Opinion
992 CA 18-02349
06-12-2020
Brenda J. NORDENSTAM, Plaintiff-Appellant, v. STATE UNIVERSITY OF NEW YORK COLLEGE OF ENVIRONMENTAL SCIENCE & FORESTRY, Defendant-Respondent.
BOSMAN LAW FIRM, LLC, BLOSSVALE (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
BOSMAN LAW FIRM, LLC, BLOSSVALE (A.J. BOSMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the first, second, third, and sixth causes of action, and as modified the order is affirmed without costs.
Memorandum: Plaintiff, a tenured associate professor employed by defendant, State University of New York College of Environmental Science & Forestry, commenced this action alleging, inter alia, that defendant discriminated against her on the basis of sex and disability and retaliated against her after she complained of discrimination. Plaintiff now appeals from an order granting defendant's motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, Supreme Court properly granted the motion with respect to the seventh through ninth causes of action, alleging disparate treatment and disability discrimination that was based on defendant's purported refusal to provide reasonable accommodations for her disability in violation of the Americans with Disabilities Act ( [ADA] 42 USC § 12101 et seq. ), Rehabilitation Act of 1973 ( 29 USC § 701 et seq. ), and Human Rights Law ( [NYSHRL] Executive Law § 290 et seq. ), respectively. Those statutes provide that, to establish a prima facie case of discrimination based upon the denial of a reasonable accommodation, plaintiff "must prove that he or she is a person with a disability, that the employer had notice of the disability, that he or she could perform the essential functions of the job with a reasonable accommodation and that the employer refused that reasonable accommodation" ( Graham v. New York State Off. of Mental Health , 154 A.D.3d 1214, 1217-1218, 64 N.Y.S.3d 334 [3d Dept. 2017] ; see Matter of Abram v. New York State Div. of Human Rights , 71 A.D.3d 1471, 1473, 896 N.Y.S.2d 764 [4th Dept. 2010] ; Stone v. City of Mount Vernon , 118 F.3d 92, 96-97 [2d Cir. 1997], cert denied 522 U.S. 1112, 118 S.Ct. 1044, 140 L.Ed.2d 109 [1998] ). Here, defendant met its initial burden on the motion with respect to those causes of action by establishing that an essential function of plaintiff's job was teaching and that plaintiff's requested accommodation, i.e., that she be allowed to work part time without teaching any courses, was unreasonable (see generally Pimentel v. Citibank, N.A. , 29 A.D.3d 141, 146, 151, 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] ). In opposition, plaintiff failed to raise a triable issue of fact with respect thereto (see McCarthy v. St. Francis Hosp. , 41 A.D.3d 794, 794, 840 N.Y.S.2d 800 [2d Dept. 2007], lv denied 9 N.Y.3d 813, 848 N.Y.S.2d 24, 878 N.E.2d 608 [2007] ; see also Pimentel , 29 A.D.3d at 149, 811 N.Y.S.2d 381 ; see generally Warren v. Volusia County, Fla. , 188 Fed. Appx. 859, 862-863 [11th Cir. 2006], cert denied 549 U.S. 1207, 127 S.Ct. 1268, 167 L.Ed.2d 78 [2007] ).
We agree with plaintiff, however, that the court erred in granting the motion with respect to the second cause of action, alleging violations of the Equal Pay Act of 1963 ( [EPA] 29 USC § 206 [d], as added by Pub. L. 88-38, 77 U.S. Stat. 56), and with respect to the first and third causes of action, alleging gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ( [Title VII] 42 USC, ch. 21, § 2000e et seq. ) and the NYSHRL, respectively. We therefore modify the order accordingly.
With respect to the cause of action alleging violations of the EPA, defendant failed to establish as a matter of law that the difference in pay between plaintiff and a less senior male colleague who performed similar work under similar conditions "is due to a factor other than sex" ( Beck-Wilson v. Principi , 441 F.3d 353, 365 [6th Cir. 2006] ; see also U.S. Equal Empl. Opportunity Commn. v. Maryland Ins. Admin. , 879 F.3d 114, 121 [4th Cir. 2018] ; see generally Tenkku v. Normandy Bank , 348 F.3d 737, 741 n. 2 [8th Cir. 2003] ). Although defendant contends that the pay disparity was the result of a merit system (see 29 USC § 206 [d][1] ), the evidence it submitted in support of the motion failed to demonstrate as a matter of law that there was " ‘an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria’ " and that the employees were aware of the purported merit system ( Ryduchowski v. Port Auth. of New York and New Jersey , 203 F.3d 135, 142-143 [2d Cir. 2000], cert denied 530 U.S. 1276, 120 S.Ct. 2743, 147 L.Ed.2d 1007 [2000] ). The second cause of action should therefore be reinstated.
