Opinion
15574 Index No. 152932/13 Case No. 2021–00645
04-07-2022
Kinwing (Ricky) KWONG, Plaintiff–Respondent, v. The CITY OF NEW YORK et al., Defendants–Appellants, David Frankel etc., Defendant.
Georgia M. Pestana, Corporation Counsel, New York (Diana Lawless of counsel), for appellants. Cronin & Byczek, LLP, Larchmont (Linda M. Cronin of counsel), for respondent.
Georgia M. Pestana, Corporation Counsel, New York (Diana Lawless of counsel), for appellants.
Cronin & Byczek, LLP, Larchmont (Linda M. Cronin of counsel), for respondent.
Gische, J.P., Mazzarelli, Friedman, Gonza´lez, Mendez, JJ.
Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered December 16, 2020, which, insofar as appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the discrimination, retaliation, and hostile work environment claims based on race or national origin under the New York State and City Human Rights Laws as against the City, Elaine Kloss, and Linda Gerwin, unanimously modified, on the law, to grant the motion as to all claims against defendant Gerwin and as to the discrimination and retaliation claims against the City and Kloss, and otherwise affirmed, without costs.
We find, as an initial matter, that the only potentially actionable discriminatory or retaliatory conduct was plaintiff's demotion. Contrary to plaintiff's contention, the "unfounded" complaints about him to the Department of Finance's Office of Equal Employment Opportunity (EEO) and the January 13, 2012 disciplinary letter do not qualify. The EEO investigation did not result in any change to the terms of plaintiff's employment, let alone a materially adverse change, as required under the New York State Human Rights Law ( Executive Law § 296 ) (the State HRL), and did not otherwise "disadvantage[ ]" him, as required under the New York City Human Rights Law (Administrative Code of City of N.Y. § 8–107) (the City HRL) (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 306, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ; Sims v. Trustees of Columbia Univ. in the City of N.Y., 168 A.D.3d 622, 623, 92 N.Y.S.3d 277 [1st Dept. 2019] ). The disciplinary letter, without more, is not enough to constitute actionable discriminatory or retaliatory conduct (see id.; Mejia v. Roosevelt Is. Med. Assoc., 95 A.D.3d 570, 572, 944 N.Y.S.2d 521 [1st Dept. 2012], lv dismissed 20 N.Y.3d 1045, 961 N.Y.S.2d 374, 985 N.E.2d 138 [2013] ).
The discrimination claims should not have been allowed to proceed. Defendants proffered evidence supporting several legitimate reasons for demoting him from his provisional managerial position, including (1) an agency-wide restructuring, (2) plaintiff's lack of accounting and management skills, and (3) evidence that he was a poor manager whose routinely hostile demeanor demoralized his subordinates, as evidenced by complaints made against him by several of those subordinates (see Matter of Khan v. New York City Health & Hosps. Corp., 144 A.D.3d 600, 601, 43 N.Y.S.3d 271 [1st Dept. 2016], lv denied 29 N.Y.3d 905, 2017 WL 1591009 [2017] ; Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 121, 946 N.Y.S.2d 27 [1st Dept. 2012] ). In the face of this evidence, plaintiff failed to come forward with any evidence raising an issue of fact as to whether these reasons were mere pretext for discrimination (under the State HRL) or whether discrimination was one of the motivating factors for the demotion (under the City HRL) (see generally Harrington v. City of NY, 157 A.D.3d 582, 584, 70 N.Y.S.3d 177 [1st Dept. 2018] ; Hudson v. Merrill Lynch & Co., Inc., 138 A.D.3d 511, 514, 31 N.Y.S.3d 3 [1st Dept. 2016], lv denied 28 N.Y.3d 902, 2016 WL 4742476 [2016] ). Plaintiff presented no evidence of any disparity between defendants’ treatment of him and defendants’ treatment of employees of other races or ethnicities under similar circumstances. While plaintiff's allegations of remarks that could be interpreted as derogatory or indicative of animus suffice to support the hostile work environment claim, as more fully discussed below, plaintiff fails to identify any evidence connecting such animus, if any, to the decision to demote him (see Wecker v. City of New York, 134 A.D.3d 474, 475, 20 N.Y.S.3d 364 [1st Dept. 2015] ["stray derogatory remarks, without more, do not constitute evidence of discrimination"]). Plaintiff's past receipt of otherwise favorable performance reviews was not alone sufficient to preclude summary judgment (see Schwaller v. Squire Sanders & Dempsey, 249 A.D.2d 195, 197, 671 N.Y.S.2d 759 [1st Dept. 1998] ). That plaintiff's subordinates submitted most of their complaints about him shortly before the demotion does not, by itself, raise an inference that the complaints had been orchestrated by his superiors as a pretext for the demotion, much less that the true reason for the demotion was discriminatory. In fact, the proximity in time