Opinion
Index No. 157998/2018 Motion Seq. No. 002
06-04-2024
LORRAINE BARCELLOS, Plaintiff, v. THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, VAL SLOBODYAN, JOHN DOE Defendant.
Unpublished Opinion
MOTION DATE 05/08/2023
DECISION + ORDER ON MOTION
NICHOLAS W. MOYNE, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 002) 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70,71,72, 73 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is
Plaintiff, Lorraine Barcellos, commenced the underlying action against defendants, The City of New York, the New York City Department of Citywide Administrative Services, Vai Slobodyan, and John Doe (collectively, "defendants"), alleging claims that she was subjected to discrimination based on gender, sexual harassment, hostile work environment, and retaliation in violation of the State and City Human Rights Laws, Executive Law §§ 296 et. seq. ("NYSHRL") and New York City Administrative Code §§8-101 et. seq. ("NYCHRL").
Defendants now move for an order, pursuant to CPLR § 3212, granting summary judgment and dismissing the complaint in its entirety. Defendants contend that summary judgment is warranted as (a) the plaintiff cannot show a discriminatory animus; (b) the defendants had a legitimate, non-discriminatory business reasons for its conduct and plaintiff cannot show that the proffered reasons were pretextual or that she was treated less favorably than other employees because of her gender; and (c) the plaintiffs retaliation claims fail as a matter of law.
The plaintiff was employed by the New York City Department of Citywide Administrative Services ("DCAS") from June of 2017 until May 2, 2018, when her employment was terminated. Plaintiff contends that, within that time, she was subjected to repeated instances of gender-based discrimination and sexual harassment by her direct DCAS supervisor, Vai Slobodyan ("Slobodyan").
Procedural History:
This action was originally commenced as an Article 78 special proceeding in which the now-plaintiff was seeking to: (1) vacate and annul the May 2, 2018-decision which terminated her employment with the City of New York Department of Citywide Administrative Services; (2) enter judgment that respondents violated federal, state and city laws prohibiting gender-based discrimination and Personnel Rules and Regulations of the City of New York; and (3) obtain an award of back pay, benefits, damages, attorney's fees, and the restoration of seniority.
In Motion Sequence 001, defendants' cross-motion to dismiss the petition, defendants asserted, and plaintiff conceded, that she had failed to exhaust her administrative remedies. However, the court found that Barcellos had pled facts to support violations of Federal, State, and City laws. Therefore, pursuant to CPLR § 103, the special proceeding was converted to a plenary action (NYSCEF Doc. No. 22). Accordingly, the verified petition was deemed to operate as a complaint in this action, to which the defendants filed an answer.
CPLR § 3212 Standard:
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). Once a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The facts must be viewed in the light most favorable to the non-moving party (Stonehill Capital Mgt., LLC v Bank of the W., 28 N.Y.3d 439, 448 [2016]). However, bald, conclusory assertions or speculation and a shadowy semblance of an issue are insufficient to defeat summary judgment (Id.). On a motion for summary judgment, a court should not weigh evidence or assess the credibility of witnesses (see Asabor v Archdiocese of New York, 102 A.D.3d 524, 529 [1st Dept 2013] ["It is the province of a jury to weigh the evidence, assess credibility"]; see also LeBlanc v United Parcel Serv., 29 AD Cases 1628 [SDNY Apr. 11, 2014]). Additionally, in the context of granting summary judgment in employment discrimination cases, the need for caution has been repeatedly emphasized where the merits turn on a dispute as to the employer's intent (Id.).
Gender Discrimination Claims:
Plaintiff is asserting claims of unlawful gender discrimination in violation of both the NYSHRL and the NYCHRL. In June 2019, the New York State Legislature amended the NYSHRL rendering the standard for claims closer to the standard under the NYCHRL. However, these amendments only apply to claims that accrue on or after the effective date of October 11, 2019 (Wellner v Montefiore Med. Ctr., 2019 AD Cases 325592 [SDNY Aug. 29, 2019]). As plaintiffs claims arose prior to the amendments' October 11, 2019, effective date, her claims must be analyzed under the applicable pre-amendment standards.
Plaintiffs causes of action for gender discrimination include claims based on disparate treatment, sexual harassment, and hostile work environment. Plaintiffs claims must be analyzed separately as the provisions of the City Human Rights Law are to be construed as more remedial and more broadly than federal civil rights laws and the State Human Rights Law (Williams v New York City Hous. Auth., 61 A.D.3d 62, 71 [1st Dept 2009]). Further, the NYCHRL is to be construed liberally regardless of whether federal or the NYSHRL, including those with provisions comparably worded to the provisions of the NYCHRL, have been construed (Albunio v City of New York, 16 N.Y.3d 472, 477 [2011]). Accordingly, even if the challenged conduct is not actionable under State law, courts must consider whether it is actionable under the broader City standards (Mihalikv Credit Agricole Cheuvreux N Am., Inc., 715 F.3d 102, 109 [2d Cir 2013]).
The standards for recovery under the NYSHRL are similar to the federal standards under Title VII, and New York courts look to federal cases for guidance (Macchio v Michaels Elect. Supply Corp., 149 A.D.3d 716, 719 [2d Dept 2017]).
NYSHRL: Disparate Treatment Claim
Plaintiff is asserting a claim that she was subjected to employment discrimination based upon her gender, in violation of the NYSHRL. Defendants contend that summary judgment is warranted, arguing that the plaintiff cannot show an inference of discrimination as required for a prima facie case and/or that the defendants have set forth legitimate, non-discriminatory reasons for their employment actions. Employment discrimination claims brought under the NYSHRL, including those based on gender, are governed by the burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas (McDonnell Douglas Corp, v Green, 411 U.S. 792, 801, 93 S.Ct. 1817,1824, 36 L.Ed.2d 668 [1973]). Under this framework, plaintiff has the initial burden of demonstrating a prima facie case of discrimination by showing: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she was subjected to an adverse employment action; and (4) which occurred under circumstances giving rise to an inference of discrimination (Id.). Here, plaintiff has adequately established the first two prongs of her prima facie case as it is undisputed that the plaintiff is a woman and was hired for the position.
