| Furfero v St. John's Univ. |
| 2012 NY Slip Op 02452 [94 AD3d 695] |
| April 3, 2012 |
| Appellate Division, Second Department |
| A. Joyce Furfero et al., Respondents, v St. John'sUniversity et al., Appellants. |
—[*1] McCullough, Goldberger & Staudt, LLP, White Plains, N.Y. (Patricia W. Gurahian andEdmund C. Grainger of counsel), for respondents.
In an action, inter alia, to recover damages for discrimination in employment on the basis ofage in violation of Executive Law § 296 and Administrative Code of the City of New York§ 8-107 (1) (a), the defendants appeal, as limited by their brief, from so much of an orderof the Supreme Court, Westchester County (Lefkowitz, J.), entered March 22, 2011, as deniedthose branches of their motion which were for summary judgment dismissing the first and secondcauses of action of the second amended complaint.
Ordered that the order is reversed insofar as appealed from, on the law, and those branches ofthe defendants' motion which were for summary judgment dismissing the first and second causesof action of the second amended complaint are granted.
The plaintiffs, A. Joyce Furfero, Sreedhar Kavil, and Sadik Gokturk, are tenured professorsat the Peter J. Tobin College of Business of St. John's University. The plaintiffs claim, amongother things, that they were discriminated against on the basis of their ages because they weredenied research grants and graduate assistants, and were denied the opportunity to teach"overload" courses, which are courses in addition to a professor's regular teaching load persemester. They also contend, inter alia, that they were denied the opportunity to teach summerand graduate courses, and were assigned unfavorable course schedules. Among other things, theplaintiff A. Joyce Furfero claims that she was assigned to teach courses during four days on twoseparate campuses, and the plaintiff Sreedhar Kavil claims he was assigned to teach a course atnight followed by a course the next morning. Furthermore, Furfero contends that the defendantsretaliated against her when she raised her age discrimination claims by being denied the right topursue outside employment opportunities, and Kavil claims that he was prohibited from servingas the Chair of the Department of Marketing for a third consecutive term on the basis of his age.Based on these allegations, the plaintiffs seek, inter alia, to recover damages for discriminationon the basis of age in violation of the New York State Human Rights Law (Executive Law§ 296) and the New York City Human Rights Law (Administrative Code of City of NY§ 8-107 [1] [a]). The defendants moved, inter alia, for summary judgment dismissing thesecauses of action and the Supreme Court denied [*2]thosebranches of the motion.
At trial, to support a prima facie case of discrimination on the basis of age pursuant toExecutive Law § 296, the plaintiffs must demonstrate, by a preponderance of the evidence,that (1) they are members of a protected class, (2) they are qualified to hold the position, (3) theysuffered an adverse employment action, and (4) the adverse action occurred under circumstancesgiving rise to an inference of discrimination (see Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 ofAFL-CIO, 6 NY3d 265, 270 [2006]; Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004];Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Leibowitz v CornellUniv., 584 F3d 487, 498-499 [2d Cir 2009]). The burden then shifts to the defendants torebut the plaintiffs' prima facie case of discrimination with a legitimate, nondiscriminatory reasonfor the adverse employment action (see Forrest v Jewish Guild for the Blind, 3 NY3d at305). If the defendants meet this burden, then the burden shifts back to the plaintiffs to offeradmissible evidence that the reasons proffered by the defendants were pretextual (see St.Mary's Honor Center v Hicks, 509 US 502, 506-507, 511 [1993]; Texas Dept. ofCommunity Affairs v Burdine, 450 US 248, 254 [1981]; McDonnell Douglas Corp. vGreen, 411 US 792, 802-806 [1973]; Stephenson v Hotel Empls. & Rest. Empls. UnionLocal 100 of AFL-CIO, 6 NY3d at 270-271; Holcomb v Iona Coll., 521 F3d 130,138, 141 [2d Cir 2008]).
To establish entitlement to summary judgment dismissing a cause of action alleging agediscrimination pursuant to Executive Law § 296, the 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; see Ehmannv Good Samaritan Hosp. Med. Ctr., 90 AD3d 985 [2011]; Apiado v North Shore Univ. Hosp. [AtSyosset], 66 AD3d 929, 930 [2009]; Balsamo v Savin Corp., 61 AD3d 622, 623 [2009]; Hemingway v Pelham Country Club,14 AD3d 536, 536-537 [2005]). In opposition to the defendants' prima facie showing thatthe plaintiffs' employment was terminated for legitimate, nondiscriminatory reasons, theplaintiffs, in order to defeat summary judgment on that basis, must raise a triable issue of fact asto whether the reasons proffered by the defendants were merely pretextual (see Forrest vJewish Guild for the Blind, 3 NY3d at 307; Apiado v North Shore Univ. Hosp. [AtSyosset], 66 AD3d at 930; Morse vCowtan & Tout, Inc., 41 AD3d 563, 563-564 [2007]).
