Loth v City of New York

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Loth v City of New York 2023 NY Slip Op 31630(U) May 15, 2023 Supreme Court, New York County Docket Number: Index No. 160925/2021 Judge: Nicholas W. Moyne Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160925/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/15/2023 YORK NEW YORK SUPREME COURT STATE OF NEW THE STATE COURT OF THE SUPREME PART COUNTY OF NEW YORK: PART NEW YORK: COUNTY -----------------------------------------------------------------------------------x X MARGOT LOTH LOTH MARGOT INDEX NO. NO. INDEX Plaintiff, Plaintiff, MOTION DATE DATE MOTION 160925/2021 160925/2021 08/16/2022 08/16/2022 -- vV MOTION SEQ. NO. SEQ. NO. MOTION YORK, CITY NEW YORK, CITY OF NEW Defendant. Defendant. 001 DECISION + ORDER ORDER ON DECISION+ MOTION MOTION ______________________________________________________ -----------------------------x X HON. NICHOLAS NICHOLAS W. MOYNE: MOYNE: HON. 001) 7, 8, 9, 10, 11, 12, The e-filed documents, listed by NYSCEF NYSCEF document document number number (Motion (Motion 001) documents, listed following e-filed The following 22 13,14,15,16,17,18,19,21,22 21, 19, 18, 17, 16, 15, 13, 14, DISMISSAL DISMISSAL to/for were read on this motion to/for this motion were read Upon documents, it is foregoing documents, Upon the foregoing Medical Emergency Medical In this ("Plaintiff') , an Emergency Loth ("Plaintiff'), Margo Loth plaintiff Margo action, plaintiff this action, Technician ("EMT") at the New City Fire ("FDNY"), alleges alleges Department ("FDNY"), Fire Department York City New York Technician ("EMT") her against for her retaliated against she was discriminated and retaliated gender and her gender against due to her discriminated against York State New York under the New complaints of of discrimination. alleges claims claims under Plaintiff alleges discrimination. Plaintiff complaints Law Rights Law Human Rights City Human Human Rights York City New York ("SHRL") and the New Law ("SHRL") Rights Law Human ("CHRL"). The City of of New ("Defendant") dismiss the complaint. complaint. moves to dismiss t") moves York ("Defendan New York The City ("CHRL"). FACTUAL BACKGROUND FACTUAL BACKGROUND Emergency Haz-Tac Plaintiff Tac Emergency FDNY HazDefendant as a FDNY working for Defendant began working Plaintiff began featured in was featured Plaintiff was 2018, Plaintiff Medical Technician 14,2011. July 2018, 2011. In July February 14, Technician on February Medical occasions, Captain the FDNY's of Heroes. Captain multiple occasions, Thereafter, on multiple Heroes. Thereafter, Calendar of 2019 Calendar FDNY's 2019 Complainan t as a Donna referred to Complainant allegedly referred ("Tiberi") allegedly Tiberi ("Tiberi") Hannon Tiberi Lynn Hannon Donna Lynn November manner. In November "calendar girl" disparaging manner. members in a disparaging FDNY members other FDNY girl" to other "calendar gender with a gender connection with 2018, Plaintiff agreed agreed to participate witness in connection participate as a witness 2018, Plaintiff Opportunity discrimination Employmen t Opportunity Equal Employment FDNY' s Equal with the FDNY's complaint filed with discrimination complaint Tiberi. against Tiberi. ("Rosado") against ("EEO") Paramedic Carin Rosado ("Rosado") Carin Rosado female Paramedic office by female ("EEO") office Tiberi subjecting Both observed Tiberi subjecting regularly observed they regularly that they claimed that Rosado claimed and Rosado Plaintiff and Both Plaintiff YORK NEW YORK 160925/2021 OF NEW CITY OF vs. CITY MARGOT VS. LOTH, MARGOT 160925/2021 LOTH, Motion No. No. 001 Motion [* 1] 1 of 5 Page of 5 Page 1 of INDEX NO. 160925/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/15/2023 male situated male similarly situated female employees compared to similarly treatment as compared disparate treatment employees to disparate employees. employees. began Tiberi began After that Tiberi alleges that plaintiff alleges was filed, the plaintiff complaint was EEO complaint the EEO After the belongings personal belongings her personal retaliating vandalizing her things, vandalizing other things, among other her by, among against her retaliating against that she her overtime and denying denying her