Forrest v. Jewish Guild for the Blind

382] 786 NYS2d [819 NE2d et v Jewish Appellant, Guild Blind Forrest, Paula al., Respondents. 14, 2004; September

Argued decided October POINTS OF COUNSEL (William Sipser, Sipser, Tuckner, Weinstock & York New Sipser J. and Jack Tuckner counsel), I. The appellant. Ap

297 and dismiss lower court erred in reversing Division pellate and mate triable were contested case when there ing plaintiffs race of color and claims concerning fact plaintiffs rial issues of Burdine, (Texas v Community Dept. discrimination. Affairs Green, 792; v 411 US 248; Douglas Corp. US McDonnell Assn., 623; Gregory Daly, v v 90 NY2d Lung Ferrante American 742; Indus., Ellerth, Inc. v US 687; F3d Burlington Inc., 62; 223 F3d Torres v Food Specialties, Whidbee Garzarelli State Pisano, Dept. v New York 625; 116 F3d Richardson v Inc., Co.,& Serv., 426; v F3d Holtz Correctional Rockefeller 141.) 217 F3d II. v 62; Howley Stratford, 258 F3d Town of court and reversing erred in lower Division Appellate triable there were contested case when dismissing plaintiffs of retali claims concerning material issues fact (Tomka 1295; v Servs. Ogden v Seiler 66 F3d Pace Corp., ation. F 101; Banking Corp., 257 AD2d Francis Chemical Corp., Assn., 90 v American 626; Lung 2d 213 F3d Ferrante Supp Co., 462; 108 F3d Ga 623; v Columbian Rope NY2d Wanamaker Educ., 636; Crady F3d v Lib City v New York Bd. 202 labya of Ind., 132; De la v Natl. & Co. 993 F2d Cruz erty Bank Trust of Servs., Dept. New York Human Resources Admin. Social City of Green, 792; 411 US Ri 16; F3d McDonnell v Douglas 82 Corp. Serv., F3d v York Correctional 180 Dept. chardson New State of 426.) in reversing III. Division erred the lower Appellate there were contested dismissing court case when claims triable and material issues fact concerning plaintiffs abetted discrimination individual defendants aided and (Peck City Sony under York State and New York laws. v New Bank, 157; 221 v Chemical 63 Music AD2d Patrowich Corp., Exch., 313; AD2d Mur 541; D'Amico v 235 NY2d Commodities 469.) v ERA 251 AD2d Realty, United phy (Lauren and Frances LLP, Brody York Reiter Torys City New I. The counsel), Appellate Kulka Browne of respondents. on Paula summary judgment in granting Division was correct (McDonnell Douglas Corp. claims. Forrest’s race discrimination Assn., Green, 792; v 90 NY2d Lung 411 US Ferrante American v State Div. Human 623; Aurecchione v New York Matter Educ., 202 21; v York Bd. Galabya City 98 New Rights, NY2d Retreat, 322; De la v F2d Cruz 636; F3d v Brattleboro 702 Pena Servs., Social Dept. York Human Resources Admin. City New Flaum, 286; City Hatter v New York F3d v 258 AD2d 16; 82 Weit v GAB Bus. Auth., 936; 528 Corcoran Hous. 165 F3d US Inc., Servs., 966; F v Continental Inc., Group, Dister Supp 723 1108.) in grant was correct F2d II. The Division Appellate 859 ing summary judgment on Paula Forrest’s retaliation claims. (Torge Socy. v New 153; York 270 AD2d Deaf, Taneus v Hosp. Supp Ctr., 262; Brookhaven F Mem. Med. 2d Sitkiewicz Chrysler Corp., U.S.A., v Initial 626; Servs. 213 F3d Parker v Supp Press, 929 F 162; Ioele v 29; Alden 145 AD2d Wanamaker Rope Galabya Co., v 462; Columbian 108 F3d v New York Wyatt Bd. of Educ., 636; Co., 202 F3d Bennett v Watson & 136 F 236.) Supp Appellate grant 2d III. The Division was correct ing summary judgment aiding abetting on Paula Forrest’s (Yerry Supp Kan., claims. v Pizza Hut Southeast F186 2d of Bank, Foley 178; Patrowich 541; v Chemical v NY2d Mobil 1.) Summary judgment may Co., Chem. 170 Misc 2d IV. be af ground complaint untimely. on firmed the alternative that the is (Murphy Corp., v American Home Prods. 293; NY2d Emil v Dewey, 968; Povill, 112; NY2d Kordich v 244 AD2d Matter of Airways Rights Ap Pan Am. World York New State Human 214.) peal Corp., Bd., 542; 61 NY2d Acosta v Loews 276 AD2d THE OPINION OF COURT Judge Chief Kaye. place society.

Racial discrimination has no Antidiscrimina- strictly tion laws must therefore be enforced to root out this scourge simply whenever it But it occurs. is not the law that every dispute people that arises between different races con- every wrongful discrimination, stitutes or that act perpetrated dispute in the course of is such committed because Simply job put, animosity of race. actionable; is not un- equal treatment on racial based animus is. Because has unlawfully failed raise a to triable issue fact that she was against Ap- discriminated race, the basis of her we affirm the pellate summary judgment Division’s award of to defendants dismissing complaint. the History1

I. Facts and Procedural 1914, Founded in for defendant Jewish Guild the Blind is a agency not-for-profit, provides educational, nonsectarian visually impaired blind, health care and social to services and persons. help multidisabled Its stated mission is to those with productive, satisfying independent, visual disabilities lead lives. by Plaintiff is an African-American who woman was hired the therapist Continuing in 1985 as a music in Guild its Treatment noted, Except They undisputed. where the set facts are are also out in a by comprehensive writing Appellate the Division Forrest v Jewish Guild 2003]). Blind, Dept 309 AD2d [1st 547-552 (CTP). leave of an educational began In Program Guild, year. By for more than from the which lasted absence and the CTP returned, the Guild August time the mandated the reorganization as had substantial undergone funding, to receive state York. In order to continue State of New to certain procedures thus required implement the Guild was result, Health. As a of the of Mental and State Office policies Services the Educational CTP was moved from Guild’s the (directed to Mental Health Department its Services Department Continuing and renamed the Dersh), defendant Goldie (CDTP). Program Treatment Day to the Guild, to was assigned her return

Upon Eugenia CDTP, coordinated defendant which was by the terminology In reflect used Adlivankina. order all Health, job therapists, of Mental titles of art State Office and therapists therapists—including plaintiff— dance music to creative arts changed therapists. were had plaintiff’s responsibilities As an employee CTI^ music is, music using limited to providing therapy—that

been memory, sequenc- such as development goals, to facilitate restructuring, With ing programmatic motor coordination. CDTP, In the all however, changes approach. profes- came and creative arts social workers—were therapists sionals—both team, charged of an interdisciplinary viewed as members result, As all clients. program holistic services providing social as- longer just workers—were employees—no professional treatment developing cases and signed required participate records and documenta- therapy and accurate maintaining plans Health mandates. of Mental tion so as to with Office comply as com- came such tasks of a caseload management With scheduling appoint- family members, clients’ municating with attending meetings with ments, and arranging transportation reflect Ultimately, January other team members. work- arts social therapists mission of both creative shared services therapeutic continued to provide ers—all of whom also training qualifica- specialized consistent with their own job employees all such professional tions—the titles benefits, salary Plaintiff’s changed to case manager. time, desks of the same did At around however, change. as office so large into one CDTP relocated all were professionals of client information. exchange the shared to facilitate share an to having about start, complained From the plaintiff responsibili- management her case and resisted additional office ties, preferring to her limit efforts to the conduct of music therapy sessions. Conflict arose. quickly early As as November 1991, plaintiff wrote a memorandum to her union delegate about her complaining management duties, case while stating that she not adamantly “was to refusing cooperate.” Moreover, because social had always workers carried caseloads and performed tasks, attendant administrative plaintiff—who nei- ther was trained for nor social work provided services—took the position that she had job been forced to undertake the “dual” creative arts and social therapist worker, and therefore filed a her grievance with union which she increased In sought pay. February plaintiff complained a memorandum to Adlivankina her that current did responsibilities not allow time her enough complete duties, her recordkeeping sug- that be gested “free[d] up” paperwork, focus on warned, “I this being see as have potential problem we’ll work out.”

