| Bendeck v NYU Hosps. Ctr. |
| 2010 NY Slip Op 07585 [77 AD3d 552] |
| October 26, 2010 |
| Appellate Division, First Department |
| Patricia Bendeck, Respondent, v NYU Hospitals Center, AlsoKnown as NYU Medical Center, et al., Appellants. |
—[*1]
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 1, 2009, whichdenied defendants' motion for summary judgment, unanimously reversed, on the law, without costs, themotion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.
It is alleged in the complaint that defendants violated the State and City Human Rights Laws byretaliating against plaintiff for opposing discriminatory employment practices (see ExecutiveLaw § 296 [7]; Administrative Code of City of NY § 8-107 [7]). On September 25,2006, plaintiff began her six-month probationary period of employment as the executive assistant todefendant Johnson, the senior vice-president and general counsel of defendant NYU Hospitals Center(NYUHC). On December 1, plaintiff sent a coworker an e-mail accusing her of sexual harassment. Thecoworker immediately denied the accusation. Five days later, the coworker and her office managerapprised Johnson of the accusation and the office manager gave Johnson a copy of the e-mail string.The underpinning of plaintiff's retaliation claims is set forth in the following account, in her brief, of ameeting she had with Johnson later that month: "Johnson stated at the outset of the meeting that shewanted Plaintiff to find another job upon learning of the possible sexual harassment claim and thatJohnson was angry that Plaintiff's complaint had reached the Human Resources Department." Plaintiff'slater attempt to retreat from this position is belied by her own testimony that Johnson had angrilysummoned her to the office after having just received "a call from human resources that you're building asexual harassment case." Johnson disputed plaintiff's retaliation theory, testifying that she merely askedplaintiff if she was making a sexual harassment complaint against the coworker and told plaintiff that sheherself would have to report the incident to human resources department (HR) if she wanted to makesuch a complaint. According to Johnson, plaintiff said she was not making a complaint, did not wantJohnson to get involved, and that the alleged sexual harassment had stopped.
Defendants moved for summary judgment on the grounds, among others, that (a) Johnson did notlearn that HR was aware of plaintiff's accusation until after the December 2006 meeting, and (b) thetermination of plaintiff's employment, which occurred in March 2007, was based upon misconduct andpoor work performance. The court denied the motion, finding issues of fact on the basis of plaintiff'sdeposition. We disagree.[*2]
In order to make out a claim of unlawful retaliation, a plaintiffmust show that (1) she engaged in protected activity, (2) her employer was aware that she participatedin such activity, (3) she suffered adverse employment action based on her activity, and (4) there is acausal connection between the protected activity and the adverse action (see Forrest v Jewish Guild for the Blind, 3NY3d 295, 312-313 [2004]). To prevail on their summary judgment motion, defendants had todemonstrate either plaintiff's failure to establish every element of intentional discrimination, or, havingoffered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material factas to whether their explanations were pretextual (id. at 305). Summary judgment should havebeen granted because the facts essential to the retaliation claims were negated by affidavits anddocumentary evidence (Blackgold Realty Corp. v Milne, 119 AD2d 512, 513 [1986],affd 69 NY2d 719 [1987]). Here, HR's awareness of plaintiff's sexual harassment accusationas of the time of her meeting with Johnson was pivotal to the retaliation claims. In this respect, thecoworker's supervisor stated in his affidavit that it was not until January 2007 that he advised thecoworker to communicate with HR regarding plaintiff's accusation. The record contains a January 4,2007 memorandum from the coworker to the senior vice-president for HR, annexed to which are thecoworker's memo to file outlining her interactions with plaintiff and the e-mail string. NYUHC'svice-president of employee and labor relations acknowledged in his affidavit that the coworker'smemorandum was forwarded to him on January 12, 2007. Accordingly, plaintiff has failed to raise atriable issue of fact as to whether she met her initial burden of establishing a prima facie case of unlawfulretaliation.
Had a prima facie case of discrimination been established, the burden would have shifted todefendants to rebut a presumption of discrimination by clearly setting forth, through the introduction ofadmissible evidence, legitimate, independent and nondiscriminatory reasons to support their decision toterminate plaintiff's employment (see Matter of Miller Brewing Co. v State Div. of HumanRights, 66 NY2d 937 [1985]). Even assuming a prima facie case of unlawful retaliation,defendants would have easily met their burden through depositions, affidavits and documents thatprovided substantial and significant reasons to terminate plaintiff's employment. These reasons includedpoor work performance such as plaintiff's failure to address an ongoing problem with invoices,punctuated by an insolent e-mail by which she told Johnson to handle the matter herself; discourteoustreatment of other employees; a report of plaintiff's refusal to sign for a package being delivered to thevice-dean of administration; and an affidavit and incident report detailing menacing behavior on part ofplaintiff toward another employee. Contrary to the motion court's finding, plaintiff's unsupportedassertions were insufficient to establish that defendants' reasons were pretextual (see Forrest, 3NY3d at 308 n 6). Concur—Friedman, J.P., Sweeny, DeGrasse, Richter andManzanet-Daniels, JJ. [Prior Case History: 2009 NY Slip Op 31441(U).]