Opinion
18886/03.
Decided March 16, 2006.
Upon the foregoing papers, it is ordered that this motion by defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiff's complaint is granted.
By summons and complaint dated December 2003, the plaintiff commenced the within action against her employer, the defendant herein, pursuant to Executive Law § 296 alleging that as a person of Egyptian national origin and adherent to the Islamic faith, she was subjected to discrimination predicated upon her national origin and gender.
The plaintiff, who was employed as a "tax accountant III" by defendant from 1975 through 1981 and then from 1987 through 2000, claims, inter alia, that: (1) she was subjected to "ethnic slurs, remarks about her national origin, jokes or harassment"; (2) that she reported this misconduct to management in 1996, but that, upon information and belief, no investigation was ever conducted and (3) that during her period of employment — which was "constructively" terminated in December of 2000 — male employees allegedly performing the same work were compensated at a higher rate than she was.
According to the plaintiff, primarily before or around 1996, certain co-employees allegedly made derogatory and insulting comments about her Egyptian national origin and Muslim religious beliefs.
The plaintiff reported two of the incidents to her supervisor, and later attended a company-sponsored harassment training seminar. She subsequently informed a Ms. Foster, in the defendant's Human Resources Department, of the incidents and was told that the department would handle the matter.
Ms. Foster followed up on the complaints to ensure that no other comments had been made, and the plaintiff herself testified that until 2000, no objectionable comments concerning her ethnicity were made.
In 1998, a co-employee whistled at her, and although she herself chose not to report the incident, a coworker who witnessed the occurrence did report it to a Mr. Kenneth Godfrey, the defendant's Human Resources director. The offender — who has since been discharged — was formally disciplined, as evidenced by a letter placed in his record.Later, in 1999 through September of 2000, the plaintiff was supervised by a Ms. Barbara Tierney, who on three separate occasions allegedly (1) said "bad things about Muslims in general" (although the plaintiff could recall the specific content of the comments); (2) criticized the way the plaintiff was using eating utensils on a business trip by relating it to her Egyptian origin and (3) on her last day of work in September of 2000, abused the plaintiff and criticized her work by using slurs pertaining to her Egyptian heritage.
Although the plaintiff complained to Mr. Godfrey about Tierney before she left, she admits that her comments focused upon Tierney's objectionable management style and that she made no mention of Tierney's alleged use of slurs or discriminatory conduct.
No other individuals made objectionable comments to the plaintiff during the period between late 1999 and September of 2000, when the plaintiff worked under Tierney's supervision.
In September of 2000, the plaintiff became ill at work and commenced a short-term disability leave.
Prior thereto, in May of 2000, defendant completed a merger with Warner-Lampert, and certain positions held by employees in both companies, including the "Real and Personal Property Tax Group" in which the plaintiff then worked, became "redundant" and subject to "outsourcing." As a consequence, several employees, among them the plaintiff, were offered severance packages.
In December of 2000, defendant's Director of Human Services, Kenneth Godfrey, personally visited the plaintiff at her home — where she was still recuperating from her illness — and notified her of the severance package which was being offered. According to Godfrey, the plaintiff did not indicate whether or not she intended to accept the severance offer, which she herself testified was worth over $350,000.00.
The plaintiff's position (and Tierney's as well) was later "outsourced" in April of 2001, and Godfrey again wrote to the plaintiff, outlining in his letter the three options then available to her: (1) reapply for another position with defendant, albeit with no guarantee of employment; (2) accept the severance package; or; (3) apply for long-term disability — the option which the plaintiff eventually chose.
The plaintiff has, to date, declined to reapply for a new position and has not accepted the severance package which was offered to her in December of 2000.
The defendant now moves for summary judgment dismissing the complaint, asserting, inter alia, the plaintiff's claims are time-barred, and in any event, fail to raise issues of fact with respect to her claims of discrimination.
