Pregnancy test

A patient care technician terminated a day after telling her supervisor she was pregnant failed to raise triable issues needed to survive a motion to dismiss, because she couldn't point to facts demonstrating that the pregnancy caused the firing, a state appeals court has ruled.

Sherma Castillo, a former care technician at Montefiore Medical Center, failed to show that the reason proffered by Montefiore for her termination—that her performance was poor during her probationary employment period and that management asked her to improve—was merely a pretext for discrimination against her, ruled an Appellate Division, First Department, panel.

“Defendant established that plaintiff received negative feedback about her performance during her probationary employment, and was told to improve and show initiative,” the panel wrote in Castillo v. Montefiore Medical Center, 301375/13, adding, “Plaintiff admitted that she was not aware of any facts that would support her claim that she was terminated because of her pregnancy, and she conceded that she did not inform the [Montefiore] administrator [who carried out the firing] of her pregnancy.”

The panel's unanimous opinion affirmed a 2016 decision from Bronx Supreme Court Justice Elizabeth Taylor, who had granted Montefiore's motion for summary judgment dismissing the complaint.

On Aug. 6, 2012, Montefiore hired Castillo, subject to a 90-day probationary period, according to the panel. Soon after, a clinic administrator noticed that Castillo “did not show that she wanted to work,” and two physicians gave negative feedback to the administrator, saying, among other things, that Castillo didn't meet the work standards expected, the court said.

That Sept. 12, the administrator told Castillo of the job performance concerns and advised her that she needed to improve, the panel wrote.

On Sept. 19, Castillo learned she was pregnant, according to the panel, and on Sept. 20, told her unit supervisor that she was pregnant. On Sept. 21, the administrator—not the unit supervisor—terminated Castillo.

The panel, consisting of Justices Peter Tom, Rosalyn Richter, Richard Andrias, Ellen Gesmer and Anil Singh, pointed out in its Nov. 9 opinion that the administrator “stated at her deposition that she did not have any knowledge of plaintiff's pregnancy prior to plaintiff's termination.” The panel also wrote that “the unit supervisor did not tell anybody that plaintiff was pregnant.”

Noah Kinigstein, of the Law Office of Noah A. Kinigstein in Manhattan, represented Castillo, while Jean Schmidt, a shareholder at Littler Mendelson's Manhattan office, represented Montefiore. Neither lawyer could be reached for comment.