Opinion
Index No.: 155837/2017
03-27-2020
LAILA N. SEDHOM, PhD, RN, Plaintiff, v. SUNY DOWNSTATE MEDICAL CENTER, DAISY CRUZ-RICHMAN and MARIA SILAS, Defendants.
NYSCEF DOC. NO. 148 Motion Seq. 006
DECISION & ORDER
ROBERT D. KALISH, J. :
This action arises out of plaintiff Laila N. Sedhom, PhD, RN's claims that her employer, defendant SUNY Downstate Medical Center (SUNY Downstate), as well as defendants Daisy Cruz-Richman (Cruz-Richman) and Maria Silas (Silas) (collectively, defendants), discriminated against plaintiff, by wrongfully terminating her as a result of her age and by subjecting her to a hostile work environment, in violation of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL). Defendants move, pursuant to CPLR 3212, for summary judgment dismissing the complaint.
Defendants state that, "[a]s a subdivision of The State University of New York, SUNY Health Science Center at Brooklyn (Downstate Medical Center) is not a legally-cognizable entity from SUNY, the appropriate institutional defendant." NYSCEF Doc. No. 119, Defendants' memorandum of law at 1.
Upon review of the submitted papers and having conducted oral argument, the instant motion by defendants for summary judgment dismissing the complaint, pursuant to CPLR 3212, is granted.
BACKGROUND AND FACTUAL ALLEGATIONS
Plaintiff commenced her employment with SUNY Downstate in 1980 working as a clinical instructor. Plaintiff earned tenure in 1987 and became a full professor in 1995. Also in 1995, in addition to her teaching position, plaintiff "was selected to become Acting Associate Dean for Graduate Programs in the College of Nursing at SUNY Downstate." NYSCEF Doc. No. 28, First Amended Complaint (FAC), ¶ 15. Plaintiff continued to work as a professor and an Associate Dean until she retired, effective December 31, 2010.
According to plaintiff, on March 14, 2011, Cruz-Richman requested that plaintiff come out of retirement and resume her duties as a professor and an Associate Dean. NYSCEF Document No. 112, May 3, 2011 Letter. Initially, plaintiff returned on a part-time and temporary basis. However, "SUNY Downstate was unable to hire a candidate for the full-time Associate Dean position, so [Cruz-Richman] implored SUNY Downstate to rehire [plaintiff], and it did so, on a full-time basis, effective August 1, 2011." FAC ¶ 18; NYSCEF Document No. 112, August 4, 2011 Letter. To remain accredited by the Commission on Collegiate Nursing Education, SUNY Downstate is required to have a full-time Associate Dean. NYSCEF Document No. 112, August 4, 2011 Letter.
In April 2011, plaintiff received a letter, signed by Cruz-Richman, informing her that she was reappointed as Associate Dean. NYSCEF Document No. 125 at 1. In said letter, Cruz-Richman stated, "This is a local, administrative title complementary to your current budget title of Professor." Id. The letter continued that she would serve at the discretion of the Dean of the College of Nursing, for a two-year term through August 31, 2012, with her ongoing performance to be evaluated by Cruz-Richman with input from the faculty. The letter further states that if, at a later date, plaintiff no longer continued to perform the administrative duties of Associate Dean for Graduate Programs, plaintiff would be returned to her "current faculty rank as Professor without administrative duties in the College of Nursing." NYSCEF Document No. 125, April 6, 2011 Letter. Plaintiff continued to work in the position of Associate Dean past August 31, 2012 without a renegotiation of terms.
This letter is dated April 6, 2010, but as plaintiff retired in December 2010 and then returned, that date is presumably a typographical error—the intended date being April 6, 2011. There is no dispute on this.
Based on the aforementioned typographical error, the appointment presumably was intended to run until 2013—not 2012.
It is alleged that in January 2017, Cruz-Richman informed plaintiff that she was considered to be a temporary employee and that she would be terminated immediately upon the hiring of a new Associate Dean. FAC ¶ 32; NYSCEF Document No. 113, Plaintiff EBT, at 57-62. Later, in June 22, 2017, plaintiff received a letter stating that her temporary appointment as "Professor" was ending effective July 7, 2017. NYSCEF Document No. 112, June 22, 2017 Letter. Plaintiff asserts that she was improperly terminated because she was reinstated to her tenured professorship upon her return to SUNY Downstate and, as such, she was not an at-will employee. Plaintiff further asserts that, as a result of SUNY Downstate's actions, she was forced to look into other employment options "in order to continue her role as the sole wage earner in her household, which is necessary because of her husband's disability." FAC ¶ 33.
Plaintiff alleges that after she was informed, in January 2017, that she would be terminated, Cruz-Richman subjected her to a hostile work environment due to her age by being condescending, dismissive and disrespectful on a regular basis. Cruz-Richman also allegedly shouted at plaintiff, refused to acknowledge her presence and avoided interactions with her at work. In addition, Cruz-Richman purportedly encouraged other SUNY Downstate employees to be hostile towards plaintiff.
According to plaintiff, between January 2017 and July 2017, Cruz-Richman "perpetuated and distributed falsehoods about [plaintiff's] employment status by repeating them to other employees at SUNY Downstate." FAC ¶ 34. In May 2017, Cruz-Richman told plaintiff that she was required to submit a self-evaluation form. Plaintiff asserts that this request was improper, as tenured faculty were not required to complete self-evaluations. Plaintiff also claims that Cruz-Richman unfairly damaged her reputation by, among other things, delaying her review of communications from plaintiff and then wrongfully blaming plaintiff for said delay.