On the third prong, plaintiff has alleged that she experienced the following adverse employment actions: her work was diverted to male colleagues, she was excluded from internal and external meetings and emails, she was not included as an author or recipient of the DCAS Energy Management citywide email for benchmarking milestones, her tasks and roles were diminished, and she was terminated. Under the NYSHRL, an adverse employment action must be a materially adverse change in the terms and conditions of employment and must be more disruptive than a mere inconvenience or alteration of job responsibilities (Golston-Green v City of New York, 184 A.D.3d 24, 37 [2d Dept 2020]). It is well established that for NYSHRL claims, termination constitutes an adverse employment action. However, aside from her termination, the alleged actions do not constitute materially adverse changes as they were not accompanied by a decrease in salary or loss of benefits (Id.). Accordingly, notwithstanding her termination, the remainder of the alleged employment actions are not actionable within the context of plaintiffs NYSHRL discrimination claim (see Mejia v Roosevelt Is. Med. Assoc., 95 A.D.3d 570, 571 [1st Dept 2012]).
Defendants argue that plaintiff has failed to meet her prima facie burden as she cannot establish that her termination occurred under circumstances giving rise to an inference of discrimination. The circumstances that give rise to an inference of discrimination may include actions or remarks that could be viewed as reflecting a discriminatory animus towards the plaintiffs protected group (Mejia v Roosevelt Is. Med. Assoc., 31 Misc.3d 1206[A] [Sup Ct 2011], affd, 95 A.D.3d 570 [1st Dept 2012]). An inference of discrimination may also be discerned from a variety of circumstances, including the more favorable treatment of employees not in the protected group (LeBlanc v United Parcel Serv., 29 AD Cases 1628 [SDNY Apr. 11, 2014]). Defendants argue that there is no evidence that plaintiffs termination occurred under circumstances which suggest that it was due to her gender. Defendants assert that the plaintiff has not provided any direct evidence of discriminatory intent as she has not offered comments by Slobodyan referencing her gender or speaking disparagingly about women. Defendants further argue that any inference of discrimination is belied by the fact that the same-actor, Slobodyan, interviewed the plaintiff for the position, recommended she be hired, and recommended her termination (see Varno v Canfield, 664 Fed.Appx 63, 65 [2d Cir 2016] [Plaintiff was hired and fired by the same supervisor, creating an inference against discriminatory intent absent evidence that the supervisor made discriminatory comments]).
Even at the summary judgment stage of litigation, the same-actor inference is permissive, not mandatory, and even if the same individuals made both decisions, the court would not be compelled to give the defendant the benefit of the inference (Miller v Levi & Korsinsky, LLP, 20 CV 1390 [LAP], 2023 WL 6293940, at *9 [SDNY Sept. 27, 2023]).
In opposition, plaintiff asserts there is a question of fact as to whether her termination was discriminatory. Plaintiff contends that her termination followed a series of derogatory remarks or behaviors, made over the duration of her employment and by her supervisor Slobodyan, which were gender or sex specific. Plaintiff further offers that shortly before her termination, Slobodyan stood behind her and stated, "TH break you" (NYSCEF Doc. No. 41 at 53). Plaintiff suggests that this remark evidences a discriminatory state of mind and the threatening behavior occurred too close to the final act of discrimination not to view it as a firing based on sex (NYSCEF Doc. No. 58 at 3).
Even assuming plaintiff met her burden of establishing an inference of discrimination surrounding her termination, her NYSHRL claim still fails. Under the McDonnell Douglas burden-shifting framework, upon an initial prima facie showing by plaintiff, the burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth legitimate, independent, and non-discriminatory reasons to support its employment decision (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305 [2004]). Once defendants have done so, to nevertheless succeed on her claim the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination; demonstrating both that the stated reasons were false, and the discrimination was the real reason (Id.).
Defendants provide evidence which establish several legitimate reasons for the decision to terminate the plaintiff: her performance was not satisfactory and that she was insubordinate (Kwong v City of New York, 204 A.D.3d 442, 443 [1st Dept 2022], Iv to appeal dismissed, 38 N.Y.3d 1174 [2022]; see also Uwoghiren v City of New York, 148 A.D.3d 457, 457 [1st Dept 2017]). The evidence, which includes multiple emails, the investigative report by Labor Relations, and the plaintiffs March 2018 performance evaluation, shows that the plaintiff had difficulty working with others, was unable or unwilling to complete tasks or assignments, there were concerns about her Excel skills, and there were instances of insubordination and unprofessional behavior (see NYSCEF Doc. No. 44-544, Bendeck v NYU Hosps. Ctr., 77 A.D.3d 552, 554 [1st Dept 2010]). "It 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" (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 121 [1st Dept 2012]; quoting Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 308 n 5 [2004]). Through these evidentiary submissions, defendants have met their burden of establishing that plaintiffs termination was motivated by legitimate, non-discriminatory reasons (see generally Reichman v City of New York, 179 A.D.3d 1115, 1117 [2d Dept 2020]).
In response, plaintiff has not presented evidence raising a triable issue of fact or otherwise suggesting that these reasons were pretext for discriminatory motives. While plaintiff alleged that Slobodyan made gender-based commentary throughout her employment, plaintiff failed to provide any evidence linking this commentary to the events surrounding her termination (see Wheeler v Praxair Surface Tech., Inc., 21 CIV. 1165 [PAE], 2023 WL 6282903, at *18 [SDNY Sept. 26, 2023]). Further, the allegation that Slobodyan stated "I'll break you" shortly before the plaintiffs termination is insufficient to raise an issue of fact as to whether the legitimate reasons were pretextual (see Kwong v City of New York, 204 A.D.3d 442, 444 [1st Dept 2022], Iv to appeal dismissed, 38 N.Y.3d 1174 [2022] [While plaintiffs allegations of remarks that could be interpreted as derogatory or indicative of animus sufficient to support a hostile work environment claim, the plaintiff failed to identify evidence connecting such animus, if any, to the employment decision]). The alleged remark was made outside the context of any discussion regarding the plaintiffs employment (Crowley v Billboard Mag, 576 F.Supp.3d 132, 146 [SDNY 2021]). This remark, without more, is not indicative of a discriminatory motive to terminate the plaintiff (Id. at 146; contra. Lefort v Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708 [2d Dept 2022]).
Additionally, the plaintiffs assertion that this comment or behavior occurred too close to her termination not to view it as a firing based on sex, is conclusory and speculative (Lenzi v Systemax, Inc., 944 F.3d 97, 108 [2d Cir 2019] [If an employer sets forth a legitimate, nondiscriminatory justification, the plaintiff must establish by a preponderance of the evidence that the employer's justification is a pretext for discrimination]). A plaintiff may not rely solely on the timing between the alleged remark and her termination as temporal proximity alone is insufficient to defeat summary judgment at the pretext stage (Saji v Nassau Univ. Med. Ctr., 724 Fed.Appx 11,15 [2d Cir 2018]). Therefore, plaintiff has failed to offer evidence from which a reasonable jury could infer that her gender played a role in DCAS's decision to terminate her employment (Hamburg v New York Univ. School of Medicine, 155 A.D.3d 66, 81 [1st Dept 2017]). Accordingly, defendants are entitled to summary judgment on the plaintiffs NYSHRL disparate treatment claim.