and leave leave requests, denying her overtime that requests, as well as denying time and her time women, well as four was entitled four other other women, plaintiff, as well policy. The plaintiff, FDNY policy. per FDNY entitled to per Rosado. subsequently witnesses for Rosado. proceedings as witnesses EEO proceedings participated in a EEO subsequently participated against the retaliation against of retaliation Subsequently, further acts of engaged in further allegedly engaged Tiberi allegedly Subsequently, Tiberi plaintiff denying her off and annual annual leave leave requests, overtime opportunities, opportunities, requests, overtime time off her time plaintiff by denying performance her performance with her providing statements about connection with plaintiff in connection about plaintiff negative statements providing negative filing raises, filing salary raises, evaluation, and/or salary opportunities and/or promotional opportunities her promotional denying her evaluation, denying hindering accusations, and hindering disciplinary upon false accusations, based upon plaintiff based against plaintiff charges against disciplinary charges within the department. her ability to enroll enroll in medic classes or transfer department. transfer within medic classes her ability activity by filing On August protected activity further protected engaged in further Loth engaged 30, 2019, Ms. Loth August 30,2019, Tiberi that Tiberi plaintiff alleges an internal alleges that The plaintiff Tiberi. The against Tiberi. complaint against EEO complaint internal EEO pay her pay things, docking increased retaliatory actions against against her by, among among other other things, docking her retaliatory actions increased her s with her interfering with for alleged alleged lateness, evaluation, interfering her 2018 evaluation, provide her refusing to provide lateness, refusing which position for which ability Instructor position Materials Instructor Hazardous Materials available Hazardous apply for an available ability to apply confirmed never confirmed which she never shifts for which overtime shifts her to overtime assigning her qualified, assigning she was qualified, with an evaluation plaintiff with her availability, availability, and and refusing evaluation and provide the plaintiff refusing to provide Tiberi also program. Tiberi recommendation school program. medic school her medic required for her was required that was recommendation that disparate plaintiff, to disparate allegedly including the plaintiff, employees, including female employees, subjected female allegedly subjected employees. male employees. treatment compared to similarly similarly situated situated male treatment as compared DISCUSSION DISCUSSION pleading is to be On a motion dismiss pursuant 3211, the pleading CPLR 3211, pursuant to CPLR motion to dismiss true, afforded a liberal liberal construction, construction, accept accept the facts as alleged alleged in the complaint complaint as true, afforded inference, and accord favorable inference, possible favorable every possible of every benefit of plaintiffs the benefit accord the plaintiffs theory cognizable legal theory determine within any cognizable alleged fit within the facts as alleged whether the only whether determine only proponent whether the proponent [1994]). The inquiry is whether The inquiry NY2d 83, 87 [1994]). Martinez, 84 NY2d (Leon v Martinez, has a cause cause of of action, action, not stated one (Id. quoting quoting Guggenheimer Guggenheimer v whether she has stated not whether establish ultimately establish Ginzburg, 43 NY2d [1977]). Whether plaintiff can ultimately Whether a plaintiff 268, 275 [1977]). NY2d 268, Ginzburg, dismiss (EBC motion to dismiss her (EEC determining a motion calculus in determining of the calculus part of not part allegations is not her allegations court the However, [2005]). However, court is not I, Goldman, Sachs NY3d 11, 19 [2005]). Sachs & Co., 5 NY3d I, Inc. v Goldman, required accept factual factual allegations allegations that contradicted by documentary documentary plainly contradicted that are plainly required to accept undisputed upon the undisputed evidence based upon unsupportable based that are unsupportable conclusions that legal conclusions