| Ehmann v Good Samaritan Hosp. Med. Ctr. |
| 2011 NY Slip Op 09588 [90 AD3d 985] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Karen Ehmann, Appellant, v Good Samaritan HospitalMedical Center, Respondent. |
—[*1] Putney, Twombly, Hall & Hirson LLP, New York, N.Y. (Mary Ellen Donnelly and M.Christopher Moon of counsel), for respondent.
In an action, inter alia, to recover damages for discrimination in employment on the basis ofage in violation of Executive Law § 296, the plaintiff appeals, as limited by her brief, fromso much of an order of the Supreme Court, Nassau County (Palmieri, J.), entered September 20,2010, as granted the defendant's motion for summary judgment dismissing the causes of actionalleging hostile work environment and unlawful employment practices.
Ordered that the order is affirmed insofar as appealed from, with costs.
To support a prima facie case of age discrimination under the Human Rights Law, theplaintiff must demonstrate (1) that she is a member of the class protected by the statute; (2) thatshe was actively or constructively discharged; (3) that she was qualified to hold the position fromwhich she was terminated; and (4) that the discharge occurred under circumstances giving rise toan inference of age discrimination (see Ferrante v American Lung Assn., 90 NY2d 623,629 [1997]). Once a prima facie case is made, the burden shifts to the employer to rebut thepresumption with evidence that the plaintiff was discharged for a legitimate, nondiscriminatoryreason. If such evidence is produced, the presumption is rebutted and the factfinder mustdetermine whether the proffered reasons are merely a pretext for discrimination. A factfinderwho concludes that the proffered reasons are pretextual is permitted to infer the ultimate fact ofdiscrimination but is not required to do so (id. at 630).
A defendant "seeking summary judgment dismissing a cause of action alleging agediscrimination must demonstrate either that, as a matter of law, the plaintiff cannot establish theelements of intentional discrimination, or that the plaintiff cannot raise a triable issue of fact as towhether the facially legitimate, nondiscriminatory reasons proffered by the [defendant for its]challenged actions were pretextual" (Considine v Southampton Hosp., 83 AD3d 883, 884 [2011][internal quotation marks and citations omitted]; see Sayegh v Fiore, 88 AD3d 981 [2011]). Here, the defendantestablished its entitlement to judgment as a matter of law by showing that the plaintiff cannotestablish an element of intentional discrimination, namely, that she was actively or constructivelydischarged. The defendant submitted evidence demonstrating that the employment actions [*2]complained of by the plaintiff consisted merely of a formal verbalwarning and a formal written warning, both of which simply provided the plaintiff withcriticisms directed at her job performance and suggestions for improvement, but which did notamount to her active or constructive discharge (see Ferrante v American Lung Assn., 90NY2d at 629; Pena v Brattleboro Retreat, 702 F2d 322, 325 [1983]).
The defendant also demonstrated legitimate, nondiscriminatory reasons for its criticisms ofthe plaintiff's job performance. The defendant submitted, inter alia, affidavits prepared by theplaintiff's supervisors which outlined several purported deficiencies in the plaintiff's jobperformance as a registered dietician. Significantly, the defendant submitted several patientcharts the plaintiff had prepared in the course of her employment at the defendant's hospitalwhich demonstrated the work performance deficiencies that were alleged by her supervisors.
In opposition to the defendant's prima facie showing of its entitlement to judgment as amatter of law, the plaintiff failed to raise a triable issue of fact. Therefore, the Supreme Courtproperly granted that branch of the defendant's motion which was for summary judgmentdismissing the cause of action alleging unlawful employment practices under Executive Law§ 296.
The Supreme Court also properly granted that branch of the motion which was for summaryjudgment dismissing the cause of action alleging a hostile work environment (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 310 [2004]). Rivera, J.P., Leventhal, Roman and Sgroi, JJ., concur.[Prior Case History: 2010 NY Slip Op 32616(U).]