Plaintiff further alleges that "[o]n June 22, 2017 SUNY Downstate sent a letter to [plaintiff] falsely stating that her position was a 'temporary appointment,' and stating that [plaintiff's] employment would end effectively July 7, 2017." Id., ¶ 46. Plaintiff asserts that Cruz-Richman then "humiliated" her by sending letters to all faculty, staff and students informing them of her termination and by "falsely stating that plaintiff had a 'temporary appointment.'" Id., ¶ 47. Cruz-Richman continued to allegedly humiliate plaintiff by replacing plaintiff with a less qualified faculty member while SUNY Downstate searched for a different Associate Dean of Graduate Programs. Id., ¶ 48.
In February 2017, plaintiff met with defendant Maria Silas (Silas), an employee in the Human Resources department. At that meeting, Silas allegedly created a hostile work environment by asking plaintiff her age and then telling plaintiff that she was "too old to work [at SUNY Downstate]." Id., ¶ 42. Silas allegedly informed plaintiff that plaintiff "has no right to pension benefits and that she would be 'taking it back'." Id., ¶ 39. Plaintiff asserts that Silas "disrespected plaintiff by repeatedly speaking to her in a condescending manner, treating her differently than other similarly situated employees of SUNY Downstate." Id., ¶ 42. Plaintiff alleges that, in addition to Silas, Judith Dorsey (Dorsey), Vice President of Human Resources for SUNY Downstate, "scolded [plaintiff] for the length of her employment at SUNY Downstate." Id., ¶ 38.
Procedural History
After being granted leave to amend the complaint (NYSCEF Doc. No. 26), plaintiff ultimately commenced an action asserting sixteen causes of action against the current defendants and also against Teachers Insurance and Annuity Association of America d/b/a/ TIAA f/k/a/ TIAA-CREF (TIAA) alleging, among other things, that defendants discriminated against her based on age and caregiver status, subjected her to a hostile work environment, breached her contract and the covenant of good faith and fair dealing and negligently inflicted emotional distress. In the FAC, Plaintiff also alleged that TIAA violated her due process rights when TIAA recouped employer contributions from her retirement account. Both TIAA and defendants moved to dismiss the FAC.
By decision and order dated December 13, 2018 ("the 2018 Decision"), this court removed and transferred the sixth through twelfth causes of action to the Court of Claims pursuant to CPLR 325 (a). See NYSCEF Doc. No. 79-80. In sum and substance, the issues of whether Plaintiff was tenured at the time of her termination, and, as such, whether her termination was a breach of contract, were transferred to the Court of Claims. In addition, TIAA's motion to dismiss (Seq. 004) was granted in its entirety and the complaint was dismissed as against it. Finally, the Court granted in part the motion to dismiss by defendants (Seq. 003). As such, following the 2018 Decision, only the first, third and fifth causes of action remained before this Court. On the instant motion, defendants now move for summary judgment, dismissing those remaining causes of action.
As relevant for the instant motion, in the first cause of action, plaintiff alleged that all defendants violated the NYSHRL by discriminating against her on the basis of age. She argues that she was denied the same terms and conditions of employment available to others based on her age by "falsely claiming that she is an at-will temporary employee and threatening to terminate her at any time; by wrongfully terminating her; and by subjecting her to a hostile work environment." FAC ¶ 61.
In the 2018 Decision, the court held that plaintiff sufficiently pled a claim for age discrimination in violation of the NYSHRL against all remaining defendants. In brief, the court stated that, on a motion for summary judgment, defendants "will have the opportunity to argue that the alleged discriminatory comments were merely stray remarks [as opposed to a culture of age-based animus] and [SUNY Downstate] will also be able to offer a non-discriminatory explanation for Plaintiff's termination." Id. at 9. Based on Cruz-Richman's role at work and also factual allegations as presented by plaintiff in opposition to the motion to dismiss (Seq. 003), pursuant to CPLR 3211, the court found that plaintiff sufficiently pled a cause of action against Cruz-Richman for age discrimination in violation of the NYSHRL. With respect to Silas, the court held that, at the motion to dismiss stage, it was premature to conclude, as a matter of law, whether Silas could be individually held liable under the NYSHRL as an employee who has more power than simply carrying out personnel decisions by others.
The third cause of action is similar to the first, however, as it alleged that, by their actions, the individual defendants violated the NYCHRL by "falsely claiming that Dr. Sedhom is an at-will temporary employee; threatening to terminate her at any time; wrongfully terminating her; and subjecting her to a hostile work environment." FAC ¶ 67. In addition to compensatory damages, plaintiff is seeking punitive damages and attorneys' fees. The court found that, as plaintiff sufficiently alleged facts to support causes of action for age discrimination in violation of the NYSHRL against all remaining defendants, she adequately alleged facts to sustain claims for age discrimination against the individual defendants "pursuant to NYCHRL's more liberal standard." 2018 Decision at 12.
In the remaining fifth cause of action, for hostile work environment, plaintiff alleged that Cruz-Richman's and Silas's actions, as set forth in the complaint created a hostile work environment. Plaintiff alleged that she "faced the threat of unlawful and unjust termination." FAC, ¶ 76. Further, Plaintiff alleged that she would arrive at work in an anxious state, "consistently in fear of the continuing rude and humiliating acts." Id., ¶ 78. The FAC alleged that Silas threatened plaintiff's livelihood and threatened to confiscate her pension, and that Cruz-Richman humiliated plaintiff by discussing plaintiff's termination with other employees.
In the 2018 Decision, this court found that, at the pleadings stage, as the factual record has not yet been developed, plaintiff adequately alleged a claim against defendants for hostile work environment in violation of the NYSHRL.
