Lead Opinion
OPINION OF THE COURT
Plaintiff Arnold Melman, M.D., was hired as chairman of defendant Montefiore Medical Center’s urology department in
In his opening brief, plaintiff states that his claims “should be analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).” The McDonnell Douglas framework has been adopted for use in discrimination actions brought under the respective Human Rights Laws of the State and City of New York (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004], citing Ferrante v American Lung Assn., 90 NY2d 623, 629-630 [1997]). The New York City Human Rights Law (NYCHRL) was amended by the Local Civil Rights Restoration Act of 2005 (LCRRA) (Local Law No. 85 [2005] of City of NY) to clarify, among other things, that it should be construed, regardless of the construction given to comparable federal and state statutes, “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). However, neither the LCRRA nor the City Council report thereon (Rep of Governmental Affairs Div, Comm on Gen Welfare, 2005 NY City Legis Ann, at 536-539) sets forth a new framework for consideration of the sufficiency of proof of
In a recent decision that affirmed summary judgment dismissing a complaint, this Court held that an action brought under the NYCHRL must, on a motion for summary judgment, be analyzed both under the McDonnell Douglas framework and the somewhat different “mixed-motive” framework recognized in certain federal cases (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 [2011] [summary judgment dismissing a claim under the NYCHRL should be granted only if “no jury could find defendant liable under any of the evidentiary routes — McDonnell Douglas, mixed motive, ‘direct’ evidence, or some combination thereof”]). Under Bennett, it is proper to grant summary judgment dismissing a claim under the NYCHRL only if the defendant demonstrates that it is entitled to summary judgment under both of these frameworks. Although plaintiff himself has not suggested that we analyze this case under a mixed-motive framework, in adherence to the holding of Bennett and to the aforementioned intent of the LCRRA that the NYCHRL be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio, 16 NY3d at 477-478), we will subject this action both to a McDonnell Douglas analysis and to a mixed-motive analysis. As described below, we believe that Montefiore — like the defendant in Bennett — is entitled to summary judgment under either analytic framework.
We turn first to an analysis of plaintiff’s discrimination claim under the McDonnell Douglas framework, as the parties have presented the case to us. Under the McDonnell Douglas framework as applied in New York, a plaintiff alleging employment discrimination in violation of the NYCHRL
“has the initial burden to establish a prima facie case of discrimination. To meet this burden, plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscrimi-
*114 natory reasons to support its employment decision. In order to nevertheless succeed on [his] claim, 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” (Forrest, 3 NY3d at 305 [footnote, citations and internal quotation marks omitted]).
“Moreover, the burden of persuasion of the ultimate issue of discrimination always remains with the plaintiff[ ]” (Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 [2006]).
In his brief, plaintiff summarizes his complaint against Montefiore as follows: “Melman was paid far less than his position and accomplishments warranted, while younger physicians were treated more favorably.” In this regard, plaintiff (whose total compensation for 2008 was close to half a million dollars) complains that Montefiore denied his requests for raises, gave him inadequate raises, and awarded him insufficient bonuses. Plaintiff points out that Dr. Spencer Foreman, Montefiore’s former president and CEO, admitted at his deposition that he told plaintiff in 2006 that “his compensation at Montefiore was below the level of others in comparable positions elsewhere.” In support of the contention that “younger physicians were treated more favorably,” plaintiff identifies one of his subordinates in the urology department (referred to hereinafter as RG), a physician 25 years younger than himself, who (at the very end of the period documented in the record) received total annual compensation exceeding plaintiffs.
Assuming, as we do, that plaintiff has established “the minimal prima facie case” (Broome v Keener, 236 AD2d 498, 499 [1997]), the burden shifts to Montefiore to come forward with admissible evidence that it had “legitimate, independent, and nondiscriminatory reasons” (Forrest, 3 NY3d at 305) for taking the actions adverse to plaintiff for which he sues. As the dissent and plaintiff concede, Montefiore has sustained this burden.
Turning first to the issue of RG’s compensation, it is undisputed that this physician’s demands for increased compensation were granted because he was threatening to leave Montefiore if he were not given a raise. Indeed, plaintiff testified that he personally, out of a desire “to protect my faculty that I had hired,” conveyed RG’s salary demand to Foreman, warning that RG was “going to leave if we don’t give him more money.”
Moreover, plaintiff’s total compensation exceeded RG’s in each year from 2004 through 2007. The record shows that (1) it was not until 2007 that RG’s total compensation rose to within $100,000 of plaintiffs and (2) it was only at the end of 2008, the last year documented in the record, that RG’s total compensation first exceeded plaintiffs.
Montefiore also set forth, through Green-Lorenzen’s affidavit, the charges, collections, Relative Value Units (RVUs) (a metric used by Medicare) and operating room (OR) cases generated for the hospital by plaintiff’s and RG’s respective practices from 2004 through 2008. Montefiore uses these indicators in determining a physician’s compensation. In each category, plaintiffs numbers declined or stayed the same through this period, while RG’s increased. For example, plaintiff’s RVUs
Plaintiff also complains that, as Foreman told him in 2006, he was paid less than physicians in comparable positions at other institutions.
“In determining Dr. Melman’s compensation, I did not ignore the money that the Urology Department contributed to Montefiore. It was expected that the Department would contribute that much money. Other departments generated as much and most generated more. Thus the fact that the Department generated money did not offset or excuse the issues with Dr. Melman’s performance.”
As noted in the above remark, Montefiore was entitled, in setting plaintiffs compensation, to consider the deficiencies of his performance as a departmental chairman, as well as his achievements. A number of the perceived deficiencies in plaintiffs per
In addition, Montefiore documents that, from 2004 to 2006, the urology department’s residency program — of which plaintiff was director — was placed on probation by the Residency Review Committee (RRC) of the Accreditation Council for Graduate Medical Education. The RRC had earlier warned that deficiencies in the program required correction. Even when the program was taken off probation in 2006, the RRC noted that certain previously cited deficiencies had not been corrected.
