| Ruane-Wilkens v Board of Educ. of City of N.Y. |
| 2008 NY Slip Op 09062 [56 AD3d 648] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Maryellen Ruane-Wilkens, Appellant, v Board ofEducation of City of New York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and AlanG. Krams of counsel), for respondents.
In an action to recover damages for employment discrimination and retaliation pursuant toExecutive Law § 296, the plaintiff appeals from an order of the Supreme Court, KingsCounty (Hinds-Radix, J.), dated July 3, 2007, which granted the defendants' motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff began working as a teacher for the defendant Board of Education of the City ofNew York (hereinafter the Board) in 1972. She suffers from depression, the symptoms of whichinclude suicidal tendencies and loss of touch with reality. She began working at Prospect HeightsHigh School, under the administration of the defendant principal Jerry Cioffi in 1990. In hersecond year, the plaintiff had to take three or four weeks off because of her depression. Sheapplied to transfer to a different school, but did not state her depression as the reason forrequesting the transfer. The Board denied the transfer on the ground that the plaintiff did not haveenough seniority. In the fall of 1993 the school briefly increased the number of students in herswim class from 25 to 40, and assigned her to teach a weight-training class. The plaintiff allegesthat these actions were taken against her in retaliation for her filing a transfer request, [*2]and she commenced this action in April 1999.
In June 1999 the defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint astime-barred. The Supreme Court denied the motion, and the defendants did not appeal. Thedefendants subsequently moved for summary judgment dismissing the complaint on the merits.In an order dated July 3, 2007 the same court granted the motion. The plaintiff appeals from thatorder, and we affirm.
"To state a prima facie case of employment discrimination due to a disability underExecutive Law § 296, a plaintiff must show that he or she suffers from a disability and thatthe disability engendered the behavior for which he or she was discriminated against in the terms,conditions, or privileges of his or her employment" (Thide v New York State Dept. ofTransp., 27 AD3d 452, 453 [2006]; see Matter of McEniry v Landi, 84 NY2d 554,558 [1994]). Pursuant to Executive Law § 296 (7), it is unlawful to retaliate against anemployee because he or she opposed statutorily-forbidden discriminatory practices. To make aprima facie showing of retaliation, a plaintiff must show that: (1) he or she participated in aprotected activity, (2) the employer was aware of his or her participation in that activity, (3) theemployer took an adverse employment action, and (4) there was a causal connection between theprotected activity and the adverse employment action (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 313 [2004]).
In opposition to the defendants' prima facie showing of entitlement to judgment as a matterof law, the plaintiff failed to raise a triable issue of fact. The plaintiff failed to present anyevidence that her transfer request was denied due to her disability. She herself conceded that itwas denied because she did not have enough seniority. Moreover, the record contains noevidence that the plaintiff ever complained about any discrimination. Therefore, she failed toraise a triable issue of fact as to whether she was engaged in an activity which would have givenrise to a cause of action to recover damages for employment discrimination or retaliation, and theSupreme Court properly granted the defendants' motion for summary judgment dismissing thecomplaint (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The defendants' remaining contention is not properly before this Court (see Martin vDominick, 280 AD2d 586 [2001]). Santucci, J.P., Covello, Leventhal and Belen, JJ., concur.