evidence or legal 2003]). Dept 2003]). facts (Robinson (Robinson v Robinson, 234, 235 [1st Dept AD2d 234,235 Robinson, 303 AD2d 5 2 of Page Page 2 of 5 160925/2021 LOTH, MARGOT MARGOT vs. CITY OF NEW NEW YORK YORK vs. CITY 160925/2021 LOTH, Motion No. 001 Motion [* 2] 2 of 5 INDEX NO. 160925/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/15/2023 inappropriate as the would be inappropriate At this early early stage stage of of the dismissal would litigation, dismissal the litigation, pursuant to the discrimination pursuant plaintiff gender discrimination claims for gender pled claims sufficiently pled plaintiff has sufficiently plaintiff alleging SHRL and CHRL. CHRL. Pursuant SHRL and CHRL, CHRL, a plaintiff alleging gender gender Pursuant to the SHRL SHRL class; (2) she protected class; of a protected member of discrimination "(1) she is a member allege that: "(l) must allege discrimination must was qualified qualified for the suffered an adverse adverse employment employment action; action; that she suffered position; (3) that the position; under circumstances adverse employment employment action action occurred occurred under circumstances giving giving rise to and (4) the adverse Blind, 3 the Jewish Guildfc;r an inference (Forrest v Jewish Guild.fi)r Blind, discrimination." (Forrest unlawful discrimination." of unlawful inference of NY3d [2004]). Under CHRL, discrimination discrimination claims claims should should be Under the CHRL, NY3d 295, 313 [2004]). construction is extent such a construction construed of the plaintiff, to the extent the plaintiff, favor of broadly in favor construed broadly AD3d Montefiore Med. Ctr., MD v Monte/lore reasonably (See Arnold Ctr., 98 AD3d Melman, MD Arnold Melman, possible. (See reasonably possible. that she was plausibly alleged 107, 112 [1st Dept 2012]). Here, alleged that plaintiff has plausibly Here, the plaintiff Dept 2012]). promotional her promotional denied her Defendant denied suffered to adverse when Defendant actions when employment actions adverse employment suffered medical enroll in medical her ability opportunities and/or and/or salary salary raises ability to enroll hindered her raises and hindered opportunities her with her interfered with 1) interfered classes. alleged that defendant also: ((I) that defendant Plaintiff alleged Furthermore, Plaintiff classes. Furthermore, which position for which Instructor position ability Materials Instructor Hazardous Materials available Hazardous apply for an available ability to apply qualified; (2) increased assigning her to work overtime overtime workload by assigning her workload increased her she was qualified; her provide her refused to provide shifts for which availability; and (3) refused her availability; confirmed her never confirmed which she never program, medic school her medic with school program, required for her recommendatio ns required evaluations and recommendations with evaluations program. that program. which delayed her enrollment in that her enrollment tum delayed which in tum plaintiff suffered that the plaintiff plead that These allegations allegations are more sufficient to plead suffered than sufficient more than These both the SIIRL adverse employment employment actions actions within framework of of both SIIRL and the the framework within the adverse of a requires a showing action requires CHRL. SHRL, an adverse showing of employment action adverse employment the SHRL, Under the CHRL. Under "materially adverse adverse change change in terms conditions of of employment." employment." (Bi/itch (Bilitch v terms and conditions "materially 2021]). Dept 2021]). 999, 1001 New York City Health I 00 I 12d 12d Dept AD3d 999, Hospitals Corp., 194 AD3d and Hospitals Health and that she was need only Under CHRL, a plaintiff only allege allege that plaintiff need plaintiff-favora ble CHRL, more plaintiff-favorable Under the more based employees based other employees than other well than subjected to an unfavorable treated less well change or treated unfavorable change subjected of Transportation, upon Transportation, Department of New York City Department Local 621 v New gender (see Local upon her gender AD3d582, ityofNew 178 AD3d 78, 78,81 Dept 2019]; ;HarringtonvC Harrington v City of New York, 157 157 AD3d 582, [lstDept2019] 81 [1st 178AD3d satisfies both standards. standards. easily satisfies complaint easily The complaint 2018]). The Dept 2018]). 