Opinion
No. 11–17031.
11-26-2014
Patricia GRELLA, Plaintiff, v. ST. FRANCIS HOSPITAL, The Heart Center Federal Credit Union, Maureen Duff, and Wendy Bezko Colligan, Defendants.
Law Office of Steven A. Morelli, P.C., by Joshua Beldner, Esq., Garden City, attorneys for plaintiff. Nixon Peabody LLP, by Christopher G. Gegwich, Esq., Tony G. Dulgerian, Esq., Jericho, attorneys for defendants.
Law Office of Steven A. Morelli, P.C., by Joshua Beldner, Esq., Garden City, attorneys for plaintiff.
Nixon Peabody LLP, by Christopher G. Gegwich, Esq., Tony G. Dulgerian, Esq., Jericho, attorneys for defendants.
Opinion
DANIEL R. PALMIERI, J.
The motion by the defendants pursuant to CPLR 3212 for summary judgment dismissing the second amended complaint is granted and the second amended complaint is dismissed in its entirety.
This is an action commenced pursuant to Labor Law § 215(1)(a) for alleged retaliation for a wage complaint, and Executive Law § 296 (the New York State Human Rights Law), for alleged discrimination based on age.
Until her departure from defendants' employ, plaintiff held the position of Manager and Loan Officer in The Heart Center Federal Credit Union (“HCFCU”), where she had started as a clerk in 1991. It is apparent that HCFCU exists to serve the employees of defendant St. Francis Hospital (“Hospital”), and is owned/controlled by that entity. The individual defendants are Maureen Duff, who is the Director of HCFCU, and Wendy Bezco Colligan, who is the Manager of Employee Health Services at the Hospital, and President of the Board of Directors of HCFCU.
In her second amended complaint the plaintiff alleges, in substance, that she had not been paid (in the form of having been charged with a vacation day) for an involuntary absence caused by a snowstorm in January, 2011, yet a co-worker at HCFCU, Vincenza Di Lucia, had been paid for such an absence after a hurricane in August, 2011, when both had been told not to report for work after these events. That is undisputed, and none of the HCFCU employees (plaintiff, Duff, and Di Lucia) had been paid for absence resulting from the snowstorm. Plaintiff contends that after she discovered the foregoing by examining records and speaking to Di Lucia about her pay she brought the snowstorm/hurricane discrepancy to the attention of their mutual supervisor, defendant Maureen Duff, but was advised that she had no right to question another employee about how she was paid. Plaintiff responded that HCFCU had not applied its payment policies fairly. Plaintiff claims that she ultimately was fired several days later for raising the issue, and because of her age.
It also is undisputed that HCFCU later reversed this decision and paid affected employees for days they had been instructed to remain at home during the snowstorm. It is apparent that this occurred after the meeting between plaintiff and Duff, as in her affidavit, at ¶ 46, Duff acknowledges that this reversal was a direct result of plaintiff's complaint.
More specifically, plaintiff flatly denies that she left voluntarily after speaking to Duff, as defendants claim, and contends that she had not engaged in inappropriate behavior in advancing her claim of payroll irregularities. The second amended complaint recites that the day after the meeting with Duff she met with Tina Schrier, the Hospital's Director of Human Resources, and was told that she could retire, resign, or meet with Duff and Colligan to discuss her concerns. She alleges that two days later she received a call from Schrier, in which she was told that she was being credited with the vacation day with which she had been charged, but also was told that “we've accepted your resignation.” Plaintiff asserts that she did not resign, but rather was fired in retaliation for raising the issue with Duff. She also claims that this termination was the result of an age animus on defendants' part, offering as evidence that in the past Duff had made age-related remarks about two former employees, and that she, plaintiff, was replaced by a younger worker.
Four causes of action (“claims for relief”) are asserted: that in terminating plaintiff for unequal application of payment policies, defendants retaliated against her in violation of the Labor Law; that defendants discriminated against her because of her age in violation of the Human Rights Law; and that both Duff and Colligan aided and abetted such age discrimination (third and fourth claims).