NYCHRL: Disparate Treatment Claim
Plaintiff is also asserting a claim of discrimination in violation of the NYCHRL, alleging that she was subjected to disparate treatment based on her gender. Additionally, plaintiff is allegedly asserting a separate claim for sexual harassment. However, plaintiffs NYCHRL claims of gender discrimination and sexual harassment are coextensive (see Williams v New York City Hous. Auth., 61 A.D.3d 62, 75 [1st Dept 2009]; Clarke v Inter Continental Hotels Group, PLC, 12 CIV. 2671 JPO, 2013 WL 2358596, at *11 [SDNY May 30, 2013] ["Under the NYCHRL, there are not separate standards for discrimination and harassment claims; rather there is only the provision of the law that proscribes imposing different terms, conditions and privileges of employment based on, inter alia, gender"]).
Plaintiff alleges that she was treated differently than a male colleague who did not endure the same obstacles as her, and that she was not afforded the equal opportunity to advance as her male colleague was. Contrary to a claim under the NYSHRL, under the NYCHRL, a plaintiff need not demonstrate that an adverse action was materially adverse but only that she was treated differently or worse than other employees (Harrington v City of New York, 157 A.D.3d 582, 584 [1st Dept 2018]). Plaintiff argues she was subjected to differential treatment in the terms of her employment as she was denied the opportunities provided to male workers by having her work diverted to male colleagues, she was excluded from internal and external meetings and emails, she was not included as an author or even recipient of the DCAS Energy Management citywide email, there was a diminution of her tasks and roles, and her employment was terminated.
However, defendants argue that plaintiff cannot show these actions were taken because of her gender as plaintiff has failed to offer evidence of a similarly situated employee that was treated more favorably. Even under the NYCHRL, a plaintiff must still link the employment actions to a discriminatory motivation (Kops v PPM Am., Inc., 15 CIV. 1584 [GBD], 2016 WL 7188793, at *5 [SDNY Dec. 5, 2016]). A plaintiff may establish an inference of discrimination by showing that a member of the protected class was treated differently than a worker who was not a member of that protected class (Day v City of New York, 15CIV4399GBDHBP, 2015 WL 10530081, at *13 [SDNY Nov. 30, 2015], report and recommendation adopted, 2016 Fair Empl Prac Cas [BNA] 87692). For differential treatment to suffice to show an inference of discrimination, a comparator must be similarly situated in all material respects to the plaintiff (LeBlanc v United Parcel Serv., 29 AD Cases 1628 [SDNY Apr. 11, 2014]; Rothbein v City of New York, 18-CV-5106 [VEC], 2019 WL 977878, at *10 [SDNY Feb. 28, 2019]).
Plaintiff asserts that a male colleague, who worked within the same team and previously held her position title, was not subjected to the same conduct as her. However, defendants assert that the plaintiff and male colleague were not similarly situated in all material respects. Defendants have established that her male colleague is not a proper comparator because he was more senior than the plaintiff and held a different title (see Uwoghiren v City of New York, 148 A.D.3d 457, 458 [1st Dept 2017] [Although the individual in which plaintiff compares herself to had previously held the same title as her, they were not similarly situated in light of the differences in their experience, their tenure and current positions, and their job responsibilities]). In opposition, plaintiff has failed to offer facts demonstrating that the male colleague was similarly situated or otherwise raise an issue of fact as to whether these actions were because of her gender.
However, even if the plaintiff cannot show differential treatment based on these tangible employment actions, she may still assert a claim that she was treated less well based on alternative conduct (see Suri v Grey Glob. Group, Inc., 164 A.D.3d 108, 120 [1st Dept 2018]). The standard for a discriminatory act under the NYCHRL is lenient, the conduct need not be tangible, it is sufficient to show differential treatment of any degree based on a discriminatory motive (Charles v City of New York, 21 CIV. 5567 [JPC], 2023 WL 2752123, at *7 [SDNY Mar. 31, 2023]; see also Williams v Regus Mgt. Group, LLC, 836 F.Supp.2d 159, 173 [SDNY 2011] [The NYCHRL expands the definition of discrimination beyond conduct that is tangible like hiring or firing to encompass all allegations that a plaintiff is treated differently based on a protected status]). When a supervisor sexually harasses a subordinate because of that subordinate's sex, that supervisor discriminates on the basis of sex (Ananiadis v Mediterranean Gyros Products, Inc., 151 A.D.3d 915, 917 [2d Dept 2017]). Therefore, when construing the phrase "discriminate against... in terms, conditions or privileges of employment" broadly, it has been reasoned that forcing a targeted employee to suffer unwanted gender-based conduct imposes a different term or condition of employment on her (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 [2d Cir 2013]; quoting Williams v New York City Hous. Auth., 61 A.D.3d 62, 76 [1st Dept 2009]).
Plaintiff asserts that she was treated less well than other employees as a result of the alleged misconduct and harassment by her supervisor, Slobodyan. However, as the NYCHRL is not a general civility code, the plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive (Mihalik v Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,110 [2d Cir 2013]). The plaintiff must allege a nexus between her sex and the discriminatory conduct by showing that the mistreatment was motivated by discriminatory animus (see Rothbein v City of New York, 18-CV-5106 [VEC], 2019 WL 977878, at *9 [SDNY Feb. 28, 2019]). The plaintiff, to survive summary judgment, need only adduce evidence of the existence of unwanted gender-based conduct (Bermudez v City of New York, 783 F.Supp.2d 560, 579 [SDNY 2011]).
