| Suriel v Dominican Republic Educ. & Mentoring Project, Inc. |
| 2011 NY Slip Op 05384 [85 AD3d 1464] |
| June 23, 2011 |
| Appellate Division, Third Department |
| Patricia Suriel et al., Appellants, v Dominican Republic Educationand Mentoring Project, Inc., Also Known as Dream, et al., Respondents. (And Another RelatedAction.) |
—[*1] Sassani & Scheneck, P.C., Liverpool (Kathleen C. Sassani of counsel), for Michel Zaleski,respondent.
Garry, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered June 30, 2010 inTompkins County, which granted defendants' motions for partial summary judgment dismissingplaintiffs' first, second and sixth causes of action.
Plaintiff Patricia Suriel began serving as executive director of defendant Dominican RepublicEducation and Mentoring Project, Inc. (hereinafter DREAM) in 2002. Suriel's father, plaintiffEdward Thorndike, served as DREAM's volunteer bookkeeper. Suriel's relationship withdefendant Michel Zaleski, the president of DREAM and chair of its board of directors, soured inlate 2008, shortly after she attempted to terminate DREAM's Dominican Director, JonathanWunderlich. Suriel was terminated in 2009, allegedly for insubordination, mismanagement andpersonal use of the organization's funds.[*2]
Plaintiffs commenced the present action alleging, amongother things, that defendants violated the Human Rights Law (see Executive Law §290 et seq.) by subjecting Suriel to a sex-based hostile work environment and retaliatingagainst her for taking steps to correct it. The complaint further alleged that defendantsintentionally inflicted emotional distress upon plaintiffs. Following joinder of issue, defendantsseparately moved for partial summary judgment on those causes of action. Supreme Courtgranted the motions, and plaintiffs appeal.[FN1]
We affirm. Initially, plaintiffs argue that the summary judgment motions should have beendenied pending further discovery, but they fail to demonstrate how the discovery they seek wouldyield material evidence (see CPLR 3212 [f]; Beesmer v Besicorp Dev., Inc., 72 AD3d 1460, 1461 [2010]). Tothe extent that plaintiffs made that showing as to further discovery regarding DREAM's finances,they have not shown how the discovery may reveal material facts within defendants' exclusiveknowledge (see Beesmer v Besicorp Dev., Inc., 72 AD3d at 1461). Indeed, thesought-after discovery includes a deposition of Thorndike, who is plainly not under defendants'control. Accordingly, we find no abuse of discretion in Supreme Court's denial of plaintiffs'request to deny or delay defendants' motions (see Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d 1284, 1288[2009]).
Turning to the merits, as the party alleging gender discrimination, Suriel bore the initialburden of showing "that (1) she is a member of a protected class; (2) she was qualified to holdthe position; (3) she was terminated from employment or suffered another adverse employmentaction; and (4) the discharge or other adverse action occurred under circumstances giving rise toan inference of discrimination" (Forrestv Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see Singh v State of N.Y. Off. of Real Prop.Servs., 40 AD3d 1354, 1355-1356 [2007]). The first three elements were not at issuehere. As to the fourth, Suriel asserted that she was subjected to a hostile work environment as aresult of sexual harassment. This claim required her to demonstrate that discriminatory "conductoccurred because of her sex" (Alfano v Costello, 294 F3d 365, 374 [2d Cir 2002]; seeOncale v Sundowner Offshore Services, Inc., 523 US 75, 79-81 [1998]; Mauro vOrville, 259 AD2d 89, 92 [1999], lv denied 94 NY2d 759 [2000]).[FN2]However, Suriel did not allege that the conduct directed toward her was sexual in nature; instead,she asserted that it constituted retaliation for her complaints to DREAM's board of directorsregarding Zaleski's behavior towards other women, as well as her termination ofWunderlich.[FN3][*3]As Suriel thus provided nothing to "plausibly connect[ ] anyof the actions taken against" her to her gender, her discrimination claim was properly dismissed(Krasner v HSH Nordbank AG, 680 F Supp 2d 502, 517 [SD NY 2010]; see Brown vHenderson, 257 F3d 246, 255-256 [2d Cir 2001]; Leibovitz v New York City Tr.Auth., 252 F3d 179, 189-190 [2d Cir 2001]).