Plaintiff attributes one problem with the urology residency program cited by the RRC — a deficiency of operative experience for residents — to Montefiore’s failure to allow him to expand the department and, in particular, its refusal to permit him to hire a specialist in female urology. However, Montefiore explains,
As of the end of 2008, the urology department continued to have significant problems, as reflected in a memorandum by Conaty summarizing the performance review held for plaintiff on December 18, 2008. The memorandum acknowledges plaintiffs successes during the year, such as the recruitment of two specialists in pediatric urology. However, the memorandum notes that problems with recruitment remained: “[T]here are several critical positions which remain unfilled and recruitment efforts seemed to have stalled; recruitment efforts should have focused on building oncology and endoscopy services . . . [but plaintiffs] interest is in hiring a uro-gynecologist.”
Another December 18, 2008 memorandum by Conaty notes that Montefiore had learned that plaintiff had forwarded to an outside consultant an internal Montefiore report on his record keeping, along with supporting patient records. The memorandum notes that plaintiff breached Montefiore’s confidentiality policies by taking this action, which he did “without permission [from] or even notification to medical center administration.” The memorandum concludes with the following admonition to plaintiff: “As a senior leader, you are expected to have a basic understanding of medical center policies, and to seek counsel
Given Montefiore’s production of evidence of legitimate, nondiscriminatory reasons for setting plaintiffs compensation at the levels it chose, and ultimately to set RG’s compensation at a higher level than his, the burden shifted back to plaintiff to raise a triable issue as to whether these reasons were pretextual by producing evidence tending to show “both that the stated reasons were false and that discrimination was the real reason” (Forrest, 3 NY3d at 305). Plaintiff fails to raise any issue on either score.
Plaintiff does not identify any evidence suggesting the falsity of Montefiore’s proffered reasons for the challenged compensation decisions. In summary, those reasons were: (1) the need to raise the compensation of RG to retain the services of the only physician at Montefiore who performed robotic prostate surgery; (2) the documented problems with the urology department under plaintiffs chairmanship; and (3) the stagnation or decline of the monetary value of plaintiffs practice to the hospital (as measured by each of the four aforementioned indicators — charges, collections, RVUs, and OR cases) during the five years ending in 2008.
While plaintiff questions Montefiore’s business judgment in addressing the foregoing matters — suggesting, for example, that the departmental problems cited by Montefiore were “stale,” not plaintiffs fault, and, in any event, outweighed by plaintiffs alleged achievements as chairman — an age discrimination plaintiff “must do more than challenge the employer’s decision as contrary to ‘sound business or economic policy,’ since such an argument does not give rise to the inference that the [adverse action] was due to age discrimination” (Bailey v New York Westchester Sq. Med. Ctr., 38 AD3d 119, 124 [2007], quoting Ioele v Alden Press, 145 AD2d 29, 37 [1989]; see also Alvarado v Hotel
In sum, the court in an employment discrimination case “should not sit as a super-personnel department that reexamines an entity’s business decisions” (Baldwin v Cablevision Sys. Corp., 65 AD3d 961, 966 [2009], lv denied 14 NY3d 701 [2010] [internal quotation marks omitted]). As the Court of Appeals has stated: “[I]t matters not whether the [employer’s] stated reason for [the challenged action] was a good reason, a bad reason, or a petty one. What matters is that the [employer’s] stated reason for [the action] was nondiscriminatory” (Forrest, 3 NY3d at 308 n 5).
This Court has observed that, in employment discrimination jurisprudence, “the term ‘ “prima facie case” ’ is used ... to denote the establishment by plaintiff of facts sufficient to create a ‘legally mandatory, rebuttable presumption,’ rather than the more traditional meaning of describing plaintiffs burden of setting forth sufficient evidence to go before the trier of fact” (Sogg v American Airlines, 193 AD2d 153, 156 n 2 [1993], lv denied 83 NY2d 754 [1994], citing Texas Dept. of Community Affairs v Burdine, 450 US 248, 254 n 7 [1981]). Thus, that an employee has made out a prima facie case under the McDonnell Douglas framework does not necessarily mean that he or she will succeed in defeating a summary judgment motion supported by admissible evidence of legitimate reasons for the employer’s challenged action (see Stephenson, 6 NY3d at 271 [although “there was enough evidence ... to establish a prima facie case” of age discrimination, “(a)fter the nondiscriminatory reasons were given and the burden shifted to them, plaintiffs did not prove that the reasons given were pretextual”]; Forrest, 3 NY3d at 307 [“plaintiff . . . cannot avoid summary judgment for defendants because, even assuming that she has made a prima facie showing . . . , she has failed to rebut defendant’s proof that the purported termination did not arise under circumstances giving rise to an inference of discrimination”]; Mete v New York State Off. of Mental Retardation & Dev. Disabilities, 21 AD3d 288, 290 [2005] [affirming summary judgment dismissing discrimination claims although plaintiffs established a prima facie case]; Roberts v Philip Morris Mgt. Corp., 288 AD2d 166, 166 [2001] [same]; Schwaller, 249 AD2d at 196-197 [same]; Broome v Keener, 236 AD2d at 498 [same]; see also Abdu-
Our dissenting colleague, in support of his contention that Montefiore is not entitled to summary judgment, places great emphasis on the circumstance that a number of older departmental chairmen (none of whom testified or submitted an affidavit in this proceeding) left Montefiore involuntarily and were replaced by substantially younger physicians.
As the dissenter himself acknowledged in his opinion in Bennett, the initial “de minimis prima facie showing” required of a plaintiff under McDonnell Douglas should not be conflated with the “frequently . . . onerous” showing required to defeat a well supported summary judgment motion (92 AD3d at 38). To reiterate, regarding the departures of the other chairmen, plaintiff has made, at most, a de minimis prima facie showing (i.e., that the other chairmen were in the protected class, were asked to leave, and were replaced by younger physicians). He has not come forward with evidence that discrimination actually occurred in the case of any of these former chairmen, and, to reiterate, in the only two of these cases in which Montefiore was sued, it was exonerated upon summary judgment.
Aside from his failure to flesh out the facts underlying the departures of the other older departmental chairmen, plaintiff has not offered any statistical data or analysis that could support a finding of a pattern of age discrimination.
