Opinion
Index No. 151627/2019 Motion Seq. No. 004
01-12-2024
DONALD LEONE, Plaintiff, v. BROWN FORMAN CORPORATION, MICHAEL ACCORSI, as an aider and abettor, DANIELLE GOODSON, as an aider and abettor, JOEL ELMER, as an aider and abettor, DIANE NGUYEN, as an aider and abettor, Defendants.
Unpublished Opinion
PRESENT: HON. VERNA L. SAUNDERS, Justice
DECISION + ORDER ON MOTION
HON. VERNA L. SAUNDERS, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 72, 73, 74, 75, 76, 77, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91,92, 93, 94, 95, 96 were read on this motion to/for SUMMARY JUDGMENT .
In this action for claims under the New York State Human Rights Law and New York City Human Rights Law, defendant Brown-Forman Corporation ("BF") moves, pursuant to CPLR 3212(e) for dismissal of the complaint against it (NYSCEF Doc. No. 72, notice of motion). Plaintiff opposes the motion. Now, upon this court's review of the moving papers, statutes, and relevant case law, the motion is decided as follows.
The crux of plaintiffs claims is that he was terminated from his employment due to his disability and age. Plaintiff, who was born in 1960, allegedly suffers from ulcerative colitis and was employed with defendant from about May 1, 1984, to January 31, 2019, as a Wine Market Brand manager of the New York metropolitan area and, beginning in October 2017, as an off-premises marker manager. Plaintiff alleges that, after disclosing to defendants his disability, he was "subjected to disability and perceived disability discrimination and age discrimination." Specifically, the complaint sets forth allegations that, after disclosing he had colitis, he was not allowed to go on any trips previously earned from his job performance (approximately twelve [12] trips), while others who did not earn such trips as incentives for their productivity were invited to attend. He was also "placed on an unwarranted 90-day development plan in October 2017", which changed his role from brand manager to off-premises market manager, adding significant and unnecessary administrative tasks to his position, which he claims created a hostile work environment. Plaintiff further asserts that defendant Mike Accorsi, his direct supervisor since October 2017, berated him during a January 25, 2018, meeting with false accusations of poor job performance. When confronted with tangible evidence refuting claims of nonperformance, Accorsi allegedly became belligerent and kicked the conference room door to intimidate plaintiff through use of physical force. He further alleges that a new position, which was never posted or made available to BF employees, was created for a younger less qualified candidate. Plaintiff asserts that he performed his job responsibilities in an exemplary manner when employed with defendants and that he was even named "man of the year" four times.
On April 30, 2018, following a meeting with Amanda Ives from human resources and Accorsi, plaintiff claims he was placed on an unwarranted 90-days performance improvement plan which included a termination clause. Plaintiff asserts that, despite completing the performance improvement plan (PIP) successfully, he was continued on a PIP plan until June 1, 2018, on account of his disability, perceived disability, and age. Additionally, on June 1, 2018, at a BF fair meeting at the LaGuardia Plaza Hotel for the entire Empire Merchants on/off sales force, Accorsi allegedly prevented plaintiff from executing a wine presentation and, instead, allowed two new employees to read his presentation. After several hospitalizations, on October 22, 2018, plaintiff was placed on an unpaid leave of absence. On or about December 10, 2018, defendants accused plaintiff of generating improper invoices from retainers, which plaintiff maintains is a complete fabrication. Plaintiff was ultimately terminated on January 31, 2019.
In his first cause of action, plaintiff asserts, inter alia, that: "Brown Forman violated New York State Executive Law § 296 by discriminating against Plaintiff on account of his disability and perceived disability, age, and retaliation resulting in Plaintiffs emotional, physical and financial injuries, including compensatory damages for lost wages and pain and suffering as a result of the disparate treatment, hostile work environment and discriminatory and retaliatory termination." In his second claim for relief, plaintiff asserts, in part, that: "defendant violated New York City Administrative Code § 8-107 by subjecting plaintiff to discrimination (hostile work environment, and disparate treatment) based on age, disability, perceived disability and retaliation and otherwise discriminating against Plaintiff in connection with his employment including his discriminatory and retaliatory termination." (NYSCEF Doc. No. 1 ¶ 49, complaint).
Defendants interposed an answer wherein they denied plaintiffs allegations and asserted several affirmative defenses (NYSCEF Doc. No. 4, answer).
