Opinion
650 CA 22-01953
09-29-2023
Sarah HAYES, Plaintiff-Respondent, v. HILLSIDE FAMILY OF AGENCIES, Defendant-Appellant. (Appeal No. 2.)
HARRIS BEACH PLLC, PITTSFORD (M. IBRAHIM TARIQ OF COUNSEL), FOR DEFENDANT-APPELLANT. SARAH HAYES, PLAINTIFF-RESPONDENT PRO SE.
HARRIS BEACH PLLC, PITTSFORD (M. IBRAHIM TARIQ OF COUNSEL), FOR DEFENDANT-APPELLANT.
SARAH HAYES, PLAINTIFF-RESPONDENT PRO SE.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, defendant's cross-motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this action alleging that defendant's termination of her employment constituted discrimination based on her status as a victim of domestic violence in violation of the Human Rights Law (see Executive Law § 296 [1] [a] ). Plaintiff's employment was terminated after a senior employee of defendant received an anonymous phone call alleging that plaintiff was using drugs while at work and plaintiff subsequently refused to take a drug test. In appeal No. 1, defendant appeals from that part of an order that denied its cross-motion for summary judgment dismissing the complaint. In appeal No. 2, defendant appeals from that part of an order that, upon reargument, adhered to the prior decision denying the cross-motion.
At the outset, we note that the appeal from the order in appeal No. 1 must be dismissed inasmuch as that order was superseded by the order in appeal No. 2 (see Loafin’ Tree Rest., Inc. v. Pardi [appeal No. 1], 162 A.D.2d 985, 985, 559 N.Y.S.2d 51 [4th Dept. 1990] ).
In appeal No. 2, we agree with defendant that Supreme Court erred in denying its cross-motion for summary judgment dismissing the complaint, inasmuch as defendant established its entitlement to judgment as a matter of law (see generally Forrest v. Jewish Guild for the Blind , 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ). Even assuming, arguendo, that plaintiff established a prima facie case of discrimination based on her status as a domestic violence victim, we conclude that defendant met its initial burden on the cross-motion by establishing "legitimate, independent, and nondiscriminatory reasons to support its employment decision" ( Matter of Miller Brewing Co. v. State Div. of Human Rights , 66 N.Y.2d 937, 938, 498 N.Y.S.2d 776, 489 N.E.2d 745 [1985] ; see generally Davis v. School Dist. of City of Niagara Falls , 4 A.D.3d 866, 867, 772 N.Y.S.2d 180 [4th Dept. 2004] ; Roundtree v. School Dist. of City of Niagara Falls , 294 A.D.2d 876, 877-878, 741 N.Y.S.2d 633 [4th Dept. 2002] ). Here, defendant submitted admissible evidence that it had reasonable suspicion to believe that plaintiff was using drugs while at work, that it was defendant's policy to drug test employees in such circumstances, and, further, that if the employee refused to submit to the test, the employee would be terminated. In opposition, plaintiff failed to raise an issue of fact whether defendant's proffered reasons for discharging her were pretextual (see generally Roundtree , 294 A.D.2d at 878, 741 N.Y.S.2d 633 ). Although plaintiff raised a question of fact whether defendant had knowledge that she was a victim of domestic violence, plaintiff failed to demonstrate any causal relationship between her status as a domestic violence victim and her termination that could conceivably demonstrate that the termination occurred under circumstances giving rise to an inference of discrimination (see generally Forrest , 3 N.Y.3d at 308, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).
We further agree with defendant that the court erred in concluding that a question of fact exists whether defendant was required to accommodate plaintiff's status as a domestic violence victim under Executive Law § 296 (22). That provision states that it is "an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation to an employee who is known by the employer to be a victim of domestic violence" ( § 296 [22] [c] [1] ) and provides an exhaustive list of accommodations (see § 296 [22] [c] [2] ). Even assuming, arguendo, that the provision applies retroactively to the time of plaintiff's termination, delaying a drug test or otherwise modifying the job policy to permit refusal of the drug test is not within the accommodations list. Moreover, to the extent the court determined that a question of fact exists whether plaintiff suffered from a mental disability resulting from domestic violence (see § 296 [22] [c] [6] ), such a condition was not alleged in the complaint nor is it supported in the record (see generally Matter of Abram v. New York State Div. of Human Rights , 71 A.D.3d 1471, 1473, 896 N.Y.S.2d 764 [4th Dept. 2010] ).
We therefore reverse the order insofar as appealed from in appeal No. 2, grant defendant's cross-motion, and dismiss the complaint.