As indicated above, the defendants contend that plaintiff was not fired, but rather had resigned on September 20, 2011 after being confronted by Duff regarding actions Duff thought inappropriate. Specifically, she had been advised by Di Lucia, and also by Corrigan, whom Di Lucia had come to see, about Di Lucia's being questioned by plaintiff in an aggressive manner regarding her pay, and that plaintiff had gone through Di Lucia's personal files. Duff had then sought to speak to plaintiff about these issues. The meeting was described by Duff as being highly unpleasant because of plaintiff's behavior, which was described as unprofessional and insubordinate, and even threatening.
According to Duff it ended with a loud verbal resignation by plaintiff, during which she tossed her keys on a desk in front of Duff and left the premises. This confrontation, and by clear implication the co-worker's complaints that had led to Duff's decision to speak to plaintiff in the first instance, caused consultations among Duff, Schrier and Corrigan, and formed the bases for defendants' decisio5n not to permit plaintiff to rescind that resignation when she later attempted to do so. Defendants assert that it was plaintiff's inappropriate behavior, and not a simple inquiry into pay policies, that led to the permanent separation. They also point to the “close quarters” present at the office (a converted trailer) in which all three of these individuals worked as militating against plaintiff's return. Defendants further deny that plaintiff's age had anything to do with the decision, and point both to her behavior and how her duties were taken over by several people, including a later hire, as proof that age was not a factor in their decision-making process.
The Court first addresses the alleged violation of Executive Law § 296 based on age.
Under the standards of the Human Rights Law, which are the same as those under Title VII of the federal Civil Rights Act of 1964, 42 USC § 2000 et seq. (iMitti v. New York State Div. of Human Rights, 100 N.Y.2d 326, 330 [2003] ), a plaintiff alleging discrimination must show that 1) she is a member of a protected class, 2) was qualified to hold the position, 3) was terminated from employment or suffered some other adverse employment action, and 4) the discharge or adverse employment action occurred under circumstances giving rise to the inference of discrimination. If such a prima facie showing is made, the burden shifts to the employer to rebut the presumption of discrimination by introducing evidence of a legitimate, independent and nondiscriminatory reason supporting its employment decision. Forrest v. Jewish Guild, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 (2004), citing Ferrante v. American Lung Assn., 90 N.Y.2d 623, 665 N.Y.S.2d 25, 687 N.E.2d 1308 (1997) ; see also Ehmann v. Good Samaritan Hosp. Med. Ctr., 90 A.D.3d 985, 935 N.Y.S.2d 639 (2d Dept.2011).
Consequently, to prevail on a motion for summary judgment, the employer must demonstrate either that plaintiff has failed to establish every element of intentional discrimination, or, if the employer offers legitimate, non-discriminatory reasons for the actions challenged by the plaintiff, the absence of an issue of fact as to whether the explanation given was pretextual. Considine v. Southampton Hosp., 83 A.D.3d 883, 922 N.Y.S.2d 430 (2d Dept.2011) ; Ehmann, supra.
The record placed before the Court by defendants includes affidavits from Duff, Collligan, Di Lucia, and Schrier; sections of transcripts of depositions given by plaintiff, Colligan, Di Lucia, Duff, and Schrier; and other proof.Upon a review, the Court agrees with the defendants that they have demonstrated, prima facie, that they are entitled to summary judgment on those causes of action that are based on age discrimination.
Defendants do not contest the fact that plaintiff is a member of a protected class, in that she was 50 years old at the time of the subject separation, and to that point was qualified to hold the position of Manager and Loan Officer at HCFCU. The defendants' submitted record also indicates that an issue of fact exists regarding whether plaintiff resigned or was fired after the confrontation with Duff—referable to the question as to whether plaintiff suffered an adverse employment action or acted voluntarily, the third prong of the test. However, defendants have shown that she cannot satisfy the fourth, that is, that the circumstances surrounding that incident, irrespective of whether plaintiff resigned or was fired, and their unwillingness to permit her to return, give rise to an inference of age discrimination.
The failure to rehire, standing alone, has been found not to constitute an adverse employment action. See Trinidad v. NYC Dept. of Corrections, 423 F Supp 2d 151 (S.D.N.Y.2006).
As indicated above, defendants' affiants and deponents have shown that there was what became a heated confrontation between plaintiff and Duff, and that this had nothing to do with plaintiff's age, but rather her recent behavior on the job. They also have shown that they declined to re-hire her because of that incident and her predicate actions regarding Di Lucia, combined with the nature of the small office to which she would return, where both Duff and Di Lucia would be present and in close proximity to the plaintiff.