In after July the State promulgated new policies procedures use mandating the of standardized medical record forms, all members, staff including were plaintiff, provided in the special training completion Plaintiff, new forms. however, to have had appears difficulty with her complying to maintain these responsibility state-mandated patient records. the forms Explaining were constantly changing, plaintiff fell behind in her keeping patient notes current. Throughout fall oral plaintiff received and written warnings her Adlivankina, Dersh and supervisors, forth in- setting stances which had failed to allegedly progress write notes when notes in a man- required, completed timely ner, notes, misdated written them in an sequence. incorrect Patients who had been absent from therapy sessions were charts, sometimes marked present medical which plaintiffs had were supervisors explained documents. The legal further supervisors advised that her notes were frequently unstructured and unrelated to client treatment plans instances, and services In some provided. notes were smudged or illegible.

By supervisors November expressing concern the inaccuracies and omissions in her notes— with including respect to client attendance—threatened to place the Guild out of compliance recordkeeping state-mandated guidelines provision services, of health and with documentation for Medicaid requirements reimbursement. Tell- licensing they ing plaintiff status that the Guild’s worried upcoming funding might jeopardized audit at an be plaintiffs supervisors relieved Health, of Mental Office State responsibilities so that she could her her of the bulk of other majority was her client charts. She of her time to devote the respon- writing appears a lack of to be “what warned in about your previous guidance part and instruction to siveness unwillingness or to either an be these matters and what seems inability charting perform properly Plaintiff filed tasks.” to warnings concerning grievances her about with her union being “harass[ed].” alleging recordkeeping, she that was warning plaintiff for In received written December undisputed leaving patients As her blind unattended. holiday being plaintiff, CDTP clients dur- lunch was offered to ing plaintiffs Plaintiff nevertheless chose scheduled lunch hour. leaving patients. help After to take her to the to serve lunch plaintiff return for hour, 20 minutes into the did not own lunch therapy after her session an hour and minutes—20 minutes begin. group her was scheduled to Plaintiff then dismissed requiring that no later, in of state standards minutes group violation may than 45 minutes. session be shorter as In The record reflects other conflicts well. June ailing mother. took to be with her extended vacation provide specific on when she had failed to information Because eventually her in reached out to return, she would the Guild arrange patient coverage. in an effort to for Plaintiff Florida supervi- telegram updating Guild, to her thereafter sent a work, filed on her mother’s condition. On her return to she sors grievances alleging seeking reimburse- two “harassment” and telegram. In was ment for the cost of October violating patient disciplined policy rec- confidential supervi- CDTP without ords are never be removed from the to refusing sory permission, the issue with and for then discuss ground morning incident on Adlivankina the after the yet begun. working hours had complaints defendant union and with

Plaintiff filed with the Guild, at the because she Director of Personnel Handfus, Carol assigned had a circle been hour, like lunch because did not posted placed when on a time sheet next her name out) thought (mistakenly, Dersh and because late, it to be turned meeting. pad Other hand at a had removed a according formally complaints because, filed were not my pursue represent “[f]ail[ed] plaintiff, all of the union stated, claims” and “You are so self-involved, self-centered and you all think ever about are your grievances.” Plaintiff eventu- filed a ally complaint against her union New York State Division of Human In Rights. January plaintiff requested transfer to the Day Guild’s Treatment Program (DTP), which was coordinated friend, defendant Finocchiaro, Patricia and which provides ongoing visually treatment impaired adults with and psychiatric diagnoses, deaf and blind persons are cognitively who impaired. DTP is from the separate CDTP is of operated and under the the of auspices State Office Mental Retardation and Developmental Disabilities.

Plaintiffs problems with continued. In March recordkeeping 1994, Finocchiaro wrote a memorandum to plaintiff reflecting that, Finocchiaro’s for more discovery months, than five plaintiff had failed to any make notes in the progress records of several clients, though monthly patient notes were progress required. At the of 1994, end a July plaintiff requested three-month leave of absence to begin to the August, pursuant Family and Medi- (29 cal § Leave Act of 1993 (FMLA), USC 2601 et care seq.) to (see for her seriously § ill father Florida [a] [1] USC 2612 [C]). The Guild the to the approved request, subject submission by plaintiff documentation her specified father’s serious 2613). § health condition 29 USC Plaintiff the given form to and to requisite complete it, undertook return with the necessary by certification her father’s physician, by August 1994,

Between and August October the Guild sent several let- ters to at the Florida plaintiff address, by certified mail and Federal Express, the requesting required documentation and providing necessary additional the form. The cer- copies first tified by letter was returned office post as unclaimed. The that, next informed if plaintiff she did not submit the mandated certification, she would be considered on unauthorized leave of subject absence and to 6,1994, termination. On October plaintiff called the Guild and promised provide the documentation by following week. meantime,

In the had plaintiff for and received applied unemployment insurance benefits York State New of Labor on the Department ground that she was “available and seeking 18, employment the State Florida.” On October the Guild a of a received form copy requested by Depart- ment of Labor’s Insurance Division on Unemployment Septem- 6, 7, ber and physician on October completed diagnosing plaintiff’s father with and “[hjypertension, aging prostate,” response recommending treatment, and—in as medication needed?”—stating, any, question, care, home if is “What family member.” “Needs requires contemplated by the FMLA the certification

Because unemploy specific contained on the than was more information more form,2 the sent letters Guild two ment insurance inadequacy informing plaintiff express her mail, setting compliance October deadline of new submission 31. Three days deadline, the was notified Guild before Express that had refused and that its last letter been Federal by plaintiffs father that had advised the courier been plaintiffs father, then at that address. Handfus called was not left home weeks had his three who informed her living gone Hawaii, he had without and that been earlier Finally, any help on November at home since time. plaintiff detailing the events surround

Handfus sent ing letter advising leave, that her had been job ground abandonment. terminated resignation days October later, a letter dated Two immediately,” plaintiff: from and “effective arrived my opportunity express gratitude “I want for the to profes- my grow serve, talents, and both to utilize sionally rewarding personally. It was most and my helping in me to see value of contributions the others. paramount

“Extenuating circumstances, the most brought being my father, me to one the care of has required juncture my life. That care is now this beyond my leave Hmitations of of absence which the already granted.” the Guild has job

By plaintiff begun a teacher November, had a new as school in Florida. (b) provider provides § a health that certification care 2. 29 USC 2613 family eligible shall employee’s member the serious medical condition an com- the health condition

be if it states the date on which serious sufficient condition; appropriate facts menced; probable medical the duration the the condition; regarding the and knowledge provider within the of the health care family for the member eligible employee is needed to care statement that the employee is needed. that such so and an estimate the amount time submit, additionally requested her form, agreed plaintiff to Guild’s which treatment; in- or regimen of medical visits of treatment and schedule father’s might need for concerning her father physician assistance formation from the needs, transportation; safety, medical, hygiene or nutritional basic providing. plaintiff the would be from as to care she statement Meanwhile, in September 1994, after having started her FMLA leave, filed a plaintiff complaint with the York New Commission on Human and the Equal Employment Op- portunity (EEOC), Commission alleging that defendants had discriminated the against basis of race and color and in retaliation. In her complaint, plaintiff alleged October told Dersh had referred to her an as “uppity In nigger.” June plaintiff filed an amended complaint with the City Commission, alleging additional acts—including that Adlivankina had encouraged coworkers to refer to her as “our Black American Princess”—that were purported occurred filing have the prior original complaint but omitted that pleading.

Dissatisfied the investigation conducted by Commission attorneys, wrote plaintiff letters regarding supervisor’s attitude,” “unwarranted the accusing Commission racial discrimination and failure to render “unbiased to all assistance people”: “[M]y complaint whom I against employer with encountered conflict has already been recorded. It is not an to have it within encouraging experience occur the Commission as failed, well.” Because despite Commission’s request, right-to-sue rescind letter she had received from EEOC, as order for the required Commission continue investigation, its Commission closed her administratively weeks, case. Within filed suit against defendants United States District for the Court Southern District of New York, federal, violations of alleging state antidiscrimi- city nation laws. later, Three months she voluntarily dismissed that action.