Plaintiff also relies on a total of three remarks by Foreman (to whom plaintiff attributes Montefiore’s adverse actions against him) that are said to manifest bias against older physicians. This reliance is unavailing. Two of the remarks were simply positive references to “young” professionals that, in the absence of other evidence of ageist bias, do not imply any sinister aspersion on older workers.
We have considered the remaining matters of which plaintiff complains and find that they do not raise a triable issue of pretext. To take one example, that Foreman steered Montefiore’s chairman of the board (a personal friend) toward RG, rather than plaintiff, for surgery does not, by itself or in combination with the other evidence in the record, constitute even circumstantial evidence of age-based discrimination. In this regard, we note that it is undisputed that RG has certain skills and training that plaintiff lacks. To the extent plaintiff emphasizes that he subjectively felt “humiliated,” “degraded” and “isolated” by the perceived slights of Foreman and other Montefiore executives, we find applicable the Court of Appeals’ admonition that “mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code” (Forrest, 3 NY3d at 309 [internal quotation marks omitted]).
The foregoing establishes that Montefiore is entitled to summary judgment when plaintiffs discrimination claim is analyzed under the McDonnell Douglas framework. As previously noted, however, this Court held in Bennett that summary judgment dismissing a claim under the NYCHRL should not be granted unless the claim also fails when analyzed under the
Recognizing the mandate of the LCRRA to construe the NYCHRL as liberally as reasonably possible in favor of plaintiffs (see Albunio, 16 NY3d at 477-478) to the end that “discrimination should not play a role in [employment] decisions” (Rep of Governmental Affairs Div, Comm on Gen Welfare, Prop. Int. No. 22-A, Aug. 17, 2005, reprinted in 2005 NY City Legis Ann, at 537), we agree with the dissent that the plaintiff should prevail in an action under the NYCHRL if he or she proves that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision (see Williams v New York City Hous. Auth., 61 AD3d 62, 78 n 27 [2009], lv denied 13 NY3d 702 [2009] [“In the ‘mixed motive’ context, . . . the question on summary judgment is whether there exist triable issues of fact that discrimination was one of the motivating factors for the defendant’s conduct”]; Weiss v JPMorgan Chase & Co., 2010 WL 114248, 2010 US Dist LEXIS 2505 [SD NY 2010]; cf. 42 USC § 2000e-2 [m] [“an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice”]). If a plaintiff can prevail on a “mixed motive” theory, it follows that he or she need not prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant. Rather, under this 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” (Estate of Hamilton v City of New York, 627 F3d 50, 56 [2d Cir 2010] [internal quotation marks omitted]) or, stated otherwise, was “more likely than not based in whole or in part on discrimination” (Aulicino v New York City Dept. of Homeless Servs., 580 F3d 73, 80 [2d Cir 2009] [internal quotation marks omitted]).
Notwithstanding that, under the NYCHRL, a plaintiff may prevail on a mixed-motive theory, and that, under such a theory, he or she need not raise an issue as to the falsity or irrelevance of the reason the employer proffers for the challenged action, Montefiore is still entitled, on this record, to summary judg
Again, meeting the minimal requirements of a prima facie case — as we assume plaintiff has done — does not equate to creating a triable issue of fact in the face of admissible evidence that the employer had legitimate, nondiscriminatory reasons for the challenged decisions. Making out a prima facie case signals nothing more than the shift of the burden of production of evidence to the employer. Once the employer meets that burden by providing a legitimate reason for its action, the prima facie case does not necessarily entitle the employee to go to trial (see Forrest, 3 NY3d at 308 n 6 [“plaintiffs prima facie case, combined with no evidence that the stated justification is false other than plaintiffs unsupported assertion that this is so, may not” suffice to support a finding of unlawful discrimination]). This principle applies as much to “mixed motive” cases as to cases in which discrimination is alleged to have been the sole motive for the adverse action (see Holcomb v Iona Coll., 521 F3d 130, 138 [2d Cir 2008] [noting, in a mixed-motive racial discrimination case, that “plaintiff may no longer rely on the presumption raised by the prima facie case” once the employer articulates a legitimate reason for its action]; Campo v Slater, 128 Fed Appx 173, 174-175 [2d Cir 2005] [while noting that plaintiff could defeat summary judgment by offering evidence that the “employment decision was more likely than not based in whole or in part on discrimination” and that plaintiff “made the minimal showing necessary to establish a prima facie case,” the court affirmed summary judgment for defendant “because there is insufficient evidence from which a reasonable trier of fact could conclude that gender bias motivated” defendant’s actions] [internal quotation marks omitted]).
Finally, plaintiffs claim for retaliation was also correctly dismissed. Plaintiff first suggested the possibility that Monte
The dissent does not mention the foregoing allegations in its discussion of the retaliation claim, but brings up two other matters alleged by plaintiff, neither of which can support a retaliation claim. First, the dissent states that plaintiff complains that Montefiore’s current president, Dr. Steven Safyer (who succeeded Foreman in January 2008), “refused to
The dissent also cites plaintiffs allegation that he has not been asked to serve on search committees for new departmental chairs (and unspecified “other committees”) since he first raised the issue of discrimination in January 2007. However, Montefiore explains that the dean of the Albert Einstein College of Medicine, not Montefiore’s administration, selects the members of chair search committees. Further, plaintiff points to no evidence of either (1) the frequency of his service on search committees before January 2007 or (2) the frequency with which
At most, plaintiff has alleged that his charge of discrimination and subsequent lawsuit caused his personal relationship with Montefiore administrators to deteriorate. As a matter of common sense, this sort of breakdown in personal relations is inevitable once a serious lawsuit has been commenced. In any event, we find, as a matter of law, that plaintiff fails to allege any conduct by Montefiore causally connected to his charge of discrimination that rises to the level of actionable retaliation within the meaning of Administrative Code § 8-107 (7), namely, conduct “reasonably likely to deter a person from engaging in protected activity” (emphasis added).