With respect to the causes of action for sexual discrimination under Title VII and the NYSHRL, we conclude that issues of fact exist whether defendant's challenged actions were "based upon nondiscriminatory reasons," and thus summary judgment is precluded on those causes of action ( Ferrante v. American Lung Assn. , 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] ; see Forrest v. Jewish Guild for the Blind , 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ). Indeed, defendant offered inconsistent and shifting justifications for the pay disparity (see generally Morse v. Wyoming County Community Hosp. & Nursing Facility [appeal No. 2], 305 A.D.2d 1028, 1029, 758 N.Y.S.2d 749 [4th Dept. 2003] ). We therefore conclude that the first and third causes of action should also be reinstated (see generally Ferrante , 90 N.Y.2d at 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308 ).
Additionally, we agree with plaintiff that the court erred in granting the motion with respect to the sixth cause of action, alleging violations of the NYSHRL based on unlawful retaliation, and we further modify the order accordingly. To establish a claim for unlawful retaliation under the NYSHRL, a plaintiff must show that "(1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action" ( Forrest , 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). Insofar as relevant here, a defendant may establish entitlement to summary judgment in a retaliation case if the defendant " ‘demonstrate[s] that the plaintiff cannot make out a prima facie claim of retaliation’ " ( Calhoun v. County of Herkimer , 114 A.D.3d 1304, 1306, 980 N.Y.S.2d 664 [4th Dept. 2014] ). Contrary to plaintiff's contention, defendant's denial of plaintiff's request to return to work part time without any teaching duties and its requirement that she retain an administrative role that fell " ‘within the duties of [her] position’ " were not adverse employment actions ( Grant v. New York State Off. for People with Dev. Disabilities , 2013 WL 3973168, *7 [E.D. N.Y. 2013] ; see Sirota v. New York City Bd. of Educ. , 283 A.D.2d 369, 370, 725 N.Y.S.2d 332 [1st Dept. 2001] ), and thus plaintiff " ‘cannot make out a prima facie claim of retaliation’ " with respect to those allegations ( Calhoun , 114 A.D.3d at 1306, 980 N.Y.S.2d 664 ; see generally Forrest , 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). However, issues of fact exist whether defendant unlawfully retaliated against plaintiff after she complained of gender discrimination when it required her to retain her position as the undergraduate coordinator while at the same time maintaining her regular course load (see Vega v. Hempstead Union Free Sch. Dist. , 801 F.3d 72, 88 [2d Cir. 2015] ; see also Kelleher v. Wal-Mart Stores, Inc. , 817 F.3d 624, 631 [8th Cir. 2016] ; Sellers v. Deere & Co. , 791 F.3d 938, 944 [8th Cir. 2015] ). While defendant met its initial burden on the motion with respect to that allegation by submitting evidence that plaintiff's supervisor was unaware of plaintiff's discrimination complaint at the time this action was taken and that there was no causal connection between the action and that complaint, we conclude that plaintiff raised a triable issue of fact with respect to those two elements of her prima facie case (see Calhoun , 114 A.D.3d at 1306, 980 N.Y.S.2d 664 ). The sixth cause of action must therefore be reinstated.
Finally, contrary to plaintiff's contention, the court properly granted the motion with respect to the fifth cause of action, alleging violations of Title VII based on unlawful retaliation, because plaintiff failed to exhaust her administrative remedies with respect thereto (see Sydnor v. Fairfax County, Va. , 681 F.3d 591, 593-594 [4th Cir. 2012] ; see generally Patrowich v. Chemical Bank , 98 A.D.2d 318, 323-324, 470 N.Y.S.2d 599 [1st Dept. 1984], affd 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 [1984] ; Jones v. Needham , 856 F.3d 1284, 1290 [10th Cir. 2017] ).