In the present motion for summary judgment dismissing the complaint, BF argues that plaintiffs disparate treatment claims fail because none of the alleged adverse actions occurred under circumstances giving rise to an inference of intentional discrimination. It argues that, although plaintiff claims to have told Accorsi of his medical issues in the summer of 2017, Accorsi had already notified human resources in the spring of 2017 that he and Warren Bidmead, plaintiffs primary manager at the time, intended to put plaintiff on an informal plan to improve his performance. Therefore, BF maintains that plaintiff s disability or perceived disability was not a factor in the decision to begin corrective action. Plaintiff allegedly fell short of the requirements of his development plan, which led to further performance management, including PIP. BF further argues that plaintiff continued to underperform and that he fails to show an inference of discrimination based on age or disability, which are based on assumptions that amount to mere bare, unsubstantiated assertions of animus. BF asserts that plaintiff was terminated in connection with an investigation for misconduct related to his expenses and invoices. BF claims that documentation was requested for his expenses and invoices; that plaintiff told BF that he had the documentation requested; and that plaintiff never provided the requested documentation. Only after his employment was terminated for failure to provide said documentation did plaintiff claim that the invoices were fraudulent. BF maintains that the other occurrences plaintiff identifies as discriminatory fail to support an inference of discrimination.
Assuming, arguendo, plaintiff is able to make out a prima facie claim of discrimination, BF maintains it has proffered a legitimate non-discriminatory reason for the actions complained of. Plaintiff argues that BF cannot show that its stated reason is a pretext for discrimination. Specifically, plaintiff cannot dispute his poor performance, nor can he dispute that he failed to provide documentation for more than $50,000.00 in products he used in company funds.
As for the claim premised on hostile environment, BF contends that this claim fails as a matter of law because the actions complained of amount to nothing more than petty slights and trivial inconveniences.
BF also argues that the claim for retaliation likewise fails as a matter of law because plaintiff fails to present evidence of disparate treatment of similarly situated employees. BF further argues that plaintiff has not proffered any circumstantial evidence of remarks against older or disabled employees. It states: "[plaintiff] does not identify any particular protected activity for which he alleges he was subjected to retaliation. Assuming that he alleges the protected activity is taking a leave of absence or complaining internally about alleged discrimination, Leone utterly fails to establish a causal link between those activities and any actions about which he complaints." (NYSCEF Doc. No. 73 at 20).
BF claims that plaintiff has no viable claim for age/disability discrimination, hostile work environment, and retaliation against it because the undisputed facts show that plaintiff was terminated due to sub-par job performance and his failure to provide documentation for more than $50,000.00 of charges to BF.
In support of its application, BF submits the affidavit of Amanda Ives, its Human Resources Director for Latin America Region &Global Travel Retail, who attaches several exhibits (NYSCEF Doc. No. 75, Ives Affidavit). Counsel also annexes to his affirmation excerpts from plaintiff s deposition.
In opposition to the motion, plaintiff argues that he was subjected to discrimination based on age, disability, and retaliation. He argues that his health began deteriorating in late October or early November 2017 and that, as a result, he was placed on a developmental plan, despite outstanding evaluations for years prior to his demotion (NYSCEF Doc. No. 81, performance evaluations from 2012-2017). Plaintiff asserts that he completed the developmental plan successfully and that even Accorsi - plaintiffs direct supervisor - testified at his deposition that there were portions of the plan plaintiff was successful in, but he could not recall what portion plaintiff was not successful in. Additionally, when asked whether he noticed any performance deficiencies prior to October 2017, he responded, "Specifically, no." (NYSCEF Doc. No. 76 pgs. 36-37, 88, Exhibit D, Accorsi affidavit). After disclosing his health issues, he was denied trips, which were offered as incentives to achieve sale goals, while other noncompany employees who did not earn such trips were invited to attend. At one meeting on January 25, 2018, Accorsi allegedly berated plaintiff about nonperformance and, when plaintiff referred him to the recaps to show his accomplishments, he became belligerent and acted in a hostile manner towards plaintiff, throwing paper at him to intimidate him and showing discriminatory animus. Plaintiff also asserts that during a meeting on or about March 29, 2018, he complained about discrimination, refuting Accorsi's testimony that he never knew plaintiff had complained about discrimination.
Plaintiff asserts that he complained about age and disability discrimination in March. June, July, October, and December 2018. This, claims plaintiffs, finds support in the testimony of Goodson, who testified that plaintiff complained about discrimination during a meeting on March 29, 2018 and that he also flagged his health issues during said meeting.
Plaintiff claims that he was on leave due to his disability and that, during this time, Vice President Diane Nguyen from human resources told plaintiff, "I don't care about your health, you have to come back to work, or otherwise you will be placed on an unpaid leave of absence." He was placed on an unpaid leave of absence from October 22, 2018, until his termination in January 2019.
Addressing the invoices, plaintiff asserts that the invoices were fraudulent except for one that was partially correct. He maintains that there is no proof that plaintiff picked up the products subject to the invoices and that the invoices BF relied upon to terminate plaintiff were fabricated. When plaintiff was unable to provide documentation for these fraudulent invoices, he was terminated. However, these fake invoices, claims plaintiff, were a pretext for his termination based on discrimination and age. Plaintiff also submits e-mails which he claims show BF's pretext (NYSCEF Doc. No. 88, e-mails).