584 [1st Dept which pled claims Additionally, sufficiently pled claims from which plaintiff has sufficiently Additionally, the plaintiff under claims under discrimination claims gender discrimination reasonable sustain gender drawn to sustain can be drawn inferences can reasonable inferences Tiberi 1) Tiberi pled that: ((1) the SHRL SHRL and CHRL. CHRL. See id. Specifically, Specifically, Plaintiff Plaintiff has pled members in a disparaging FDNY members referred "calendar girl" other FDNY disparaging girl" to other Plaintiff as a "calendar referred to Plaintiff employees, female employees, subjected female manner; employees; and (3) subjected female employees; other female harassed other manner; (2) harassed their terms and conditions including Plaintiff, disparate treatment conditions of of their treatment in the terms Plaintiff, to disparate including Clearly, a employees. Clearly, male employees. employment similarly situated situated male compared to similarly employment as compared Plaintiff against Plaintiff reasonable finder of of fact could could infer discriminated against Tiberi discriminated that Tiberi infer that reasonable finder YORK OF NEW CITY OF vs. CITY 160925/2021 LOTH, NEW YORK MARGOT VS. LOTH, MARGOT 160925/2021 Motion No. 001 Motion No. [* 3] 3 of 5 Page of 5 Page 3 of INDEX NO. 160925/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/15/2023 based her gender gender and therefore, therefore, Plaintiff Plaintiff has sufficiently sufficiently stated stated a claim claim for upon her based upon gender SHRL and CHRL. CHRL. the SHRL under the discriminati on under gender discrimination retaliation unlawful retaliation claims for Finally, [or unlawful alleges claims adequately alleges complaint adequately the complaint Finally, the retaliation, a under SHRL and CHRL CHRL Under SHRL, to plead claim for [or retaliation, plead a claim Under the SHRL, under the SHRL opposing activity by opposing plaintiff protected activity engaged in protected that: (1) she engaged allege that: must allege plaintiff must protected activity; prohibited conduct; (2) defendant's defendant's knowledge knowledge of of the protected activity; (3) she prohibited conduct; protected her engagemen suffered an adverse adverse employment action as a result of her engagement t in protected result of employmen t action suffered protected activity activity; and (4) a causal causal connection connection exists exists between activity and the between the protected activity; omitted citations om D. "In "In the adverse (Bilitch, 194 A.D.3d [internal citations itted I). A.D.3d at 1004 [internal action. (Bilitch, adverse action. context of of a case case of of unlawful adverse employmen employment t action action is one retaliation, an adverse unlawful retaliation, context making or supporting which supporting a worker from making reasonable worker dissuaded a reasonable have dissuaded might have which might Racing Corp., 155 AD3d charge of of discriminati discrimination." (quoting Keceli Yonkers Racing AD3d Keceli v Yonkers on." (Id.) (quoting charge victims, discriminati on victims, 1014, 1016 [2d Dept. CHRL, like discrimination the CHRL, Under the 2017]). Under Dept. 2017]). I RL their SI protection than their SIIRL retaliation broader protection with broader provided with victims are provided retaliation victims ofNew Reichman v City of counterpart (citing Reichman New York, AD3d at 1004) (citing Bilitch, 194 AD3d counterpart (see Bilitch, under retaliation, claim 179 AD3d Dept. 2020]). 