Plaintiffs' emphasis was on the retaliation claim, upon which they were required to show inthe first instance "that (1) [Suriel] was engaged in a protected activity, (2) [defendants were]aware of that activity, (3) she suffered an adverse employment action and (4) there was a causalconnection between her protected activity and the adverse employment action" (Matter of New York State Dept. ofCorrectional Servs. v New York State Div. of Human Rights, 53 AD3d 823, 825 [2008];see Forrest v Jewish Guild for the Blind, 3 NY3d at 312-313). Seeking to establish thefirst of these elements, Suriel claimed that complaining to Zaleski about his "inappropriate sexualrelationships" and advising the board of directors of his "inappropriate behavior" and that ofWunderlich constituted protected activity. However, she failed to assert that she hadcomplained that either Zaleski or Wunderlich had engaged in sexual harassment ordiscrimination. No such allegations appear in Suriel's extensive correspondence with Zaleski andthe board of directors during the relevant time period, nor were any such complaints mentionedin letters later submitted on her behalf by two board members. Plaintiffs did not show that Surielengaged in protected activity by "opposing or complaining about unlawful discrimination"(Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d at 1357) and therefore failedto establish a prima facie case of retaliation, making summary judgment proper (see Ferrantev American Lung Assn., 90 NY2d 623, 631 [1997]).
Even if plaintiffs had met the "low threshold" of establishing a prima facie case (Singh vState of N.Y. Off. of Real Prop. Servs., 40 AD3d at 1356), defendants satisfied their burdento "present legitimate, independent and nondiscriminatory reasons to support their actions" byshowing that Suriel was terminated for insubordination and improper use of DREAM funds(Pace v Ogden Servs. Corp., 257 AD2d 101, 104 [1999]; see Matter of Board of Educ. of New PaltzCent. School Dist. v Donaldson, 41 AD3d 1138, 1140 [2007], lv denied 10NY3d 706 [2008]). Plaintiffs attempted to raise questions of fact as to whether those reasonswere pretextual (see Matter of Board of Educ. of New Paltz Cent. School Dist. vDonaldson, 41 AD3d at 1140) by pointing out that intensive efforts to determine if Surielhad misused DREAM funds were not made until around the time she allegedly engaged inprotected activity.[FN4]However, [*4]plaintiffs cannot "avoid summary judgment bymerely pointing to the inference of causality resulting from the sequence in time of the events"(Forrest v Jewish Guild for the Blind, 3 NY3d at 313 [internal quotation marks andcitation omitted]). The record demonstrates that Zaleski's concerns about Suriel's financialmanagement arose in the midst of financial turmoil at DREAM, which he and others allegedlyfeared would be exacerbated by the timing of her decision to fire Wunderlich. DREAM's boardof directors later approved Suriel's termination after an accountant determined that she hadexpended DREAM funds for unapproved purposes. Under these circumstances, the temporalproximity between the alleged protected activity and Suriel's discharge was insufficient, standingalone, to pose issues of fact upon her retaliation claim (see Shelton v Trustees of ColumbiaUniv., 369 Fed Appx 200, 202 [2d Cir 2010]; Koester v New York Blood Ctr., 55 AD3d 447, 449 [2008]; Dorvil v Hilton Hotels Corp., 25 AD3d442, 443 [2006]).
Rose, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, with one bill of costs.
Footnote 1: Plaintiffs failed to address intheir appellate brief the dismissal of the intentional infliction of emotional distress claim and,accordingly, any issues with respect thereto are deemed abandoned (see Randall v Time Warner Cable, Inc.,81 AD3d 1149, 1150 n [2011]).
Footnote 2: The standards for recoveryunder the Human Rights Law are identical to those set out under title VII of the federal CivilRights Act of 1964, and both state and federal decisional authority are accordingly helpful inresolving the present appeal (see Forrest v Jewish Guild for the Blind, 3 NY3d at 305 n3; Matter of Tosha Rests., LLC v NewYork State Div. of Human Rights, 79 AD3d 1337, 1340 n [2010]).
Footnote 3: To the extent that Suriel seeks toestablish that a hostile work environment was created by Zaleski's alleged sexual conductinvolving other women (see Vinson v Taylor, 753 F2d 141, 146 [DC Cir 1985], affdsub nom. Meritor Savings Bank, FSB v Vinson, 477 US 57 [1986]), we note that the conductin question was never witnessed by Suriel, occurred infrequently over the course of several years,and occurred at work on only one occasion. Such allegations are insufficient to demonstrate "thatan environment existed at work that was hostile to [Suriel] because of her sex" (Leibovitz vNew York City Tr. Auth., 252 F3d 179, 190 [2d Cir 2001]) or that "a term, condition orprivilege" of Suriel's employment was affected (Pace v Ogden Servs. Corp., 257 AD2d101, 103 [1999]).
Footnote 4: Suriel did not address the chargeof insubordination in her opposition to the motions or in her appellate brief.