Opinion
113520/08, 15391A, 15391
06-11-2015
Sunita FRUCHTMAN, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Meenan & Associates, LLC, New York (Shelley Ann Quilty–Lake of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
Meenan & Associates, LLC, New York (Shelley Ann Quilty–Lake of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Scott Shorr of counsel), for respondents.
TOM, J.P., RENWICK, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered March 21, 2014, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court (Barbara Jaffe, J.), entered February 2, 2012, which denied plaintiff's motion for leave to reargue a discovery application, unanimously dismissed, without costs, as taken from a nonappealable paper and, in any event, untimely.
Plaintiff's claim of gender discrimination in employment under the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107[1][a] ) was correctly dismissed since she failed to establish prima facie that she suffered an adverse employment action and that that action was taken under circumstances giving rise to an inference of discrimination (see Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113, 946 N.Y.S.2d 27 [1st Dept.2012] ). With the exception of her termination from her probationary employment, the conduct of which she complains amounts to no more than “petty slights and trivial inconveniences,” rather than adverse employment action (see Williams v. New York City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27 [1st Dept.2009], lv. denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ). Moreover, it resulted in no harm (see Abe v. Cohen, 115 A.D.3d 491, 981 N.Y.S.2d 692 [1st Dept.2014], lv. denied 24 N.Y.3d 902, 2014 WL 4450529 [2014] ). While termination is indisputably an adverse action, plaintiff's conclusory claim that her termination was motived by a gender-related bias is insufficient to establish discrimination (Askin v. Department of Educ. of the City of N.Y., 110 A.D.3d 621, 973 N.Y.S.2d 629 [1st Dept.2013] ). Nor do stray derogatory remarks, “without more, constitute evidence of discrimination” (Melman, 98 A.D.3d at 125, 946 N.Y.S.2d 27 ). Plaintiff's reliance on EEOC v. PVNF, LLC, 487 F.3d 790 (10th Cir.2007), a hostile work environment case, is misplaced, since in that case the plaintiff and others were subjected to numerous gender-based remarks.
Moreover, plaintiff failed to raise an issue of fact whether defendants' evidence of a legitimate, independent, and nondiscriminatory reason for her termination was pretextual and the real reason was gender discrimination (see id. at 120, 946 N.Y.S.2d 27 ). She does not dispute that she kept a departmental vehicle for nine consecutive days, during which time she used it only once for the authorized purpose of driving to a facility being audited, and that she inaccurately reported, in a daily log, the vehicle's use and overnight location.
Plaintiff also failed to establish a prima facie case of retaliation (see Administrative Code § 8–107[7] ). In her complaints to defendants, she made no reference to the fact that she was female and did not otherwise implicate gender; therefore, the complaints did not constitute “protected activity” (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; Pezhman v. City of New York, 47 A.D.3d 493, 494, 851 N.Y.S.2d 14 [1st Dept.2008] ).
We note that no appeal lies from the denial of a motion for leave to reargue (see D'Andrea v. Hutchins, 69 A.D.3d 541, 892 N.Y.S.2d 761 [1st Dept.2010] ), and that, in any event, plaintiff's appeal from the order on reargument is untimely (see CPLR 5513 ).