The following papers were read on this motion by defendants for an order, pursuant to CPLR 3212, granting summary judgment against plaintiff.Papers NumberedNotice of Motion, Affirmation, Affidavit, Memorandum of Law and Exhibits E14-42Memorandum of Law In Opposition E44Memorandum of Law In Reply E46 Upon the foregoing papers, it is hereby ordered that this motion is determined as follows:Plaintiff has been employed as a Verbatim Reporter 1 by the New York State Workers’ Compensation Board in its Queens District Office since 2006. In June 2016, he interviewed with Senior Law Judge Henry Stevenson of the Workers’ Compensation Board for a Verbatim Reporter 2 position. Subsequently, plaintiff’s co-worker Timothy Basile was selected for the position.Plaintiff claims that Judge Stevenson and the Workers’ Compensation Board unlawfully discriminated against him based upon his sexual orientation, in violation of both the New York State Human Rights Law, codified as Executive Law §290 et seq., and New York City Human Rights Law, codified as Administrative Code §8-101 et seq.It is well settled that the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065,416 NYS2d 790 [1979]). Failure to make such a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d [1985]). “Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action” (Alvarez, 68 NY2d at 324, citing Zuckerman, 49 NY2d at 562).While the evidence must be viewed in a light most favorable to the non-moving party (Branham v. Loews Orpheum Cinemas, Inc. , 8 NY3d 931, 932 [2007]), “the opposing party must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist” (Kornfeld v. NRX Tech., 93 AD2d 772, 773 [lst Dept 1983), affd 62 NY2d 686 [1984]). “[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to raise a material question of fact (Zuckerman, 49 NY2d at 562). Furthermore, as defendant correctly notes, “[f]acts appearing in the movant’s papers which the opposing party does not controvert, may be deemed to be admitted” (Kuehne & Nagel v. Baiden, 36 NY2d 539, 544 [1975]).Under the New York State Human Rights Law and New York City Human Rights Law, it is unlawful for an employer to fire or refuse to hire or employ, or otherwise discriminate in the terms, conditions and privileges of employment, because of, as relevant here, an individual’s sexual orientation (Executive Law §296 [a]; Administrative Code §8-107). The criteria for demonstrating unlawful discrimination under the New York State Human Rights Law are the same as those controlling Title VII cases under the Federal Civil Rights Act of 1964 (see Rainer N. Mittl, Ophthalmologist, P.C. v. New York State Div. of Human Rights, 100 NY2d 326 [2003]; Ferrante v. Am. Lung Assn., 90 NY2d 623, 629 [1997]). Claims arising under the New York City Human Rights Law are generally controlled by the same federal standards (see Landwehr v. Grey Advertising Inc., 211 AD2d 583 [1st Dept 1995]).Employment discrimination claims brought under the New York State Human Rights Law are analyzed under the burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (411 US 792 [1973]; see Persaud v. Walgreens Co., 161 AD3d 1019, 1020 [2d Dept 2018]; Classic Coach v. Mercado, 280 AD2d 164, 166-167 [2d Dept 2001]; see also Stephenson, 6 NY3d at 270; Forrest, 3 NY3d at 305 n 3; Ferrante, 90 NY2d at 629). Employment discrimination claims brought under the New York City Human Rights Law must be analyzed under both the McDonnell Douglas framework and under the newer “mixed motive” framework, which imposes a lesser burden on a plaintiff opposing a summary judgment motion. Summary judgment dismissing a claim under the New York City Human Rights Law should be granted only if “no jury could find defendant liable under any of the evidentiary routes — McDonnell Douglas, mixed motive, ‘direct’ evidence, or some combination thereof” (Bennett v. Health Mgmt. Sys., Inc., 92 AD3d 29, 45 [1st Dept 2011]).The McDonnell Douglas framework and mixed motive framework diverge only after the plaintiff has established a prima facie case of discrimination and the defendant has responded to that prima facie case by presenting admissible evidence of “legitimate, independent, and nondiscriminatory reasons to support its employment decision” (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 [2004], quoting Ferrante, 90 NY2d at 629). At that point, under McDonnell Douglas, the burden shifts back to the plaintiff to produce evidence tending to “prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination” (id.; see also Texas Dept. of Community Affairs v. Burdine, 450 US 248, 253 [1981]). However, “under the mixed motive analysis, the plaintiff may defeat the defendant’s evidence of legitimate reasons for the challenged action by coming forward with evidence from which it could be found that ‘unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for [the] adverse employment decision’” (Hamburg v. New York Univ. Sch. of Med., 155 AD3d 66, 73 [1st Dept 2017], quoting Melman v. Montefiore Med. Ctr., 98 AD3d 107, 127 [1st Dept 2012]).Under both the McDonnell Douglas analysis and mixed motive analysis, the plaintiff has the initial burden of establishing a prima facie case of discrimination (see Persaud v. Walgreens Co., 161 AD3d 1019, 1020 [2d Dept 2018]; Classic Coach v. Mercado, 280 AD2d 164, 166-167 [2d Dept 2001]). To establish a prima facie case of employment discrimination, a plaintiff must show that (1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she was terminated from employment or suffered another adverse employment action, and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (see Forrest, 3 NY3d at 305, citing Ferrante, 90 NY2d at 629; see also Stephenson v. Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 270 n 2 [2006]).Both the New York State Human Rights Law and the New York City Human Rights Law require that their provisions be “construed liberally” to accomplish the remedial purposes of prohibiting discrimination (Executive Law §300; Administrative Code §8-130; see Matter of Binghamton GHS Employees Fed. Credit Union v. State Div. of Human Rights, 77 NY2d 12, 18 [1990]; Williams v. New York City Hous. Auth., 61 AD3d 62, 65 [1st Dept 2009], lv denied 13 NY3d 702 [2009]. The New York City Human Rights Law further requires “an independent liberal construction analysis targeted to understanding and fulfilling” its “‘uniquely broad and remedial’ purposes, which go beyond those of counterpart State or federal civil rights law” (Williams, 61 AD3d at 66; see Administrative Code §8-130; Albunio v. City of New York, 16 NY3d 472, 477-478 [2011]; Nelson v. HSBC Bank USA, 87 AD3d 995, 996-997 [2d Dept 2011]).Nevertheless, even assuming, without deciding, that plaintiff could meet the minimal requirements for a prima facie case of discrimination, the evidence submitted by defendants is sufficient to demonstrate a legitimate, nondiscriminatory reason for Basile, as opposed to plaintiff, being selected for the Verbatim Reporter 2 position. Proceeding to consider all the evidence as a whole, and further viewing all the evidence in a light most favorable to plaintiff, he fails to show that material genuine issues of fact exist as to whether defendants’ stated reason was pre-textual (see Bendeck v. NYU Hosps. Ctr., 77 AD3d 552, 554 [1st Dept 2010] [unsupported assertions insufficient to show pretext]). Nor can plaintiff demonstrate pretext based on his conclusory assertion that he would have been selected for the promotion if he were heterosexual. Under the circumstances, even if defendants’ decision to not promote plaintiff could be considered harsh, the court’s “function is not to substitute [its] business judgment for that of the employer” (Citibank v. New York State Div. of Human Rights, 227 AD2d 322, 325 [lst Dept 1996], lv denied 88 NY2d 815 [1996]).Judge Stevenson chose Basile because his fellow employees viewed him as the “go to” person for computer issues, and Basile had a completed a two-year course of study at Cooper Union. Basile studied mechanical engineering and learned at least two computing programming languages: C and Visual Basic. Judge Stevenson believed that Cooper Union was a competitive, selective college and inferred that Basile had a strong academic background and the initiative to take on intellectual challenges. At the Workers’ Compensation Board, Basile and Plaintiff had both been employed since 2006, and Basile scored the highest of the four candidates on the requisite Civil Service Exam for the Verbatim Reporter 2 position. Basile also completed a more comprehensive set of online training courses on the “Essentials of Supervision” than plaintiff. In the Candidate Nomination Approval Form, Judge Stevenson explained his decision:Candidate [Basile] has two years of coursework in mechanical engineering at Cooper Union. Extensive knowledge of stenographic software and hardware. Recently completed NYS/CSEA certification in Basics of Supervision (11 hours). Ten years’ experience as a V[erbatim] R[eporter] 1 occasionally preparing schedules and doing related tasks in supervisor’s absence.Former Verbatim Reporter 2 Lorraine Bucalo was deposed and confirmed Basile’s “go to” status, stating that “anytime anybody had an issue, myself especially, because I had lots of them, he was very — he knew the program in depth….[H]e was the guy that everyone in the office went to when they had an issue. He was, from my point, the most familiar with the ins and outs of the system.”Defendants have made a prima facie showing that there is no evidentiary route that could allow a jury to believe discrimination played a role in their challenged actions (see Persaud, 161 AD3d at 1020). In opposition, plaintiff has failed to come forward with evidence that “the [defendant's] stated reasons were false and that discrimination was the real reason” (Forrest, 3 NY3d at 305) or that “discrimination was one of the motivating factors for the defendant’s conduct” (Williams, 61 AD3d 62, 78 n 27).Accordingly, defendants’ motion for summary judgment and dismissal of the complaint is granted.This constitutes the decision and order of the court.Dated: January 14, 2019