In pertinent part, as a result of the 2018 Decision, the remaining claims are ones alleging age discrimination and hostile work environment in violation of the NYSHRL and the NYCHRL. As noted in said decision, "[a]s an instrumentality of the State, SUNY Downstate is not subject to the provisions of the New York City Human Rights Law." Id. at 12. As a result, claims made under the NYSHRL are alleged as against all remaining defendants, but claims made under the NYCHRL are only alleged as against the individual defendants. Instant Motion
After conducting discovery, defendants now move for summary judgment dismissing the remaining causes of action. Among other things, they submit the affidavits of Cruz-Richman and Silas in support of their motion. The relevant facts of the circumstances leading up to plaintiff's termination, and plaintiff's opposition, are as follows.
Prior to retiring in 2017, Cruz-Richman served as a Dean and Professor at SUNY Downstate' s College of Nursing since 2003. She states that, during most of those years, there was one Associate Dean for the undergraduate programs and one for the graduate programs. Dr. Nellie Bailey (Bailey) served as the Associate Dean for undergraduate programs; and plaintiff served as the Associate Dean for graduate programs from 1998 until her retirement. After plaintiff retired in 2010, at Cruz-Richman's "recommendation, the College hired plaintiff to serve part-time [starting around March 14, 2011], on a temporary basis, as Associate Dean while the College searched for a new Associate Dean for graduate programs." NYSCEF Doc. No. 114, Cruz-Richman aff, ¶ 4. Plaintiff was over 65 years old at that time. Cruz-Richman notes that she herself is over 65 years of age, having been born in 1946. Plaintiff was then - pursuant to a memorandum dated August 4, 2011 - appointed to full-time status, again on Cruz-Richman's recommendation, serving as the Associate Dean "at the pleasure of the Dean - me - anticipating that we would be hiring a new Associate Dean in the future." Cruz-Richman aff, ¶ 5; see also NYSCEF Doc. No. 112, Colucci aff, Ex. C [August 4, 2011 Memo]. The College could not receive its accreditation from the Commission of Collegiate Nursing Education without having a full time Associate Dean.
Pursuant to the terms of the employment contract letter plaintiff received on April 6, 2011, if plaintiff was replaced as Associate Dean prior to August 31, 2012, she had the "option of serving as a full-time faculty member without administrative responsibilities, through August 31, 2012." Id. Cruz-Richman states that, for various reasons, mainly due to the low prospective salary, SUNY Downstate was unable to find a new Associate Dean. Plaintiff remained in the position past August 31, 2012. Cruz-Richman states that "[t]he two-year employment option referred to in [the contract letter] expired with [plaintiff] still [being] employed, so [plaintiff] returned to her previous status as a temporary employee, terminable at will." Id., ¶ 6.
Again, there is no dispute that the signature date on this letter is incorrect. Although not dispositive to this motion, plaintiff's employment presumably was intended to run to 2013—not 2012.
Cruz-Richman explains that, in 2016, she shared the news with Bailey and plaintiff that she intended to retire in 2017. She advised them "that the new Dean would likely choose her own administrative team, including new Associate Deans. Dr. Bailey was still a member of the faculty, and would be able to stay on in that capacity even if the new Dean made administrative changes, but plaintiff, being a temporary employee, did not have that option." Id. ¶ 8. Cruz-Richman further notes that, "in response to what [SUNY Downstate] regarded as the over-use of temporary employees," SUNY Downstate was instituting a new policy to end the use of temporary employees. Cruz-Richman received a memo in which the new policy was outlined and the temporary employees in the College of Nursing were listed, including plaintiff. See NYSCEF Doc. No. 131. In brief, the new policy indicated that "temporary employees could not be kept on in that status indefinitely and must either be converted to term employees - who serve for a fixed term, usually one or two years, subject to renewal - or let go." Id., ¶ 9.
In February 2017 and again in March 2017, Cruz-Richman advised plaintiff, who was serving as a temporary employee and who was also likely to be replaced when the new Dean was appointed, that plaintiff's appointment would be ending soon. See also NYSCEF Doc. No. 112. According to Cruz-Richman, plaintiff's termination was not due to either her performance or to her age. Cruz-Richman notes that she was "instrumental" in rehiring plaintiff and that Bailey, who Cruz-Richman assigned to take over plaintiff's duties until the incoming Dean could form her own administrative team, was slightly older than plaintiff.
Cruz-Richman alleges that she and plaintiff had a few disagreements over the years, such as the handling of graduation and awards ceremonies, but "as far as I know [plaintiff] never attributed any of this to her age. Indeed, no one has ever asked me on plaintiff's behalf any questions concerning plaintiff's age and what role, if any, it had to do with my actions." Cruz-Richman aff, ¶ 12. With respect to filling out the self-evaluation form, Cruz-Richman states that all full-time members of the faculty were asked to submit this form—not just plaintiff. Cruz-Richman states that she was neither involved in issues concerning plaintiff's pension, nor the issue of temporary employment. Cruz-Richman further states that she is aware that plaintiff believes that she continued to retain tenure status, despite retiring, and recognizes that this dispute will be litigated in the Court of Claims.
Silas states that she met plaintiff, "for the first and only time," on February 21, 2017 "to answer questions [plaintiff] had about her employment status." NYSCEF Doc. No. 115, Silas aff, ¶ 3. Silas states that, after plaintiff had been hired post-retirement, her status was temporary. Silas states that there was no indication that plaintiff's status had ever changed from temporary. Silas states that she sat with plaintiff, explained this to her and reviewed documents in plaintiff's personnel file. Silas contends that she looked in the personnel file for the UP-211 form, which was relevant because "retired employees who return to State service [who receive a pension] are subject to limitations on their earnings unless either: (1) a UP-211 form explains the justification for and shows approval of exemption from those limits, or; (2) the employee is over 65 years of age." Id., ¶ 7. When Silas did not see the form in the file, she asked plaintiff if she was over 65 years of age. Silas stated, "that was the extent of any mention of plaintiff's age." Id. Silas states that she asked "Doriel Forde, SUNY Downstate's Benefits Manager, to review plaintiff's retirement accounts because there are limits on pension contributions [by the State] for retired employees who return to State service." Id., ¶ 8. Silas states that Forde informed her that "there had been substantial pension contributions that should not have been made [by the State] and would likely be reclaimed." Id.