Plaintiff asserts that Sloboydan subjected her to gender or sex-based conduct by making comments, remarks, and/or gestures that were either directed at her or were made in her presence. Plaintiff testified that shortly after she began her employment, Slobodyan would stand or sit very close to her and on one occasion said, "what are you so nervous about" in a flirtatious demeanor (NYSCEF Doc. No. 41 at 26-27). Plaintiff also testified that at some point in the first three months of her employment, and after she did not say good morning to him, Slobodyan stood over her and said, "do what I tell you to do" (Id. at 24). When asked to describe his tone and body language, plaintiff testified that his voice was raised to her, it was stem, and authoritarian (Id.}. Plaintiff alleges that within four to five months of her employment, Sloboydan walked down the aisle and roughly touched his belt (Id. at 38). Regarding the incident, plaintiff testified that in a rough fashion facing her, he had his hand on his belt buckle and was moving it back and forth, and to her it signified a sexual innuendo (Id. at 34-40). Plaintiff testified that while doing it, Slobodyan was looking right at her and walking straight towards her, and the interaction prompted some of the men to comment that "he would have f.. .eked her on the floor" (Id.}. Plaintiff testified that while in a meeting with other men, Slobodyan allegedly drew breasts on the table of the desk she was sitting in (Id. at 41). Plaintiff asserted that in the meeting, while looking over to the men, Sloboydan said something along the lines of "I like these", drew a circle with a dot in the middle and smirked when he said it (Id.}. Additionally, plaintiff alleged that in a technical ad hoc meeting, Slobodyan said, "we don't want to show them these", referring to her breasts (Id. at 43). Plaintiff testified that her impression was that he was referring to her breasts because he was looking at them and was talking about her clothing, though he did not reference her clothing (Id. at 44). Plaintiff alleged that on another occasion, Sloboydan referred to her as a "whore" and a "spoiled brat" to another co-worker (Id. at 47-48). Regarding how the plaintiff knew these comments were about her, plaintiff testified that by process of elimination she couldn't see who else he would be talking about and later clarified that she and Slobodyan were looking at each other when this comment was made (Id. at 48, 110). In her affidavit, plaintiff stated that in a meeting Slobodyan mentioned that he may be looking for a Benchmarking Manager (NYSCEF Doc. No. 69 at 20). Plaintiff asserts that immediately after walking out of this meeting, Sloboyan stated to another coworker, within earshot, "I told her I was looking for a manager, maybe now she will open her legs" (NYSCEF Doc. No. 69 at 21; NYSCEF Doc. No. 41 at 49-50). Plaintiff testified that Slobodyan looked in her direction as he made the comment and spoke so she would hear it, based on his volume and her sitting within 10- or 12-feet earshot (NYSCEF Doc. No. 41 at 50). Accordingly, plaintiffs allegations regarding Sloboydan's conduct, if true, would reasonably permit a jury to find that she was subjected to differential treatment because of her gender (Crookendale v New York City Health and Hosps. Corp, 175 A.D.3d 1132, 1132 [1st Dept 2019]).
Even if a plaintiff establishes she was treated less well, defendants may still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (Mihalikv Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 111 [2d Cir 2013]). The employer has the burden of proving the conduct's triviality under the NYCHRL (Id.). Defendants assert that the conduct plaintiff complains about was not discriminatory, arguing that the remarks were facially neutral and were not made about or to the plaintiff. Specifically, defendants assert that plaintiff ascribed motivation to facially neutral comments and assumed that comments, without the plaintiffs name being mentioned, were about her. Defendants argue that a plaintiffs feelings and perceptions of being discriminated against are not evidence of discrimination (Basso v EarthLink, Inc., 157 A.D.3d 428, 430 [1st Dept 2018]). Therefore, defendants assert that plaintiff has not established any discriminatory conduct or offered evidence that would lead a reasonable jury to believe that this conduct was gender-based.
Contrary to defendants' assertions, plaintiff has demonstrated a triable issue on whether she was subjected to differential treatment or whether she was treated less well by suffering unwanted gender-based conduct and harassment. First, any argument by defendants that Slobodyan and/or another employee denied that these comments were made or that this conduct occurred, is unavailing. At the summary judgment stage, judgment should normally be denied if there exists a triable issue of fact as to whether such conduct occurred (Hernandez v Kaisman, 103 A.D.3d 106, 114 [1st Dept 2012]; see also Franco v Hyatt Corp., 189 A.D.3d 569, 570 [1st Dept 2020] [Although defendants deny that the acts or comments occurred, disputed factual issues, especially those requiring resolution of credibility issues, are generally unsuitable for summary adjudication]).
Further, the argument that some of the comments were not made explicitly to the plaintiff or that the remarks could be seen as facially neutral does not defeat the plaintiffs claim. In evaluating the claim and the defense, courts must consider the totality of the circumstances as the overall context in which the challenged conduct occurs cannot be ignored (Mihalik v Credit Agricole Cheuvreux N Am., Inc., 715 F.3d 102, 111 [2d Cir 2013]). When considering the context of the comments, plaintiff, in her testimony, sufficiently detailed the circumstances surrounding the remarks - from which a jury could reasonably infer that they were directed at or were about the plaintiff. Additionally, while some language is unmistakably reflective of the presence of a protected status in the mind of the speaker, in many other cases meaning is context-dependent (Golston-Green v City of New York, 184 A.D.3d 24, 42 [2d Dept 2020]). Where the alleged discriminatory conduct in question represents a borderline situation, the determination should be left to the trier of fact (Id.). Considering that sexual advances are not always made explicitly, it is not the province of the court itself to decide what inferences should be drawn... if there is any evidence from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper (Suri v Grey Glob. Group, Inc., 164 A.D.3d 108, 116 [1st Dept 2018]). Based on the evidence offered by plaintiff, if believed, a trier of fact could find that these actions, especially when considered holistically, were unwelcome sexual conduct (Franco v Hyatt Corp., 189 A.D.3d 569, 571 [1st Dept 2020]). Accordingly, it is the jury's function to determine what happened between the defendant and plaintiff and whether it amounted to gender discrimination (Suri v Grey Glob. Group, Inc., 164 A.D.3d 108,116 [1st Dept 2018]).
If true, especially when taken together, these allegations about her supervisor's conduct cannot be said to be the type of petty slights and trivial inconveniences that most employees encounter in the workplace (Raji v Societe Generale Americas Sec. LLC, 15CIV1144ATJLC, 2018 WL 1363760, at *5 [SDNY Feb. 28, 2018]). On a motion for summary judgment dismissing a NYCHRL claim, defendants bear the burden of showing that, based on the record evidence, and drawing all reasonable inferences in plaintiffs favor, no jury could find defendant liable for gender-based discrimination (Bond v New York City Health and Hosps. Corp.,215 A.D.3d 469, 470 [1st Dept 2023]). As issues of fact exist as to whether the plaintiff was treated less well because of her gender and/or whether the alleged conduct would constitute petty slights or trivial inconveniences, the defendants' motion for summary judgment on the plaintiffs NYCHRL gender discrimination and/or harassment claim is denied.