In 1998, more than three February after her years employ- ended, ment with the Guild had plaintiff commenced instant seeking lawsuit several million dollars in damages, alleging that defendants discriminated the of against on basis race and color against and retaliated her for about complaining such discrimination, of violation the New York State Human Rights Law (see Executive Law 296 § ^[1] [a]; [7]) and the New (see York City Administrative Code Administrative of City Code of NY 8-107 § ^[1] [a]; [7]). In her complaint, plaintiff pleaded an by Dersh, additional racial slur made not previously alleged, said to have been uttered in 1992: do always we have to “Why stroke Blacks to them get to work?” the plaintiff

After and three of individual defendants were defendants for deposed, judgment moved summary dismissing

305 motion, and denied defendants’ Court complaint. Supreme the reversed. now affirm. the Division We Appellate II. Racial Discrimination Discriminatory Employment Action A. has in employment

A racial discrimination alleging plaintiff discriminat a facie case of prima the initial to establish burden (1) a she is burden, To this must show ion.3 meet (2) to hold the class; qualified member of a protected (3) or suffered employment terminated position; she was (4) action; the discharge and another adverse employment rise giving under circumstances other adverse action occurred (see Lung v American of Ferrante to an inference discrimination [1997]). the The then shifts to Assn., 90 burden NY2d by clearly of “to rebut discrimination employer presumption evidence, forth, the introduction of admissible setting through reasons to nondiscriminatory sup independent, legitimate, omitted]). (id. In order [citations its decision” port claim, must prove nevertheless succeed on her the defendant were reasons legitimate proffered demonstrating both that merely pretext discrimination false and that discrimination was the stated reasons were (see 629-630). real reason id. at motion, defendants summary judgment

To their prevail el every must demonstrate either failure establish discrimination, or, legiti ement of intentional offered having actions, mate, challenged reasons their nondiscriminatory of as to whether their the absence of material issue fact event, pretextual. summary judgment In that explanations just expediting “a device for highly would constitute useful al conserving for all legal dispute parties of disposition (Matter resources” ready judicial overburdened of Suffolk Mittl, title VII NY2d Law title VII address recovery, this Executive Law 98 NY2d dards. sions redress, appeal” Ophthalmologist, P.C. New of federal Executive Law standards for are the Civil New (Matter textually and should therefore be [2003]). ^[2002] case York Rights same law Aurecchione [citation similar and Thus, § recovery in this area also type 296) Act of Administrative “[b]ecause both the are omitted]). Further, discrimination, under the same as v New York State Div. ultimately York State Div. Human (42 analyzed according to the same stan proves helpful USC 2000e Code mirror the New employ the § the federal standards afford victims York State Human the human of et seq.; same provisions of the the resolution Human Human similar forms see Rainer N. rights provi standards Rights, Law Rights, Rights under County [Michael Social Dept. M., V.] Servs. v James 83 NY2d of [1994]), as no inasmuch valid is purpose by served a jury to a cause of action submitting that cannot as a survive matter of law. Defendants have satisfied their burden.

The first two elements to establish a of necessary claim discrimination are not in dispute. Plaintiff is an African- woman, American qualified job for the held at Guild. she has, however, She failed to raise a of triable issue of material fact as to whether adverse action any alleges she she suffered occurred under circumstances rise to an giving inference of discriminatory motive. Preliminarily, proof adverse action is in large measure She asserts wanting. three such her actions: “demotion” from music to therapist creative arts therapist and then case a manager; series interpersonal conflicts with her and her supervisors; ultimate termination.

An adverse employment action a requires materially adverse change in the terms and conditions To be employment. adverse, a materially conditions be change working must “more than a mere inconvenience or an disruptive alteration job A responsibilities. materially be change adverse might indicated aby termination of a demotion employment, evidenced aby decrease in wage salary, less ma distinguished title, a benefits, terial loss of significantly diminished material respon sibilities, or other . indices . . to a unique particular situation” York (Galabya Educ., v New Bd. F3d [2d omitted]). 2000] [citations Cir quotation internal marks Plaintiff has offered no evidence that title change job Rather, constituted a demotion. is that undisputed proof title arts part creative was as therapist adopted Guild’s restructuring an effort to be consistent terminology used its state regulatory was agency, applied all situated all similarly Later, employees. professionals CDTP were restyled managers case to reflect the holistic approach valued Plaintiffs program. salary benefits changes.4 were unaffected these 4. The alleges pay concurrence’s statement a reduction in as 328). misleading concurring op a result of discrimination is at salary change job changed Plaintiffs did not title from music when

therapist therapist manager. requested arts case creative When she later voluntary department, to a transfer different which she does not claim discriminatory, accepted job pay grade. at a different lower

307 hands of at the mistreatment suffered alleged does the Nor defined by of action as to level adverse her rise the supervisors of a the hands, patting of a from her snatching pad law. at in a shouting the her humiliating way, seat in an allegedly of sheet, rolling the of name on a time circling her meeting, materially a of constitutes she these eyes spoke—none when employ- and conditions of plaintiffs in the terms adverse change 1772779, *7, WL Henderson, e.g. ment Fridia [excessive 17295, NY, 30, 2000] [SD *22 Nov. US Dist LEXIS a supervisor’s for leave with work, pay denials of requests materially treatment are general negative plaintiff or of terms, privileges employ- in the conditions adverse changes 11064, *14, 2001 WL Ctr., Katz v Beth Israel Med. ment]; yelled at, NY, [“Being 2001] *44 Jan. [SD US Dist LEXIS unfavorable schedules criticism, receiving unfair receiving ... not rise to the level of adverse assignments employ- work do actions”]). ment to raised a triable of fact as has, however,

Plaintiff issue Clearly, whether she terminated from her employment. termination constitutes an adverse action. Plaintiff concedes that she intended to the Guild October resign that she was nevertheless immediately. effective But she asserts a discharge terminated sent her letter of because the Guild in circum- to its of her Whether these prior receipt resignation. ineffective action rendered preempted stances Guild’s fact might her that resignation question jury presents summary favor. still cannot avoid plaintiff resolve her But because, that has assuming even she for defendants judgment element, has facie as to the fourth showing made a prima termination failed to rebut defendants’ that proof purported rise to an inference did not arise under circumstances giving not terminated is, that she was “because discrimination—that [her] race” (Executive Law 296 § ^[1] [a]; Administrative Code [a]). §8-107 [1] of NY repeat that Rather, facts establish undisputed documenta her submit obligation failed edly comply substantiating leave of her medical family tion in support of coopera Plaintiffs lack father’s serious illness. nature her themselves to her commitments and failure to adhere tion her ending reasons for nondiscriminatory legitimate, establish traveling Hawaii And actions plaintiffs employment. Guild of this substantial father, without notifying leaving standards entitle statutory violation change, placed ment medical family justification leave and further provided for the Guild’s decision.5

In response showing to this by defendants that their actions were justified by conduct, plaintiff has offered no evi dence that defendants’ legitimate explanations pretext for unlawful is, discrimination—that they were false and racially motivated discrimination was the real reason.6 Indeed, fails to demonstrate causal any be relationship epithets tween racial allegedly uttered Dersh and Adlivankina, and her purported termination from Finocchiaro’s department that could conceivably demonstrate that the circumstances termination occurred under rise to giving an (see Price inference of discrimination Waterhouse Hopkins, 490 US ^[1989] [O’Connor, J., concurring judgment] [“statements nondecisionmakers, statements decision- makers unrelated the decisional itself,” are process insuf intent]). ficient to discriminatory establish plaintiff has failed an Simply put, to raise issue fact as to whether she was discriminated" against the basis of her race. To be the sure, record that was establishes there no love Indeed, lost between and her plaintiff supervisors. as a cycle unfolded dissatisfaction supervisory plaintiffs work; giving warnings; about complaints warnings; perceived lack of more improvement; warnings more followed any number of fair inferences could complaints, be drawn from the record as to the motives such underlying events.

Racial not animus, however, is them. Plaintiff herself among was hard at her pressed any to articulate basis deposition for her claim that defendants’ alleged unfair treatment and harass race-based, was than ment other a repeated assertion—or as course, it Of matters not whether stated for terminat- Guild’s reason ing plaintiff good reason, reason, petty was a a bad or a one. matters is What terminating that plaintiff nondiscriminatory. the Guild’s stated reason for was explanations pretextual 6. Plaintiffs mere assertion that defendants’ enough. 325), is concurring op not As the concurrence notes at “a prima case, facie combined with find sufficient evidence to that the false, employer’s justification may permit asserted is the trier of fact to (Reeves employer unlawfully conclude that discriminated” v Sanderson [2000]). Prods., Inc., Plumbing plaintiffs prima But US facie case, justification is combined with no evidence that stated false other so, may plaintiffs unsupported than assertion this is not. only only sumption—that was treated:7 she she was the one so (but only department jeopardizing had she told that she charts); only African- her another difficulties with such spaces employee their names circled had the next to American (but signed only they yet and so were had not on a time sheet (but late); only sign thought out for breaks to be she had to signed actually others cross-examined, she admitted that when (but well); compensation only she was refused overtime out as although having request stayed late to her overtime arose reports, dispute complete evi did not defendants’ simply employees dence that overtime is available only compensatory direct Guild and that time is available patient paperwork). care, not prior having Guild, final leave from the

