Opinion
Index No.: 150876/2015
10-30-2017
YENELIS ORTIZ, Plaintiff, v. GAZES, LLC, IAN GAZES, individually, and SERGE KRAWIECKI, individually, Defendants.
NYSCEF DOC. NO. 55
DECISION/ORDER
HON. SHLOMO S. HAGLER, J.S.C. :
This action arises out of plaintiff Yenelis Ortiz's claims that her employer, defendant Gazes, LLC, as well as individual defendants Ian Gazes ("Gazes"), and Serge Krawiecki ("Krawiecki"), discriminated against her, by allegedly wrongfully terminating her as a result of her gender, 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.
BACKGROUND AND FACTUAL ALLEGATIONS
Plaintiff's Complaint
Prior to being terminated on December 19, 2014, plaintiff had been employed by the defendants as a part-time office clerk/legal assistant since November 2009. Gazes, LLC is a law firm specializing in bankruptcy law. Gazes is the principal attorney and Krawiecki is the administrative director.
Gazes and Krawiecki are married to one another.
In April 2014, plaintiff advised defendants that she was pregnant. Defendants agreed that plaintiff could take a three-month maternity leave.
Later that month, plaintiff resigned. Defendants emailed plaintiff, "[w]e are sorry you decided to leave the job today but accept your resignation. Wishing you well on your future endeavors." Defendants' exhibit L at 1. Plaintiff then emailed, "[t]hanks for everything and for always treating me with respect and understand my apologies for any misunderstandings . . . wish you the best as well." Id.
Approximately one week later, plaintiff asked defendants if she could return to work for them and they agreed. Plaintiff subsequently returned to work for defendants.
According to plaintiff, in July 2014, defendants explained to her that they would need to temporarily fill her job while she was out on maternity leave. Defendants placed an advertisement for a part-time paralegal/legal assistant and hired Karina Sotello ("Sotello") in September 2014. Plaintiff trained Sotello for two weeks. Plaintiff's last day of work was on October 10, 2014, which was approximately one month prior to her anticipated due date. Plaintiff emailed defendants that she needed to stop working prior to her delivery date and that she was expecting to return to work approximately 8 weeks after her baby was born.
Plaintiff's baby was born on November 4, 2014 and defendants congratulated plaintiff by email on November 6, 2014. On December 10, 2014, plaintiff states that she called and left a message asking defendants to call her back regarding her return to work. When defendants did not return her call, plaintiff called back on December 12, 2014. Plaintiff alleges that, although Gazes did answer the phone this time, he told her that the office was busy, that defendants were about to take vacation, and that they would need to call her back in January 2015.
That same day, plaintiff followed up with an email to Krawiecki stating that she just spoke to Gazes about stopping by to visit with the baby and that she knows defendants are going on vacation. In the email, plaintiff advised Krawiecki that she would like to start working again in January 2015 and to please call her to discuss.
On December 19, 2014, after not receiving a response from defendants, plaintiff emailed defendants to confirm the exact date for her return to work. She asked them to please call or email her, stating, in relevant part:
I'm writing again because I really need to know an exact date when I'm going back to work. I can't wait until January to know since I just got a call from the babysitter and I need to fill out some papers with her
letting her know when she's going to stay with the baby since it's with an agency. I want to start January the 5th since baby will be already 8 weeks. My disability payments stopped a week ago and I have a lot of problems."Defendants' Exhibit "I" at 1.
According to plaintiff, later that day, Gazes called plaintiff and informed her that she was terminated. When plaintiff asked for the reason, defendants allegedly told her that the office was slow, that they could not afford to keep two employees, and that defendants were keeping Sotello because they had to do what was best for them.
Subsequently, plaintiff commenced this action claiming that she was discriminated against "on the basis of her gender by terminating her employment due to her pregnancy and/or by refusing to provide a reasonable accommodation for her pregnancy and/or childbirth." Amended complaint, ¶ 32. She alleges that defendants' conduct was malicious and demands punitive damages against all defendants.
Although a plaintiff can recover punitive damages under the NYCHRL, this Court notes that punitive damages are unavailable under the NYSHRL. See e.g. Greenbaum v Svenska Handelsbanken, NY, 67 F Supp 2d 228, 262 (SD NY 1999) citing Thoreson v Penthouse, Int'l, Ltd., 80 NY2d 490, (1992).
