Opinion
12411 Index No. 152006/19 Case No. 2020-02127
11-17-2020
Eric BROWN, Plaintiff–Appellant, v. CITY OF NEW YORK, Defendant–Respondent.
Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Kate Fletcher of counsel), for respondent.
Kreisberg & Maitland, LLP, New York (Jeffrey L. Kreisberg of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Kate Fletcher of counsel), for respondent.
Manzanet–Daniels, J.P., Singh, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about November 26, 2019, which granted defendant's CPLR 3211(a)(7) motion to dismiss the complaint, unanimously affirmed, without costs.
The complaint fails to state a cause of action for employment discrimination under the State or City HRLs because it does not contain any factual allegations showing that plaintiff's employment was terminated under circumstances giving rise to an inference of discrimination (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 112–113, 946 N.Y.S.2d 27 [1st Dept. 2012] ; Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432090 [2012] ; see also Pimentel v. Citibank, N.A., 29 A.D.3d 141, 811 N.Y.S.2d 381 [1st Dept.], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ).
The complaint alleges, in conclusory fashion, that plaintiff's employment with the Department of Correction was terminated on account of his alleged disabilities of asthma, chronic obstructive pulmonary disease (COPD), and cancer. Assuming his employer knew about his asthma and COPD, plaintiff was promoted twice while he had those conditions. Although he was later demoted in 2016, the complaint does not state why he was demoted or allege that he was demoted on account of these conditions. His demotion predates his cancer diagnosis in August 2017. The complaint alleges that plaintiff took an approved medical leave of absence from December 2017 to March 2018 for treatment of his cancer, and that he was discharged in November 2018, roughly 10 months after his leave started and 8 months after he returned. This passage of time is too long to establish any causal connection between any decisionmaker's knowledge of his cancer or medical leave and plaintiff's discharge to raise an inference of discrimination ( Matter of Parris v. New York City Dept. of Educ., 111 A.D.3d 528, 529, 975 N.Y.S.2d 42 [1st Dept. 2013], lv denied 23 N.Y.3d 903, 2014 WL 1887333 [2014] ). The complaint does not allege that any decisionmakers made remarks that showed any discriminatory intent ( Whitfield–Ortiz v. Department of Educ. of City of N.Y., 116 A.D.3d 580, 581, 984 N.Y.S.2d 327 [1st Dept. 2014] ; compare Anderson v. Edmiston & Co., Inc., 131 A.D.3d 416, 417, 14 N.Y.S.3d 376 [1st Dept. 2015] ), nor does it allege facts that would establish that similarly situated persons who did not share his alleged disabilities were treated more favorably than he was (see 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] ). Plaintiff was not, as the motion court's order suggests, required to plead this last fact to state a claim of discrimination; however, the complaint does not allege any other facts that establish circumstances giving rise to an inference of discriminatory intent, and thus, dismissal pursuant to CPLR 3211(a)(7) was proper.