Opinion
12914 & M-732 Index No. 153742/18 Case No. 2020-02499
05-04-2021
Andrea RAMOS, Plaintiff-Respondent-Appellant, v. METRO-NORTH COMMUTER RAILROAD, Defendant-Appellant-Respondent, Metropolitan Transportation Authority, et al., Defendants-Respondents.
Hoguet, Newman, Regal & Kenney LLP, New York (Damian R. Cavaleri of counsel), for appellants-respondents/respondents. Jacob Fuchsberg Law Firm, New York (Alan L. Fuchsberg of counsel), for respondent-appellant.
Hoguet, Newman, Regal & Kenney LLP, New York (Damian R. Cavaleri of counsel), for appellants-respondents/respondents.
Jacob Fuchsberg Law Firm, New York (Alan L. Fuchsberg of counsel), for respondent-appellant.
Gische, J.P., Oing, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about April 28, 2020, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment to the extent of dismissing plaintiff's claims against the individual defendants and the Metropolitan Transportation Authority (MTA), and otherwise denied the motion, unanimously modified, on the law, to dismiss plaintiff's claims of age discrimination under both the New York State Human Rights Law (State HRL) and New York City Human Rights Laws (City HRL), to dismiss plaintiff's remaining discrimination claims under the State HRL, to reinstate the other claims against the individual defendants, and otherwise affirmed, without costs.
In this employment discrimination action, defendants established prima facie entitlement to summary judgment by proffering a legitimate, nondiscriminatory reason for terminating plaintiff's employment, as she had violated Metro–North's policy by failing to report her use of a muscle relaxant for her back condition (see e.g. Gordon v. Kadet, 95 A.D.3d 606, 943 N.Y.S.2d 535 [1st Dept. 2012] ).
In response, plaintiff raised a triable issue of fact as to whether discrimination was one motivating factor behind her termination, sufficient to support her City HRL claim (see Sandiford v. City of New York Dept. of Educ., 22 N.Y.3d 914, 916, 977 N.Y.S.2d 699, 999 N.E.2d 1144 [2013] ). Plaintiff's submissions show that she was placed on a performance improvement plan for conduct that her colleagues, who are not in her protected class, also engaged in; her prior FMLA applications documented her need for prescription medication; and she satisfactorily worked for Metro–North for nearly 10 years before being terminated.
The evidence also raises a material issue of fact as to whether defendants engaged in an interactive process and reasonable accommodation analysis prior to terminating plaintiff's employment (see Watson v. Emblem Health Servs., 158 A.D.3d 179, 69 N.Y.S.3d 595 [1st Dept. 2018] ; see also Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 827, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014] ). Although an in-person meeting to discuss any accommodation was not necessary, plaintiff demonstrated that she proposed reasonable accommodations that defendants failed to make ( Pimentel v. Citibank, N.A., 29 A.D.3d 141, 148, 811 N.Y.S.2d 381 [1st Dept. 2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ).
Defendants also failed to demonstrate entitlement to summary judgment on plaintiff's claim of hostile work environment under the City HRL. In support of her hostile work environment claim, plaintiff alleged that she was denied training opportunities given to her colleagues, she was left out of meetings, and she was reprimanded for failing to use the company car, despite being in the process of seeking a reasonable accommodation to avoid having to do so (see Suri v. Grey Global Group, Inc., 164 A.D.3d 108, 83 N.Y.S.3d 9 [1st Dept. 2018], appeal dismissed 32 N.Y.3d 1138, 92 N.Y.S.3d 174, 116 N.E.3d 658 [2019] ). Defendants did not show that the conduct complained of constituted nothing more than petty slights and trivial inconveniences to establish entitlement to summary judgment ( Williams v. New York City Hous. Auth., 61 A.D.3d 62, 72–73, 80–81, 872 N.Y.S.2d 27 [1st Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2622097 [2009] ; see also Hernandez v. Kaisman, 103 A.D.3d 106, 113–114, 957 N.Y.S.2d 53 [1st Dept. 2012] ).
Finally, defendants failed to establish prima facie entitlement to summary judgment on plaintiff's retaliation claim. The temporal proximity between plaintiff's EEOC complaint and the incident leading up to her termination, and her termination raise an issue of fact as to a causal connection, as these events occurred within weeks of each other (see Krebaum v. Capital One, N.A., 138 A.D.3d 528, 29 N.Y.S.3d 351 [1st Dept. 2016] ). Moreover, defendants' argument that plaintiff's violation of the prescription drug report policy is an intervening terminable offense, is unavailing, as there is a question of fact as to whether plaintiff's termination was motivated, in part, by discrimination ( id. at 529, 29 N.Y.S.3d 351 ). As for plaintiff's claims against the individual defendants, it is submitted that these claims should not have been dismissed, as they each had the ability to do more than carry out personnel decisions made by others, and they participated in the conduct complained of (see McRedmond v. Sutton Place Rest. & Bar, Inc., 95 A.D.3d 671, 673, 945 N.Y.S.2d 35 [1st Dept. 2012] ).
The Decision and Order of this Court entered herein on January 19, 2021 ( 190 A.D.3d 570, 140 N.Y.S.3d 222 [1st Dept. 2021] ) is hereby recalled and vacated (see M–732 decided simultaneously herewith).