Silas states that both she and Forde called plaintiff, on speaker phone, and advised her of this follow-up determination. Silas claims that she has no decision-making authority nor any advisory role concerning pension benefits and contributions. She reiterates that she has "authority to make any decisions regarding plaintiff's employment status, compensation, benefits, or anything else, and I made no such decisions." Id. ¶ 2.
David Morrell (Morrell), Director of University Benefits for the State University of New York (SUNY), states that, after plaintiff's post-retirement employment, "contributions that had been made during her post-retirement employment were recouped as improperly paid." NYSCEF Doc. No. 116, Morrell aff, ¶ 2. Morrell states that SUNY made a mistake and contributed to plaintiff's retirement when she returned to employment. As such, these contributions needed to be recouped. Morrell states that this determination was not made by Silas, but by Morrell's office, after consulting with the Office of the State Comptroller. The Human Resources office then reported this information to plaintiff.
On July 23, 2017, Lori Escallier (Escallier) was appointed to succeed Cruz-Richman as the Dean of the College of Nursing. Upon her arrival, Escallier decided to restructure the administration. Escallier believed that it was unnecessary to have an Associate Dean for both the graduate and undergraduate levels. As a result, plaintiff's former position no longer existed under the restructuring and she cancelled the search to fill plaintiff's position. This decision to restructure "had nothing to do with plaintiff." NYSCEF Doc. No. 117, Escallier aff, ¶ 8. She then created one position, an Associate Dean for Academic Affairs, and appointed Bailey to this position. She "also determined that the College was in dire need of an Associate Dean for Academic Technology who would be responsible for moving the College into distance learning, one of the major strategies for which I was appointed." Id., ¶ 6. As a result, she appointed "Dr. Melissa Stec . . . Professor & Associate Dean for Evaluation and Education Innovation, an internationally renowned expert in academic technology." Id., ¶ 7.
Relevant Parts of Plaintiff's Testimony
Plaintiff testified that, when she referred to repeatedly being disrespected by Silas, she was referring to the one meeting where Silas asked plaintiff her age. Plaintiff states that she drew an inference of age discrimination due to the "way she asked the question." NYSCEF Doc. No. 84, Plaintiff's tr at 84. Plaintiff testified that Cruz-Richman acted disrespectfully towards her when plaintiff went to speak to Cruz-Richman about the commencement speaker and Cruz- Richman said, "I don't want to hear it," and "get out and go and find her." Id. at 98. Plaintiff claims that she was coming up with a "Plan B" for Cruz-Richman and felt that she should be "commended on thinking ahead, [and not] dismissed like that. Disrespectfully." Id. Plaintiff could not provide any other examples of disrespectful treatment regarding meetings.
Plaintiff testified about the time that she was out on sick leave towards the end of 2016 and Cruz-Richman told the faculty at a meeting "Don't call her and don't ask about her." Although plaintiff was not at this meeting, she said faculty members told her about it and plaintiff thought that it was "unprofessional and strange." Id. at 101. Plaintiff explained that she thought she was being disparaged when Cruz-Richman sent an email to faculty and students letting them know that plaintiff was terminated, rather than give plaintiff "the decency to speak to my students and tell them." Id. at 103. Plaintiff testified that Cruz-Richman told the faculty that plaintiff did not care about her students after plaintiff had to leave the commencement early to take care of her husband. Plaintiff could not recall any other incidents of being subjected to a hostile work environment
Age Discrimination
In light of the above, defendants argue that plaintiff is unable to establish a prima face case of age discrimination. To begin, defendants note that Cruz-Richman, the alleged discriminator, was 71 in 2017, and is in the same protected class as plaintiff. Furthermore, Cruz-Richman appointed Bailey, who is slightly older than plaintiff, to replace plaintiff. As a result, defendants argue that the court could apply an inference against discrimination. Also, defendants argue that none of the allegedly discriminatory acts rise to the level of an adverse employment action or are linked to her age.
Defendants further argue that now, after discovery has been conducted, there are no triable issues of fact that would support a claim for age discrimination against Silas. According to defendants, any of Silas's alleged remarks that referred to plaintiff's age cannot support an inference of discrimination as Silas was not a decision maker. Defendants further argue that Silas does not have any decision-making authority with respect to plaintiff's pension and that Silas did not take any actions, except to advise plaintiff of the potential issue of improperly paid contributions. Defendants further argue that during the one meeting plaintiff met with Silas in February 2017, Silas asked plaintiff's age as this was relevant to whether she was subject to earnings limitations as a re-employed retiree and thus non-discriminatory.
In opposition, plaintiff argues that she has met her prima facie burden to establish age discrimination under the NYSHRL. Plaintiff was 74, a member of a protected class when she was terminated and was qualified for her position. Further, plaintiff alleges that she was terminated under circumstances giving rise to an inference of discrimination. In support of her contentions, plaintiff asserts that, although SUNY Downstate temporarily replaced plaintiff with Bailey, plaintiff was ultimately replaced with someone under 40 years of age. Further, regarding Cruz-Richman and the fact that they are both members of the same protected class, plaintiff claims that she has provided evidence of discrimination sufficient to undermine the inference against discrimination. Plaintiff continues that Cruz-Richman sought to remove plaintiff because of plaintiff's age and attempted to coerce her to resign by altering the conditions of plaintiff's employment and creating a hostile work environment.
Plaintiff claims that Silas's comments support an inference of discrimination, as a statement indicating that someone is too old is explicitly discriminatory. Further, Plaintiff asserts that when Silas asked plaintiff her age during the February 2017 meeting "that had nothing to do with the subject."