We recognize that the NYCHRL represents a determination by the City Council that invidious discrimination is a serious problem whose victims deserve a suitable legal remedy. Still, even after the passage of the LCRRA, not every plaintiff asserting a discrimination claim will be entitled to reach a jury, as Bennett illustrates. In this case, we find that, in response to Montefiore’s uncontroverted evidence of its nondiscriminatory reasons for setting plaintiffs compensation at the levels it chose, plaintiff failed to come forward with evidence from which a jury reasonably could find that the challenged actions were motivated, either in whole or in part, by his age. Neither has plaintiff raised a triable issue as to whether Montefiore retaliated against him for asserting a claim for age discrimination. This being the
Accordingly, the order of the Supreme Court, Bronx County (Mark Friedlander, J.), entered May 28, 2010, which granted defendant’s motion for summary judgment dismissing the complaint, should be affirmed, without costs.
. In pertinent part, Administrative Code § 8-107 (1) (a) makes it unlawful for an employer “because of the actual or perceived age ... of any person, ... to discriminate against such person in compensation or in terms, conditions or privileges of employment.” In pertinent part, Administrative Code § 8-107 (7) makes it unlawful “for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has . . . opposed any practice forbidden under this chapter.” We note that plaintiff does not assert any claim under the New York State Human Rights Law (Executive Law § 296).
. The general rule is that an employee bringing a claim for unlawful discrimination in compensation must show that “he is a member of a protected class and . . . was paid less than similarly situated nonmembers of the class” (Shah v Wilco Sys., Inc., 27 AD3d 169, 176 [2005], lv dismissed in part, denied in part 7 NY3d 859 [2006]). For present purposes, we will assume that plaintiff may establish a prima facie case of age discrimination in compensation by showing that he was paid less than a substantially younger subordinate. Oddly, although the alleged inadequacy of his compensation is the heart of plaintiff’s claim, the dissent barely discusses the evidence concerning the compensation of plaintiff, his subordinates, and other Montefiore physicians. By essentially ignoring plaintiffs assertions that Montefiore discriminated against him in terms of compensation, and accusing us of placing “undue emphasis on the compensation aspect” of the claim, the dissent appears to concede that the compensation aspect of the claim is without substance.
. By contrast, plaintiff admitted that he never threatened to leave if Montefiore refused to grant him a requested raise.
. By his own admission, plaintiff does not perform robotic surgery.
. The year-end compensation figures for plaintiff (AM) and RG for the years 2004 through 2008 are as follows:
Year AM Salary AM Bonus RG Salary RG Bonus 2004 $352,578 $125,000 $211,285 $60,000 2005 $352,578 $100,000 $320,000 $30,000 2006 $363,156 $100,000 $320,000 $40,000 2007 $377,682 $125,000 $400,000 $75,000 2008 $377,682 $100,000 $450,000 $75,000
. We note that plaintiff’s opening brief misleadingly states that Montefiore gave “greater compensation to younger physicians [plural] who reported] to Melman” (emphasis added). In fact, as pointed out in Montefiore’s brief, uncontroverted evidence establishes that RG was the only one of plaintiff’s subordinates who ever earned more than plaintiff did during the five-year period documented in the record. Commendably, the assertion that more than one of plaintiffs subordinates earned more than he did, although not expressly withdrawn, is not repeated in plaintiffs reply brief.
. Plaintiffs 2008 figures were: charges, $1,323,406; collections, $391,050; total RVUs, 8,592; OR cases, 136. RG’s 2008 figures were: charges, $2,294,820; collections, $532,818; total RVUs, 15,013.05; OR cases, 250.
. Although the point is not determinative, we note that plaintiff does not quantify the prevailing level of compensation for physicians in comparable positions, which is presumably the amount he believes he should have been paid.
. As previously noted, Montefiore already had uro-gynecological expertise in its OB/GYN department.
. The following are the figures for plaintiffs charges, collections, total RVUs, and OR cases for the years 2004 and 2008:
2004 2008
Charges $1,172,874 $1,323,406
Collections $ 589,765 $ 391,050
Total RVUs 13,116 8,592
OR Cases 135 136
. The dissent takes the position that plaintiff, without substantially controverting the truth of the deficiencies of his job performance adduced by Montefiore, has raised a triable issue by asserting that these matters were “stale” by the time of the complained-of adverse actions. In our view, the shortcomings to which Montefiore points are sufficiently close in time to the adverse actions that plaintiff cannot raise a triable issue merely by asserting that the matters were “stale.” We further note that, on an appeal from an order granting summary judgment, the dissent’s position that we should reverse cannot be justified by its citation to conclusory allegations in the complaint (such as that Foreman “[e]xaggerat[ed] and distort[ed]” plaintiffs shortcomings and “[f]ail[ed] to provide [him] with the same benefits” supposedly afforded other departmental heads). In opposing a summary judgment motion, a plaintiff is not entitled to rely on the allegations of the complaint; he or she is required to come forward with admissible evidence.
. Viewing the record in the light most favorable to plaintiff, there appears to be admissible evidence that seven older physicians left Montefiore involuntarily. Specifically, Foreman testified at his deposition that the hospital urged these physicians to leave or declined to renew their contracts. Of these seven physicians, however, only two brought age discrimination lawsuits against Montefiore, and both suits were dismissed on summary judgment (see Saenger v Montefiore Med. Ctr., 706 F Supp 2d 494 [2010], supra; Trieger v Montefiore Med. Ctr., 3 Misc 3d 1103[A], 2004 NY Slip Op 50350[U] [2004], affd 15 AD3d 175 [2005], lv denied 4 NY3d 710 [2005]). We note that, since plaintiff does not claim to have had any direct involvement in Montefiore’s dealings with other physicians, his own views on what occurred in those cases are pure speculation and, hence, inadmissible. While plaintiff apparently does not offer any hearsay to support his speculation that the other older chairmen were asked to leave based on their age, any such hearsay could not defeat summary judgment because — contrary to the dissent’s assertion — plaintiff has not come forward with admissible evidence, either direct or circumstantial, that any of these other cases involved age discrimination. Again, a de minimis prima facie case under McDonnell Douglas (which is all the record shows with respect to each of the other older chairmen) does not equate to meeting a “plaintiffs burden of setting forth sufficient evidence to go before the trier of fact” (Sogg, 193 AD2d at 156 n 2).
