| Lambert v Macy's E., Inc. |
| 2011 NY Slip Op 03809 [84 AD3d 744] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Anthony Lambert, Appellant, v Macy's East, Inc., et al.,Respondents. |
—[*1] Dorsey & Whitney, LLP, New York, N.Y. (Kerry Brainard Verdi of counsel), forrespondents.
In an action, inter alia, to recover damages for discrimination in the terms, conditions, andprivileges of employment on the basis of race, and for retaliation against the plaintiff on theground that he opposed and complained of certain discriminatory practices, in violation ofExecutive Law § 296 and Administrative Code of the City of New York § 8-107, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, KingsCounty (Rothenberg, J.), dated April 30, 2010, as granted the defendants' motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, an African-American male, commenced this action to recover damages foremployment discrimination and unlawful retaliation pursuant to both the New York State HumanRights Law (Executive Law § 290 et seq.) and the New York City Human RightsLaw (Administrative Code of City of NY § 8-101 et seq.) against his formeremployer, the defendant Macy's East, Inc., among others, alleging, inter alia, that, due to his race,he was denied promotion to a position that was filled with less qualified white individuals. Healso alleges that he was harassed by the defendants, that the defendants retaliated against him foropposing and complaining of discriminatory practices, and that he was exposed to a hostile workenvironment after he complained about racial discrimination against him, all of which he furtheralleges led to his constructive termination from employment.
A plaintiff alleging racial discrimination in employment has the initial burden of establishinga prima facie case of discrimination (seeForrest v Jewish Guild for the Blind, 3 NY3d 295 [2004]). To meet this burden, aplaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualifiedto hold the position; (3) he or she was terminated from employment or suffered another adverseemployment action; and (4) the discharge or other adverse action occurred under circumstancesgiving rise to an inference of discrimination (id.; see Ferrante v American LungAssn., 90 NY2d 623, 629 [1997]). The burden then shifts to the employer or employers " 'torebut the presumption of discrimination by clearly setting forth, through the introduction ofadmissible evidence, legitimate, independent, and nondiscriminatory reasons to support itsemployment decision' " (Ferrante v American Lung Assn., 90 NY2d at 629, quotingMatter of Miller Brewing Co. v State Div. of Human Rights, 66 NY2d 937, 938 [1985]).To thereafter succeed on the claim, the plaintiff must prove that the legitimate reasons profferedby the [*2]defendants were merely a pretext for discrimination, bydemonstrating both that the stated reasons were false, and that discrimination was the real reason(see Ferrante v American Lung Assn., 90 NY2d at 629-630).
"To prevail on their summary judgment motion, defendants must demonstrate eitherplaintiff's failure to establish every element of intentional discrimination, or, having offeredlegitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issueof fact as to whether their explanations were pretextual" (Forrest v Jewish Guild for theBlind, 3 NY3d at 305; Clark vMorelli Ratner PC, 73 AD3d 591 [2010]). Here, in opposition to the defendants' primafacie showing of their entitlement to judgment as a matter of law on the employmentdiscrimination causes of action, the plaintiff failed to raise a triable issue of fact (see Forrest v Jewish Guild for theBlind, 3 NY3d 295 [2004]; Lichtman v Martin's News Shops Mgt., Inc., 81 AD3d 696 [2011];Clark v Morelli Ratner PC, 73AD3d 591 [2010]).
Similarly, those branches of the defendants' motion which were for summary judgmentdismissing the causes of action alleging unlawful retaliation and constructive discharge wereproperly granted. The defendants established, prima facie, that the plaintiff did not suffer an"adverse employment action" based upon his engagement in a protected activity (Forrest vJewish Guild for the Blind, 3 NY3d at 313), and that they did not deliberately make hisworking conditions so intolerable that a reasonable person in his position would have feltcompelled to resign (see Nelson vHSBC Bank USA, 41 AD3d 445, 447 [2007]). In opposition, the plaintiff failed to raisea triable issue of fact (see Bendeck vNYU Hosps. Ctr., 77 AD3d 552, 553 [2010]; Balsamo v Savin Corp., 61 AD3d 622 [2009]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Rivera, Austin andRoman, JJ., concur.