Plaintiff argues that she has submitted evidence that defendants' reasons for terminating her were a pretext for discrimination. Plaintiff claims that SUNY Downstate deviated from its standard procedures by reclassifying plaintiff as a temporary employee in January 2017. According to plaintiff, the collective bargaining agreement (CBA) between SUNY and her union "contemplates rehiring former tenured professionals with their tenure intact." NYSCEF Doc. No. 123, Plaintiff's memorandum of law at 12.
Plaintiff claims that defendants referred to plaintiff as a tenured member of the faculty for several years after her post-retirement employment. For instance, between 2011 and 2016, she was listed as a tenured member of the faculty in annual reports required by the New York State Board of Education. Also, between 2011 and 2016, Cruz-Richman referred to plaintiff as a tenured member of the faculty during meetings. As a result, according to plaintiff, when it suited their best interests and because it was true, defendants referred to plaintiff as tenured. However, plaintiff argues that, as a pretext for discrimination, defendants started to describe plaintiff as a temporary employee in January 2016. See NYSCEF Doc. No. 131 [January 2016 memo]. Plaintiff argues that although the January 2016 memo to Cruz-Richman lists plaintiff as a temporary employee in the College of Nursing, the policy against retaining temporary employees could not have applied to plaintiff, as she "enjoyed tenured rather than temporary status." Plaintiff's memorandum of law at 11-12; see also January 2016 memo. Hostile Work Environment
Defendants argue that, to the extent based on NYSHRL, the alleged incidents are insufficiently severe or pervasive to establish a viable hostile work environment claim. In addition, defendants argue that plaintiff cannot demonstrate that any of this conduct was motivated by her protected status.
In opposition, plaintiff argues that, as evidenced by her testimony, defendants created a hostile work environment by excluding her from faculty meetings, shouting at her, shunning her and repeatedly threatening to fire her. Plaintiff emphasizes that she was not terminated for poor performance. According to plaintiff, Cruz-Richman attempted to undermine plaintiff and make her feel unwelcome, solely on the account of plaintiff's age. Further, Cruz-Richman attempted to isolate plaintiff by instructing colleagues not to call plaintiff when she was out sick.
With respect to the NYCHRL, Cruz-Richman and Silas (together, individual defendants) add that there is no evidence to support a claim that any of the individual defendants' behavior was motivated due to plaintiff's age. Individual defendants argue that, although plaintiff claims that Silas repeatedly threatened her job and livelihood, the record, however, indicates that Silas met one time with plaintiff and, unfortunately, gave plaintiff news that she did not want to hear about her pension. Individual defendants argue that this meeting, and the one question asked about plaintiff's age, cannot sustain a hostile work environment.
In response, plaintiff argues that, as she has established that she was subjected to unequal treatment due to her age and experienced a hostile work environment under the NYSHRL, she can sustain a claim under the more liberal NYCHRL.
DISCUSSION
I. Summary Judgment
"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007). The movant's burden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 (2013) (internal quotation marks and citation omitted). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact." People v Grasso, 50 AD3d 535, 545 (1st Dept 2008) (internal quotation marks and citation omitted). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v Griffin, 71 AD3d 1112, 1115 (2d Dept 2010) (internal quotation marks and citation omitted). II. Discrimination Claims under the NYSHRL and NYCHRL
Pursuant to the NYSHRL and the NYCHRL, it is an unlawful discriminatory practice for an employer to refuse to hire or employ, or to fire or to discriminate against an individual in the terms, conditions or privileges of employment because of the individual's age. See Executive Law § 296 (1) (a); Administrative Code of the City of NY (Administrative Code) § 8-107 (1) (a).
Under the NYSHRL, the court applies the burden shifting analysis developed in McDonnell Douglas Corp. v Green (411 US 792 [1973]), where the plaintiff has the initial burden to establish a prima facie case of discrimination. Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 (2004). Plaintiff must set forth that "the plaintiff [1] is a member of a protected class, [2] was qualified for the position, and [3] was terminated or suffered some other adverse employment action, and [4] that the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination." Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 965 (1st Dept 2009).
If the plaintiff is able to set forth a prima facie case of discrimination, then the burden shifts to the defendants to rebut the presumption by demonstrating that the plaintiff was discharged for a nondiscriminatory reason. Id. at 965. If the employer meets this burden, the plaintiff is still entitled to "prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination." Id. (internal quotation marks and citation omitted).
The provisions of the NYCHRL are construed more liberally than its state or federal counterparts. Bennett v Time Warner Cable, Inc., 138 AD3d 598, 599 (1st Dept 2016). On a motion for summary judgment dismissing a claim for discrimination under the NYCHRL, courts have reaffirmed the applicability of the burden-shifting analysis as developed in McDonnell Douglas Corp. v Green. However, when analyzing NYCHRL claims, courts must also conduct a mixed-motive analysis. See Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 514 (1st Dept 2016) ("A motion for summary judgment dismissing a City Human Rights Law 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.").
Under the mixed-motive 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 action was motivated at least in part by . . . discrimination." Melman v Montefiore Med. Ctr., 98 AD3d 107, 127 (1st Dept 2012) (internal quotation marks and citation omitted). "[O]n a motion for summary judgment, defendant bears the burden of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes: under the McDonnell Douglas test, or as one of a number of mixed motives, by direct or circumstantial evidence." Suri v Grey Glob. Group, Inc., 164 AD3d 108, 118 (1st Dept 2018), appeal dismissed, 32 NY3d 1138 (2019).
With regard to a coworker, under the NYSHRL, "[i]n order to find a fellow employee jointly liable for an employer's discriminatory practice, that co-employee must be found to possess the power to do more than simply carry out personnel decisions made by others." Priore v New York Yankees, 307 AD2d 67, 74 (1st Dept 2003).