between the complaints and the demotion explains why there was a demotion. Nor is it relevant that one complaining employee admitted to having fabricated one aspect of his story (that one conversation between plaintiff and the employee had been recorded), since the employee never retracted his complaints about plaintiff's unprofessional conduct. The hostile work environment claims were correctly allowed to proceed. Although most of the incidents of which plaintiff complains were relatively minor, at least the repeated mocking of plaintiff's accent and pretending not to understand him, if true, could affect his ability to do his job and create an abusive working environment (see generally Forrest, 3 N.Y.3d at 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Chin v. New York City Hous. Auth., 106 A.D.3d 443, 444–445, 965 N.Y.S.2d 42 [1st Dept. 2013], lv denied 22 N.Y.3d 861, 2014 WL 591245 [2014] ). This is not a case, like the ones on which defendants rely, in which plaintiff claims only that Kloss had difficulty understanding him (see Ghose v. Century 21, Inc., 12 Fed. Appx. 52, 54 [2d Cir.2001] ; Masaru Tomizawa v. ADT LLC, 2015 U.S. Dist LEXIS 133649, *35 [ED N.Y. July 17, 2015, No. 13–CV–06366 (MKB/LB)], report and recommendation adopted by 2015 WL 5772106, 2015 U.S. Dist LEXIS 132182 [E.D. N.Y. Sep. 29, 2015] ; Watt v. New York Botanical Garden, 2000 WL 193626, *7 and n. 6, 2000 U.S. Dist LEXIS 1611 [S.D. N.Y. Feb. 16, 2000] ; see also Jeudy v. City of New York, 142 A.D.3d 821, 823, 37 N.Y.S.3d 498 [1st Dept. 2016] ["disparate treatment on the basis of a foreign accent is evidence of discrimination based on race or national origin"]).
We note that, because plaintiff's claims under the State HRL accrued before the enactment of Executive Law § 300, the standard for the discrimination claim under the State HRL differs from the standard for the discrimination claim under the City HRL. Under either standard, however, the discrimination claim cannot, on this record, survive defendants’ summary judgment motion.
In this regard, it is significant that plaintiff attributes most of the potentially objectionable comments to defendant Gerwin, who, as plaintiff admits, had no supervisory authority over him. As more fully discussed below, the complaint is being dismissed as against defendant Gerwin.
The retaliation claims must be dismissed for failure to show that plaintiff engaged in any protected activity (see generally Executive Law § 296[7] ; Administrative Code § 8–107[7]; Franco v. Hyatt Corp., 189 A.D.3d 569, 571, 137 N.Y.S.3d 34 [1st Dept. 2020] ). The only complaint plaintiff testified to making was an oral complaint about an incident involving a coworker. However, this complaint does not constitute a protected activity, because there is no evidence that the coworker's conduct was motivated by plaintiff's race or national origin (see Adeniran v. State of New York, 106 A.D.3d 844, 845, 965 N.Y.S.2d 163 [2d Dept. 2013] ). The record reflects that plaintiff's attorney communicated with the Department of Finance's EEO officer on January 12, 2012, but it does not indicate whether the attorney ever actually relayed any complaints of discrimination (see Miller v. National Prop. Mgt. Assoc., Inc., 191 A.D.3d 1341, 1342, 142 N.Y.S.3d 256 [4th Dept. 2021] ). Plaintiff's attorney's own assertions about complaints made by plaintiff to Kloss are without probative value (see Johnson v. Phillips, 261 A.D.2d 269, 270, 690 N.Y.S.2d 545 [1st Dept. 1999] ).
The claims against defendant Linda Gerwin must also be dismissed. The State HRL prohibits discriminatory conduct by "employer[s]" only, not individual employees ( Executive Law § 296[1] ; see Doe v. Bloomberg L.P., 36 N.Y.3d 450, 456–459, 143 N.Y.S.3d 286, 167 N.E.3d 454 [2021] ). While the City HRL makes it unlawful for "an employer or an employee or agent thereof" to discriminate (Administrative Code § 8–107[1][a]; see Doe, 36 N.Y.3d at 454, 459, 143 N.Y.S.3d 286, 167 N.E.3d 454 ), the employee must have acted "with or on behalf of the employer in hiring, firing, paying, or in administering the ‘terms, conditions or privileges of employment’ – in other words, in some agency or supervisory capacity" ( Priore v. New York Yankees, 307 A.D.2d 67, 74, 761 N.Y.S.2d 608 [1st Dept. 2003], lv denied 1 N.Y.3d 504, 775 N.Y.S.2d 781, 807 N.E.2d 894 [2003] ). Plaintiff admitted that Gerwin did not supervise him, as previously noted. Although the State and City HRL make it unlawful for "any person" to retaliate because of a protected activity (see Executive Law § 296[7] ; Administrative Code § 8–107[7]), the retaliation alleged by plaintiff occurred after Gerwin had already left plaintiff's department. Plaintiff's aiding and abetting theory was improperly raised for the first time on appeal (see Davila v. City of New York, 95 A.D.3d 560, 561, 946 N.Y.S.2d 20 [1st Dept. 2012] ).