Summary
holding that being "yelled at, subjected to the occasional offensive remark, . . . [and being] overworked and subjected to excessive scrutiny" is insufficient to constitute an adverse act under the [NY]CHRL
Summary of this case from Pinto v. N.Y.C. Admin. for Children's Servs.Opinion
2013-05-7
Amy CHIN, Plaintiff–Appellant, v. NEW YORK CITY HOUSING AUTHORITY, Defendant–Respondent.
Law Offices of Stewart Lee Karlin, P.C., New York (Stewart L. Karlin of counsel), for appellant. Kelly D. MacNeal, New York (Jeffrey Niederhoffer of counsel), for respondent.
Law Offices of Stewart Lee Karlin, P.C., New York (Stewart L. Karlin of counsel), for appellant. Kelly D. MacNeal, New York (Jeffrey Niederhoffer of counsel), for respondent.
FRIEDMAN, J.P., ACOSTA, MOSKOWITZ, MANZANET–DANIELS, CLARK, JJ.
Judgment, Supreme Court, New York County (Louis B. York, J.), entered August 16, 2011, dismissing the complaints in this consolidated action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 12, 2011, which granted defendant's motion for summary judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff, an accountant, born in China, alleges that defendant discriminated against her on the basis of race, national origin and ethnicity when it repeatedly bypassed her for promotions. However, the record belies her contention that no persons of Chinese descent were promoted within defendant's Finance Department between 2002 and 2004, and plaintiff admits that numerous Chinese employees were promoted after 2006. Moreover, defendant produced evidence that it had legitimate, nondiscriminatory reasons for not promoting plaintiff to the positions of which she claims to have been wrongly deprived after August 2003, and plaintiff failed to raise an issue of fact whether defendant's reasons were merely a pretext for discrimination ( see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629–630, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997];Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35–36, 936 N.Y.S.2d 112 [1st Dept. 2011], lv. denied18 N.Y.3d 811, 2012 WL 1432090 [2012] ).
Plaintiff also alleges that defendant retaliated against her for complaining that she had been discriminated against ( see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312–313, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004];Fletcher v. Dakota, Inc., 99 A.D.3d 43, 51–52, 948 N.Y.S.2d 263 [1st Dept. 2012] ). She asserts that at times during a period spanning at least six years, she was variously yelled at, subjected to the occasional offensive remark, required to perform what she regarded as undesirable clerical tasks, and denied family and medical leave, and was overworked and subjected to excessive scrutiny. However, none of this alleged conduct on defendant's part either constituted an adverse employment action, under the New York State Human Rights Law ( seeExecutive Law § 296[7]; Silvis v. City of New York, 95 A.D.3d 665, 665, 946 N.Y.S.2d 22 [1st Dept. 2012], lv. denied20 N.Y.3d 861, 2013 N.Y. Slip Op. 67964, 2013 WL 1150296 [2013] ), or disadvantaged plaintiff, under the New York City Human Rights Law ( see Administrative Code of City of N.Y. 8–107[7]; Fletcher, 99 A.D.3d at 51–52, 948 N.Y.S.2d 263). Plaintiff also asserts that defendant retaliated against her by transferring her from its headquarters in downtown Manhattan to a field office in Harlem. However, she failed to raise an issue of fact whether the legitimate, nondiscriminatory reasons proffered therefor by defendant were merely a pretext for discrimination.
As to plaintiff's hostile work environment claim, the alleged conduct and remarks plaintiff point to were not “sufficiently severe or pervasive to alter the conditions of [her] employment” under the New York State Human Rights Law ( see Forrest, 3 N.Y.3d at 310–311, 786 N.Y.S.2d 382, 819 N.E.2d 998, quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 [1993];Ferrer v. New York State Div. of Human Rights, 82 A.D.3d 431, 918 N.Y.S.2d 405 [1st Dept. 2011] ). Nor has the plaintiff demonstrated that she has been treated less well than other employees because of her protected status; or that discrimination was one of the motivating factors for the defendant's conduct ( Williams v. New York City Housing Authority, 61 A.D.3d 62, 75–76, 79–80, 872 N.Y.S.2d 27 [1st Dept.], lv. denied, 13 N.Y.3d 702, 2009 WL 2622097 [2009] ).
We have considered plaintiff's remaining contentions and find them unavailing.