The following e-filed documents, listed by NYSCEF document number (Motion 002) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47,48 were read on this motion to/for JUDGMENT – SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, defendant’s motion is granted in its entirety, without opposition. Plaintiff Miguel Triana (“Triana”), is a former dietician level one who was employed by defendant, New York City Health and Hospitals Corporation (“HHC”) at Harlem Hospital and whose employment was terminated on July 11, 2017. Plaintiff commenced this action alleging claims under the New York City Human Rights Law §§8-107 et seq., and Labor Law §§740, and 741. Plaintiff claims that: (1) HHC discriminated against him on account of his race and national origin in violation of the Human Rights Law; (2) HHC created a hostile work environment in violation of the Human Rights Law; and (3) HHC retaliated against him in violation of Labor Law §740 and §741. On July 28, 2015, plaintiff commenced litigation in the United States District Court, Southern District of New York, against Sodexo, Inc., HHC, Andrea Wilcox, and Sean Shivers alleging: (1) a hostile work environment on the basis of his race under 42 USC §§1981 and 1983 and the New York City Human Rights Law; (2) a hostile work environment on the basis of his national origin under the Human Rights Law; (3) race and national origin discrimination under 42 USC §§1981 and 1983 and the Human Rights Law; (4) a failure to pay overtime in alleged violation of the Fair Labor Standards Act and the New York Labor Law; (5) First Amendment retaliation; and (6) retaliation in alleged violation of NY State Labor Law §§215, 740 and 741. Defendant HHC moved for summary judgment at the close of discovery. By an Order dated December 5, 2018, the Court dismissed all federal claims as well as related FLSA and New York Labor Law overtime claims and dismissed the remaining state law claims without prejudice. On March 4, 2019, Plaintiff commenced this instant action re-asserting the remaining Human Rights Law claims that were dismissed without prejudice, reasserted the previously dismissed overtime claims and included a new claim alleging age discrimination. On April 10, 2019, HHC moved to dismiss the overtime claims and the age discrimination claim, and by Order dated July 2, 2019, this Court granted Defendant’s motion in its entirety. Defendant now moves for summary judgment, dismissing plaintiff’s remaining claims in their entirety. To establish a prima facie case of discrimination under the Human Rights Law, a plaintiff is required to demonstrate (1) membership in a protected class, (2) qualification for the employment, (3) an adverse employment action, and (4) circumstances that give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802; Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 112 (1st Dept 2012) If plaintiff shows a prima facie case, then the burden shifts to the employer to show a legitimate nondiscriminatory reason for the actions taken against plaintiff. If the employer demonstrates such a reason, the burden shifts back to the plaintiff to show that the employer’s proffered reason was a mere pretext for discrimination. See, Melman, 98 A.D.3d at 120; Godbolt v. Verizon N.Y., Inc., 115 A.D.3d 493, 494 (1st Dep’t 2014), lv. den., 24 N.Y.3d 901 (2014). The First Department has held that to show pretext, a plaintiff must prove “both that the [employer's] stated reasons were false and that discrimination was the real reason.” Melman, 98 A.D.3d at 120. Here, over the period from April, 2007, through plaintiff’s termination, plaintiff repeatedly received warnings about his unsatisfactory job performance and plaintiff’s annual evaluations consistently revealed his need for improvement. As a result, on May 8, 2014, plaintiff’s supervisor requested that Harlem Hospital’s Labor Relations Department commence disciplinary proceedings because Plaintiff’s poor job performance resulted in significant patient safety concerns. On August 5, 2015, Plaintiff was served with additional disciplinary charges for multiple failures to timely assess and re-asses high-risk patients, and jeopardizing patient safety through improper recommendations amongst other infractions. Plaintiff resolved said disciplinary charges by accepting a fifteen day suspension and waiving his right to appeal. On January 22, 2015, plaintiff was removed from his role as a dietician due to his failure to perform the duties of his position by failing to complete a comprehensive or accurate assessment of a patient on January 15, 2015. On August 5, 2015, Plaintiff was served with a notice and statement of charges for a second Step 1A conference, concerning failures to timely assess and re-asses high risk patients, and jeopardizing patient safety through improper recommendations amongst other infractions. The second step 1A conference was held August 12, 2015. Plaintiff did not attend the August 12, 2015 step 1A conference on the advice