Indeed, taken her any complain forum. did not of racial discrimination in Although grievances “harass[ed],” felt made clear that she alleged racially the harassment was motivated. she never grievances alleged her union for harassment violations Rather, iy Bargaining Agree- articles VII and XVII Collective job management employees’ ment—pertaining rights re- over sponsibilities, employees procedures disciplining and vaca- rights—not prohibits specifically V, which tion article including discrimination, racial Nor did her res- discrimination. ignation letter—thanking opportunity to the Guild for “the my grow professionally talents, and and serve, utilize both personally”—give any ever been, hint that she had or believed subjected been, on her race. she had to discrimination based is a sure, discrimination, occurs, To when it serious evil be seriously. personality mere must not be dealt with But conflicts discrimination, lest the antidiscrimi be mistaken unlawful general civility (Faragher code” v nation laws “become [1998] [citation Raton, 775, 524 and internal Boca US 788 quotation Gorley omitted]; see v Com marks also Metro-North 18427, Dist R.R., 1876909, *7, 2000 2000 US LEXIS muter WL (plaintiffs supervisor) 2000] [“Even [SD NY, if 22, Dec. *25-26 animosity against plaintiff personal Title VII . . . did harbor manage- job titles, assumption In other instances—the shift employees’ offices— responsibilities, professional ment the consolidation actions, ap- explanation that these when continues to without insist admitting that others plied her, racially discriminatory, while were even conclusory changes subjected policies. and Such assertions to identical taken were proffered actions rebut the evidence defendants cannot nondiscriminatory. 310

provides relief for racial only discrimination, fickleness”], [2d 29 Fed 2002]; Brown, 764 Cir v Appx Gibson 1999 WL affd 1129052, *12, 18555, US Dist [ED 1999 LEXIS *34 NY, Oct. 1999] [“Personal animosity is not of . . . equivalent discrimination is not Title VII. The proscribed by cannot turn a feud . personal into a . . discrimination case (citations accusation” omitted)], 242 F3d [table; 365 text at affd (2d WL 2000)]; US LEXIS 33119 Cir App Padob v Serv., Entex 960 F [SD 1997] NY Supp Info. [“It might just likely be as that Plaintiff was excluded because (her of her conflict acknowledged personality with supervisor)— (antidiscrimination but such behavior is not prohibited laws)”]).8

B. Hostile Work Environment9

Even epithet one racial is inexcusable. are Employers therefore both and well free advised zero adopt tolerance policies But in of a the absence affidavit workplace. single from anyone who heard the or alleged epithets, any written filed report time, or at by plaintiff anyone else, any alleging remarks, plaintiffs assertion that defendants used three racial slurs—in one instance asserted for the first time six nearly after the years comment was purportedly made—as matter law cannot a hostile establish work environment.

A racially hostile work “[w]hen environment exists workplace intimidation, is permeated discriminatory ridicule, and is sufficiently insult severe or pervasive alter the conditions victim’s an create (Harris abusive working Inc., environment” Sys., Forklift US [1993] [citations internal omit- quotation marks ted]). While the use of three a nine- deplorable, epithets over history satisfy does not this test. year employment Whether an environment is hostile abusive can be deter- circumstances, mined at all the only by looking “the including conduct; of frequency the its whether it discriminatory severity; is or or a mere ut- physically threatening humiliating, offensive Division, agree Appellate 8. the While we with conclusion reached the preliminarily epithets that Court should not have left aside the asserted racial analyzing complained-of whether the remainder of the conduct occurred giving under rise an of circumstances inference discrimination. All of the together. relevant facts and circumstances must be considered disparate claim that she Plaintiff’s has suffered treatment workplace may through proof discriminatory employment be shown either of subjected action or that she has been to a work hostile environment.

311 an interferes unreasonably it terance; and whether effect on the employee’s performance. work employee’s determining course, relevant is, of well-being psychological environment abusive” found the actually the whether (id. 23). altered the both have Moreover, conduct must at subjectively by being the victim’s conditions of created an and have plaintiff, as abusive perceived that a reason- environment—one or abusive hostile objectively (see id. at 21). find be so would person able (id. 23) at racial slur is offensive” course, “mere[ly] Of even Here, the epithets it is not actionable. But reprehensible. environment, work of did not pervade complained A nine years. occasions over occurred three having allegedly a few isolated “more than environment requires hostile work (Snell F2d County, 782 enmity” of racial incidents Suffolk 1986]). slurs, racial sporadic “[I]nstead of [2d 1103 Cir racial comments” of steady opprobrious barrage there must be Avon, [cita- v Town [2d 1997] F3d 110 Cir 118 (Schwapp Harris, 21 utterance of see also [“mere 510 US at omitted]; tion in an em- feelings . offensive engenders an . . which epithet of employ- affect the conditions sufficiently . . . does not ployee omitted)]; Brown (citation internal marks quotation ment” Stores, Inc., hostile v Coach 1998] [no 713 Cir [2d 163 F3d occasion, made, on racist where supervisor work environment Nor has remarks, plaintiff]). one directed at including remarks shown, egregious even alleged, or job with her any way performance. interfered aby supervisor and insults Moreover, the use of racial slurs does employer or knowledge acquiescence without under actionable discriminatory practice constitute an unlawful Motors Matter General Law Rights the State Human Bd., Rights Appeal Human Fisher Div. v State Corp., Body 1980]; see also affg [1981], Dept [4th 78 AD2d 1006 NY2d 905 [3d AD2d 865 Sullivan, affg [1982], Hart v NY2d 1981]). [under liable be held cannot “employer For an Dept act unless discriminatory law] state for an employee’s ap condoning, encouraging, to it party became employer (Matter v St. Div. Human State it” proving Matter [1985], quoting Hosp., Elizabeth’s 66 NY2d Bd., Taxi, Rights Appeal York State Human Inc. v New Totem [1985]). evi any to offer has failed Plaintiff 300, 305 65 NY2d or acquiesced let alone condoned knew dence that the Guild ever that plaintiff devoid of proof The record is in, the epithets. any reported alleged any allega of the remarks or indeed other anyone brought tions of racial harassment Guild, at the complaint utilizing procedures pursuant established to the policy, Guild’s antidiscrimination which is contained in the reco rd.10 arguments misapprehension

Plaintiffs reflect a fundamental summary judgment. plaintiff sure, law of To be has identi- disputed disputes enough; fied issues of fact. But factual are not they must relate to material issues. Whether Dersh snatched a pad plaintiffs hand out of sheer rudeness or because she by quality plaintiffs notetaking was struck is irrelevant when, law, as matter of in neither event a claim would racial discrimination be established. Nor do we find material contemporaneous whether defendants’ assessment recordkeeping justified. [plaintiff] skills was “The mere fact that may disagree [her] employer’s [her] with actions or think that justified pretext” behavior was does not raise an inference of (Estrada Bros., v Inc., Lehman 43605, *5, 2001 WL 2001 US [SD 2001] [citations Dist NY, LEXIS *15 Jan. omitted]; Young, Supp [SD see also Jimoh v Ernst & F NY 1995] [“As employee’s disagreement law, a matter of an with an employer’s prove business decision is insufficient to discrimina- conduct”]). tory

Similarly, plaintiffs supervi- a resolution of whether or not epithets—an allegation sors racial used denied defendants— they could not alter the that, conclusion even uttered, they this record are insufficient to make out a hostile work environment.