Plaintiff's complaint consists of four causes of action. In the first cause of action, grounded in discrimination, plaintiff claims that Gazes, LLC, violated the NYSHRL by creating and maintaining discriminatory working conditions and by terminating plaintiff's employment because of her sex. The second cause of action, grounded in discrimination, alleges that defendants violated the NYCHRL by creating and maintaining discriminatory working conditions and by terminating plaintiff because of her gender. In the third cause of action, plaintiff contends that Gazes, LLC, violated Administrative Code § 8-107 (22), when it failed to provide her with a reasonable accommodation for her pregnancy. The fourth cause of action alleges that, under the NYCHRL, Gazes, LLC, as an employer, is liable for the discriminatory conduct of its employees.
Plaintiff's Termination
In their motion for summary judgment, defendants maintain that discrimination played no role in plaintiff's termination and that they terminated plaintiff because it was the best decision for their business. According to defendants, while plaintiff was out on maternity leave, they realized that Sotello was more competent than plaintiff in the job duties. Gazes testified that he is the principal, and that Gazes, LLC is small law firm with approximately four employees. Although defendants had intended on having plaintiff return, they believed that they had to do what was best for their business.
When plaintiff advised Gazes that she was pregnant, he testified that he was "happy for her" and that he approved her taking a maternity leave. Plaintiff's Exhibit "B," Gazes Transcript ("Tr.")at 88. Krawiecki also testified that he was "happy for [plaintiff]. I have kids so I know what it is." Plaintiff's Exhibit "C, Krawiecki Tr. at 39. Gazes advised plaintiff that she would have a job when she returned.
Gazes advertised for plaintiff's position and did not write in the posting whether it was for a temporary or permanent position. When questioned why the advertisement did not specifically request a temporary employee, Gazes testified that he did not believe they would get any responses if they only advertised for a temporary position.
Defendants maintain that plaintiff was an unsatisfactory employee due to frequent absences, mood fluctuations, inability to meet basic deadlines and inability to express herself in letters. Although defendants claim to have advised plaintiff about her performance deficiencies, performance evaluations were done verbally and defendants did not tell plaintiff that she would be fired if she did not improve. Regarding her alleged frequent absences, defendants allege that they never told her that this was an issue because "[s]he's paid by the hour. She doesn't want to come in, she doesn't get paid." Gazes Tr at 70.
After plaintiff's three month maternity leave, Gazes thought that defendants might have been able to afford two assistants since both Sotello and plaintiff were part-time. Gazes testified that he liked plaintiff and that, "I didn't hire [Sotello] to replace [plaintiff]." Id. at 103. Specifically, Gazes testified that he did not consider firing plaintiff until he hired Sotello, who "worked, who performed better, was more competent." Id. at 78-79. Sotello was better than plaintiff in "everything." Id. at 116. Sotello had more responsibilities than plaintiff and was able to work as a liaison, while plaintiff could not because plaintiff lacked the capability to do so.
In support of their contentions, defendants provide several emails demonstrating how plaintiff routinely emailed defendants that she would be either be late or absent from work for various reasons. Krawiecki testified that plaintiff missed work at least once every two weeks, and that it was usually on a Monday. He continued that plaintiff usually claimed to have been sick, but would always give different reasons for her absences. In addition, Krawiecki continued that she almost never arrived to work on time. Krawiecki stated that, although he did speak to plaintiff about her attendance when she first started to work for defendants, he eventually stopped and just "made accommodations." Krawiecki Tr. at 28.
Krawiecki testified that, unlike plaintiff, Sotello was reliable, responsible, not absent and not tardy. He further testified that he intended to take plaintiff back until Sotello proved to be so much better. Krawiecki stated the following, in pertinent part:
"[W]e intended to take [plaintiff] back until Ms. Sotello proved to be such a gem that we couldn't, we would be sabotaging ourself. Here I have an employee that's night and day, costing me less and I'm getting compliments from my bosses and people I'm reporting to. I would be sabotaging my own firm by making the wrong choice. Why would I do that for somebody who shows no loyalty for me when she worked here? When she was in the office, when it was five to three, her screen was shut down, she was getting up to leave, the wall could crumble if we needed something and she would say I'm sorry I'm leaving, I need to go and that's it. I could never rely on her for anything, why would I show any loyalty now?"Id. at 84-85.
