of its Chief Operating Officer, Harold McDonald ("McDonald"), containing a detailed explanation of the timing and bases for phasing out Plaintiff's CAC position. Thus, McDonnald testified that he had overall responsibility for Kingbrook's operations, finances, and strategic partnerships with other health care providers in the community, that he was responsible for the decision on how employees interface with patients and potential patients, and that he made the decision to reorganize Kingsbrook's physician and patient recruitment initiatives "to bring them in line with health industry norms." McDonald further testified that in 2012 Kingsbrook's entire patient recruitment functions were "disorganized and spread among several different departments," and that he believed that that disorganization led to organizational inefficiencies. McDonald indicated that he wanted a new, consolidated recruitment department would be more business-like and could generate "enhanced reputational standing and recognition in Kingsbrook's primary and secondary catchment areas." Thus, McDonald explained:

"I questioned the level of talent we had in our recruitment roles [and] decided to eliminate the existing CAC job and hire recruiters with a business and/or marketing education, and experience in sales, particularly in pharmaceutical sales. I wanted people who were comfortable walking into physician offices, nursing homes and hospitals, looking for a much broader view of how Kingsbrook could create a relationship with any given healthcare institution or physician. Healthcare norms suggested we have people in our recruiting functions with sales and/or marketing backgrounds. Social workers, in contrast, tend to have backgrounds and skillsets that favor inpatient discharge planning, not patient recruitment. RN skillsets are the only clinical expertise needed for patient recruitment (emphasis added)."

McDonald further testified that "[s]ometime during the end of 2012, I told Kingsbrook's Vice President of Human Resources, John McKeon, about my plan to reorganize physician/patient recruiting by establishing a new 'Transitional Care Department' which would manage consolidating hospital-wide efforts to recruit physicians and patients."

McDonald further testified that he decided to eliminate all of Kingsbrook's existing positions related to physician/patient recruitment, and that he wanted to recruit a "Director of Transitional Care" with a business/marketing background.He then directed McKeon to draft a new job description for the CRM position which he directed should include minimal qualifications of a Bachelor's degree with a concentration in business or marketing preferred. Significantly, McDonald testified that it was his business decision that any of the CAC's who did not meet the requirements of the new CRM job should not be transitioned into the CRM role and should be laid off. Thus, McKeon was expressly directed to execute McDonald's restructure on the basis of educational background, whether or not such criteria is wise, and not on the basis of gender or pregnancy.

Critically, McDonald testified that he "had no idea which employees were in the CAC position, what their qualifications were or what protected classes they belonged to," that he and McKeon "never discussed any individual CAC - including [Plaintiff]," and that he did not know Plaintiff was pregnant or that she had requested maternity leave.

The foregoing explanations are not a pat response that he just happened to eliminate [*6]Plaintiff's position before discovering that she was pregnant, or before or after Plaintiff's maternity leave was granted. It is a detail account of what appears to be a legitimate business decision, wholly divorced from Plaintiff's pregnancy. Moreover, McDonald's sweeping claims that he did not know any CAC, potentially exposed his testimony and Kingsbrook to actual rebuttal evidence, if it exited, not only of a discriminatory intent, but a simple rebuttal evidence of more concrete fact that he did not know any of the CAC's or anything about their backgrounds. Actual evidence that these broad claims may not be true likely would have weighed in favor of rebutting the preponderance of evidence that such adverse actions were completely divorced from any discriminatory intent.

Moreover, with respect to Plaintiff's NYCHRL claims, McDonald's awareness of Segree's allegedly discriminatory comments, which are deemed both true and discriminatory for purposes of Kingsbrook's summary judgment motion and Plaintiff's prima facie case, is not necessary. Potential liability for such comments is imputed to Kingbrook under the NYCHRL's strict liability, subject, however, to the forgoing shifted burden of proof back to Plaintiff. McDonald's non-discriminatory intent in his reorganization decision, is corroborated by Kingsbrook's approval of Plaintiff's maternity leave, and more importantly, by the fact thatPlaintiff's replacement, Harris, was herself pregnant at the time that she replaced Plaintiff.

In Hitter v. Paris Int'l Corp., 267 AD2d 223, 699 N.Y.S.2d 490 (2d Dept. 1999), the Second Department ruled that the Supreme Court erred in denying that the defendant established its prima facie entitlement to dismissal of the action where, as here, the plaintiff failed to present evidence that defendant's president knew of her pregnancy before he terminated her employment. See, also, e.g., Matter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 498 N.Y.S.2d 776 (1985).

With respect to Plaintiff's termination from her per diem social work, Kingsbrook established, and Plaintiff has not refuted, that such termination was in response to her own admitted misconduct. Kingsbrook's post-termination re-employment offers arguably belie Plaintiff's supervisor's opinion that her conduct was "fraudulent," however, whether or not such conduct was "fraudulent," it violated Kingsbrook's bookkeeping and wage calculations from which Kingsbrook sought government and insurance reimbursements, and arguably could have exposed Kingsbrook to liability for not taking punitive action.