III. Retaliation City Under both the State and Human Laws, it is against employee opposing unlawful to retaliate an discrimi- (see natory practices § [7]; Executive Law 296 Administrative [7]). § Code of of NY 8-107 In order to claim, make out the 10. Since has failed to establish the elements of a hostile work respect action, environment claim city with to either her state or causes of we need not address the against employer— defense to such a claim an affirmative employer that the prevent promptly exercised reasonable care to and correct discriminatory supervisory personnel, conduct committed its such as promulgating policy complaint procedure, an antidiscrimination and that plaintiff unreasonably advantage any preventive failed to take or cor- opportunities provided by employer rective or to otherwise avoid harm Indus., Ellerth, Burlington [1998]; Faragher City Inc. v 775, 524 US [1998]). Raton, Boca 524 US 805-808 (1) activ- engaged protected she has must show (2) in such participated that she was aware ity, employer (3) action based an adverse employment suffered she activity, (4) connection between is a causal her there activity, upon and the adverse action. activity the protected triable issue No every prong. Plaintiffs fails on showing activity—that in a protected fact exists that plaintiff engaged discrimination11 about unlawful is, complaining or opposing any complaint. aware of such —or, fortiori, a that the Guild was claiming general filed grievances numerous Although plaintiff she was discriminated never that “harassment,” alleged ized article of the Collective race, or invoked the because against Moreover, such Agreement prohibiting practices.12 Bargaining a evidence from which “failed to submit sufficient has plaintiff any a connection between could conclude causal jury reasonably in and adverse activity engaged any [s]he protected (Francis [table; Banking Corp., v Chemical 213 F3d 626 action” (2d 11896, *3 687715, *1, 2000 US LEXIS App text at 2000 WL denied 532 US 949 [2001]), or, as with cert 2000)], Cir any claim, to rebut defendant’s evidence discrimination justified by legitimate, her was against adverse action taken reasons described. nondiscriminatory already merely point summary judgment “by Nor can avoid from the causality resulting sequence to the inference of ing Levitt, [SD F (Chojar Supp time of the events” Sector, Inc., 2002 WL Feliciano v Alpha see also 1991]; NY NY, July [SD *35 Dist LEXIS 1492139, *12, 2002 US (t)he fact that the incidents law, a matter of mere 2002] [“As (a after . . . grievances occurred complains which plaintiff) member, grievances filing “[flor states that a union 11. The concurrence 327). the New activity” (concurring op at Under protected the union is a with only under which City statutes Human Laws—the York State and only it is is actionable when brought of action—retaliation has causes testified, complaint, or as- has, example, employee filed done because the “under this any opposed any practices forbidden proceeding, or sisted in (Administrative [7]) (Executive chapter” § this or “under article” Law [7]). complaining of conduct Filing grievance City § Code of of NY 8-107 protected simply plaintiff did—is other than discrimination—as unlawful here. at issue subject under the statutes activity to a retaliation claim York Commis- complaint the New 12. Plaintiffs discrimination begun plaintiff had after September Rights was filed sion on Human no evidence has offered the Guild. Plaintiff her final of absence from leave alleged termina- complaint before made aware of this that the Guild was tion. (cita

were filed does not create an issue of fact as to causality” omitted)]).13 tions and internal marks quotation Further, because plaintiff has failed to raise a triable issue of material fact she was either retaliated against discriminated against race, because of her her claims that defendants aided and abetted each other in any discrimination or retaliation cannot survive [6]; § Executive Law 296 [6]). Administrative Code of City § of NY 8-107 In short, we agree that, with the Appellate Division on this record, it does no favor to the or to litigants, law, or to the rigorous enforcement of genuine claims, discrimination to deny summary judgment and allow this case to to trial. proceed the order of the

Accordingly, Division af- Appellate should be firmed, with costs. G.B. J. (concurring). on this question appeal is Smith,

whether has raised a factual appellant issue that precludes sum- mary judgment. While has appellant sufficiently raised triable issues of fact on her claims of treatment, disparate hostile work environment in instance, retaliation the first respondents have met their burden of giving nonracial reasons for her treat- ment and has not appellant demonstrated that those reasons are I, pretextual. therefore, concur in affirming the order of the Appellate Division.

Appellant began a working defendant as music therapist in 1985. From September 1991, 1990 to she took a leave of absence to for a Master’s study degree urban education.

I Two but related separate analyses are relevant on this appeal, the standard governing summary and the standard judgment the governing allegations of racial discrimination alleged by plaintiff.

“To grant summary judgment, it must clearly appear that no (Glick material and triable issue of fact is presented” & Dolleck v 439, [1968]; Tri-Pac 22 441 Export Corp., NY2d see also Zuck- Indeed, although plaintiff argues 13. proximity the close of the complaints suggests may nonpermis- termination and there have been firing, sible plaintiffs grievances reasons for her all of were filed termination, alleged however, early Plaintiffs did not occur until November although plaintiff complaint 1994. And filed a the on Hu- Commission September yet man there is no evidence that defendants had complaint prior learned of existence of this to her termination.

315 [1980]). Summary judg- York, 49 NY2d 557 v New City erman doubt as to any there is should not be where granted ment of a factual the existence issue or where existence of factual 441). (Glick 22 at Tri-Pac, NY2d & Dolleck v arguable issue is must set motion, party the moving a summary judgment On and that it is no factual issue there is forth evidence that (Zuckerman York, v New judgment entitled to summary 560-562). establishes basis If moving party 49 NY2d at present must party summary judgment, opposing grant (id.). there is a triable issue evidence that judg- for summary function on a motion “It is not the court’s (Ferrante Assn., 90 v American credibility” Lung ment assess [1997]). determinations, weigh- “Credibility NY2d inferences evidence, legitimate and the drawing ing functions, judge, not those of a whether jury from the facts are or for a summary judgment on a motion for ruling [or she] he is (see Inc., US Liberty Lobby, directed verdict” Anderson [1986]). 242, 255 most favor-

Moreover, light the facts must be viewed (see Co., Indus. Matsushita Elec. nonmoving party able to [1986]). For the 475 US Corp., Ltd. v Zenith Radio motion, a summary judgment appellant’s purposes appealing v TJX Rajcoomar of fact must be taken as true allegations Cos., 2004] [“The F n 4 De- Inc., [SD 2d NY Supp of motion it takes fendant concedes that for the this purposes all evi- of termination as true because Rajcoomar’s allegation in a most favorable to light dence must be viewed Weiden, v Catanzaro summary judgment”]; a motion evidence presented [2d 1998] [“All F3d 93-94 Cir true, and all inferences must taken as nonmoving must be party nonmoving to the in a most favorable light be construed outcome course, determining the standard for Of party”]). of are issues any genuine whether or not there of the motion is Export v Tri-Pac fact in Glick & Dolleck material dispute 441). facts as review, of Moreover, for the purposes at Corp., taken as true. the nonmovant must be stated must showing appellant relates to the analysis The second and to defeat discrimination her claim of racial make support summary judgment. (1) (a)1 §

Forrest sues under Executive Law 296 and Adminis (1) (a)2 City § proscribing trative Code of the of New York 8-107 employment racial discrimination in in York State and New City. New York The first cause of action is for race and color § discrimination in violation of Executive Law 296. The second cause of action is for race and color discrimination in violation § Code Administrative 8-107. The third cause of action is (1) (e) (7). § in retaliation violation of Executive Law 296 The fourth cause of action is for retaliation violation of (7). § Administrative Code 8-107 The fifth cause of action is for (6). aiding § abetting in violation of Executive Law 296 The aiding abetting sixth cause action is for in violation of (6). § Administrative Code The 8-107 seventh cause of action is § discharge pursuant for constructive to Executive Law 296. eighth discharge The cause of action is for constructive viola § tion of Administrative Code 8-107.

These New York State and New York laws are in accord Rights with the federal standards under title VII of the Civil (42 § seq.; Act of 1964 USC 2000e et Matter Aurecchione Rights, New York State Div. Human 98 NY2d 25-26 Lung [2002]; Ferrante v Assn., American 90 NY2d [2d Corp., [1997]; Quinn v Green Tree Credit 159 F3d 759 Cir 1998]).3 three-step Supreme framework established (411 [1973]) Douglas Corp. Court McDonnell v Green US 792 alleging Rights for cases violations of title VII of the Civil Act of (Executive Law) (1) (a) § 1. Human Law states: “It shall be an discriminatory practice employer licensing agency, [f]or unlawful . . . an or age, race, creed, color, sex, origin, disability, genetic because of the national status, predisposition any individual, or carrier or marital status of to refuse employ discharge to hire or or to bar or to such individual against compensation terms, or to discriminate such individual or in condi- privileges employment.” tions or § 2. Administrative Code 8-107 states: discriminatory practices.

“Unlawful Employment. discriminatory practice: “1. It an shall be unlawful “(a) thereof, employer employee agent For an or an or because of actual, race, creed, perceived age, color, origin, or national status, gender, disability, alienage marital sexual orientation or citizenship any person, employ or status to refuse to hire or discharge employment person or to to bar such or to dis- against terms, person compensation criminate such or condi- privileges employment.” tions or 3. Plaintiff in a Ferrante raised triable issue of fact that he had been fired age Specifically, plaintiff because of discrimination. demonstrated that terminating pretextual age defendant’s reasons him could be discrimination. must make First, employee is relevant here. the appellant Second, once the a facie of racial discrimination. showing prima burden, must articulate a has satisfied her defendant appellant ac reason for the termination or other nondiscriminatory clear reasons are Third, must show that appellant proffered tion. pretextual.