. The dissent baselessly accuses us of “implying that the ‘exoneration’ of [Montefiore] in [Saenger and Trieger] should guide our reasoning in this case.” We imply no such thing. What we do say is that those two cases, in which Montefiore was found to be entitled to dismissal of other physicians’ discrimination claims against it as a matter of law, do not raise any issue of fact as to whether Montefiore discriminated against plaintiff.
. By no means do we suggest that a claim under the NYCHRL must be supported by statistical data or analysis showing a pattern of discrimination. Here, however, in the absence of any other admissible evidence of discrimination to support his claim, plaintiffs failure to offer statistical evidence is fatal.
. In fact, the statistical evidence in the record concerning the compensation of other departmental chairmen tends to refute any inference that age was a factor in setting their compensation. The record shows that some chairmen older than plaintiff or around the same age were paid more than he was, while some younger chairmen were paid less. For example, in the period ending June 23, 2007, the chairman of the dentistry department, who is only a year younger than plaintiff, made almost a million dollars more than he, while the chairman of the oncology department, who is 12 years younger than plaintiff, made $27,000 less. As of June 2007, plaintiffs compensation was $144,168 below the average compensation of older chairmen (born in 1942 or earlier) but only $80,635 less than the average compensation of younger chairmen (born in 1945 or later).
. One of these remarks was made at a board meeting at which two of plaintiffs subordinates were making a presentation on surgical techniques. Foreman, in introducing the younger physicians, referred to them as part of the urology department’s “wonderful young faculty.” The other remark was made in the course of a lengthy interview conducted by the American Hospital Association, in which Foreman, discussing his efforts to put in place new leadership for Montefiore before his own retirement, stated: “So over the past year we put in place a whole series of moves including having [the previous chairman of the board] step down, having him replaced by a young trustee with enthusiasm and vigor and energy, and then that trustee has led a search to identify my successor.”
. While we do not question the sincerity of plaintiffs expressions of distress, he seems, by his own account, to be unusually prone to interpret honors accorded to others as disrespect to himself and to react emotionally to such perceived slights. For example, plaintiff highlights as one of Montefiore’s sins its choice of RG, rather than himself, to represent the urology department on a public relations video shown in the hospital’s main entrance. Plaintiff testified that he is so “outraged” by his omission from the video that “I just walk past it and I don’t watch it.” This is presumably why plaintiff was unaware that the video featured other physicians of his approximate age, as detailed by Conaty. Conaty also explains that RG was chosen to represent urology in the video because, as previously noted, he was the only Montefiore physician able to perform robotic prostate surgery, a technique that has “revolutionized the treatment of prostate cancer.”
. In the letter of January 4, 2007, plaintiff claimed that his compensation was “beneath the level of my professional accomplishments,” asserted that he could “reasonably conclude that my age has played a role in your unwarranted discrimination,” and asked Foreman to “allay this fear.”
. In fact, plaintiff complained at his deposition that Safyer met with him only once during Safyer’s first year as president and, on that occasion, “kept looking at his watch and saying he had to go.”
. We are at a loss to understand the dissent’s statement that “[t]he fact that plaintiff has not attended [Safyer’s] meetings [with departmental chairs] is, at best, evidence that there have been fewer opportunities for plaintiff and [Safyer] to meet.” That plaintiff does not dispute that he failed to attend 12 meetings with Safyer to which he was invited establishes not that plaintiff had “fewer opportunities” to meet with Safyer but that plaintiff had 12 opportunities to meet with Safyer and, for undisclosed reasons of his own, chose not to take advantage of any of them. Plaintiffs claim that Safyer refused to meet with him, when plaintiff himself could not be bothered to attend 12 meetings with Safyer to which he was invited, succinctly illustrates the borderline frivolous nature of this action. In essence, plaintiff cannot coherently complain that Safyer refused to meet with him when the record establishes that plaintiff spurned 12 invitations to meet with Safyer.
. Although the dissent points out that “erosions of [an employee’s] authority” may constitute retaliation, plaintiff does not identify any evidence in the record that Montefiore reduced his authority after he began complaining that his rights had been violated.
. The Court of Appeals’ decision in Albunio v City of New York (16 NY3d 472 [2011], supra) does not support reinstating plaintiffs retaliation claim. In Albunio, the Court of Appeals upheld a judgment in favor of two employees because the record contained evidence that each employee had been the subject of an adverse employment action after he or she had opposed unlawful discrimination by the employer against a third employee. In this case, while there is no question that plaintiffs complaints that his own rights were being violated constituted a protected action under the NYCHRL, he has failed to come forward with any evidence that Montefiore subjected him to new adverse action after he began complaining that could be found to constitute retaliation. It should be noted that some of the matters of which plaintiff complains under the rubric of “retaliation” — such as Safyer’s failure to congratulate him on his inclusion on New York Magazine’s 2008 “Best Doctors” list and the gruff manner in which Conaty told him, on one occasion, that he would not be allowed to hire a uro-gynecologist — are simply trivial, aside from having no discernible connection to age discrimination.
Dissenting Opinion
If this case had come before us on appeal from a jury determination in defendant’s favor, I would have no hesitation in concluding that the verdict was supported by sufficient evidence. But on a motion for summary judgment all reasonable inferences must be drawn in favor of the non-moving party. In the context of an action brought pursuant to the New York City Human Rights Law, Administrative Code of the City of New York § 8-101 et seq. (City HRL), the court is required to recognize that discrimination is not only prohibited from being the entire reason for adverse action, but also prohibited from being any part of the reason for adverse action (see Administrative Code of City of NY § 8-107). Here, the motion court resolved factual issues in favor of the moving party. These issues include whether defendant engaged in retaliation against plaintiff for his protesting its alleged age discrimination against him. I therefore respectfully dissent from the majority’s decision to affirm the grant of summary judgment.