In reply, BF argues that plaintiff cannot show circumstances giving rise to an inference of discrimination. Furthermore, it contends that plaintiff cannot show that BF's legitimate, non-discriminatory reasons were pretextual.
Employment discrimination claims brought pursuant to the NYSHRL and NYCHRL, including disability claims, are analyzed pursuant to the three-part burden-shifting framework established in McDonnell Douglas Corp, v Green, 411 U.S. 792 (1973) (see Stephenson v Hotel Emples. & Rest. Emples. Union Local 100 of AFL-CIO, 6 N.Y.3d 265, 270-271 [2006]; Reichman v City of New York, 179 A.D.3d 1115, 1117 [2d Dept 2020]). First, the plaintiff must meet his or her prima facie burden to establish a discrimination claim and, "[i]f the plaintiff makes such a showing, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the employment decision. If the employer succeeds in doing so, the burden then shifts back to the plaintiff to prove that the reason proffered by the employer was merely a pretext for discrimination" (Hudson v Merril Lynch & Co., Inc., 138 A.D.3d 511, 514-515 [1st Dept 2016] [internal quotation marks and citations omitted]; see Stephenson v Hotel Emples. & Rest. Emples. Union Local 100 of AFL-CIO, 6 N.Y.3d at 270-271; Johnson v IAC/Interactive Corp., 2018 NY Slip Op 31720[U], [Sup Ct, NY County 2018]).
To make out a prima facie case of employment discrimination under either statute, a plaintiff "must show that he [or she] is a member of a protected class qualified to hold his or [her] position who was fired or suffered an adverse employment action which occurred under circumstances giving rise to an inference of discrimination" (Haber v J. Press, Inc., 2013 NY Slip Op 31201 [U], [Sup Ct, NY County 2013] [internal quotation marks and citation omitted]); see Melman v Montefiore Medical Center, 98 A.D.3d 107, 113-114 [1st Dept 2012]; Mete v New York State Office of Mental Retardation & Developmental Disabilities, 21 A.D.3d 288, 290 [1st Dept 2005].)
Moreover, "[t]o prevail on a motion for summary judgment seeking dismissal of an employment discrimination claim under the NYSHRL, 'defendants must demonstrate either plaintiff s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual'" (Fusco v HSBC Bank United States N.A., NYLJ, Aug 7, 2018 at 31 [Sup Ct, NY County 2018], quoting Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 [2004]).
"A motion for summary judgment dismissing a [NYCHRL] claim can be granted only if the defendant demonstrates that it is entitled to summary judgment under both the McDonnell Douglas burden-shifting framework and the 'mixed-motive' framework" (Hudson v Merril Lynch &Co., Inc., 138 A.D.3d at 514 [internal brackets and citation omitted]; see Watson v Emblem Health Services, 158 A.D.3d 179, 183 [1st Dept 2018]; Bennet v Health Management Systems, Inc., 92 A.D.3d 29, 41 [1st Dept 2011]). "Under the 'mixed-motive' framework, the question on summary judgment is whether there exist triable issues of fact that discrimination was one of the motivating factors for the defendant's conduct. Thus, under this analysis, the employer's production of evidence of a legitimate reason for the challenged action shifts to the plaintiff the lesser burden of raising an issue as to whether the [adverse employment] action was motivated at least in part by . . . discrimination" (Hudson v Merril Lynch & Co., Inc., 138 A.D.3d at 514 [internal quotation marks and citations omitted]).
Here, turning first to the discrimination claims brought pursuant to the NYSHL, this court finds that plaintiff has made out a prima facie case of discrimination, premised on claims that, inter alia, defendants demoted and later terminated plaintiff due to his disability, and that he was not offered certain opportunities that were afforded to younger employees with less experience. Although defendants have raised legitimate non-discriminatory reasons for plaintiffs demotion and termination, to wit, that plaintiff underperformed prior to any disclosure of his disability; that his termination was due to failure to provide documentation for more than $50,000.00 in products he purchased with company funds; and that his claim regarding the Wine Division Manager position, which plaintiff claims was offered to a less experienced hire, lacks merit because during a conversation with Amanda Ives, from human resources, plaintiff admitted that he did not want the job (see Sedhom v SUNY Downstate Med. Ctr., 201 A.D.3d 536, 537 [1st Dept 2022], Abe v New York Univ., 169 A.D.3d 445, 446 [1st Dept 2019], lv dismissed 34 N.Y.3d 1089 [2020]), this court nevertheless finds that defendant has raised issues of fact as to whether said reasons were pretextual. Plaintiff submits the deposition testimony of Accorsi, who testified that plaintiff was successful on portions of the plan, but Accorsi could not recall what portion of the plan plaintiff was not successful in. Plaintiff also submits an e-mail he maintains demonstrates pretext. In an e-mail Nguyen received from Mr. Manuel (Director) regarding plaintiff s eligibility for the severance plan, Manuel wrote "Humm was just thinking how to finish this easier for all." Ms. Nguyen responded as follows: "We will get there. Amanda is on it." She also states "Nope! He missed it by a few months ...." Additionally, in his affidavit, plaintiff asserts that he was an older employee on the team and was replaced by two by younger employees with no disability; refutes defendants' assertion that his performance was subpar and affirms that the invoices requested by BF, which served as the basis for his termination, were fraudulent and that defendant knew the same were not authentic invoices. As follows, this court finds that plaintiff has raised material issues of fact with respect to pretext and, insofar as his affidavit also raises credibility issues (Ferrante v American Lung Assn., 90 N.Y.2d 623, 631 [1997] ["(i)t is not the court's function on a motion for summary judgment to assess credibility"]), that branch of the motion regarding the NYSHRL claim is denied. Likewise, the motion fails as against the more lenient standard of the NYCHRL, insofar as this court finds that there are triable issues of fact as to whether discrimination was, at the very least, a factor in defendants' termination of plaintiff.