When defendants decided to terminate plaintiff they told her that "business was not warranting having two people there and I couldn't afford to take on two people." Gazes Tr. at 122. Gazes did not say anything else to plaintiff because he did not "want to hurt her feelings." Id. at 123.
Sotello testified that defendants never told her that the position was permanent, but that she "just assumed it was a permanent position." Defendants' Exhibit "F," Sotello Tr. at 60.
Defendants state that other factors preclude plaintiff from demonstrating that discrimination played a role in her termination. For example, when plaintiff resigned, defendants knew that she was pregnant and re-hired her back one week later. Moreover, although they are a small firm, they allow employees to take maternity leave and then return, and had previously given two other legal assistants maternity leave.
During oral argument held on March 27, 2017, this Court denied defendants' motion with respect to the third cause of action, for failure to provide a reasonable accommodation, because defendants did not specifically address it in their motion.
Plaintiff's Contentions
Plaintiff argues that a triable issue of fact remains as to whether defendants discriminated against her on the basis of her pregnancy when they terminated her employment. Specifically, plaintiff alleges that a trier of fact could conclude that plaintiff was terminated for taking maternity leave. She points to defendants' testimony, where they claim that, had plaintiff not taken maternity leave, she would have remained employed there. In addition, plaintiff claims that defendants may have terminated her because they were concerned that her attendance issues would worsen with a young child at home, or that she might resign after coming back from maternity leave.
Plaintiff argues that there is sufficient proof for a reasonable jury to find that defendants' proffered reasons for terminating plaintiff were pretextual. Plaintiff denies the issues with her performance, noting that she worked for defendants for five years and that she consistently received salary raises and annual bonuses. She states that she was a good worker and that her attendance was "okay." Plaintiff's Exhibit "A," plaintiff's Tr. at 35.
Although defendants maintain that her performance issues were serious, plaintiff believes that credibility issues remain with respect to this issue, as defendants made accommodations for her and did not consider terminating her. Moreover, plaintiff argues that, even if her performance was Unsatisfactory, questions of fact remain as to whether her pregnancy was at least one of the motivating factors for her termination.
Plaintiff believes that the advertisement for her temporary replacement establishes defendants' intent to replace her, given that there was no indication that the position was temporary. Plaintiff further argues that, even if she was re-hired after she told defendants that she was pregnant, this does not demonstrate defendants' lack of discriminatory intent since plaintiff disputes the circumstances surrounding her April 2014 resignation. Further, plaintiff argues that defendants cannot escape liability for discrimination merely because they have accommodated other pregnant women in the past.
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. NYSHRL
Pursuant to the NYSHRL, as set forth in Executive Law § 296 (1) (a), 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 sex. Although pregnancy is not explicitly listed in the statute, "discrimination on the basis of a woman's pregnancy . . . constitutes discrimination on the basis of sex [under the NYSHRL]." Wilcox v Cornell Univ., 986 F Supp 2d 281, 285 (SD NY 2013); see also Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330 (2003) (The NYSHRL "prohibits discharge of an employee because of pregnancy"). The NYSHRL provides the "same sort protection" for pregnancy as Title VII. Quaratino v Tiffany & Co., 71 F3d 58, 63 (2d Cir 1995).
The Pregnancy Discrimination Act amended Title VII to prohibit sex discrimination on the basis of pregnancy. DeMarco v CooperVision, Inc., 369 Fed Appx 254, 255 (2d Cir 2010). "Courts have found that an employee terminated while pregnant, on maternity leave, or soon after returning from maternity leave, is a member of the protected class [under the PDA]." Briggs v Women in Need, Inc., 819 F Supp 2d 119, 127 (ED NY 2011).
When analyzing pregnancy discrimination claims under the NYSHRL, the court applies the burden shifting analysis developed in McDonnell Douglas Corp. v Green, 411 US 792 [1973]; Malena v Victoria's Secret Direct, LLC, 886 F Supp 2d 349, 357 (SD NY 2012). In the burden-shifting analysis, 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 "[she] is a member of a protected class, was qualified for the position, and was terminated or suffered some other adverse employment action, and 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).