Evidentiary Framework
The core difference between the majority and myself in this case does not concern the validity of the framework that this Court established in Bennett v Health Mgt. Sys., Inc. (92 AD3d 29 [2011], lv denied 18 NY3d 811 [2012]). Rather, our disagreement concerns how much of an inference we are willing to draw in favor of the plaintiff in what I admit is a close case.
As this Court made clear in Bennett,
“[T]he identification of the framework for evaluating the sufficiency of evidence in discrimination cases does not in any way constitute an exception to the section 8-130 rule that all aspects of the City HRL must be interpreted so as to accomplish the uniquely broad and remedial purposes of the law” (92 AD3d at 34-35).
The Local Civil Rights Restoration Act of 2005 (Local Law No.
“Where a defendant has put forward evidence of one or more nondiscriminatory motivations for its actions ... a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out. Instead, it should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiffs favor, no jury could find defendant liable under any of the evidentiary routes — McDonnell Douglas, mixed motive, ‘direct’ evidence, or some combination thereof’ (Bennett, 92 AD3d at 45 [emphasis added]).1
Age Discrimination
I agree with the majority that defendant met its burden of putting forward evidence of one or more nondiscriminatory motives for its actions. I am concerned, however, that the majority has performed quintessential jury functions by resolving
By enacting the City HRL, the New York City Council made it illegal to discriminate against an employee “in compensation or in terms, conditions or privileges of employment” (Administrative Code § 8-107 [1] [a]). Notwithstanding the majority’s undue emphasis on the compensation aspect of plaintiffs age discrimination claim, the City HRL, by its own terms, was enacted to protect more than just dollars and cents.
If, as plaintiff also alleges, his claimed failures of performance were “stale” by the time of the adverse actions in question, he is not simply questioning defendant’s “business judgment.” On the contrary, an argument of this nature raises an important question as to defendant’s credibility: Would the institution or hospital be taking current action against an employee because of “old business”? A jury, after weighing all the evidence, might or might not conclude that defendant was doing exactly that. Thus, resolving the question is not the function of a court on a motion for summary judgment.
In that vein, “[a]n employer’s invocation of the business judgment rule does not insulate its decisions from all scrutiny in a discrimination case” (Weiss v JPMorgan Chase & Co., 332 Fed Appx 659, 663 [2d Cir 2009]). After all, “facts may exist from which a reasonable jury could conclude that the employer’s ‘business decision’ was so lacking in merit as to call into question its genuineness” (Dister v Continental Group, Inc., 859 F2d
While the Court of Appeals’ construction of the City HRL in Forrest v Jewish Guild for the Blind (3 NY3d 295 [2004]) was rejected by the City Council when it enacted the Restoration Act,
As the majority acknowledges, the evidence, viewed in the light most favorable to plaintiff, shows that “seven older physicians left Montefiore involuntarily” (emphasis added). While this evidence is not in itself dispositive of the existence of age discrimination, it is certainly much more than a “collateral matter[ ]” that the majority does not wish to bother justifying. If an employer is treating employees less well because of their age, that same employer may well be paying older employees who refuse to leave less than they would he paid in the absence of age discrimination (see e.g. Murphy v American Home Prods. Corp., 159 AD2d 46, 49-50 [1990] [evidence indicating employer’s discriminatory treatment of employees other than plaintiff relevant “since such evidence is highly probative of the employer’s actual state of mind”]).
“the statistical evidence in the record concerning the compensation of other departmental chairmen tends to refute any inference that age was a factor in setting their compensation. The record shows that some chairmen older than plaintiff or around the same age were paid more than he was, while some younger chairmen were paid less.”
It is beyond cavil, however, that an employer need not engage in a consistent pattern of discrimination in order to discriminate against a particular individual on account of his or her protected status (see Brown v Henderson, 257 F3d 246, 253 [2d Cir 2001] [“whether an employer discriminates against only a subset of a protected class, or discriminates inconsistently, Title VII nevertheless protects any individual so long as that individual is mistreated because of (his protected status)”] [citation omitted]; Hodges v Rensselaer Hartfor Graduate Ctr., Inc., 2008 WL 793594, *6, 2008 US Dist LEXIS 22228, *18 [D Conn 2008] [“The failure of a decision-maker to discriminate against other members of the protected class does not give rise to an inference that the decision-maker did not discriminate against Plaintiff’]; see also Holcomb v Iona Coll., 521 F3d 130, 140 [2d Cir 2008] [the fact that the employer did not terminate another employee who was also in an interracial marriage “does not allay the suspicion that the firings were grounded in an illegitimate motive”]). Not all individuals manifest the particular traits that lead others to discriminate against them on the basis of their membership in a protected group (see e.g. Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation, at 41 [Oxford University Press 1987] [“Plessy’s (arrest) was surely arranged, because despite the allegation in the arresting officer’s affidavit that Plessy was ‘a passenger of the colored race,’ he . . . was only one-eighth black and, as his counsel later asserted, ‘the mixture of colored blood (was) not discernible’ ”]). Similarly, not all employers have an unfettered ability to act on their biases.
“[E]mployment discrimination is often accomplished by discreet manipulations and hidden under a veil of self-declared innocence. An employer who discriminates is unlikely to leave a ‘smoking gun,’ such as a notation in an employee’s personnel file, attesting to a discriminatory intent” (Rosen v Thornburgh, 928 F2d 528, 533 [2d Cir 1991]). Thus, what is not explained is often as important as what is explained. Here, plaintiff identified and defendant conceded that there was a series of employees in their 60s and 70s who ended their employment at defendant’s urging and were replaced by younger employees. For example, the 65-year-old chairman of orthopedics was, in the words of defendant, “encouraged” to leave, the director of infectious disease and the chairman of gastroenterology, both in their 60s, were “asked to leave,” and the director of pediatric endocrinology, in his late 60s, was “pushed out.”
In a close case, this Court should not substitute its judgment for that of a jury (cf. Albunio v City of New York, 16 NY3d 472 [2011] [upholding a jury verdict for a plaintiff in a case that is a “closer” call]; Vivenzio v City of Syracuse, 611 F3d 98, 106 [2d Cir 2010] [“It is not the province of the court itself to decide what inferences should be drawn . . . ; if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper”] [internal quotation marks omitted]; Carlton v Mystic Transp., Inc., 202 F3d 129, 134 [2d Cir 2000],
The fact that other older employees were forced to leave is also relevant to the strength or weakness of the mixed-motive case. Even if defendant genuinely believed the negative things it said about plaintiff, a jury might conclude that one element of defendant’s motivation was plaintiffs age.