of his lawyer. Plaintiff appealed the August 12, 2015 Step 1A hearing determination of the Labor Relations Specialist to OATH. Prior to the OATH hearing, HHC withdrew some of the charges based on Plaintiff’s objections, going forward with 18 specifications and their subparts at OATH. Plaintiff was able to call witnesses, testify, and provide documents in support of his defense at the OATH hearing and was represented by an attorney. During the OATH hearing, Plaintiff admitted to some of the specifications brought against him, specifically that he failed to complete a comprehensive or accurate assessment of nutritional status for a high-risk patient, failed to perform a malnutrition assessment on Patient JB, that he jeopardized patient safety by failing to note or address Patient AD’s acute kidney injury, that he jeopardized patient safety when he noted in a patient’s medical records that a non-obese patient was obese and admitted that he failed to note significant weight change to high risk Patient CA when Patient CA was alive. Plaintiff further admitted that he noted in a deceased patient’s medical record that the deceased patient was able to chew, swallow, be prescribed a regular diet, and had a diet tolerance of between 40-59% meal intake; that he recommended an oral diet for a patient that had failed a swallow test, that he made contradictory notes in a patient’s record that the patient was both able to swallow and not able to swallow, that he noted that Patient CM had a meal intake of 25-50% despite the fact that Patient CM was not supposed to receive any food by mouth and Plaintiff admitted that he engaged in misconduct and/or incompetence when he failed to complete an accurate or comprehensive assessment of Patient GD. Plaintiff further admitted that he understood that his poor job performance could in some circumstances result in the death of a patient. The Administrative Law Judge found that “[f]rom August of 2014 to January of 2015, [Plaintiff] failed to perform accurate or timely assessments for at least 12 patients.” and found that Plaintiff’s misconduct threatened patient safety and endangered the health and safety of others, concluding that the appropriate penalty was termination. Plaintiff did not submit a response, comments, or objections to HHC concerning the decision of the Administrative Law Judge, despite having the ability to do so. The Chief Executive Officer of Harlem Hospital, Ebone M. Carrington, MPA, FABC, agreed with the findings and recommendation of the Administrative Law Judge and plaintiff’s employment was terminated on July 11, 2017. As such, even if plaintiff were able to make out a prima facie case, which he has not, HHC has established a litany of legitimate nondiscriminatory reason for the actions taken against plaintiff. Under the Human Rights Law, an allegedly hostile work environment must have been created because of plaintiff’s membership in a protected class. See Chin, 106 A.D.3d at 445. Further, “[c]ourts…continue to recognize that the law does not operate as a ‘general civility code,’ and conduct which is ‘nothing more than what a reasonable victim of discrimination would consider ‘petty slights and trivial inconveniences’ is not actionable.” Williams v. NY City Hous. Auth., 61 A.D.3d 62, 79-80 (1st Dept 2009). Plaintiff’s allegation that his supervisors made occasional comments about his accent and that he was occasionally asked to repeat himself clearly do not rise above the level of petty slights or trivial inconveniences. To prevail on a claim under Labor Law §740(2)(a) plaintiff must allege and prove an “actual” violation of law that creates and presents a substantial and specific danger to the public health or safety. See Webb-Weber v. Community Action for Human Servs., Inc., 23 N.Y.3d 448 (NY 2014). Under §740(4)(c), defendant establishes a complete defense to a retaliatory claim under §740 if “the personnel action was predicated upon grounds other than the employee’s exercise of any rights protected by this section.” Here, plaintiff alleges that he was retaliated against for making certain complaints about tube feedings at Harlem Hospital. However, the Report and Recommendation of the OATH ALJ provides clear non-retaliatory reasons for the decision to terminate Plaintiff’s employment, which were unrelated to any alleged complaint by him. Accordingly, plaintiff’s §740 claim must be dismissed. Plaintiff’s §741 claim must also be dismissed as “it shall be a defense that the personnel action was predicated upon grounds other than the employee’s exercise of any rights protected by this section. See N.Y. Labor Law §741(5). See also Thompson v. Jam. Hosp. Med. Ctr., No. 13 Civ. 1896 (RWS), 2016 U.S. Dist. LEXIS 116985 at *11 (S.D.N.Y. Aug. 30, 2016). ORDERED that defendant’s motion for summary judgment is granted, without opposition and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment accordingly. CHECK ONE X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 20, 2020