With respect to pregnancy discrimination, as an alternative to pleading that the discharge occurred under circumstances giving rise to an inference of unlawful discrimination, plaintiff may fulfill this element by showing that "her position remained open and was ultimately filled by a non-pregnant employee." Albin v LVMH Moet Louis Vuitton, Inc., 2014 US Dist Lexis 92627, *12, 2014 WL 3585492, *5 (SD NY 2014) (internal quotation marks and citation omitted). Although plaintiff's replacement was a woman, she is outside of plaintiff's protected class as she was not a "woman affected by pregnancy, childbirth or related medical conditions." Id. 2014 US Dist Lexis 92627 at *13, 2014 WL 3585492 at *5.
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. Baldwin v Cablevision Sys. Corp., 65 AD3d at 965. If the employer meets this burden, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason." Id. at 965. (internal quotation marks and citation omitted).
Here, plaintiff met her burden of establishing a prima facie showing of discrimination. As a pregnant woman out on maternity leave, plaintiff satisfies the first element, that she belonged to a protected class. Plaintiff has also satisfied the second element that she was qualified for the position. "To show qualification sufficiently to shift the burden of providing some explanation for discharge to the employer, the plaintiff need not show perfect performance or even average performance. Instead, she need only make the minimal showing that she possesses the basic skills necessary for performance of [the] job." Gregory v Daly, 243 F3d 687, 696 (2d Cir 2001) (internal quotation marks and citations omitted). Given that plaintiff was employed for five years without incident and trained her replacement, plaintiff can establish that she was qualified for the position.
Plaintiff has satisfied the third element, termination, in light of her termination. Finally, plaintiff can also satisfy the element that her termination occurred under circumstances giving rise to an inference of discrimination based on the timing of her termination. See e.g. Pellegrino v County of Orange, 313 F Supp 2d 303, 315 (SD NY 2004) ("Evidence of temporal proximity between an employee's request for maternity leave and her termination is sufficient to establish an inference of discrimination"). Here, despite being given assurances that she would have a job to return to after maternity leave, plaintiff was terminated while on leave. In addition, plaintiff was replaced by someone who was outside of plaintiff's protected class as a pregnant person.
Defendants do not concede that plaintiff has made a prima facie case. However, as a plaintiff's burden to establish a prima facie case is "de minimis," this Court will assume that, for purposes of this motion, plaintiff has satisfied the standard. See e.g. Hamburg v New York Univ. Sch. of Medicine, ___AD3d___, 2017 NY Slip Op 06635, *6 (1st Dept 2017).
In response to plaintiff's prima facie case, defendants have proffered a legitimate, nondiscriminatory reason for her termination. Specifically, defendants have provided evidence of plaintiff's routine lateness and absenteeism, and stated that plaintiff's replacement was far more qualified and reliable than plaintiff.
Upon defendants' submission of a legitimate, nondiscriminatory reason for terminating plaintiff, the burden shifts back to plaintiff to raise a triable issue of fact that the defendants' stated reasons were false, and that discrimination was the real reason. On a motion for summary judgment a plaintiff is not required to prove her claim of pretext to defeat summary judgment. See Ferrante v American Lung Assn., 90 NY2d 623, 630 (1997).
Here, without making any credibility determinations, plaintiff has satisfied her burden, as she has raised an issue of fact as to whether she was terminated for a legitimate, nondiscriminatory reason, rather than as the result of her gender. Defendants have articulated legitimate reasons for terminating plaintiff by pointing to, among other things, plaintiff's chronic absences, lateness and her inability to handle some of the work necessary. However, defendants acknowledge that they did not address attendance issues with plaintiff while she was an employee. The emails submitted on the record are plaintiff's emails to defendants explaining that she would be late or absent from work. There is no indication that plaintiff's absences or late arrivals were not approved, or that they were happening too frequently during her five years with defendants.
Further, there is no indication that defendants were unsatisfied with plaintiff's performance prior to her maternity leave. Plaintiff received annual raises and bonuses, and defendants testified that they had never thought about firing her prior to her leave. Plaintiff was assured that she would have a job when she returned and defendants testified that, had plaintiff not gone out on maternity leave, she would still be working for them.