In the instant case, after discovery, defendants have submitted evidence that Silas, an employee in human resources, neither decided nor issued orders that plaintiff's pension benefits should be reclaimed. In opposition, plaintiff fails to raise a triable issue of fact. Accordingly, Silas cannot be held individually liable under the NYSHRL as she did not "possess the power to do more than simply carry out personnel decisions made by others."
Inference of Age Discrimination
Here, plaintiff alleges that she has established that the termination occurred under circumstances giving rise to an inference of age discrimination based on comments made by Silas and others at her workplace, and the fact that she was replaced by someone under 40 years of age. Plaintiff further argues that Cruz-Richman's actions taken against her adversely altered the terms of her employment.
Silas, who works in Human Resources, allegedly stated to plaintiff that she was too old to work at SUNY. Dorsey, who also works in Human Resources, also said to plaintiff that plaintiff had been there a long time. In addition, plaintiff claims that, at one meeting, while discussing the implementation of new technology, administrators discussed the age of SUNY Downstate's employees. However, these remarks allegedly made by Silas, Dorsey, and administrators, even if inappropriate, were not "indicative of discriminatory animus. At most, plaintiff has shown only [s]tray remarks, which, even if made by a decision maker, do not, without more, constitute evidence of discrimination." Serdans v New York & Presbyt. Hosp., 112 AD3d 449, 450 (1st Dept 2013) (internal quotation marks and citation omitted). In addition, the record indicates that Silas did not take any adverse actions against plaintiff and had no involvement in the decision to terminate plaintiff. "Indeed, plaintiff did not demonstrate a nexus between the employee's remark and the decision to terminate h[er]." Godbolt v Verizon N.Y., Inc., 115 AD3d 493, 494 (1st Dept 2014).
With respect to an age discrimination claim, if a plaintiff "does not produce direct or statistical evidence that would logically support an inference of discrimination, she must show her position was subsequently filled by a younger person or held open for a younger person." Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119, 123 (1st Dept 2007). Plaintiff alleges that she was ultimately replaced with someone younger than 40 and that this raises an inference of discrimination. However, the record indicates that, at first, Bailey—who, as previously mentioned, was approximately the same age as plaintiff a full time, a tenured professor, and at that time the Associate Dean of the Undergraduate Program—temporarily took over plaintiff's responsibilities. Shortly after Escallier took over as Dean of the College of Nursing—replacing Cruz-Richman—Escallier restructured the College of Nursing and decided to completely eliminate plaintiff's former position. Escallier created a new position, Associate Dean for Academic Technology. Although the person who filled the newly created role of Associate Dean for Academic Technology may have been under 40 years of age, there is no evidence to support an inference of discrimination. First, plaintiff does not allege that the restructuring was pretextual or that Escallier had a discriminatory motive when choosing the new Associate Dean. Moreover, the new position was completely unrelated to plaintiff's former job responsibilities. See Abe v New York Univ., 169 AD3d 445, 446 (1st Dept 2019) (affirming summary judgment in favor of defendants where defendants demonstrated that they terminated plaintiff due to "budget cuts and the fact that the duties of another full-time employee, recommended by plaintiff, overlapped significantly with most of plaintiff's duties"), lv to appeal dismissed, 34 NY3d 1089 (2020).
Adverse Employment Actions
There is no dispute that the termination of plaintiff's employment constitutes an adverse employment action. However, plaintiff also argues that she suffered an adverse change in employment conditions when Cruz-Richman yelled at her, criticized her and excluded her from meetings. To be considered materially adverse, a change in working conditions must be more disruptive than a "mere inconvenience or an alteration of job responsibilities." Messinger v Girl Scouts of U.S.A, 16 AD3d 314, 315 (1st Dept 2005) (internal quotation marks and citations omitted).
With respect to being left out of meetings, plaintiff did not provide any specific examples during her deposition. Plaintiff did however testify that she asked for meeting times to be adjusted to accommodate her caregiving responsibilities to her husband and that these accommodations were granted. NYSCEF Doc. No. 113, Plaintiff tr at 96-112.
Here, as plaintiff retained the same job responsibilities, title and pay, she has failed to show how any of the above actions—other than her termination—materially changed the terms and conditions of employment. See e.g. Silvis v City of New York, 95 AD3d 665, 665 (1st Dept 2012) (internal quotation marks and citation omitted) ("Plaintiff's transfer from the position of literacy coach to a classroom teacher was merely an alteration of her responsibilities, and not an adverse employment action. Apart from a change in the nature of her duties, plaintiff retained the terms and conditions of her employment, and her salary remained the same.").
In addition, courts have found that being subject to excessive scrutiny is not an adverse action. See Mejia v Roosevelt Is. Med. Assoc., 95 AD3d 570, 572 (1st Dept 2012) (internal quotation marks and citation omitted) ("Reprimands and excessive scrutiny do not constitute adverse employment actions in the absence of other negative results such as a decrease in pay or being placed on probation.").
Nonetheless, even if any of the above actions were adverse, plaintiff fails to demonstrate how age discrimination was a motivating factor in Cruz-Richman's treatment of her. For example, plaintiff alleges that Cruz-Richman improperly sent plaintiff a memo requesting that plaintiff complete a self-evaluation form. Plaintiff claims that, because she is a tenured faculty member, she is not required to complete self-evaluations. However, defendants state that all full-time members of the faculty were asked to submit this form, not just plaintiff. See e.g. Kosarin-Ritter v Mrs. John L. Strong, LLC, 117 AD3d 603, 604 (1st Dept 2014) (affirming summary judgment in favor defendants where plaintiff "submitted no evidence that the dress code with respect to hair style was not applied equally to all employees").