Plaintiff asserts that issues of fact exist as to whether these reasons were pretextual. The Court disagrees.
The alleged age-related statements plaintiff attributes to defendants are the ones allegedly made by Duff concerning former employees, as asserted by plaintiff at her
deposition and in her second amended complaint, and, in addition, Schrier's noting that retirement was one of the options available to plaintiff. As to the latter, there is no proof that Schrier had any role in supervising plaintiff, and had nothing to do with a change in plaintiff's job status until she was approached after the events in the HCFCU office. In her affidavit, she states that she had met plaintiff “only in passing” beforehand. There is no contrary proof presented. Without any other evidence connecting Schrier to plaintiff or earlier events at HCFCU, her review of plaintiff's options in her capacity as Director of Human Resources, of which retirement might have been one, cannot stand as some proof that she wanted plaintiff to leave because of her age.
It should be noted that the second amended complaint is not verified, and cannot be utilized as a substitute for a sworn statement by the plaintiff; it is thus of no probative value here. See, e.g., Blam v. Netcher, 17 A.D.3d 495, 793 N.Y.S.2d 464 (2d Dept.2005). To the extent it has been referred to the Court does so only to establish plaintiff's allegations. Plaintiff has not submitted a separate affidavit.
The alleged statements about former employees by Duff (who vehemently denies making them), are similarly unavailing. According to plaintiff they were made in 2006/2007, not close in time to the incidents referred to, and did not concern plaintiff herself. Indeed, the parties agree that plaintiff had worked successfully in HCFCU from 1991 until 2011, and plaintiff presents no evidence that she ever had experienced any adverse treatment because of her age, or, for that matter, for any other reason. Thus, these statements about other employees, even if made, are not proof of age discrimination directed to the plaintiff. See Renz v. Grey Advertising, Inc., 135 F.3d 217, 224 (2d Cir.1997).
As to the hiring of the younger person, one Daniel Goosk, defendants have provided evidence that after plaintiff left she was not replaced initially, but rather her duties were shared by Duff and Di Lucia because plaintiff's departure was sudden and unexpected. Further, Goosk was hired some four months later, in late January of 2012, and he was engaged as an Operations Specialist. Colligan specifically states that a key position plaintiff had—that of Loan Officer—was not given to the younger employee when he was hired. According to Duff, Goosk ultimately was promoted and did assume that duty, but not until January, 2014, two years after he was hired, and more that two years after plaintiff left.Further, as of the date of Duff's affidavit he still does not perform other duties plaintiff performed, does not have the same authority, and does not have the title of Manager. Duff Aff., ¶¶ 41–43.
The Court finds that defendants thus have shown that plaintiff was not “replaced” by Goosk, as her duties were spread among other employees, and thus the reasons given for the adverse employment action (again, assuming there was one) have been shown not to be a pretext for unlawful discrimination based on age. Matter of Laverack & Haines v. New York State Div. of Human Rights, 88 N.Y.2d 734, 740, 650 N.Y.S.2d 76, 673 N.E.2d 586 (1996) ; Bailey v. New York Westchester Square Med. Centre, 38 A.D.3d 119, 829 N.Y.S.2d 30 (1st Dept.2007) ; see also Jordan v. Bates Advertising Holdings, Inc., 46 A.D.3d 440, 848 N.Y.S.2d 127 (1st Dept.2007).
In response, plaintiff has failed to raise an issue of fact. As noted, she has not submitted an affidavit. By her attorney, she attempts to demonstrate that she was indeed replaced by a younger worker. She points to the Colligan deposition, where she stated that the new younger employee balanced the checkbook, which Di Lucia had testified plaintiff also had done, and met with credit union members, as plaintiff also had done. Di Lucia stated that Goosk performed “some” but not all of the duties formerly performed by plaintiff. However, she added that “I never really looked into what she has to do....” Di Lucia Trans., at 64.She also testified, with regard to the new employee, “I'm not sure of all his responsibilities ... I just focus on what I have to get done and not what everyone else has to do.” Id,, at 63–64, 848 N.Y.S.2d 127. Her deposition testimony regarding the job responsibilities of the new employee thus is of little probative value.