In addition, although defendants allege that plaintiff's replacement was superior to plaintiff in every way and could handle more tasks, since plaintiff was at least proficient enough to train her replacement, credibility issues remain. Furthermore, the fact that the advertisement for plaintiff's position did not say that it was for a temporary position raises questions about defendants' intent. Although Sotello testified that defendants never told her the position was permanent, she was also never informed that it was only temporary while plaintiff was out on leave.
Accordingly, summary judgment is denied on the first cause of action alleging discrimination under the NYSHRL. See e.g. Dumoulin v Formica, 968 F Supp 68, 70 (ND NY 1997) (Summary judgment denied on plaintiff's NYSHRL claim as issue of fact remained as to whether pregnancy was a "substantial motivating factor" for plaintiff's termination when it occurred one day prior to scheduled pregnancy leave, there was no explanation precipitating the termination, and there was an absence of negative performance reviews); see also Mitzner v Royal Bank of Can., 2017 NY Slip Op 31071 (U), *3 (Sup Ct, NY County 2017) (Plaintiff raised issues of fact regarding discriminatory treatment on the basis of her pregnancy and subsequent maternity leaves under the NYSHRL and NYCHRL, when she claimed that supervisors took accounts away from her or gave her inferior accounts which led to a constructive termination).
III. NYCHRL
Pursuant to the NYCHRL, it is an unlawful discriminatory practice for an employer to refuse to hire, employ, fire, or discriminate against an individual in the terms, conditions, or privileges of employment because of the individual's gender. Administrative Code § 8-107 (1) (a). Although pregnancy is not explicitly listed in the statute, "pregnancy discrimination is a form of gender discrimination under the NYCHRL." Chauca v Abraham, 841 F3d 86, 90 n 2 (2d Cir 2016) citing Elaine W. v Joint Diseases N. Gen. Hosp., Inc., 81 NY2d 211(1993).
The provisions of the NYCHRL are to be construed more liberally than its state or federal counterparts. Bennett v Time Warner Cable, Inc., 138 AD3d 598, 599 (1st Dept 2016). Analysis of claims under the NYCHRL is to be independent, and the court must evaluate discrimination claims with regard for the NYCHRL's "uniquely broad and remedial purposes." Williams v New York City Hous. Auth., 61 AD3d 62, 66 (1st Dept 2009) (internal quotation marks and citation omitted); see e.g. Simmons v Akin Gump Strauss Hauer & Feld, LLP, 508 Fed Appx 10, 13 (2d Cir 2013) (Court held that "the district court erred to the extent that it failed to give independent liberal construction to [plaintiff's] NYCHRL claim, but analyzed it under the same standard as her claims under federal and state law").
When reviewing discrimination claims under the NYCHRL, courts have held that "[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.]" Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 514 (1st Dept 2016) (internal quotation marks and citations omitted). 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 citations omitted).
Where the plaintiff "responds with some evidence that at least one of the reasons proffered by defendant is false, . . . such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied." Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 (1st Dept 2011). Here, as explained in connection to the NYSHRL claim, plaintiff has responded with some evidence that her termination was partially based on her protected status, and not solely for legitimate business reasons.
This Court recognizes that, among other reasons, "[a]n employer's dissatisfaction with even a qualified employee's performance may, of course, ultimately provide a legitimate, non-discriminatory reason for the employer's adverse action." Gregory v Daly, 243 F3d at 696.
Accordingly, viewed in the light most favorable to plaintiff, under the "mixed-motive" framework, defendants' motion for summary judgment on the NYCHRL claim is denied, as plaintiff has raised a triable issue of fact that "unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor" for defendants' actions. Melman v Montefiore Med. Ctr., 98 AD3d at 127. Moreover, it is well settled that, if plaintiff is able to raise an issue of fact as to her gender discrimination claim under the NYSHRL, "a fortiori, she has raised issues of fact as to the [gender discrimination] claim under the [broader NYCHRL]." McRedmond v Sutton Place Rest. & Bar, Inc., 95 AD3d 671, 673 (1st Dept 2012).
CONCLUSION
Accordingly, it is
ORDERED that defendants' motion for summary judgment dismissing the complaint is denied. Dated: October 30, 2017
ENTER:
/s/_________
J.S.C.