It is also necessary to point out that the record reflects other evidence that would allow a jury to infer that the reasons proffered by defendant were not a complete explanation for its treatment of plaintiff. Robert B. Conaty, defendant’s executive vice-president for operations, who reviewed annual compensation for department chairs, asserted that the “rank, longevity or professional accomplishments” of a department chair were not material to their compensation. Conaty averred that the chairman’s reputation and success, his ability “to attract quality faculty and mentor them,” along with his “ability to generate income for the Medical Center,” were factors in determining compensation.
Melman’s success as chairman of the urology department included the publication of hundreds of academic articles in prestigious medical journals, many of which were coauthored by the department’s resident physicians, bolstering the residents’ post-training professional pursuits; authoring 42 textbook chapters; expanding the department’s laboratory and research space; and teaching thousands of students and resident physicians. Foreman, defendant’s president and chief executive offi
Finally, it bears mentioning that the motion court improperly relied on the idea that the existence of “animus” is a necessary element of a discrimination claim (Melman v Montefiore Med. Ctr., 36 Misc 3d 1216[A], 2010 NY Slip Op 52453[U], *3). On the contrary, the law has long been clear that intentional discrimination simply involves intentionally treating one person less well than another because of protected class status; it does not require evidence of animus.
Retaliation
In addition to his discrimination claim, plaintiff also brought a claim of retaliation. To establish a retaliation claim under the City HRL, a plaintiff must make out a prima facie case that: (1)
Plaintiff testified both that his compensation was affected and that he was isolated and marginalized. In respect to the latter, the motion court simply ignored evidence in the record. Plaintiff testified, for example, that defendant’s new president refused to talk with or deal with him, and that, contrary to past practice, after plaintiff complained of discrimination, defendant no longer asked him to serve on search committees or other committees. Thus, contrary to the majority’s contention, the actions that form the basis of plaintiffs retaliation complaint are not merely a “continuation of] the policies . . . that had prompted him to complain in the first place.”
With respect to a defendant’s actions that allegedly isolate and marginalize the plaintiff, the City HRL is clear that
“the assessment [must] be made with a keen sense of workplace realities, of the fact that the ‘chilling effect’ of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities. Accordingly, the language of the City HRL does not permit any type of challenged conduct to be categorically rejected as nonactionable. On the contrary, no challenged conduct may be deemed non-retaliatory before a determination that a jury could not reasonably conclude from the evidence that such conduct was, in the words of the statute, ‘reasonably likely to deter a person from engaging in protected activity’ ” (Williams v New York City Hous. Auth., 61 AD3d 62, 71 [2009], supra [footnote omitted]).
It would not be difficult for a jury to believe that a person would be less likely to complain of discrimination if he knew in advance that doing so would result in isolation or marginalization such as plaintiff described. For the chair of a department of a medical center, not being able to participate in committees is a significant element of the terms and conditions of employment. Moreover, the message sent to the chair’s colleagues by the chair’s enforced nonparticipation is profoundly negative and could easily be found to be the type of retaliatory behavior that
In short, plaintiffs allegations of isolation and marginalization are neither “amorphous” nor benign. And they should not be regarded as an inevitable or acceptable consequence of complaining of discrimination. Defendants are free to be unhappy about being sued, but one of the core purposes of anti-retaliation law is to prevent that unhappiness from infecting the way an employee is treated. An employee who has complained of discrimination must be afforded the same full participation in the business affairs of the defendant that is afforded to an equally situated employee who has not complained about discrimination. This is especially true under the City HRL, which proscribes retaliation “in any manner” (Administrative Code § 8-107 [7]). It is of no consequence that the harm suffered by the plaintiff may not have been significant, as the “ ‘degree of harm suffered by the individual “goes to the issue of damages, not liability” ’ ” (Farrugia, 13 Misc 3d at 752 n 4, quoting Craig Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb LJ 255, 320 [2006], quoting 2 EEOC Compliance
Finally, it is incumbent upon the members of this panel to give “full effect” to this Court’s and the Court of Appeals’ precedents (see Ortega v City of New York, 95 AD3d 125, 129 n [2012] , citing Matter of Midland Ins. Co., 71 AD3d 221 [2010]). By ruling as a matter of law for defendant in this case, I believe that the majority is unjustifiably raising the evidentiary requirements to bring a claim for retaliation under the City HRL higher that this Court and the Court of Appeals have found necessary.
DeGrasse and Richter, JJ., concur with Friedman, J.P.; Acosta, J., dissents in a separate opinion.
Order, Supreme Court, Bronx County, entered May 28, 2010, affirmed, without costs.
. One of those routes — mixed motive — describes a circumstance of “partial” discrimination, which is proscribed under the City HRL since, “[u]nder Administrative Code § 8-101, discrimination shall play no role in decisions relating to employment, housing or public accommodations” (id. at 40, quoting Williams v New York City Hous. Auth., 61 AD3d 62, 78 n 27 [2009], lv denied 13 NY3d 702 [2009]; cf. Rep of Governmental Affairs Div, Comm on Gen Welfare, Prop. Int. No. 22-A, Aug. 17, 2005, reprinted in 2005 NY City Legis Ann, at 537; Weiss v JPMorgan Chase & Co., 2010 WL 114248, *1, 2010 US Dist LEXIS 2505, *2 [SD NY 2010] [the City HRL “requires only that a plaintiff prove that age was ‘a motivating factor’ for an adverse employment action”]).
The approach this Court set forth in Bennett is consistent with the Court of Appeals’ recognition that “we must construe Administrative Code § 8-107 (7), like other provisions of the City’s Human Rights Law, broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible” (Albunio v City of New York, 16 NY3d 472, 477-478 [2011] [emphasis added]). Construing the “because of” language of Administrative Code § 8-107 (1) (a) to mean that the discrimination was “a motivating factor,” even if not the sole motivating factor, is very clearly “reasonably possible” (compare Albunio at 477-479 [broadly construing the phrase “opposed any practice forbidden under this chapter” (Administrative Code § 8-107 [7]) in the City HRL to include implicit disapproved of discrimination]).
