Delrio v. City of New York
938 N.Y.S.2d 149
N.Y. App. Div.
2012
Check Treatment

German Delrio, Appellant, v City of New York et al., Respondents.

Appellate Division of the Supreme Court of New York, Second Department

938 N.Y.S.2d 149

The plaintiff was a paramedic assigned to the Emergency Medical Services division of the New York City Fire Department (hereinafter FDNY). On or about June 30, 2004, the plaintiff filed a complaint with the New York State Division of Human Rights (hereinafter the SDHR) alleging that the FDNY engaged in an unlawful discriminatory practice relating to employment, in violation of the New York State Human Rights Law, because of his sex. After an investigation, by order dated October 23, 2006, the SDHR determined that there was no probable cause to believe that the FDNY had engaged in the unlawful discriminatory practice complained of, and the complaint was dismissed. The plaintiff thereafter requested review by the United States Equal Employment Opportunity Commission, which ultimately decided to adopt the findings of the SDHR. The plaintiff then commenced this action against the City of New York and four FDNY Officers (hereinafter collectively the defendants), seeking, inter alia, to recover damages for unlawful retaliation in violation of Administrative Code of the City of New York § 8-107. The Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint. The plaintiff appeals, and we reverse.

To make out an unlawful retaliation claim, a plaintiff must show that “(1) [he or] she has engaged in protected activity, (2) [his or] her employer was aware that [he or] she participated in such activity, (3) [he or] she suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action” (; see ; see also ). “Once plaintiff has met this initial burden, the burden then shifts to defendants to present legitimate, independent and nondiscriminatory reasons to support their actions. Then, if defendants meet this burden, plaintiff has the obligation to show that the reasons put forth by defendants were merely a pretext” (; see ).

To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant‘s explanations were pretextual (see ; see also ; ; ; ; ). Here, the defendants established their entitlement to judgment as a matter of law by presenting nonretaliatory business reasons for the challenged actions. However, in opposition to this showing, the plaintiff raised triable issues of fact as to whether the defendants’ reasons were pretextual. In particular, the plaintiff submitted an affirmation from his immediate supervisor wherein she stated that a reassignment of the plaintiff violated FDNY internal procedure as well as known past practice. In addition, the record shows a strong temporal correlation between the plaintiff‘s protected activity, i.e., his involvement in the SDHR administrative complaint process, and the defendants’ allegedly retaliatory actions (see ). Accordingly, inasmuch as the plaintiff proffered sufficient evidence to raise a triable issue of fact as to whether the reasons put forth by the defendants were merely pretextual, the defendants were not entitled to summary judgment dismissing the complaint (see generally ).

Mastro, A.P.J., Hall, Sgroi and Cohen, JJ., concur.