Opinion
11115/03
Decided March 23, 2005.
Upon the foregoing papers, defendants' motion for summary judgment is granted and the complaint is dismissed.
This is an action to recover compensatory damages for wrongful termination of plaintiff's employment. Plaintiff alleges that her employment was wrongfully terminated as the result of a medical condition or disability, to wit, her pregnancy.
Plaintiff was hired by defendant Louis Siegelman in July, 1998, as "the front desk person" in his newly-established private dentistry practice. She alleges that she initially was hired to work five days a week, including Saturdays, with the understanding that eventually she would not have to work on Saturdays. She worked Saturdays until "sometime in 1999." She further alleges that Dr. Siegelman acquiesced in this and other accommodations during her employ, including leaving early on the days she worked in order to catch a commuter bus. Between May and July, 2002, plaintiff was out of work due to complications associated with her pregnancy, and received disability payments. She returned to work for one-half day on July 15th, and with defendant's consent left early due to illness. She did not return to work after that.
At her deposition, plaintiff testified that on Friday afternoon, August 23, 2002, she called the office to report that she had received medical clearance to return to work the following Monday, which she "vaguely recalled' would be a regularly scheduled annual vacation week for the defendant, when the office would be closed. She testified that, when she told defendant that she was ready to return to work on Monday, August 26th, he "might have" replied that the office was about to close for vacation. She further testified that defendant said:
That my absence and my pregnancy and me being hospitalized was a disruption to the office, and me going out on maternity leave again would be an additional disruption, and he couldn't afford for his practice to have that kind of disruption (Transcript of plaintiff's deposition, p. 125, ll. 8-13).
She testified that she became angry, and apologized for being such a disruption, "and then it was just okay and we hung up." She denied that he said that he would speak with her about her returning to work when he came back from vacation.
Following that phone call, plaintiff applied for unemployment compensation. She states that defendant called her sometime in September after Labor Day, and offered to hire her back provided she worked five full days a week, including Saturdays. She refused, and he subsequently offered her two-week's severance pay upon her signing a general release. Upon reading the proffered release, plaintiff retained an attorney, but did not immediately commence a lawsuit.
On or about October 26, 2002, defendant contacted plaintiff directly and offered to continue her employment immediately and unconditionally on the terms and condition she previously had enjoyed. Plaintiff rejected the offer through her attorney, and on or about March 25, 2003, she commenced this action on behalf of herself and her husband.
The Verified Complaint alleged: (1) unlawful discrimination in terminating her employment on the basis of her gender and disability, specifically, her pregnancy, and in failing to make reasonable accommodations for her disability; (2) intentional and negligent infliction of shock, trauma, mental anguish and emotional distress upon both plaintiffs; and (3) loss of consortium.
By Decision and Order dated September 29, 2003, this Court severed and dismissed plaintiffs' causes of action for negligent and intentional infliction of emotional distress and the cause of action for loss of consortium.
Employment discrimination on the basis of pregnancy falls within the prohibitions of the State Human Rights Law (Executive Law § 296[a]). As interpreted by the courts of this state, that section provides that it is an unlawful discriminatory practice for an employer "to refuse to hire or employ or to bar or to discharge from employment [an] individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment" because of that individual's sex or disability, including pregnancy ( see, e.g., Matter of Energy Expo, Inc. v. New York State Division of Human Rights, 112 AD2d 302 [2nd Dept. 1985]).
To make out a prima facie case of employment discrimination under the Human Rights Law, plaintiff is required to establish that she was a member of a group protected by statute, that she was qualified for the position in question, that she was denied the position, and that denial occurred under circumstances that give rise to an inference of discrimination ( Gilroy v. Continental Corp., 237 AD2d 251 [2nd Dept.], lv denied, 90 NY2d 809; Sogg v. American Airlines, Inc., 193 AD2d 153 [1st Dept. 1993]), lv denied, 83 NY2d 754).
In moving for summary judgment, defendant argues that (1) plaintiff's employment was terminated for cause, i.e., because she refused to work the hours required of her; (2) plaintiff was not discharged, but voluntarily quit by refusing to work the hours required of her; (3) both defendant's requirement that plaintiff work the schedule and hours required of her job, and his refusal to continue to permit her better terms and conditions of employment than her co-workers were justified by legitimate, non-discriminatory business reasons; (4) plaintiff was not disabled; and (5) plaintiff is not entitled to back pay.
In opposition, plaintiff argues that defendant's motion must be denied because he has failed to meet his burden of refuting her prima facie case. Specifically, she argues that (1) she has pleaded a prima facie case because she was a pregnant woman who had satisfactorily performed her duties, and who was discharged due to her pregnancy, and whose position was filled by a non-pregnant woman; (2) defendant failed to articulate a legitimate, non-discriminatory reason for terminating her employment; (3) the reasons proffered by defendant as justifying termination, even if legitimate, are a mere pretext for unlawful discrimination; (4) defendant's subsequent offer of reinstatement is an inadmissible offer of settlement barred by CPLR 4547; and (5) defendant has not established that plaintiff failed to mitigate her damages.