II that showing claims that she has met her burden of Appellant are factual issues there was racial discrimination and that there for her termination whether reason concerning proffered was pretextual. Forrest, a music and case therapist worked as

Appellant, Blind. On for the Jewish Guild for the November manager terminated, due failure to allegedly was appellant documentation of her father’s medical condition. For- provide absence, on a three-month leave of rest was without approved in order to take care of her father in Florida. The pay, ailing Guild that she of her father’s condition. requested provide proof form, Guild, Part of that proof by was be provided her father’s completed by physician indicating diagnosis, prognosis and doctor’s recommendation that father appellant’s an in-home that required caregiver. argues she sent Appellant on required information a form different from the one required by respondent. Guild, her

Appellant alleges during with the she was subjected to several motivated statements racially conduct directed at her supervisors. Specifically, appel- 19, 1992, lant that on or alleges Eugenia about October Adlivankina, immediate told her that appellant’s supervisor, Dersh, Goldie Continuing who was the director program Treatment called “an Day Program, uppity nigger.” appellant allegedly assertion that Dersh made this statement was to her another Dr. Dov repeated employee, Rappaport. Appel- 26, 1992, lant at a staff alleges further that on about October stated, “Why necessary Dersh is it to stroke Blacks to meeting, comment, them to The third made to get reportedly work?” occa- White staff members Adlivankina “on at least four should refer to day sions” on the same staff members claims Appellant Forrest as “our Black American Princess.” incidents, although that she filed on two of these grievances filed representative, grievances the advice of union terms. general Appellant further asserts that she was to required perform of duties two titles and was not for separate compensated overtime while staff did receive White such She compensation. reduced, that her salary year, also claims was that for over a she in was and out to to the bathroom and for required sign go coffee breaks while White did not have to do the employees name, Her that of along African-American, same. with another was circled and on a sheet. highlighted sign-in Appellant reports that Adlivankina later came and to her for apologized circling her name. alleges She that she of her requested description job title, duties and that things she was entitled to under union but was denied them immediate agreement, She claims that she filed with her supervisor. grievances but that these were met with retaliation employer, grievances threats, justified means actions that were not disciplinary and of additional assignment duties. She claims that conduct of her led to supervisors psychological problems which she underwent treatment and incurred expenses. Finally, forced to claims she was because of defendants’ resign actions. union, filed

Appellant grievances five Local 1199. first, 9, 1992, The dated was filed to July grieve “harassment Paula iy Forrest violation of contract and article Section and [article] XVII” the Collective Bargaining Agreement (CBA).4 22, 1992, The denied. On complaint July was appellant filed a second for harassment violation of article complaint section 1 and article of the CBA. XVII This was complaint IV never heard. On 8, 1992, filed a grievance

October appellant violations of the Collective Bargaining Agreement including XXI, article section 13 and article section l.5 On November IV 11, 1992, Carol denied the grievance Handfus October a lengthy explanation job 1992 with classifications concerning job duties.6 This was sent to arbitration complaint December pertains management rights 4. Article section and article XVII ad- IY

dresses vacation schedules. XXI, pertains job 5. Article section 13 classification. pertinent part—

6. Letter to Thomas Winter from Carol Handfus light foregoing, “In I of the have concluded that the addition of management job case to the content does functions Grievant’s justify prompt negotiate need a new classification nor And, your upgrade compensation. argument an that in while job greater that of its [szc] evaluation the whole can be sum one, parts interesting position I is an take traditional 19, 1992, griev filed on November was complaint The fourth warning and the written warning the “verbal ing 11/3/92 and “in violation concerning job perform[ance]” 11/13/92 2.”7 was sent Article This grievance CBA IV Section including filed on final grievance to the director. personnel power “abus[e of] 4, 1992 for harassment December just griev cause.” in a manner without authority capricious VII, 1 and article section ance violations of article alleges IV denied. grievance section l.8 The was 1992, supervisor, a letter to a 4,

On sent appellant November CDTP/Soc[ial] Treatment in “Bias Handfus, concerning with choice specifically letter dealt This Serv[ices]/Harassment.” treated being not time, appellant of lunch and whether or from the job transferred upon Appellant based title. differently Treatment Day Treatment the Day Program Continuing 18, 1993, January appel- Effective Program January lant job teaching specialist. assumed the title of purport-

A dated agreement, February settlement and the edly outstanding grievances pend- resolved “all allegedly in of or connection with the ing arbitration case out arising in former CDTR” The settlement Employee’s classification, in increase job addressed an increase agreement title job in written new pay, warnings, appellant’s disciplinary in Treatment Day services professional teacher/human arbitration Program, and withdrawal the union pending case. claims, rebutting offer evidence appellant’s

Respondents never offensive statements were racially that including that was terminated Further, allege made. Forrest respondents documenta- necessary as of her failure to provide result also assert tion her extended of absence. Respondents leave employee is salary usually an upgrades are not warranted where type perform job duties that are of the same asked to additional members, job being in a clas- performed other staff as those employee. grade in the as that is labor that sification same case, when, in argument particularly is relevant as this This represent require question those that new duties do required the other clas- highest and attainment levels skill sification. reasons, denying grievance foregoing I am this “For all of the proposed by Union.” the remedies participation em- client care and the 7. Article section addresses W ployees process of client care. penalties. VII, discharge 8. Article section refers to appellant’s inadequate work was and that she failed to comply recordkeeping requirements. respon- with In addition, argue resigned dents that Forrest before she was terminated. Respondents appellant also state that was not Florida at the time she stated she was but she had traveled Hawaii to visit Finally, respondents argue her brother. the Guild has a policy respect nondiscrimination to race and other mat- ters.

Ill Appellant against respondents commenced an action in 1998 Supreme County. August Supreme Court, New York In summary judgment. Court denied defendants’ motion for After referring allegations by appellant, to the factual made that court stated: prima

“Plaintiff has raised a facie case of discrimi- allegations by plaintiff, nation. The raised when analyzed light plaintiff, may in a most favorable to permit plaintiff a trier of fact to conclude that was forced to work in a hostile work environment aas egre- result of her race. In addition to claims giously inappropriate statements made the indi- during vidual defendants and humiliation suffered meetings, alleges staff that she was transferred positions given to other and additional duties and responsibilities assigned employees not to other who are not African-American.

“The that, court cannot conclude when all the cir- cumstances and individual considered, acts are the allegations do not constitute racial discrimination as explanations a matter of law. Whether or not the of- transferring plaintiff fered defendants for to dif- departments changing responsibili- ferent pretextual ties are also cannot be determined as a especially conjunc- law, matter of when considered in plaintiffs persistent tion with claims of humiliation hostility Upon record, toward her. this a trier of may explanations fact conclude that the defendants’ unpersuasive for some of their actions are and that discrimination has occurred.” Appellate granted

In October the Division reversed and summary judgment finding appellant defendants’ motion, racially had not shown that defendants’ conduct toward her was terminating nondiscriminatory reasons biased, or that the Appellate pretextual. appellant The Division decision following: the stated complaint

“Certainly, allegations of the describe summary egregious a However, on such conduct. judgment have a motion, once the defendants made establishing showing right dismissal, a requires opposing plaintiffs motion burden allegations proven, if establish that, more than disapprove. must conduct we which only evidentiary support offer establish creating prima facie also a mate- case, but evidence showing dispute as to made rial of fact . defendants. . .

“Here, documentation satisfies the submitted summary judgment on a motion defendants’ burden establishing to dismissal of the of complaint. They their entitlement legitimate

have established nondiscriminatory all of the conduct basis almost plaintiff complains, leaving a remainder of of which claims cannot alone serve as the basis for employment discrimination. claim through plaintiffs “Specifically, cull claims when we evidentiary light submissions, it becomes many apparent point out, that, as defendants by, allegations unsupported are actu- ally disproved by, evidentiary materials, and that discriminatory alleged to constitute conduct disparate upon based le- treatment nondiscriminatory gitimate reasons, unrelated any response, plaintiff In to animus. offers racial nothing tending proffered to show that the nondis- criminatory explanations pretextual. All that are hotly plaintiff’s claims are the then remains of epithets, disputed allegations are of which racial support simply to her themselves insufficient Ultimately, plaintiff claim of race discrimination. support provide to create failed sufficient

has to question termination, or of fact as to whether during employ- any of her adverse treatment ment, an 546, 553-554 inference ‘occurred ^[2002] of . under circumstances . . discrimination’ [citations omitted]). giving ” (309 AD2d rise 322

This Court granted appellant leave to appeal.

IV It is not often that an employer will use overt methods to dis (see Matter Holland criminate Edwards, 38, 307 NY 45 of [1954] [“Far more likely is it that he will pursue his discrimina tory practices that are ways devious, by methods subtle and elusive—for we deal with an area in which ‘subtleties of conduct . . . no small National play Labor Relations part’ ”], quoting Bd. v Express Co., Pub. National Org. 426, [1941]; 312 US 437 Women v State Div. Human Rights, 34 NY2d 420 of ^[1974] [“(I)Ilegal discrimination will not be announced in public means”]). but will usually be effected by ‘subtle’ and ‘elusive’ Further, employers who discriminate are not likely to do so in an “open, Commission on Human Rights ^[1975] ).9 “Instead, plainly-appearing there is likely fashion” 38 City N.Y., be covert Matter resort NY2d Pace Coll. v subtle tactics and the pretext of intermingled motives and reasons to (see id.). obscure the substantial cause” Appellant’s allegations discriminatory treatment fall into several categories. Each will category be discussed.