NYSHRL: Hostile Work Environment
Plaintiff asserts that as a result of the sexual harassment by her supervisor, Slobodyan, she was subjected to a hostile work environment (see Bermudez v City of New York, 783 F.Supp.2d 560, 579 [SDNY 2011] [A plaintiff may bring a claim of sexual harassment based on a theory of hostile work environment due to such sexual harassment]). Under the NYSHRL, a hostile work environment exists where the workplace is so permeated with discriminatory intimidation, ridicule, and insult that it is sufficiently severe or pervasive to alter the conditions of the victim's employment and create a hostile working environment (La Marca-Pagano v Dr. Steven Phillips, P.C., 129 A.D.3d 918, 919 [2d Dept 2015]). To be actionable, generally the incidents of harassment must be repeated and continuous; isolated acts or occasional episodes will not merit relief (Sims v The Trustees of Columbia Univ, in the City of New York, 2017 NY Slip Op 32331 [U], 16 [NY Sup Ct, New York County 2017], affd as mod sub nom. Sims v Trustees of Columbia Univ., 2019 NY Slip Op 00672 [1st Dept 2019]).
In determining whether a hostile work environment exists, a court must consider all circumstances, including: the frequency of the conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the plaintiffs work performance (Bilitch v New York City Health &Hosps. Corp., 194 A.D.3d 999, 1003 [2d Dept 2021]). To prevail, a plaintiff must demonstrate either a single incident that was extraordinarily severe or that a series of incidents were sufficiently continuous and concerted to be deemed pervasive (Benzinger v Lukoil Pan Americas, LLC, 447 F.Supp.3d 99, 121 [SDNY 2020]). The conduct must have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff and have created an objectively hostile or abusive environment, one that a reasonable person would find to be so (Hernandez v Kaisman, 103 A.D.3d 106, 111 [1st Dept 2012]). Nevertheless, the plaintiff must establish that the hostile work environment was caused by animus towards her as a result of her membership in her protected class (Kirkland-Hudson v Mount Vernon City School Dist., 665 F.Supp.3d 412, 465 [SDNY 2023]).
Defendants' argument that the alleged conduct does not rise to the level required for establishing a hostile work environment is unavailing. Defendants again rely on the argument that the alleged discriminatory comments or behaviors were not directed at the plaintiff, the plaintiff ascribed motivation to facially neutral comments, and assumed comments were being made about her. Defendants argue that summary judgment is warranted as a plaintiffs feelings and perceptions of being discriminated against are not evidence of discrimination (Basso v EarthLink, Inc., 157 A.D.3d 428, 430 [1st Dept 2018]). Defendants assert that as this alleged conduct cannot be said to rise to the level of sufficiently severe or pervasive so as to permeate the workplace and alter the conditions of plaintiffs employment.
It is undisputed that the plaintiff subjectively perceived the actions of her supervisor to be abusive or hostile. On multiple occasions, plaintiff testified that she found Slobodyan's behavior to be humiliating, offensive, and embarrassing. Plaintiff also testified that she felt uncomfortable by the conduct, on multiple occasions Slobodyan made her feel uncomfortable, and in her formal EEO complaint, plaintiff wrote that she felt very uncomfortable working with Slobodyan and would like to be transferred. Based on these allegations, a reasonable person could conclude that the conditions of plaintiffs employment were altered, or this conduct interfered with the plaintiffs ability to do her work (contra. Chiara v Town of New Castle, 126 A.D.3d 111, 126 [2d Dept 2015]). Plaintiff has sufficiently demonstrated that she subjectively perceived the environment to be abusive so as to alter the conditions of her employment (Kirkland-Hudson v Mount Vernon City School Dist., 665 F.Supp.3d 412, 465 [SDNY 2023]).
Plaintiff has also demonstrated the existence of an issue of fact as to whether she was subjected to an objectively hostile environment based on her gender (Benzinger v Lukoil Pan Americas, LLC, 447 F.Supp.3d 99, 120 [SDNY 2020]). The objective hostility of a work environment depends on the totality of the circumstances, including the social context in which the particular behavior occurs and is experienced by its target, and the perspective from which the evidence is assessed is that of a reasonable person in the plaintiffs position (Hernandez v Kaisman, 103 A.D.3d 106, 112 [1st Dept 2012]).
Plaintiff asserts that, over the short duration of her employment, she experienced continuous gender hostility by her manager Slobodyan. Specifically, at her 50-H hearing, the plaintiff testified that these incidents by Slobodyan occurred throughout her nine-month employment, at least once a month or about every other week (NYSCEF Doc. No. 40 at 49). In her sworn affidavit in opposition to the defendants' motion, plaintiff asserts that the sexual comments affected her daily (NYSCEF Doc. No. 69 at 23). Accordingly, the plaintiff has demonstrated that the conduct by her supervisor could have been sufficiently continuous and concerted so as to be deemed as being pervasive (Cowan v City of Mount Vernon, 14-CV-8871[KMK], 2017 WL 1169667, at *4 [SDNY Mar. 28, 2017]).
Again, while some language is unmistakably reflective of the presence of a protected status in the mind of the speaker, in many other cases meaning is context-dependent (Golston-Green v City of New York, 184 A.D.3d 24, 42 [2d Dept 2020]). Further, case law is clear that when some individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim (Rasmy v Marriott Inti., Inc., 952 F.3d 379, 388 [2d Cir 2020]). Therefore, facially neutral incidents may be included among the totality of the circumstances considered in a hostile work environment claim, so long as a reasonable fact-finder could conclude that they were, in fact, based on gender (Kaytor v Electric Boat Corp., 609 F.3d 537, 547 [2d Cir 2010]). This requires some circumstantial or other basis for concluding that incidents sex-neutral on their face were discriminatory, such as evidence that the same individual engaged in multiple acts of harassment, some overtly sexual and some not (Id.).