Thus, Kingsbrook's explanations and evidence that discrimination played no part it its adverse employment actions against Plaintiff rebut her prima facie case, and constitute prima facie bases for entitlement to dismissal of Plaintiff's NYCHRL and the NYSHRL claims, unless Plaintiff rather than Kingsbrook meets her now heightened burden of showing some evidence that they were actually pretexts rather than the purported nondiscriminatory business decision, designed to cover up least partial actual discriminatory motives.

Plaintiff's Pretext Arguments

In arguing that Kingsbrook's forgoing explanations and evidence were pretexual, Plaintiff offers a series of arguments and theories. Thus, for example, Plaintiff argues that Kingsbrook's claim that her CAC position was eliminated, and the qualifications thereof changed as a "business decision" is belied by the fact that Farrow and her fellow CAC and her informant, Carlatta Roache Harris ("Harris") continued working for some time in that same capacity.

Plaintiff concedes that Harris was herself pregnant at the time that Harris replaced her, but argues that Harris resigned because she feared that she too would be treated adversely. [*7]Plaintiff makes the foregoing argument, however, without any corroborating affidavit from Harris to that effect, or any other actual evidence, however flimsy. Thus, while such hearsay speculations sufficed for purposes of establishing the minimal requirements of setting forth a prima facie case, they do not suffice to rebutt evidence of a non-discriminatory business decision. Had Plaintiff offered such a corroborating affidavit, or other evidence contradicting, for example, McDonald's attestation that he did not know any of the CAC's or anything about their backgrounds, it might have weighed against summary judgment.

Plaintiff also argues that Kingsbrook's multiple settlement offers were made in an attempt to resolve her threatened legal action and that they go to the issue of damages rather than liability, however, even if such an argument were legally valid, which it is not, Plaintiff admits that the short-term July 2013 Offer was made prior to her attorney's demand letter. Any such settlement offers, however, are inadmissible to prove liability or the amount of damages, see CPLR § 4547, and are in any event, again, insufficient to rebut actual evidence of a non-discriminatory business decision.

Plaintiff next argues in support of her claim that she was terminated from her per diem position as a pretext for retaliation for her CAC termination litigation, that her colleague who executed her request that she sign Plaintiff's timesheets for her "engaged in similar, if not more problematic, conduct by completing [Plaintiff's] timesheet [but] was only given a one-day suspension." Thus, Plaintiff argues that the only reason for the discrepancy in the "grossly disproportionality" of their punishments is that "Bell had not threatened legal action against Kingsbrook."

In the opinion of this Court, however, the conduct proscribed under both this State and City's anti discrimination laws is disparate treatment in connection with fulfillment of one's responsibilities, and not for disproportion punishments for irrefutably wrongful conduct. It is not the province of this court to sit as "super personnel" department and second guess the strength of causes for termination, absent some proof of impermissible motive. See, e.g., Melman v. Montefiore Med. Ctr., 98 AD3d 107,120-21 (1st Dep't 2012); Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 966 (1st Dep't 2009).

Plaintiff did not dispute the affidavit of the supervisor who terminated her from her part-time social work position that she had no knowledge that Plaintiff had threatened litigation in August of 2013, as for example, through an email or memorandum evidencing communication of the litigation to that department, through which the supervisor's awareness arguably could be imputed. Had Plaintiff presented evidence contradicting such testimony, however flimsy, it would have weighed against summary judgment and in favor of leaving that determination to a jury. Instead, Plaintiff merely hypothesizes that it "strains credulity" that such supervisor did not know about her litigation, however, "mere conclusions of hope of unsubstantiated allegations or assertions are insufficient" to raise a material question of fact. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980).

Again, the question is not whether Kingsbrook made the best or even a sound business decision. It is whether a reasonable factfinder could conclude that Kingsbrook's articulated reasons for terminating Plaintiff was a pretext to disguise some other discriminatory motive. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 308 n. 5 (2004). It matters not whether Kingbrook's reasons for terminating Plaintiff was a good reason, a bad reason, or a petty one. What matters is whether or not it was a discriminatory reason. Id.

Thus, even with respect to the more liberal NYCHRL, meeting the minimal requirements [*8]of a prima facie case does not equate to creating a triable issue of fact in the face of admissible evidence that the employer had legitimate, non-discriminatory reasons for the challenged decisions." Melman v. Montefieore Med. Ctr., 98 AD3d 107, 128 (1st Dep't 2012) ("[E]ven after the passage of the [Local Civil Rights Restoration Act of 2005], not every plaintiff asserting a discrimination claim will be entitled to a jury." Id. Summary judgment is appropriate where, as here, the actual evidence of discriminatory intent in response to proof of legitimate non-discriminatory business decisions, is so slight that no rational jury could find in Plaintiff's favor.

WHEREFORE, it is hereby

ORDERED AND ADJUDGED Defendant's CPLR § 3212 motion to dismiss this action is granted solely to the extent that the instant action is demised.

The foregoing constitutes the Decision and Order of the Court.

E N T E R

June 20, 2019

__________________/S/_________________

JOHNNY L. BAYNES, JSC Footnotes

Footnote 1:Kingsbrook submitted hardcopies of its motion papers with different binding, grouping, and sequencing formats, and is admonished that this Court is not responsible for reconciling unmatching copies.