2020]). To plead claim under plausible retaliation, plead a plausible AD3d 1115 [2d Dept. activity; (2) protected activity; NYCHRL, plaintiff must show that: (1) she engaged engaged in a protected must show NYCHRL, a plaintiff her employer employer was aware aware of of such such activity; activity; (3) her employer employer "engaged "engaged in conduct conduct protected that protected engaging in that which person from engaging deter a person likely to deter reasonably likely which was reasonably protected activity activity;" and ((4) causal connection connection between acti vity and alleged alleged between the protected 4) a causal activity;" retaliatory conduct (Id.). retaliatory conduct NYSHRL under NYSHRL retaliation under Here, the stated a plausible of retaliation claim o[ plausible claim has stated plaintiff has the plaintiff Here, participate as a by alleging alleging that engaged in protected activity by agreeing agreeing to participate protected activity that she engaged Tiberi and that she suffered witness EEO complaint suffered an against Tiberi complaint against colleague's EEO her colleague's witness in her protected activity adverse employmen employment t action action as a result of her engagement t in protected activity her engagemen result of adverse her denied her items, denied personal items, when Defendant and/or Plaintiffs personal vandalized Plaintiffs Tiberi vandalized and/or Tiberi when Defendant her overtime and promotional opportunities,s, filed disciplinary disciplinary charges charges against against her promotiona l opportunitie overtime and/or classes and/or enroll in medic based accusations, , hindered medic classes ability to enroll her ability hindered her upon false accusations based upon refused to lateness, reCused transfer department, docked docked her alleged lateness, her pay for alleged within the department, transfer within assigning her to workload by assigning provide her her an evaluation, evaluation, and increased increased her workload provide overtime shifts shifts for which confirmed her availability. availability. hx For the same same never confirmed which she never overtime under the of retnlic1tion under reasons, sufficiently pied pled a plausible plausible claim o[retnliation has sufficiently plaintiff has reasons, plaintiff would likely be deterred more lenient NYCHRL standard. A reasonable deterred person would reasonable person NYCHRL standard. more lenient EEO internal EEG from participating and/or filing an internal interview and/or EEO interview witness in an EEG participatin g as a witness personal items, denials their personal complaint if if they subjected to vandalism of their denials vandalism of then subjected were then they were complaint accusations, of overtime overtime and promotiona promotional l opportunitie opportunities,s, baseless disciplinary accusations, baseless disciplimu-y of necessary 11 in necessary docked pay accusations of of lateness, lateness, inability inability to cnro enw II pay for false accusations docked YORK 160925/2021 LOTH, MARGOT MARGOT vs. CITY CITY OF OF NEW NEW YORK LOTH, 160925/2021 Motion No. No. 001 Motion [* 4] 4 of 5 Page 4 of of 5 Page INDEX NO. 160925/2021 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/15/2023 courses, and an increased increased workload workload as a result result of of said engagement. engagement. Accordingly, courses, Accordingly, claim for retaliation retaliation should should stand. the claim defendant's motion motion to dismiss dismiss is hereby hereby denied. denied. 'l'he Tbe defendant The defendant's defendant is directed to serve an answer to the complaint within 20 days after of a copy copy directed serve answer complaint within days after service service of of this order order with with notice notice of of entry. entry. Counsel Counsel are directed directed to appear of appear for a preliminary preliminary conference in Room Room 103, 80 Centre Centre Street, Street, New York, New conference New York, New York, York, 011 on July July 19, 2023, at 2:00 PM. forgoing constitutes constitutes the decision decision and order order of of this court. court. The forgoing ~.-J 5/15/2023 5/15/2023 DATE CHECK ONE: ONE: CHECK APPLICATION: APPLICATION: CHECK IF APPROPRIATE: APPROPRIATE: CHECK NICHOLAS NICHOLAS W. MOYNE, J.S.C. J.S.C. ~ ~ CASE DISPOSED DISPOSED CASE GRANTED GRANTED 0 0 NON-FINAL DISPOSITION DISPOSITION NON-FINAL SUBMIT ORDER ORDER SUBMIT SETTLE ORDER ORDER SETTLE INCLUDES TRANSFER/REASSIGN TRANSFER/REASSIGN INCLUDES ~ FIDUCIARY APPOINTMENT APPOINTMENT FIDUCIARY D D OTHER OTHER REFERENCE REFERENCE Page Page 5 of 5 160925/2021 LOTH, MARGOT MARGOT vs. CITY CITY OF OF NEW NEW YORK YORK 160925/2021 LOTH, Motion No. No. 001 Motion [* 5] GRANTED GRANTED IN PART PART DENIED DENIED 5 of 5

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