The plaintiff has provided evidence which, if true, would constitute instances of overt sexual or gender-based behavior, comments, or conduct by her supervisor Slobodyan. Additionally, even if some of the incidents of which plaintiff complains may seem relatively minor, the conduct, if true, could affect her ability to do her job and create an abusive working environment (Kwong v City of New York, 204 A.D.3d 442, 445 [1st Dept 2022], Iv to appeal dismissed, 38 N.Y.3d 1174 [2022]). Considering plaintiff has alleged overt gender-based conduct, and that the alleged facially-neutral conduct may have different interpretations, plaintiff has provided a basis from which a reasonable fact-finder could conclude that the facially-neutral comments were actually based on her gender (see Hornig v Trustees of Columbia Univ, in City of New York, 17 CIV. 3602 [ER], 2022 WL 976267, at *13 [SDNY Mar. 31, 2022] [internal citations omitted] ["Viewing the record as a whole and in the social context in which particular behavior occurred and was experienced by [plaintiff], a reasonable jury could find that [defendants'] actions were demeaning and humiliating on the basis of sex, even if they did not involve explicit or implicit proposals of sexual activity"]).
Additionally, conduct which is not directly targeted at or spoken to an individual, but purposefully taking place in her presence, can nevertheless transform a work environment into a hostile or abusive one (Rasmy v Marriott Inti., Inc., 952 F.3d 379, 389 [2d Cir 2020]; Banks v Gen. Motors, LLC, 81 F4th 242, 262 [2d Cir 2023]). As to the alleged comments or gestures that were not made explicitly to the plaintiff, plaintiff testified that they were made within earshot, at a volume level that the plaintiff could hear, or made while Slobodyan was looking at her, or in her direction. Drawing all reasonable inferences in her favor, the plaintiff has provided facts from which a jury could infer that Slobodyan's conduct was targeted towards her. Accordingly, as the plaintiff has sufficiently raised an issue of fact as to whether she was subjected to an environment that was objectively hostile or abusive, defendants are not entitled to summary judgment on this claim.
Quid Pro Quo Environment:
Plaintiff is supposedly asserting a claim of sexual harassment based on a quid pro quo arrangement; alleging in her complaint that Slobodyan created a quid pro quo environment related to sex. A plaintiff bringing a claim based on sexual harassment may proceed under two theories: (1) quid pro quo; and (2) a hostile work environment due to sexual harassment (Hornig v Trustees of Columbia Univ, in City of New York, 17 CIV. 3602 (ER), 2022 WL 976267, at *12 [SDNY Mar. 31, 2022]; Poolt v Brooks, 38 Mise 3d 1216[A] [Sup Ct 2013]). When brought under the NYSHRL, the issue in a quid pro quo sexual harassment case is whether one or more employment decisions are linked to unwelcome sexual conduct; such that unwelcome sexual conduct is the basis, either explicitly or implicitly, for employment decisions affecting compensation or the terms, condition or privileges of employment (Franco v Hyatt Corp., 189 A.D.3d 569, 569 [1st Dept 2020]). However, as plaintiff has not opposed the portion of defendants' motion seeking summary judgment and dismissing the claim based on a quid pro quo arrangement, this claim may be dismissed.
NYCHRL: Hostile Work Environment
Accordingly, as plaintiffs NYSHRL hostile work environment and NYCHRL gender discrimination claims survive summary judgment, so does plaintiffs NYCHRL claim of a hostile work environment based on the sexual harassment (Wilson v JPMorgan Chase Bank, N.A., 20-CV-4558 [JMF], 2021 WL 5179914, at *8 [SDNY Nov. 8, 2021] [The NYCHRL draws no distinction between a claim premised on the creation of a hostile work environment [a species of harassment claim] and one premised on unlawful discrimination]).
Retaliation Claims:
NYSHRL Claim:
The defendants are entitled to summary judgment dismissing plaintiffs cause of action for retaliation under the NYSHRL. Plaintiff contends that, in response to filing a complaint with the DCAS Equal Employment Opportunity ("EEO") office, the defendants retaliated against her by taking tasks away from her, sabotaging her work, fabricating claims of poor work performance, not properly reviewing her work, and ultimately terminating her employment. However, the primary allegedly retaliatory acts complained of by the plaintiff in her papers are an unsatisfactory performance evaluation in March of 2018 and the termination of her employment in May of 2018.
For a NYSHRL claim of retaliation, a plaintiff must show (1) he or she engaged in a protected activity by opposing conduct prohibited thereunder; (2) the defendant was aware of that activity; (3) he or she suffered an adverse action based upon this activity; and (4) a causal connection between the protected activity and the adverse action (Reichman v City of New York, 179 A.D.3d 1115, 1119 [2d Dept 2020]). In the context of an unlawful retaliation claim, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (Id.). To establish entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendants' explanations were pretextual (La Marca-Pagano v Dr. Steven Phillips, P.C., 129 A.D.3d 918, 920 [2d Dept 2015]). The amount or difficulty of a workload changing does not constitute an adverse action for a claim of retaliation under the NYSHRL (see Benzinger v Lukoil Pan Americas, LLC, 447 F.Supp.3d 99, 128 [SDNY 2020]; see also Richards v Dept, of Educ. Of City of New York, 21-CV-338 [L]L], 2022 WL 329226, at * 17 [SDNY Feb. 2, 2022]). As set forth more fully below, the defendants have demonstrated that the plaintiff cannot make out a prima facie case with regard to the fourth element of a NYSHRL retaliation claim - a causal connection between the protected activity and the adverse actions.
Plaintiff has established the first three elements of a prima facie showing of retaliation under the NYSHRL. There is no question that plaintiff engaged in a protected activity by filing a formal written complaint against Slobodyan with the EEO office on April 9, 2018, alleging discrimination based on sexual harassment and retaliation. Further, although the plaintiff has not established that the individual defendant, Slobodyan, had knowledge of her complaint, DCAS's knowledge of the formal complaint is sufficient as the complaint was made with an EEO officer whose job is to investigate and resolve discrimination complaints (Moore v Hadestown Broadway Ltd. Liab. Co., 23-CV-4837 [LAP], 2024 WL 989843, at *14 [SDNY Mar. 7, 2024]; see also Armstrong v Metro. Transp. Auth., 07 CIV. 3561 DAB, 2014 WL 4276336, at *20 [SDNY Aug. 28, 2014] [although it was not clear if the individual defendant had knowledge of the plaintiffs complaint, a plaintiff may rely on general corporate knowledge of her protected activity to establish the knowledge prong of the prima facie case]). Additionally, plaintiff has established that she suffered an adverse employment action as termination has been consistently recognized as such (Schaper v Bronx Lebanon Hosp. Ctr., 408 F.Supp.3d 379, 391 [SDNY 2019]). Plaintiff asserts that on May 2, 2018, on the same day she withdrew her complaint because she was afraid of retaliation and disruption to the office, she was given a letter informing her that her employment was terminated.