In contrast, where the defendants moved for summary judgment in a discrimination casebrought under the New York City Human Rights Law, and "put forward evidence of one or morenondiscriminatory motivations for [their] actions," a court "should ordinarily avoid. . . going back to the question of whether a prima facie case has been made out.Instead, [the court] should turn to the question of whether the defendant[s] ha[ve] sufficientlymet [their] burden, as the moving part[ies], of showing that, based on the evidence before thecourt and drawing all reasonable inferences" in the plaintiff's favor, no jury could find thedefendants liable under any evidentiary route (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 45 [2011]). If theplaintiff responds with "some evidence that at least one of the reasons proffered by [the]defendant[s] is false, misleading, or incomplete, a host of determinations properly made only by ajury come into play, and thus such evidence of pretext should in almost every case indicate to thecourt that a motion for summary judgment must be denied" (id.).
Applying these standards, the Supreme Court should have granted that branch of thedefendants' motion which was for summary judgment dismissing the cause of action alleging aviolation of Executive Law § 296. The defendants established, prima facie, that theplaintiff Furfero was not subjected to an adverse employment action by virtue of the denial ofresearch grants and the failure to assign her a graduate research assistant. Furfero admitted thatshe never applied for these research resources. Thus, in this respect, she was not subjected to anadverse employment action (see Alleva v New York City Dept. of Investigation, 696 FSupp 2d 273, 282-283 [ED NY 2010], affd 413 Fed Appx 361 [2011]). Moreover, theplaintiffs were not subjected to adverse employment actions by virtue of the denial ofopportunities to teach overload and summer courses, as it is undisputed that each of the plaintiffsreceived such assignments and earned extra compensation for teaching such courses. Furfero'sfurther claim that she was denied the opportunity to teach graduate courses is contradicted by therecord, and, in any event, the denial of the opportunity to the plaintiffs [*3]to teach graduate courses, under the circumstances of this case, didnot constitute an adverse employment action (see Klein v New York Univ., 786 F Supp2d 830, 847 [SD NY 2011]; cf. Curley v St. John's Univ., 19 F Supp 2d 181 [SD NY1998]). In addition, there is no merit to the plaintiffs' contention that they were subjected to anadverse employment action due to the assignment of unfavorable course schedules (see Mejiav Roosevelt Is. Med. Assoc., 31 Misc 3d 1206[A], 2011 NY Slip Op 50506[U] [2011];Klein v New York Univ., 786 F Supp 2d at 847). In opposition to the defendants' primafacie showing that the plaintiffs were not subjected to adverse employment actions on the basisof the above claims, the plaintiffs failed to raise a triable issue of fact.
In contrast, the denial of research grants and graduate research assistants to the plaintiffsGokturk and Kavil constituted adverse employment actions. The defendants, however, assertedlegitimate, nondiscriminatory reasons for denying such research grants and graduate researchassistants to Gokturk and Kavil. Similarly, the plaintiff Kavil was subjected to an adverseemployment action when he was prohibited from continuing to serve as Chair of the Departmentof Marketing, as it is undisputed that he earned a stipend based on his service in that position.Nevertheless, the defendants' enforcement of its term limit for such position, as provided in theSt. John's University Statutes, constituted a legitimate, nondiscriminatory reason for denyingKavil the opportunity to serve as Chair beyond such term limit. In opposition, the plaintiffs failedto raise a triable issue of fact as to whether the reasons proffered by the defendants for theseadverse employment actions were pretextual (see Forrest v Jewish Guild for the Blind, 3NY3d at 307; Apiado v North Shore Univ. Hosp. [At Syosset], 66 AD3d at 930;Morse v Cowtan & Tout, Inc., 41 AD3d at 563-564).
The defendants also established their entitlement to judgment as a matter of law with respectto Furfero's claim that she was subject to retaliation, as defined in Executive Law § 296 (1)(e) and (7), by being denied the opportunity to pursue outside employment opportunities. Thatclaim is belied by the record and the plaintiffs failed to raise a triable issue of fact in relationthereto.
For all of the above reasons, the Supreme Court should have granted that branch of thedefendants' motion which was for summary judgment dismissing the second cause of action,which alleged a violation of Executive Law § 296.
The Supreme Court also should have granted that branch of the defendants' motion whichwas for summary judgment dismissing the first cause of action, which sought to recover damageson the ground that the plaintiffs were discriminated against on the basis of age pursuant to theNew York City Human Rights Law. The defendants met their burden of showing that, "based onthe evidence before the court and drawing all reasonable inferences" in the plaintiffs' favor, "nojury could find [the] defendant[s] liable under any of the evidentiary routes" (Bennett vHealth Mgt. Sys., Inc., 92 AD3d at 45).
The plaintiffs' remaining contention has been rendered academic in light of ourdetermination. Dillon, J.P., Angiolillo, Belen and Cohen, JJ., concur.