Moreover, plaintiff does not even claim that Cruz-Richman wrote or said anything that would reveal Cruz-Richman's bias against plaintiff's age. Compare Krebaum v Capital One, N.A., 138 AD3d 528, 528 (1st Dept 2016) ("Plaintiff asserted that for five months before the termination of his employment, he endured repeated negative comments about his age from his manager.").
Accordingly, viewing the evidence in a light most favorable to plaintiff, plaintiff fails to produce any evidence that she was treated differently from anyone else under the circumstances, due to her age. "Stated otherwise, on this record, no triable issue exists as to whether the employer, in taking the challenged action, was motivated at least in part by age discrimination." Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 81 (1st Dept 2017) (internal quotation marks and citation omitted).
Plaintiff is unable to meet her prima facie burden in the McDonnell Douglas framework. Even if plaintiff could meet the "de minimis burden," as set forth below, defendants have met their burden of providing a legitimate business reason for plaintiff's termination.
The record indicates that plaintiff retired in 2010, but returned shortly thereafter for a two year appointment as an Associate Dean for Graduate Programs. This position served at the discretion of Cruz-Richman. Cruz-Richman stated that, when the two-year appointment expired in August 31, 2012 without a new contract, plaintiff returned to her previous status as a temporary employee, terminable at will.
Human Resources sent a memo to Cruz-Richman reiterating the new policy that temporary employees could not be kept on in that status indefinitely. Cruz-Richman received a list of temporary employees in the College of Nursing, and plaintiff was listed as one of them. When plaintiff met with Human Resources in February 2017, she was advised that SUNY Downstate still had her classified as a temporary employee.
As set forth in the facts, Cruz-Richman was retiring and thought that the incoming Dean would want to select her own administrative team. The record indicates that a new Dean was appointed in July 2017, the same month that plaintiff was terminated, and that she did make changes to the administration.
In sum, plaintiff was terminated as a result of both Cruz-Richman's retirement as Dean and the new policy discouraging long-term temporary appointments. Accordingly, defendants have demonstrated legitimate nondiscriminatory reasons for why they terminated plaintiff. In response, plaintiff fails to raise a triable issue of fact as to whether the reasons proffered by defendants were "merely a pretext for discrimination." Hudson v Merrill Lynch & Co., Inc., 138 AD3d at 514.
The majority of plaintiff's claims will be addressed by the Court of Claims and are not before the court at this time. For instance, it is not for this court to decide whether SUNY Downstate misclassified plaintiff as a temporary employee or whether they improperly recouped her pension funds. Similarly, the question of whether plaintiff returned to a tenured professorship or whether she returned to a non-tenured role is for the Court of Claims to decide. This court is only concerned with the question of whether plaintiff was terminated based on age discrimination, or was subjected to a hostile work environment because of age discrimination.
Similar to the plaintiff in Hamburg v New York Univ. Sch. of Medicine (155 AD3d at 76), plaintiff relies on circumstantial evidence, as "she has no direct evidence that the actions she challenges were taken with discriminatory intent, nor does she have any evidence of bias against older employees on the part of the leadership of the [College of Nursing]." Citing McGuire-Welch v House of the Good Shepherd (720 Fed Appx 58, 61 [2d Cir 2018]), plaintiff argues an inference of pretext may arise where an employer's deviation from its procedures results in the challenged employment decision. According to plaintiff, she had been referred to as a tenured employee through 2016. Then, in deviation of the CBA and what she had been told, she was reclassified as a temporary employee. Nonetheless, plaintiff does not argue that the restructuring itself or the new policy related to temporary employees were pretextual. See e.g. Basso v Earthlink, Inc., 157 AD3d 428, 429 (1st Dept 2018) ("Plaintiff does not argue that the consolidation itself was pretextual . . .").
While plaintiff may have been displeased with the way defendants handled these employment decisions, she has provided no evidence that they were motivated on account of plaintiff's age. It is well settled that the court will "not sit as a super-personnel department that reexamines an entity's business decisions." Baldwin v Cablevision Sys. Corp., 65 AD3d at 966 (internal quotation marks and citation omitted).
Accordingly, plaintiff has failed to demonstrate Cruz-Richman's decision to terminate her, at the time, was pretextual. See e.g. Melman, 98 AD3d at 121 (internal quotation marks and citations omitted) ("[A] challenge . . . to the correctness of an employer's decision, does not, without more, give rise to the inference that the [adverse action] was due to age discrimination"). There was no indication, beyond plaintiff's personal belief, that SUNY defendants wanted to terminate plaintiff due to her age. "[A] plaintiff's feelings and perceptions of being discriminated against are not evidence of discrimination." Basso v Earthlink, Inc., 157 AD3d 428, 430 (1st Dept 2018) (internal quotation marks and citation omitted).
Turning to the mixed-motive analysis under the NYCHRL, none of plaintiff's allegations can establish that her termination was motivated, even in part, by discrimination. See e.g. Matias v New York & Presbyt. Hosp., 137 AD3d 649, 650 (1st Dept 2016) ("The absence of any evidence [that defendants were motivated by] discriminatory animus is equally fatal to any claim of mixed motive [under the NYCHRL]"). Plaintiff argues that her age was the reason for defendants' behavior, but provides no basis for this argument. Contrary to plaintiff's contention, to establish age discrimination plaintiff must demonstrate that there was discriminatory animus based on age. See e.g. Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d 580, 581 (1st Dept 2014) (holding that plaintiff's NYCHRL claim failed because it did not "contain any factual allegations demonstrating that similarly situated individuals who did not share plaintiff's protected characteristics were treated more favorably than plaintiff").