To allege retaliation under the NYSHRL, a plaintiff must demonstrate that prior to suffering an adverse action, she engaged in a protected activity in that she had complained about discrimination due to her gender (see Hribovsek v United Cerebral Palsy of New York City, 223 A.D.3d 618, 620 [1st Dept 2024]; Kwong v City of New York, 204 A.D.3d 442, 445 [1st Dept 2022], Iv to appeal dismissed, 38 N.Y.3d 1174 [2022]). The plaintiff contends that she first engaged in a protected activity in December of 2017 when she informed the DC AS EEO Officer, Belinda French ("French"), of her sexual harassment and unequal treatment. However, the EEO file indicates that on December 5, 2017, the plaintiff emailed French to "discuss a workplace matter with [her] confidentially" but then on December 6, 2017, plaintiff cancelled the meeting (NYSCEF Doc. No. 55 at 20- 21). Additionally, in her affidavit in opposition, the plaintiff asserts that in or around 2017, she made at least two formal appointments with the EEO office and subsequently cancelled. A plaintiffs vague or informal complaints to the EEO office which did not convey that she was discriminated against unlawfully, did not constitute a protected activity (Crookendale v New York City Health and Hosps. Corp., 175 A.D.3d 1132, 1133 [1st Dept 2019]; see also Gonzalez v EVG, Inc., 123 A.D.3d 486,487 [1st Dept 2014] [An email to defendants' corporate superior consisted of complaints about generalized harassment and was too ambiguous to constitute a protected activity]). Accordingly, the plaintiffs general emails from December 2017 requesting a meeting to discuss a workplace matter would not constitute a protected activity.
However, plaintiff did ultimately meet with French on January 26, 2018, where she discussed "allegations of sexual harassment, and possibly, discrimination based on age and retaliation" (NYSCEF Doc. No. 55 at 23). On January 30, 2018, French informed the plaintiff of her right to file a formal complaint based on the allegations and attached the DCAS Discrimination Complaint form (Id. at 27). To which on January 30, 2018, the plaintiff stated she would consider the allegations and take appropriate action if necessary (Id.). Accordingly, notwithstanding that the plaintiff declined to file a formal complaint, the January 26, 2018, meeting would constitute a protected activity in which she complained about discrimination (see Schaper v Bronx Lebanon Hosp. Ctr., 408 F.Supp.3d 379, 391 [SDNY 2019] [Both formal and informal complaints about discriminatory conduct constitute a protected activity]).
Summary judgment is warranted when the plaintiff cannot establish that her employer was aware of a protected activity (see Sanderson-Burgess v City of New York, 173 A.D.3d 1233, 1236 [2d Dept 2019]). Here, the defendants have made a prima facie showing that plaintiffs supervisor Slobodyan did not have knowledge of the plaintiffs engagement in a protected activity, the January 2018 meeting with French, prior to the issuance of her evaluation in March 2018. Defendants offer deposition testimony that Slobodyan first learned about any EEO complaint that had been made against him in his interview with French that occurred in May or June 2018, after the plaintiff had been terminated. Additionally, defendants offer an email from French to Slobodyan, dated May 30, 2018, which included a meeting request and stating that she was investigating a matter related to plaintiff. In opposition, plaintiff fails to offer evidence or otherwise raise an issue of fact as to whether Slobodyan had any knowledge of the January 28, 2018, meeting, or the substance of the plaintiffs complaint made at that meeting (see Crookendale v New York City Health and Hosps. Corp., 175 A.D.3d 1132, 1133 [1st Dept 2019] [Plaintiff failed to raise an issue of fact as to retaliation when there was no evidence that any of her superiors had any knowledge of her complaints or engaged in retaliatory conduct]).
Furthermore, the defendants have demonstrated that plaintiff cannot show a causal connection between her unsatisfactory performance evaluation and her protected activity as the evaluation was part of a continuation of conduct which was undertaken before any complaint by the plaintiff was ever made. An employer's continuation of a course of conduct that had begun before the employee complained does not constitute retaliation because, in that situation, there is no causal connection between the employee's protected activity and the employer's challenged conduct (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 129 [1st Dept 2012]; see also Sims v Trustees of Columbia Univ., 168 A.D.3d 622, 622 [1st Dept 2019]).
Prior to the plaintiffs informal meeting with French in January 2018, Slobodyan had already expressed concerns to his superiors about the plaintiff and mentioned issues which would affect her evaluation (see Tenemille v Town of Ramapo, 18-CV-724 [KMK], 2020 WL 5731964, at 13 [SDNY Sept. 24, 2020] [the requisite causal connection falters when the complained of conduct began, or the action was already underway, before the plaintiffs protected activity]). Defendants offer evidence of emails between Slobodyan, Eric Hicks, the Chief of Staff Sara Brown, and the Director of Employee Relations Sabina Juncaj, dated from December 2017, in which Slobodyan raised concerns about some considerations which he stated would affect the plaintiffs evaluation. These concerns included that she is not building working relationships and it appeared that her Excel skills are significantly lower than claimed (NYSCEF Doc. No. 44 at 5). In reply, Hicks indicated that'he and Juncaj could review the evaluation before it was presented to plaintiff (NYSCEF Doc. No. 44 at 5). In February 2018, Slobodyan requested that his draft of plaintiffs six-month evaluation be reviewed by Employee Relations and Disciplinary Proceedings, and also recommended the plaintiffs termination based on her unprofessional, insubordinate behavior, and unsatisfactory behavior (NYSCEF Doc. No. 54 at 2). After which, Labor Relations commenced an investigation, and the First Deputy Director of Labor Relations completed a report in February and April based on his interviews and which discussed the parties' claims and provided his findings. On March 28, 2018, the plaintiffs employment evaluation, including the input or review from the various people and departments, was emailed to her. The evaluation includes comments and justifications sections which re-iterate that plaintiff needed to improve efforts to build working relationships, the plaintiff had demonstrated insubordinate and unprofessional behavior, and that her Excel skills were lower than previously indicated (see NYSCEF Doc. No. 66).
Accordingly, defendants have met their prima facie burden by establishing there is no causal connection between the plaintiffs protected activity and the alleged adverse action as the March evaluation was the result of a continuous course of conduct that began before plaintiff had made any complaints (see Tihan v Apollo Mgt. Holdings, L.P., 201 A.D.3d 557, 559 [1st Dept 2022], Iv to appeal denied, 38 N.Y.3d 913 [2022] [Defendants were entitled to summary judgment dismissing retaliation claim when evidence also demonstrates that the decision to place plaintiff on performance improvement plan was made before he lodged his internal discrimination complaint]). Additionally, through this evidence, the defendants have also established that the unsatisfactory March 2018 evaluation was motivated by legitimate, non-retaliatory reasons; including concerns about the plaintiffs Excel skills, unprofessional behavior, and her inability to work with others (see Reichman v City of New York, 179 A.D.3d 1115, 1120 [2d Dept 2020]).