This does not place in issue the fact that Duff and Di Lucia initially took over plaintiff's duties, that the Loan Officer duties were not given to the younger employee when he was hired, that he did not assume those duties until two years later, and that he still does not do all that plaintiff did. This fatally undermines plaintiff's argument that the hiring of Goosk represented “replacement” of an older worker by a younger one, and does not serve as evidence that the reasons given by defendants were merely pretext for an age-related termination. Laverack & Haines, supra; Bailey, supra; Jordan, supra.
Moreover, and importantly, there is no dispute about the abrupt and unplanned nature of plaintiff's departure, nor that it was the wage/vacation day complaint by plaintiff that led to that departure. There had been no contemporaneous complaint that she was being discriminated against because of her age, and Di Lucia, whose payment after the hurricane led to these events, is only a few years younger than the plaintiff herself.
Thus, whether one accepts plaintiff's or defendants' version of what occurred in September, 2011 in the HCFCU office, it cannot reasonably be inferred that plaintiff had been terminated or forced out by defendants because of her age, so that they would be able to hire a younger person to do her job. In short, there simply is no proof of any existing age animus directed to her prior to or at the time she ceased employment.
Finally, it does appear that the defendants did not follow the procedures set forth in the personnel manual regarding progressive discipline, but there is no separate cause of action based thereon. The only use to which this fact has been put by plaintiff is as some proof of age discrimination, but in view of the analysis set forth above the Court does not find this sufficient to create an issue of fact regarding pretext.
Accordingly, all of plaintiff's Executive Law § 296 claims are dismissed.
The Court now turns to the claim made under Labor Law § 215, which prohibits retaliation by an employer for an employee's complaint that the Labor Law has been violated. Although it may be based on “any provision” of that statute (Kelly v. Xerox Corp., 256 A.D.2d 311, 312, 681 N.Y.S.2d 322 [2d Dept.1998] ), and notwithstanding plaintiff's citation to trial court federal cases, the law in this Judicial Department is that the plaintiff must have complained about a specific violation to support a claim of retaliatory discharge under Labor Law § 215. Epifani v. Johnson, 65 A.D.3d 224, 236, 882 N.Y.S.2d 234 (2d Dept.2009). Thus, if the complaint made is not governed by any provision in the Labor Law, no § 215 claim may be maintained. Id.
Here, the plaintiff had made complaints of what she termed “payroll fraud.” As indicated, this stemmed from her being charged a vacation day for an involuntary absence from work after a snowstorm, when Di Lucia had not been so charged after her absence after a hurricane—i.e,, that there was an unfair difference in how the employer applied its policy regarding paid absences. In her memorandum of law plaintiff cites to Labor Law § 195(4), but this section merely imposes on employers a burden of keeping accurate wage records, and does not impose any requirement governing paid absence policy. Nor has plaintiff shown or even complained that the records related to both her and Di Lucia, or either, were inaccurate—in fact, it was the perceived accuracy of the records plaintiff apparently reviewed that led to her complaint of unfair treatment. Thus, plaintiff has not pointed to any Labor Law provision that would govern her complaint to the employer, and summary judgment therefore should be granted as to this claim. Epifani, supra.
Indeed, it is worth noting that even assuming that she was treated differently from Di Lucia, as she claims, this was undisputedly an “at will” employment, and given that status there was nothing (other than illegal discrimination against her as a member of a protected class) that prohibited defendants from changing the terms of plaintiff's compensation. See Kronick v. L.P. Thebault Co/, Inc., 70 A.D.3d 648, 892 N.Y.S.2d 895 (2d Dept.2010) ; General Elec. Tech. Servs. Co. v. Clinton, 173 A.D.2d 86, 577 N.Y.S.2d 719 (3d Dept.1991). This is so because the employee who perceives she is not being paid fairly may simply terminate her employment. Kronick, supra; General Elec ., supra. As it happens, the employer has demonstrated, without contradiction, that the two other HCFCU employees (Duff and Di Lucia) also had been charged with a vacation day after the snowstorm, and even this charge was removed as to all three employees after plaintiff brought it to the employer's attention. Further, this Court now has held that there was no discrimination against plaintiff based on her age, so that any difference in treatment that existed between plaintiff and Di Lucia cannot support a suit for retaliation based on plaintiff's membership in a protected class.
Accordingly, the cause of action sounding in retaliation must also be dismissed.
The second amended complaint is dismissed in its entirety.
This shall constitute the Decision and Order of this Court.