| Cotterell v State of New York |
| 2015 NY Slip Op 04601 [129 AD3d 653] |
| June 3, 2015 |
| Appellate Division, Second Department |
[*1]
| Paul Cotterell, Appellant, v State of New Yorket al., Respondents, et al., Defendants. |
Maduegbuna Cooper LLP, New York, N.Y. (Samuel O. Maduegbuna of counsel),for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavekand Brian A. Sutherland of counsel), for respondents.
In an action, inter alia, to recover damages for discrimination and retaliation under 42USC §§ 1981 and 1983 and in violation of Executive Law§ 296, the plaintiff appeals from an order of the Supreme Court, DutchessCounty (Rosa, J.), dated March 12, 2013, which granted the defendants' motion forsummary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, an African-American man of Jamaican national origin, commenced thisaction to recover damages for discrimination and retaliation relating to his employmentas a food inspector with the New York State Office of General Services. The SupremeCourt granted the defendants' motion for summary judgment dismissing thecomplaint.
A plaintiff alleging discrimination in employment has the initial burden to establish aprima facie case of discrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305[2004]). To meet this burden, the plaintiff must show that (1) he or she is a member of aprotected class; (2) he or she was qualified to hold the position; (3) he or she wasterminated from employment or suffered another adverse employment action; and (4) thedischarge or other adverse action occurred under circumstances giving rise to aninference of discrimination (see id. at 305). The burden then shifts to theemployer "to rebut the presumption of discrimination by clearly setting forth, through theintroduction of admissible evidence, legitimate, independent, and nondiscriminatoryreasons to support its employment decision" (id. [internal quotation marksomitted]). To succeed on the claim, "the plaintiff must prove that the legitimate reasonsproffered by the defendant were merely a pretext for discrimination by demonstratingboth that the stated reasons were false and that discrimination was the real reason"(id.).
To prevail on a motion for summary judgment in a discriminatory employmentaction, a defendant must demonstrate either the plaintiff's failure to establish everyelement of intentional discrimination, or, having offered legitimate, nondiscriminatoryreasons for their challenged actions, the absence of a material issue of fact as to whethertheir explanations were pretextual (see id.).
[*2] Here, in opposition to the defendants' showing of theirprima facie entitlement to judgment as a matter of law on the causes of action allegingdiscrimination, the plaintiff failed to raise a triable issue of fact as to whether any adverseemployment action he allegedly suffered occurred under circumstances giving rise to aninference of discriminatory motive (see id. at 306; Brennan v MetropolitanOpera Assn., 284 AD2d 66, 70 [2001]). Moreover, in response to the legitimate,nondiscriminatory reasons proffered by the defendants for their challenged actions, theplaintiff failed to raise a triable issue of fact as to whether the defendants' explanationswere pretextual (see Forrest v Jewish Guild for the Blind, 3 NY3d at 308; Lambert v Macy's E., Inc., 84AD3d 744, 745-746 [2011]; Lichtman v Martin's News Shops Mgt., Inc., 81 AD3d 696,698 [2011]; Clark v MorelliRatner PC, 73 AD3d 591, 591-592 [2010]).
It is unlawful to retaliate against an employee for opposing discriminatory practices(see Forrest v Jewish Guild for the Blind, 3 NY3d at 312). In order to make out aclaim for retaliation, a plaintiff must show that (1) he or she has engaged in protectedactivity; (2) his or her employer was aware of such activity; (3) he or she suffered anadverse employment action based upon the protected activity; and (4) there is a causalconnection between the protected activity and the adverse action (see id. at312-313).
Here, in opposition to the defendants' showing of their prima facie entitlement tojudgment as a matter of law on the causes of action alleging retaliation, the plaintifffailed to raise a triable issue of fact as to whether he engaged in a protected activity orthat the defendants were aware of any such complaint prior to September 2009, when theplaintiff sent an email specifically complaining of discrimination. Although the plaintiff,during a conference call addressing changes in his territory, asserted "I know my rights,"at that time, he did not allege that he was discriminated against (see id. at 313).Moreover, the plaintiff failed to submit sufficient evidence from which a jury couldreasonably find a causal connection between any protected activity in which he engagedand any adverse employment action, or to rebut the defendants' evidence that any adverseaction taken against him was justified by legitimate, nondiscriminatory reasons (seeid.).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Rivera, J.P., Balkin, Hall and Sgroi, JJ.,concur.