In opposition, the plaintiff failed to offer evidence showing the existence of a causal connection or raising a triable issue of fact as to whether the non-retaliatory reasons offered by defendants were pretextual. Plaintiff argues that low evaluation scores may be pretext for discrimination, especially subjective evaluations which are more susceptible to abuse. Plaintiff relies on the fact that in her first evaluation she received an overall rating of Good, and in her second evaluation, which came after she had made her informal complaint to EEO, she received a subpar evaluation with a rating of unsatisfactory. However, plaintiffs reliance on the difference between the ratings in her two evaluations, without any additional evidence suggesting discrimination played a role, is insufficient to demonstrate that the defendants' non-retaliatory reasons were pre-textual (see Kwong v City of New York, 204 A.D.3d 442, 444 [1st Dept 2022], Iv to appeal dismissed, 38 N.Y.3d 1174 [2022] [Plaintiffs past receipt of otherwise favorable performance reviews was not alone sufficient to preclude summary judgment]). This is especially so, considering that the content and concerns highlighted in the unsatisfactory evaluation were the same concerns and opinions that Slobodyan had expressed before the plaintiff had made any complaint (see Ya-Chen Chen v City Univ, of New York, 805 F.3d 59, 71 [2d Cir 2015]).
Plaintiff also asserts that her termination was in retaliation for filing an EEO complaint about the harassment by her supervisor, Slobodyan. Defendants again assert that the plaintiff cannot show that she was terminated in retaliation for filing an EEO complaint as her termination was part of a continuous course of conduct beginning before her complaint, her supervisor Slobodyan did not make the decision to terminate her, and her unprofessional and insubordinate behavior continued after she was given her unsatisfactory evaluation. Therefore, while the ultimate adverse employment action, her termination, occurred after the plaintiffs formal complaint was made, the defendants have demonstrated that the recommendation for, and process of, terminating the plaintiffs employment began months prior to her complaint (see Richards v Dept. of Educ. of City of New York, 21-CV-338 [L]L], 2022 WL 329226, at *17 [SDNY Feb. 2, 2022]). Accordingly, defendants have shown there was no causal connection between the protected activity and the ultimate adverse action as the complaints about discrimination were made after the decision to recommend the plaintiffs termination (Greene v Brentwood Union Free School Dist., 576 Fed.Appx 39, 42 [2d Cir 2014] [summary order]).
To the extent that plaintiff contends she has demonstrated the requisite causal connection by pointing to the closeness between her formal complaint and her termination, in that she was terminated only twenty-two days after submitting her formal complaint of discrimination, this temporal proximity is insufficient to establish a causal connection where plaintiff has failed to otherwise raise a triable issue of fact as to whether the proffered reasons for her termination are pre-textual. A plaintiff cannot avoid summary judgment by merely pointing to the inference of causality resulting from the sequence in time of the events (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 313 [2004]). Where timing is the basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had engaged in any protected activity, an inference of retaliation does not arise (Lopez v White Plains Hosp., 19-CV-6263 [KMK], 2022 WL 1004188, at *15 [SDNY Mar. 30, 2022], affd, 22-817, 2022 WL 19835765 [2d Cir May 16, 2022]). "Where there is evidence that the employer was considering the adverse employment action before any protected activity, ... an employer's proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality" (White v Pacifica Found., 973 F.Supp.2d 363, 385 [SDNY 2013]). Accordingly, the defendants are entitled to summary judgment dismissing the plaintiffs NYSHRL retaliation claims.
NYCHRL Claim:
In addition to her NYSHRL claim, plaintiff is also asserting a claim of retaliation under the NYCHRL; alleging that in retaliation for filing her complaint with EEO, tasks were taken away from her, her work was sabotaged, the defendants fabricated claims of poor work performance, her work was not properly reviewed, and she was ultimately terminated. NYCHRL claims of unlawful retaliation are similar to those under the NYSHRL, although the plaintiff need not show an adverse action but rather that defendant took an action that disadvantaged her (Harrington v City of New York, 157 A.D.3d 582, 585 [1st Dept 2018]). Therefore, for a claim of unlawful retaliation under the NYCHRL, the plaintiff must show that (1) she engaged in a protected activity; (2) her employer was aware that she participated in that activity; (3) her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity; and (4) a causal connection between the protected activity and the alleged retaliatory conduct (Sanderson-Burgess v City of New York, 173 A.D.3d 1233, 1235 [2d Dept 2019]).
Plaintiff cannot establish that the acts which she complains of would have deterred a person from engaging in a protected activity as the plaintiff had multiple meetings with EEO prior to filing any official complaint. Plaintiff had two meetings with French, in both January and March 2018, in which she verbally complained about her supervisor's allegedly retaliatory conduct but did not file a formal complaint. Afterwards, on April 9, 2018, the plaintiff did file her formal complaint and had a subsequent intake meeting with French. Therefore, defendants have demonstrated prima facie that the plaintiff cannot and has not made the requisite showing that the defendants engaged in conduct that was reasonably likely to deter a person from engaging in a protected activity (Reichman v City of New York, 179 A.D.3d 1115,1120 [2d Dept 2020]).
In opposition, plaintiff failed to raise a triable issue of fact on this point. The fact that plaintiff withdrew her EEO complaint on the same day she was given her letter of termination is insufficient to raise a triable issue of fact as defendants have established that Slobodyan's recommendation for plaintiffs termination was made to his supervisors before she engaged in any protected activity (Mestecky v New York City Dept, of Educ., 791 Fed.Appx 236, 239 [2d Cir 2019] [summary order]; see also Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 129 [1st Dept 2012]). Accordingly, defendants are entitled to summary judgment dismissing the NYCHRL retaliation claims.
Conclusion: Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment is GRANTED IN PART; to the extent that the plaintiff s NYSHRL gender discrimination, NYSHRL and NYCHRL retaliation, and Quid Pro Quo claims are dismissed and is DENIED as to the plaintiffs NYCHRL gender discrimination and NYSHRL and NYCHRL hostile work environment claims.
This constitutes the decision and order of the court.