The defendant has discharged its burden of demonstrating that the time within which to sue on the purported discriminatory comments has expired, as measured against the three-year limitations period applicable to claims under Executive Law § 296 (see, CPLR 214; Murphy v. American Home Prod. Corp., 58 NY2d 293, 307; Koerner v. State, 62 NY2d 442, 445-446; Bistrisky v. New York State Dept. of Correctional, 23 AD3d 866; Kwarren v. American Airlines, 303 AD2d 722; Mitchell v. Nassau Community College, 265 AD2d 456 see also, Miccio v. Fits Systems, Inc., ___ AD3d ___ [1st Dept. 2006]; Kendall v. Fisse, 149 Fed.Appx. 19, 21 [2nd Cir. 2005]).
More particularly, the record reveals that all of the objectionable comments identified by the plaintiff — some of which were purportedly made almost ten years ago — were uttered in excess of three years prior to the plaintiff's commencement of her action in December of 2003.
In response, the plaintiff has failed to produce "evidentiary facts establishing that the case falls within an exception to the Statute of Limitations" ( Assad v. City of New York, 238 AD2d 456, 457, quoting from, Siegel v. Wank, 183 AD2d 158, 159) and only conclusorily refers to the limitations claims in her opposing memorandum of law.
Accordingly, any claims of discrimination predication on these statements are untimely (see, Balk v. 125 West 92nd Street Corp., 24 AD3d 193, 194; Henderson v. Town of Van Buren, 15 AD3d 980, 981).
In any event, it is settled that "isolated and occasional comments . . . are insufficient" to establish the existence of actionable discrimination or improper discharge ( Balk v. 125 West 92nd Street Corp., supra see, Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 310-311).
Here, the testimony establishes that: (1) the underlying incidents which allegedly took place over the plaintiff's lengthy employment period were generally isolated and exceptional; (2) that when the plaintiff did bring certain complaints to Ms. Foster (in the mid-1990's) and Mr. Godfrey (in 1998), both were receptive and acted upon her disclosures; (3) that there were no objectionable, ethnic comments were made after the 1996 incidents until the year 2000 (Elfiky Dep. 111) and (4) that while Ms. Tierney allegedly made certain comments in 2000, the plaintiff never informed management about these statements.
These facts fall well short of establishing that the defendant's workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" ( Forrest v. Jewish Guild for the Blind, supra, at 310-311, quoting from, Harris v. Forklift Sys., Inc., 510 US 17, 21). Nor does the record demonstrate that the comments were made with "the knowledge or acquiescence" of the plaintiff's employer ( Forrest v. Jewish Guild for the Blind, supra, at 310-311 see, Totem Taxi, Inc. v. New York State Human Rights Appeal Bd., 65 NY2d 300, 303-304; Ellis v. Child Development Support Corp., 5 AD3d 430, 431).
Lastly, the defendant has submitted evidence establishing that (1) the plaintiff's job — and other jobs — were eliminated without improper discriminatory intent as a consequence of the Werner-Lampert merger (e.g., Scardace v. Mid Island Hosp., Inc., 21 AD3d 363, 364; Hutchinson v. New York City Transit Authority, 309 AD2d 901, 902 cf., Laverack Haines, Inc. v. New York State Div. of Human Rights, 88 NY2d 734, 739); and (2) that the male employees whom the plaintiff claims were impermissibly favored, possessed greater experience, performed in different job titles, and/or were assigned different and/or more extensive job responsibilities.
In response, the plaintiff's opposing submissions fail to raise a triable issue of fact with respect to her claims of discriminatory, retaliatory and/or improperly disparate treatment (see, Alfano v. Miller Environmental Group, Inc., 253 AD2d 446). Notably, "[c]onclusory allegations of discrimination are insufficient to defeat a motion for summary judgment" ( Dickerson v. Health Management Corp. of America, supra, 21 AD3d 326).
The court has considered the plaintiff's remaining contentions and concludes that none is sufficient to defeat the defendant's motion for summary judgment dismissing the complaint.