In conclusion, viewing the evidence in a light most favorable to plaintiff, plaintiff fails to demonstrate that age discrimination was a motivating factor in her termination. Therefore, defendants are granted summary judgment dismissing the claims made under the NYSHRL and NYCHRL for age discrimination. See Hamburg, 155 AD3d at 76 n 9 ("Plaintiff cannot defeat a well-supported summary judgment motion, without identifying any evidence (either direct or circumstantial) from which it could rationally be inferred that bias played a role [in her termination], merely by contending that she might persuade a jury not to believe [the employer's] testimony. If that were the case, no summary judgment motion could ever be granted in a discrimination case."). III. NYSHRL Hostile Work Environment
Under the NYSHRL, a hostile work environment exists where the workplace is "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." La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918, 919 (2d Dept 2015) (internal quotation marks and citations omitted). Generally, isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment. In order to be actionable, the offensive conduct must be pervasive. Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51 (4th Dept 1996).
Plaintiff fails to provide any factual allegations to demonstrate that defendants subjected her to an environment "permeated with discriminatory intimidation, ridicule, and insult" in violation of the NYSHRL. La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d at 919 (internal quotation marks and citation omitted). For example, plaintiff claims that defendants subjected plaintiff to prolonged threats of termination, and that Silas repeatedly threatened plaintiff's livelihood. However, the record indicates that plaintiff was advised, in advance, that SUNY Downstate would terminate her to allow Cruz-Richman's replacement to appoint a new Associate Dean. Plaintiff was not "repeatedly" threatened that she would lose her job if she did not meet certain performance standards. Further, plaintiff spoke to Silas no more than two times, whereby Silas provided plaintiff with information related to her pension. Based on the record, the statements allegedly made to plaintiff do not support a viable claim for hostile work environment under the NYSHRL. See e.g. Witchard v Montefiore Med. Ctr., 103 AD3d 596, 596 (1st Dept 2013) ("Defendant's statements that it would fire [a disabled employee] were not so pervasive as to establish a hostile work environment").
The first meeting was at plaintiff's request, and the second meeting was a follow-up.
According to plaintiff, Cruz-Richman attempted to isolate plaintiff by advising other colleagues not to call plaintiff while plaintiff was out sick. In addition, Cruz-Richman allegedly made repeated threats to fire plaintiff and attempted to undermine plaintiff by unjustifiably criticizing her. However, Cruz-Richman's alleged "threats" as described by plaintiff -- that plaintiff's employment would end -- were nothing more than plaintiff being informed that her job would soon end due to the hiring of a new Dean and the ending of the use of temporary employees.
Moreover, plaintiff surmises that plaintiff's "age was the reason why Defendants behaved toward her as they did." Plaintiff's memorandum of law at 19. However, there was no indication, beyond plaintiff's personal belief, that Cruz-Richman's actions were motivated by plaintiff's age. "Indeed, the complaint contains no allegations of any comments or references to plaintiff's age ... made by [Cruz-Richman]." Whitfield-Ortiz v Department of Educ. of City of N.Y., 116 AD3d at 581.
Similarly, plaintiff alleges that Dorsey made comments about her age and that administrators referred to the age of its workforce when discussing implementing new technology. There is no indication that these comments were made in a disparaging manner. In any event, while plaintiff may have been exposed to a "mere offensive utterance," a reasonable person could not find that plaintiff was subject to a hostile work environment. Brennan v Metropolitan Opera Assn., 284 AD2d 66, 72 (1st Dept 2001).
Considering the totality of the circumstances, even in the light most favorable to plaintiff, plaintiff fails to raise a triable issue of fact that she was subject to a hostile work environment in violation of the NYSHRL. IV. NYCHRL Hostile Work Environment
A hostile work environment exists in violation of the NYCHRL where an employee "has been treated less well than other employees because of her protected status." Chin v New York City Hous. Auth., 106 AD3d 443, 445 (1st Dept 2013). Under the NYCHRL, "the conduct's severity and pervasiveness are relevant only to the issue of damages. To prevail on liability, the plaintiff need only show differential treatment -- that she is treated 'less well' -- because of a discriminatory intent." Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F3d 102, 110 (2d Cir 2013) (internal citation omitted). To establish a hostile work environment claim under the NYCHRL, "the primary issue for a trier of fact in harassment cases, as in other terms and conditions cases, is whether the plaintiff has proven by a preponderance of the evidence that she has been treated less well than other employees because of her [protected status]." Williams v New York City Hous. Auth., 61 AD3d 62, 78 (1st Dept 2009). Despite the broader application of the NYCHRL, conduct that consists of "petty slights or trivial inconveniences . . . do[es] not suffice to support a hostile work environment claim." Buchwald v Silverman Shin & Byrne PLLC, 149 AD3d 560, 560 (1st Dept 2017) (internal quotation marks and citation omitted).
Plaintiff's allegations with respect to either Cruz-Richman or Silas cannot sustain a NYCHRL hostile work environment claim against them. The actions complained of, as set forth in the facts, are no more than "petty slights or trivial inconveniences." Id. Further, plaintiff vaguely alleges that she was subjected to unequal treatment because of her age. These claims that she was treated less well due to her age are conclusory and are insufficient to defeat the instant motion for summary judgment.
CONCLUSION
Accordingly, it is
ORDERED that motion for summary judgment, pursuant to CPLR 3212, by defendants SUNY Downstate Medical Center, Daisy Cruz-Richman and Maria Silas (collectively, defendants) is granted and the complaint is dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the counsel for defendants shall serve, via NYSCEF, a copy of the instant decision and order with notice of entry within twenty (20) days after the Governor's Executive Order 202.8 or any order modifying it is lifted; and it is further
ORDERED that compliance with this order is subject to the Administrative Order of the Chief Administrative Judge of the Courts dated March 20, 2020 (AO/71/20).
The foregoing constitutes the decision and order of the Court. Dated: March 27, 2020
ENTER:
/s/ _________
ROBERT DAVID KALISH, J.S.C.