DISPARATE TREATMENT Prima Facie Case of Racial Discrimination

Disparate treatment is the treatment of persons a manner (International less favorable than others because of their race. Bhd. Teamsters v States, United n US 15 [1977]; see also Raytheon Hernandez, Co. v [2003].) US 52-53 “ ‘Disparate treatment’ ... is the most easily understood type Complainant 9. gender filed a claim of discrimination and failure to promote against College, the former Pace University. now Pace The York New Commission on Human found against that Pace discriminated faculty generally women pellate complainant, Winsey, particular. Dr. Ap- decision, Term Appellate set aside the Division affirmed for lack of sufficient Appeals evidence. The Court of determined that there was not enough evidence to pattern determine that there was a of discrimination but enough that there was against find that Pace had Winsey. discriminated Dr. years product After 25 specialist as a Hughes test Systems, Raytheon Missile to Company,complainant later Raytheon was forced resign workplace because of positive misconduct. He tested for cocaine years later, while at denied. He reapplied job work. he application Two for his but his complaint Equal later filed a Employment Opportunity with the (EEOC) Commission for discrimination based on the Americans with Dis- (ADA). Complainant abilities Act argued position that he was denied his past drug because of his and alcohol abuse but he was now rehabilitated. less some people treats simply The employer of discrimination. sex, color, religion, race, their because of than others favorably critical, al- is motive discriminatory of Proof origin. or national the mere fact inferred from be in situations it can some though (International v Teamsters Bhd. in treatment” of differences of 15). n States, 431 US at 335 United of acts about complaints applies treatment Disparate under title VII brought an individual against discrimination (78 amended, codi- Stat 253 as of 1964 US Act the Civil seq.). at 42 USC 2000e et § fied in treatment disparate trial a claim of to establish at

In order of racial showing facie race, a prima upon based Douglas Corp. McDonnell be made discrimination must Ferrante, [1973]). According Green, 802-804 US discrimination, ap- facie of racial case prima order to establish impact disparate treat- disparate Complainant put claims of both forth denied rejected disparate claim and the treatment ment. The District Court summary judg- untimely. impact Petitioner’s disparate claim as review granted. ment motion was Circuit, triable is- that there were Appeals, Ninth determined The Court of position his because regarding complainant was denied of fact whether sues dispar- Appeals applied a drug then past addiction. The Court his record determining Ray- analysis disparate claim impact to a treatment ate recovering applied firing illegitimate as legitimate reason for theon’s judgment drug Summary was vacated. addicts. analysis, in its the Ninth Circuit erred Supreme determined that The Court dispar- disparate treatment and thus, analysis for both proper out the and ate set disparate analysis to the Further, applying proper impact after claims. employer met its had claim, Supreme held that Court treatment failing to rehire. showing legitimate reason for burden In this disparate treatment. case in the area of 11. McDonnell is a seminal eight years a mechanic and as case, for McDonnell for complainant worked reduction. of work force laboratory he laid off as a result technician when was 794.) racially (See protest rights Complainant part of a civil at as US by block- employer, engaged in civil disobedience discriminatory policies participating preventing petitioner’s plant workers ing main roads to (See id.) his Complainant was arrested morning change. shift in the participation rights (Id.) Another civil the “stall-in.” was referred to as what extent unclear to what but it was place weeks later action took some petitioner Subsequently, in the second action. complainant participated re-employment but was applied complainant for mechanics advertised rejected. EEOC. The Commis- complaint complainant filed a Upon rejection, not racial rights but upon civil violations based found discrimination sion discrimination. hiring and no no Court found discrimination The District Eighth Appeals, Court of rights activities. based on civil discrimination judicial deter- not a claim was Circuit, that an EEOC and determined reversed finding upon racial based make a court could and that the trial mination pellant [of] prov[ing] by has preponder “the initial burden a (90 prima ance of the evidence a facie case of discrimination” Mary’s 629; NY2d at see also St. Hicks, Honor Ctr. v 509 US Dept. Community 502, 506 [1993]; Texas Burdine, Affairs Douglas, 248, 450 US [1981]; 252-254 McDonnell 411 US at 802). (1) following proven: complain The elements must be (2) protected by ant is a member of a class the statute; (3) complainant actively constructively discharged; was complainant qualified position was to hold the from which she (4) discharge terminated; was and the occurred under circum giving stances rise to an inference of race discrimination. Because Forrest is an African-American female, she is a protected resigned position, by member of a class. She from her letter effective October 1994, but before the Guild received August letter, her, Guild fired effective 5, 1994, in a let- resignation ter dated November 1994. The letter was marked any the Guild and received on November In 1994. event, resigna- the Guild states that it was not aware of the letter of tion when the letter of termination was drafted and mailed. For purposes summary judgment, of this motion for it must be Accordingly, appellant assumed that Forrest was terminated. meets criteria one and two Ferrante. dispute qualified

There position is no that Forrest was for the job. as evidenced her credentials and tenure on the She was professional therapist graduate degrees a music in music therapy Appellant argues and urban education. that she was discharged filing grievances after several and a little more than filing complaint City two months after a with the New York Rights Commission on Human for race and color discrimination September together, epithets Thus, 1994.12 taken the racial disparate and assertions of treatment are sufficient to establish prima facie case of racial discrimination. discrimination. Supreme granted The United States clarify Court certiorari to standards for a claim of racial discrimination. The Court set out the standards proving disparate a title upon prima VII claim for treatment based facie showing of racial especially discrimination. The Court was concerned about complainant’s opportunity petitioner’s legitimate to rebut reason for its (see 806). employment pretext determination as id. at complaint A12. was filed with the Commission on Human September complaint 1994. The Appellant was closed on June filed an action in the Federal District Court for the Southern District of York New July alleging federal, state, raising discrimination and New York complaint antidiscrimination claims. The withdrawn October 1997. Employer Burden Shifts prima racial case of appellant facie has established

Once employer “to rebut shifts to the discrimination, the burden through setting by clearly forth, presumption of discrimination indepen- legitimate, evidence, of admissible introduction support nondiscriminatory its reasons dent, atUS 629; Burdine, 450 at Ferrante, 90 NY2d decision” 507). employer in this instance Hicks, 509 US at 257-258; failure was Forrest’s the termination the reason for states Physician Practitioner” complete or “Certification requests made to were several assert that form. Defendants unresponsive. appellant was but the documentation secure ap- put reason a nonracial forward defendants have Thus, pellant’s termination. Respondents’ Pretextual Claims Are That

Evidence complaint appellant February with the filed a 1994, On complaining Rights that her of Human York Division New State seriously being grievances the union. Forrest taken were just complaint racial discrimination the EEOC for filed a with proximity of The close fired her. the Guild three months before suggests arguably complaints that there the termination and (see firing may nonpermissible Reeves for her reasons have been v Sanderson plaintiffs prima Plumbing Prods., Inc., 530 US 133, 148 ^[2000] [“a sufficient evidence case, combined with facie may justification employer’s false, is asserted find that employer unlaw- permit fact to conclude that the trier of discriminated”]). contending fully that However, lay appellant pretextual, bare must are defendants’ reasons judgment. summary proof on this motion opportunity” Appellant to demon and fair have a “full must pretextual employer’s is for termination reason that the strate (see racially based real reason for termination and that the 629-630; McDon Ferrante, at 256; at 90 NY2d Burdine, 450 US may [complainant Douglas, show 411 US at 805 nell presumptively employer’s for termination valid reasons discrimination]). Appellant cover-up contends for racial as a form employer certification failure to file the used pretext man ^[1988] Rights for racial discrimination [employer’s v County reasons Onondaga for termination Sheriff’s Matter Dept., State gave Div. Hu NY2d rise to an Imperial v State Diner discrimination]; Matter inference of Rights Appeal [1980]13[anti-semitic Human Bd., 52 NY2d 72, 78 by employer employee give statements made could rise to discriminatory discharge]). constructive Direct and Circumstantial Evidence in a Mixed Motive Case person alleging

A racial or other discrimination does not have prove discrimination direct evidence. It is sufficient if he (Desert proves or she the case circumstantial evidence Pal [2003]). ace, Costa, appellant Inc. v prove 539 US 90 Here, could her case even if firing, there were mixed motives for her that is (id. legitimate 99-102). illegitimate and an reason at

