Opinion
2013-12-5
Gina DeFRANCESCO, Plaintiff–Appellant, v. METRO–NORTH RAILROAD, et al., Defendants–Respondents.
Steven L. Barkan, PC, Lake Success (Steven L. Barkan of counsel), for appellant. Seth J. Cummins, New York (Joshua R. Fay of counsel), for respondents.
Steven L. Barkan, PC, Lake Success (Steven L. Barkan of counsel), for appellant. Seth J. Cummins, New York (Joshua R. Fay of counsel), for respondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered June 20, 2012, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing plaintiff's claims under the New York State Human Rights Law (State HRL) and New York City Human Rights Law (City HRL) for discrimination and retaliation, unanimously affirmed, without costs.
Plaintiff's claims for retaliation under the State and City HRLs were properly dismissed since plaintiff failed to demonstrate that she was engaging in a protected activity or that there was a causal connection between the activity and the adverse action (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312–13, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ). Defendant Metro–North Railroad demonstrated that plaintiff was terminated for the nonretaliatory reason that she refused to use an electronic ticket issuing machine (TIM), which was mandatory for her position as a conductor. Plaintiff has failed to come forward with any evidence from which a “jury could find defendant liable under any of the evidentiary routes” (Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 45, 936 N.Y.S.2d 112 [1st Dept.2011], lv. denied18 N.Y.3d 811, 2012 WL 1432090 [2012] ).
The motion court also correctly found that, although plaintiff did not establish a recognized disability under either the State or City HRL, Metro–North engaged in a good faith interactive process and offered plaintiff a choice of positions that did not require use of the TIM, which she rejected ( see Phillips v. City of New York, 66 A.D.3d 170, 175, 884 N.Y.S.2d 369 [1st Dept.2009] ). Metro–North was not obligated to exempt plaintiff from the system-wide mandatory use of the TIM (see Pimentel v. Citibank, N.A., 29 A.D.3d 141, 145–146, 811 N.Y.S.2d 381 [1st Dept.2006], lv. denied 7 N.Y.3d 707, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ). MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, JJ., concur.