The initial burden on a motion for summary judgment lies with the movant, here the defendant, to establish that there are no triable issues of material fact, and that, giving plaintiff the benefit of every favorable inference to be drawn from the undisputed facts, he is entitled to dismissal of the complaint as a matter of law ( Zuckerman v. City of New York, 49 NY2d 557, 562).
Under the circumstances presented here, defendant has established his prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff has not been subjected to employment discrimination based upon her pregnancy (see, Matter of Miller Brewing Co. v. State Division of Human Rights, 66 NY2d 937). It is undisputed that defendant accommodated, or at least acquiesced in, plaintiff's unique employment considerations prior to her pregnancy, and that prior to commencement of this action, he unconditionally offered to continue her employment, under the same terms and conditions of employment that preceded her pregnancy.
Moreover, nothing in the parties' August 23, 2002, conversation, as related by plaintiff at her deposition, gives rise to an inference of sexual discrimination based upon pregnancy-related termination of her employment. Significantly, and dispositively, in recounting her telephone conversation with defendant that day, plaintiff did not testify that defendant told her she was fired or even that she could not eventually return to work. In fact, at his deposition, defendant testified in regard to this conversation that he did not tell her not to return to work, only that the office was about to close for vacation, and that he would call her when he returned. Defendant further testified, and plaintiff does not deny, that when he called her back after vacation, he initially requested that upon her return, she match the hours then being worked by her temporary replacement, since that arrangement had been working out well in her absence.
While the version of that conversation presented by plaintiff at her deposition, when compared to defendant's account, may raise a disputed question of fact as to what was said, "factual disputes are not enough; they must relate to material issues" ( Forrest v. Jewish Guild For the Blind, 3 NY3d 295, 312 [2004] [emphasis in original]). Plaintiff's version, even if undisputed, does not give rise to a claim of sexual discrimination.
An employer is not guilty of unlawful discrimination with respect to a pregnant employee if the employer has a legitimate, nondiscriminatory reason for the challenged action (see, e.g., Matter of Resnik v. New York State Division of Human Rights, 204 AD2d 330 [2nd Dept. 1994]). Here, there is no evidence that defendant terminated plaintiff's employment due to her pregnancy. Indeed, other than plaintiff's inchoate recitation of the August 23rd conversation between the parties, it appears that defendant did not react negatively to her pregnancy and gave every indication that her job would be waiting for her when she was ready ( see, e.g., Mittl v. New York State Division of Human Rights, 293 AD2d 255 [1st Dept 2002], rev'd on other grounds, 100 NY2d 326). For instance, it is undisputed that defendant transferred one employee to cover plaintiff's position while she was out, and hired another to cover the transferee's work on the understanding that the new hire's employment would end upon plaintiff's return. Similarly, at her deposition, plaintiff did not state that defendant terminated her employment on August 23, 2002, only that he expressed concern at the perceived disruption in office activity engendered by her past and prospective absences. Moreover, she does not submit an affidavit in opposition to this motion addressing defendant's assertion that he told her during that conversation that the office would be closing for vacation that day and that he would talk to her when he returned from vacation. By the time defendant did call her after Labor Day, plaintiff already had applied for unemployment compensation.
Defendant having shown that he had a facially valid, independent and nondiscriminatory reason for the questioned conduct, the burden shifted to plaintiff to raise an issue of fact with respect to whether the claimed action was merely a pretext for discrimination (see, Rabideau v. Albany Medical Center Hospital, 195 AD2d 923, 926 [3rd Dept. 1993]; cf., Matter of Miller Brewing Co. v. State Division of Human Rights, supra at 939).
As the Court of Appeals' case, Forrest v. Jewish Guild For the Blind, 3 NY3d 295, 298 (2004), instructs, it is simply not the law that every dispute that arises in the workplace constitutes discrimination, or that every act (even a wrongful one) is committed because of discrimination.
Here, defendant has presented a prima facie case that his actions were neither wrongful nor discriminatory. While she may well feel slighted by defendant's decision in regard to her position, as a matter of law, an employee's disagreement with an employer's business decision does not prove the challenged conduct discriminatory, nor does it raise an inference that the conduct was a pretext for such discrimination ( Forrest v. Jewish Guild For the Blind, supra at 312). Plaintiffs having failed to raise a triable issue of fact or to rebut defendants' prima facie defense against the claim of unlawful discrimination, defendant is entitled to summary judgment dismissing the complaint ( Forrest v. Jewish Guild For the Blind, supra; Wozniak v. Components Assembly Division Inc., 220 AD2d 934 [3rd Dept. 1995]).
Accordingly, it is
ORDERED that the motion for summary judgment is granted; and it is further
ORDERED that the complaint is dismissed; and it is further
ORDERED that the Clerk shall enter judgment accordingly.