As it relates to plaintiffs hostile work environment claim, to prevail on a hostile work environment claim, "plaintiff must show (1) that the harassment was sufficiently severe or pervasive to alter the conditions of his [or her] employment and create an abusive working environment, and (2) that a specific basis exists for imputing the objectionable conduct to the employer." (Weekes v Jetblue Airways Corp., 2022 WL 4291371, 2022 U.S. Dist LEXIS 167723, *31 [ED NY, Oct. 16, 2022, No. 21-CV-1965 (MKB)]; Alfano v Costello, 294 F.3d 365, 373-74 [2d Cir 2002]; Ji Sun Jennifer Kim v Goldberg. Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18 [1st Dept 2014]; Brennan v Metro. Opera Ass 'n, 284 A.D.2d 66, 72 [1st Dept 2001].) "The plaintiff must also show either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of [his or] her working environment." (Desardouin v City of Rochester, 708 F.3d 102 [2d Cir 2013] [internal quotation marks and citations omitted]; see Cruz v Coach Stores, Inc., 202 F.3d 560, 570 [2d Cir 2000].) Whether a hostile environment exists can be determined by looking at all the circumstances, which may include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfere with an employee's work performance." (Harris v Forklift Sys., 510 U.S. 17, 23 [1993].) Under the NYCHRL, a plaintiff claiming a hostile work environment must demonstrate that he or she was treated less well than similarly situated employees (see Wolfe-Santos v NYS Gaming Commn., 188 A.D.3d 622, 622 [1st Dept 2020].)
This court finds that BF has failed to establish entitlement to dismissal of plaintiffs claim of hostile work environment. Plaintiff alleges that he was denied opportunities afforded to younger, less experienced employees, that he was demoted without cause, and berated by his employers, and he also asserts that he was terminated based on fraudulently produced invoices. (See Ramos v Metro-North Commuter R.R., 194 A.D.3d 433, 434 [1st Dept 2021].) Defendant has not demonstrated that the conduct alleged constitutes nothing more than petty slights and trivial inconvenience. (See Ramos v Metro-North Commuter R.R., 194 A.D.3d at 434; Williams v New York City Hous. Auth., 61 A.D.3d 62, 72-73, 80-81 [1st Dept 2009], Iv denied 13 N.Y.3d 702 [2009]; see also Hernandez v Kaisman, 103 A.D.3d 106, 113-114 [1st Dept 2012].) Accordingly, that branch of the motion seeking dismissal of plaintiff s hostile environment claim is denied.
"In order to make out a claim of unlawful retaliation, a plaintiff must show that (1) she engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered adverse employment action based on her activity, and (4) there is a causal connection between the protected activity and the adverse action." (See Bendeck v NYU Hosps. Ctr., 77 A.D.3d 552 [1st Dept 2010], Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 312-313 [2004].) Under the broader protections afforded under NYCHRL, "'[t]o make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct'".
This court also denies the motion with respect to the retaliation claim, insofar as issues of fact remain as to whether plaintiffs termination was due, in part, to his alleged complaints regarding discrimination. Given the proximity of the complaints to the alleged termination, that I branch of the motion is hereby denied. (See Krebaum v Capital One, N.A., 138 A.D.3d 528, 528-529 [1st Dept 2016].) Accordingly, it is hereby
ORDERED that defendant Brown-Forman Corporation's motion, pursuant to CPLR 3212, is denied in its entirety; and it is further
ORDERED that, within twenty (20) days after this decision and order is uploaded to NYSCEF, counsel for plaintiff shall serve a copy of this decision and order, with notice of entry, upon plaintiff.
This constitutes the decision and order of this court.