. This is also true of federal law (see e.g. Wanamaker v Columbian Rope Co., 108 F3d 462, 466 [2d Cir 1997] [“We recognize that, as in retaliation cases brought under Title VII, the ADEA does not define adverse employment action solely in terms of job termination or reduced wages and benefits, and that less flagrant reprisals by employers may indeed be adverse”] [emphasis added]). The Restoration Act recognizes federal and state civil rights provisions as “a floor below which the City’s Human Rights law cannot fall” (Local Law No. 85 § 1; see Loeffler v Staten Is. Univ. Hosp., 582 F3d 268, 278 [2009]).
. See Bennett, 92 AD3d at 35 n 1, citing Williams, 61 AD3d at 67.
. This is particularly so in the context of a large institution where there may be checks (i.e., a board of overseers) on an employer’s powers.
. Given the concession made by defendant’s representative in the course of his deposition, I am at a loss as to how the statements made by plaintiff concerning the various physicians who were terminated involuntarily constitute hearsay. In any event, to the extent those statements are indeed hearsay, they are admissible to defeat a motion for summary judgment since other evidence has been offered to support plaintiff’s claim of discrimination (see Schwaller v Squire Sanders & Dempsey, 249 AD2d 195, 197 [1998]).
. The majority contends that the grant of summary judgment dismissing cases against defendant in Saenger v Montefiore Med. Ctr. (706 F Supp 2d 494 [2010]) and Trieger v Montefiore Med. Ctr. (3 Misc 3d 1103[A], 2004 NY Slip Op 50350[U] [2004], affd 15 AD3d 175 [2005], lv denied 4 NY3d 710 [2005]) constitutes an “exoneration” of defendant, as if implying that the “exoneration” of defendant in those suits should guide our reasoning in this case. It is entirely possible that defendant was indeed “not guilty” of the accusations made against it in Saenger and Trieger. That is, of course, immaterial since (1) this suit concerns an entirely different plaintiff, and we do not judge a party’s “innocence” on the basis of whether it has previously been “exonerated” or “convicted,” and (2) the outcome of Saenger and Trieger does not
. The majority quotes Forrest stating that “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” (3 NY3d at 305). As previously indicated, the analysis in that case was rejected by the City Council when it enacted the Restoration Act. In the first case in which this Court analyzed the burden on a plaintiff opposing summary judgment under the City HRL following the Restoration Act, we construed the City HRL as permitting plaintiffs to go before a jury if there was “some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete” (Bennett, 92 AD3d at 43 [emphasis added]). Here, the majority inexplicably disregards that aspect of the Bennett standard, which other panels of this Court have embraced (see e.g. Sandiford v City of New York Dept. of Educ., 94 AD3d 593, 595 [2012]).
. Conaty’s denial that he thought that a January 4, 2007 letter from plaintiff to Foreman was a complaint of age discrimination could have been viewed by a jury as disingenuous, and therefore could have allowed a jury to be doubtful of Conaty’s proffered explanation for defendant’s conduct. The letter says explicitly that plaintiff was then in a position to “reasonably conclude that my age has played a role in your unwarranted discrimination.”
. For example, in United States v Wagner (940 F Supp 972, 980 [ND Tex 1996]), the court stated that the plaintiffs were not required to show that the defendants had any dislike of or animosity towards the disabled plaintiff because of her disability, only that the fact of the disability was a motivating factor in the defendants’ actions and decisions. A party who intentionally treats someone differently because of disability is not protected from liability by virtue of a sincere belief in stereotypes relating to the needs and abilities of persons with disabilities. “Whether motivated by animus, paternalism, or economic considerations, intentional handicap discrimination is prohibited by the Act” (id. [internal quotation marks omitted]; see also Village of Bellwood v Dwivedi, 895 F2d 1521, 1530-1531 [7th Cir 1990] [treating potential housing customers differently because of their race, even for nonracist reasons, is unlawful]; Williams v Matthews Co., 499 F2d 819, 827 [8th Cir 1974], cert denied 419 US 1022 [1974] [subjective good intentions do not overcome intentional discrimination in housing]; United States v Pelzer Realty Co., Inc., 484 F2d 438, 443 [5th Cir 1973], cert denied, 416 US 936 [1974] [unnecessary to find that “racial prejudice dominated (defendant’s) mind during the negotiations”]; Pederson v Louisiana State Univ., 213 F3d 858, 880 [5th Cir 2000] [“If an institution makes a decision not to provide equal athletic opportunities for its female students because of paternalism and stereotypical assumptions about their interests and abilities, that institution intended to treat women differently because of their sex”]; Emmel v Coca-Cola Bottling Co. of Chicago, 95 F3d 627, 634 [7th Cir 1996] [“paternalistic reason” for denying promotion, such as belief that job is “too confrontational or unpleasant for a woman” will not “withstand scrutiny” under Title VII]).
. The majority notes that plaintiff did not dispute defendant’s representation that he failed to attend all the meetings that Dr. Steven Safyer has held since he succeeded Foreman as president. The fact that plaintiff has not attended those meetings is, at best, evidence that there have been fewer opportunities for plaintiff and defendant to meet. It does not prove that defendant is not avoiding plaintiff.
The majority’s attempt to infer defendant’s mental state (i.e., intent) on the basis of plaintiffs action (or failure to act) is an inappropriate invasion of the jury’s province. Here, only a jury can make the credibility determination whether Safyer, who was deposed in this case, has been dismissive of plaintiff. Defendant’s characterization of Safyer’s intent is inappropriate, especially in light of plaintiffs evidence of Safyer’s animus against him.
. Notably, in Albunio, this Court and the Court of Appeals upheld a jury verdict in favor of a plaintiff (Albunio) who took no explicit action — unlike plaintiff in this case — to earn the animosity of her employer (16 NY3d at 479).