RACIALLYHOSTILE WORK ENVIRONMENT employee right An has a under title VII of the Civil Act of 1964 “to work an environment free from discrimina (Meritor tory intimidation, ridicule, and Bank, insult” Sav. FSB [1986]). “[W]hether Vinson, v All US an environment is only by looking ‘hostile’ or ‘abusive’ can be determined at all may frequency the circumstances. These include the discriminatory severity; physically conduct; its whether it is threatening humiliating, or a mere utterance; offensive unreasonably employee’s whether it performance” interferes an work (Harris Sys., Inc., 510 US Forklift [1993]). judged by totality The evidence is of the circum (see County id.; stances test Williams v Westchester, 171 F3d of [2d Bruyette 98, 100 1999]; Cir Dooner v Keefe, Woods, & Inc., [“(T)he Supp [SD 2001] 157 F 265, 2d 281 NY Plaintiff must single extraordinarily demonstrate either that a incident was sufficiently severe, or that a series of incidents were continuous and concerted to working have altered the conditions quoting environment”], Stores, Cruz v Inc., Coach 560, 202 F3d “As other areas of discrimination it is unrealistic to hold that an employee only can be said to have been the discriminatory victim of a dis- charge employer when expressly has fired him on the basis of race or discriminatory creed or some ground. other possible, It perhaps is also likely, employer more that an who believes certain individuals are undesirable employees discriminatory factor, because of some engage will in conduct which encourages employee quit, may to in which case it be said that there has (52 78). been a discriminatory discharge” constructive NY2d at Complainant company president was told that she was “Just all like (52 76). f—ing the other Jewish broads around president here” NY2d at The say then went on to “f—ing in this diner the Jewish women . . . think they (52 something special are and deserve more than the others” NY2d at 76). president apologize then refused to Complainant for his comments. resigned. Appeals The Court of enough found that sup- there was evidence to port a claim discharge. of constructive

327 v Food 2000]; Specialties, accord Whidbee Garzarelli [2d 570 Cir 2000]). 62, objective severity Cir Inc., [2d “[T]he 223 F3d 69 of a reason- judged perspective harassment should be the cir- ‘all considering in the position able person ” (Oncale Inc., Servs., 523 v Sundowner cumstances’ Offshore 23). Thus, 510 US at 75, [1998]; Forklift, Harris v US 81 an intent to discriminate. prove not have to does should be the racial Addressing only epithets, appellant Forrest’s that such statements interfered with entitled to show (see Avon, 106, F3d 118 v Town Schwapp work environment evidence racial comments were [2d 1997] Cir [opprobrious motion]). If staff White enough deny summary judgment to American call “our Black encouraged appellant were Princess,” occasions, perceived on several be and/or and other appellant “an uppity nigger,” or stated to be and/or requiring perceived lazy people African-Americans as work, alleged enough has in order stroking appellant summary judgment. withstand

RETALIATION retaliation, Forrest In facie showing order to make a prima (1) known to in a protected activity must show: participation (3) (2) action; a causal defendant; an adverse employment and the adverse protected activity connection between the (see F Corp., action v Chemical Banking Francis 1999]). filed griev- NY Forrest several Supp [ED 2d director, Carol Hand- ances with the and with personnel union union member, For with the is filing grievances fus. a union 2002932, *13-14, Mineta, v activity Vara WL protected 2004]; NY, Fein- Sept. [SD *41-46 2004 US Dist LEXIS 2004]). Filing Cir [2d 366 F3d York, New gold are Commission EEOC and Human with the complaints (id.). knowledge appel- also activities Defendants’ protected Carol Hand- signatures lant’s is evidenced assertions the the on meetings and letters and grievance fus Dersh the grievances. “terms, privileges, those affect the

Adverse actions are which (see Dortz employment” of the duration, or conditions 1995] [citation NY F 156 York, [SD City Supp Newof omitted]). job grievances, after filing claims that Forrest job and duties were vacation title, requests, office space, was that she demoted alleges Appellant affected. adversely manager case therapist, to creative arts therapist music and/or required perform that she was the duties of the both creative therapist manager. Appellant grievance arts concerning and a case filed job any in increase duties without commensurate pay. appellant Further, increase in claims that she suffered pay approximately griev- $2,500 reduction as a of her result ances.

Appellant by changing claims retaliation the conditions of her (e.g., change of her lunch and hour, constant complaints product). Appellant about her written work in a let- complained previous ter to Handfus about the denial of her request concerning hour, lunch and made for clarification any changes what if had been made which would cause her to prior have a different lunch hour than November Respondent any changes job claims title and duties restructuring were the result of a state-mandated which oc- restructuring, employees curred in 1991. Because therapist allegedly changed with titles music to creative therapist manager. restructuring arts and later case What required is not in this However, shown record. even with the re- structuring, many complaints appellant supervi- change sor came much later in 1992 and concerned the in mat- just job appellant consistently benefits, ters of Further, not title. job superior duties, stated that her credentials were to the new job job accepted new was not the with the Guild. changes griev- or

Whether not these occurred as a result by appellant arguably question ances filed would abe of fact for jury. appellant Further, whether was terminated as a grievances filing complaint September result of her and for EEOC and New York Human Com- arguably questions jury. mission would also be for the CLAIMS OF AIDING AND ABETTING RACIAL

DISCRIMINATION Appellant Handfus, Dersh, Adlivankina, asserts that and Fi- employ- aided nocchiaro and abetted the racial discrimination (6) § against points Appellant ment her. to Executive Law 296 (6) § proscribe and Administrative Code 8-107 which both aid- ing abetting in unlawful discrimination. standard aiding abetting proving “actually is that the defendants participate^]” alleged discriminatory in the acts Dunson v Supp [ED Contrs., Inc., Tri-Maintenance & F 2d firing]). person participation [finding 2001] of actual NY alleged engaged not have to in the does discrimination to have just participation” power in the fire, “direct hire and to have id.). (see discrimination

Appellant to on her numerous failed act claims that the Guild remedy problems grievances, of harassment. failed to stating grievances explicitly racial harass- no there are While alleges appellant due the advice that ment, this grievance guidance representative a and there is of her union “special “a standard and for “harassment” treatment” being only applied to me.” prima

Appellant racial discrimina- made facie case of has out presenta- lacking appellant’s in the record and tion. What is showing respondents’ pre- adequate that claims are tion is an appellant’s Appellate Division considered each textual. The respondents had met their burden claims and concluded that the showing response legitimate In actions. reasons their lay proof respondents’ her that assertions, had to bare pretextual. these claims were appellant’s responses why

There are several reasons pretext respon- inadequate. appellant First, are not rebut does that some of their administrative moves were dents’ claims proper response A have been mandated the State. would policy respon- that that no mandated state show there was involving ap- policy did address in their actions dents not that alleg- appellant adequately pellant. Second, does address the not February agreement edly comprehensive 1994 and settlement or, it did included racial matters if show the settlement why why appellant Third, she did not, not. does not address respond in Florida in the to the communications sent her specifically requested, why did not obtain from manner appel- specific sought. Finally, information father’s doctor present adequate medical evidence that lant does not psychological hostility related to the racial treatment was appellant sum, not demonstrated that defendants. In has respondents’ their various actions toward her were reasons for motivating pretextual racial. real factor was and that the demonstrating appellant If had met her burden of jury pretextual, respondents’ determine claims should were supported appellant’s her claims discrimina- evidence whether present evi- entitled to Thus, race. she would be tion based on alleged epithets, combined with dence of whether racial her, actions toward to alter her enough job conditions and work and even resulted Matter discharge constructive Imperial Diner v State Human Rights Bd., Appeal NY2d [1980], supra; Matter Pace Coll. Commission on Human Rights City N.Y., [1975], NY2d 28 supra). Similarly, whether or not the conduct towards her was the result of griev ances filed and her whether termination resulted her griev ances filing complaint September with EEOC New York City Human Commission would be for a questions jury. respondents

Because have offered nonracial reasons for their actions and because did not appellant lay proof bare show that the respondents’ claims were I pretextual, concur the affirmance of the order the Appellate Division.

Judges Ciparick, Rosenblatt, Read and R.S. Smith Graffeo, concur Chief Judge Judge G.B. Smith concurs Kaye; result in a separate opinion.

Order affirmed, with costs.

Case Details

Case Name: Forrest v. Jewish Guild for the Blind

Court Name: New York Court of Appeals

Date Published: Oct 26, 2004

Citation: 819 N.E.2d 998

Court Abbreviation: NY