Summary
reversing part of a denial of summary judgment on a NYCHRL retaliation claim because plaintiff failed to show "retaliatory animus"
Summary of this case from Hornig v. Trs. of Columbia Univ. in the City of N.Y.Opinion
2013-12-5
Rebecca S. SERDANS, Plaintiff–Respondent, v. The NEW YORK AND PRESBYTERIAN HOSPITAL, Defendant–Appellant.
Epstein Becker & Green, P.C., New York (Kenneth J. Kelly of counsel), for appellant. Arce Law Group, P.C., New York (Bryan S. Arce and W. Gordon Kaupp of counsel), for respondent.
Epstein Becker & Green, P.C., New York (Kenneth J. Kelly of counsel), for appellant. Arce Law Group, P.C., New York (Bryan S. Arce and W. Gordon Kaupp of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, GISCHE, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered August 7, 2013, which, insofar as appealed from as limited by the briefs, denied defendant's motion for summary judgment dismissing the complaint's first, second, fourth, and fifth causes of action, unanimously modified,on the law, to dismiss the complaint's second and fifth causes of action for retaliation under the State and City Human Rights Laws and to dismiss so much of the first and fourth causes of action as asserts claims for disability discrimination premised on theories other than defendant's failure to reasonably accommodate plaintiff's disability, and otherwise affirmed, without costs.
Plaintiff is a registered nurse and nurse practitioner specializing in critical care. She suffers from a neurological disorder for which she was treated with deep brain stimulus (DBS) through electrodes permanently implanted in her brain. Plaintiff's DBS system is sensitive to electromagnetic radiation such as that emitted by magnetic resonance imaging systems.
The record indicates that, on November 2, 2007, the parties reached an agreement to accommodate plaintiff's disabling condition by having her assigned to work exclusively in the hospital's cardio-thoracic intensive care unit (CTICU).
In light of, among other evidence, plaintiff's testimony that, during the months after she was mistakenly assigned to work in defendant's medical intensive care unit (MICU), defendant frequently cancelled her work assignments and ultimately ceased offering her work altogether, for purposes of plaintiff's claim of disability-based discrimination under the New York State and City Human Rights Laws (HRL), issues of fact exist as to whether plaintiff suffered an adverse employment action under the State HRL ( see Messinger v. Girl Scouts of U.S.A., 16 A.D.3d 314, 314–315, 792 N.Y.S.2d 56 [1st Dept. 2005] ) or was treated differently under the City HRL ( see Askin v. Department of Educ. of the City of New York, 110 A.D.3d 621, 621–622, 973 N.Y.S.2d 629, [1st Dept. Oct. 29, 2013] ).
Plaintiff's claims of disability-based employment discrimination must nonetheless be dismissed, however, as she has failed to point to evidence raising an inference of discriminatory animus ( see Matter of McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019 [1994]; Askin, 110 A.D.3d 621, 621–622, 973 N.Y.S.2d 629). Remarks by hospital staff testified to by plaintiff, to the effect that she had “brought [her situation] upon [herself]” and should “take [her] assets elsewhere” were not of themselves derogatory or indicative of discriminatory animus. At most, plaintiff has shown only “[s]tray remarks” which, “even if made by a decision maker, do not, without more, constitute evidence of discrimination” (Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 125, 946 N.Y.S.2d 27 [1st Dept. 2012] ). Plaintiff's testimony that unidentified persons laughed at her “behind [her] back” likewise does not raise an issue of fact as to discriminatory animus ( see Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 [2d Cir.1996] ).
Plaintiff's complaint about defendant's alleged failure to implement the parties' agreement to accommodate her disability (as distinct from her initial request for an accommodation) does constitute a protected activity for purposes of her State and City HRL claims of retaliation ( see Brook v. Overseas Media, Inc., 69 A.D.3d 444, 445, 893 N.Y.S.2d 37 [1st Dept. 2010]; cf. Witchard v. Montefiore Med. Ctr., 103 A.D.3d 596, 596, 960 N.Y.S.2d 402 [1st Dept.], lv. denied22 N.Y.3d 854, 2013 N.Y. Slip Op. 88924, 2013 WL 5716344 [Oct. 22, 2013] ). As evidence of a causal nexus between her complaint and the alleged adverse action under the State HRL ( 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] ) or disadvantageous action under the City HRL ( see Fletcher v. Dakota, Inc., 99 A.D.3d 43, 51–52, 948 N.Y.S.2d 263 [1st Dept. 2012] ), however, plaintiff points to the same constellation of evidence which she relies upon in support of her claim of disability discrimination. These factors do not constitute evidence of retaliatory animus for the same reasons.
Plaintiff essentially concedes that defendant engaged in the requisite good faith interactive process in arriving at an agreement to accommodate her disability by assigning her exclusively to work in the CTICU ( see Phillips v. City of New York, 66 A.D.3d 170, 176, 884 N.Y.S.2d 369 [1st Dept. 2009] ). Issues of fact exist, however, as to whether defendant failed to implement the agreement, by, among other things, as testified to by plaintiff, frequently cancelling her work assignments and ultimately ceasing to assign her work altogether.
Finally, the exclusivity provisions of the Workers' Compensation Law do not preclude plaintiff's claim for personal injuries she allegedly sustained as a result of defendant's violations of the State and City HRL, including by exposure to electromagnetic interference in the MICU on November 10, 2007 ( see Matter of Grand Union Co. v. Mercado, 263 A.D.2d 923, 925, 694 N.Y.S.2d 524 [3d Dept. 1999]; Belanoff v. Grayson, 98 A.D.2d 353, 357–358, 471 N.Y.S.2d 91 [1st Dept. 1984] ).