Recitation, as required by CPLR §§2219 and/or 3212 of Papers consider on Review of Motion: Papers NYSCEF Document #s: Defendants MetroPlus Health Plan Inc. (“MetroPlus”), NYC Health & Hospitals Corporation (“HHC”), Meryl Weinberg and Talya1 Schwartz’s (collectively, “Defendants”) Motion for Summary Judgmen 63-99 Plaintiff’s Opposition 107-141 DECISION AND ORDER Upon the foregoing cited papers and after oral argument on January 25, 2023, pursuant to CPLR §3212, the Decision and Order on the Defendants’ Motion for Summary Judgment, is as follows: Defendants’ motion raises for this Court the issue of the required evidentiary showing at the summary judgment stage in a discrimination case. For the reasons detailed below, the Court finds that Defendants met their evidentiary burden and has sustained entitlement to this extraordinary remedy of judgment as a matter of law. Defendants’ motion is GRANTED. PROCEDURAL HISTORY By summons and complaint filed on March 16, 2017, Plaintiff2 alleged Defendants violated the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”), defamation, discrimination based on race, retaliation, and creating a racially hostile work environment. By Decision and Order dated September 28, 2018, the Court (Levine, J.) granted Defendants’ motion to dismiss Plaintiff’s defamation claim. That same Decision and Order denied without prejudice Defendants’ motion to dismiss the claims related to discrimination based on race, retaliation, and racially hostile work environment, pending further discovery. By Decision and Order dated February 15, 2019, the Court (Levine, J.) granted the Defendants’ motion to reargue the denied portions of said motion to dismiss. As a result of said reargument, the Court dismissed with prejudice Plaintiff’s hostile work environment claims. The Court denied without prejudice the Defendants’ motion as to the retaliation claims stating that “further discovery is needed to determine if Plaintiff’s complaint is tied in any way to discrimination.” The Defendants e-filed the instant motion on July 30, 2020. Following a series of delays and adjournments, including by stipulation of the parties and partly due to the COVID-19 pandemic, the undersigned heard oral argument on January 25, 2023 on the instant motion for summary judgment. The underlying matter stems from Plaintiff’s employment with Defendant MetroPlus, which is a part of HHC. After Plaintiff began working at MetroPlus in 20123, she was promoted to the position of Associate Executive Director (“AED”) of Clinical Program Operations around January 20144. Plaintiff was then given direct oversight of MetroPlus’ Managed Long Term Care (“MLTC”) plan around April 2014. Plaintiff began reporting to Defendant Weinberg around July 20145. Weinberg conducted Plaintiff’s performance evaluations in 2014 and 2015, rating Plaintiff as “exceeds expectations”, the highest evaluation possible, in both years6. In or about February 2015, Plaintiff complained to Defendant Weinberg about the size of her office compared to the size of her previous office and the offices of other employees at the AED level7. Defendant Weinberg advised Plaintiff to report her concerns to Ryan Harris, who was Chief Officer of MetroPlus Human Resources (“HR”) and Defendant Weinberg herself reported the issue to HR8. Defendant Weinberg did not report Plaintiff’s complaint to MetroPlus’ Equal Employment Opportunity (“EEO”) Office, but Harris did forward Plaintiff’s complaint to the EEO Office, notwithstanding that it was not framed as an EEO complaint9. Defendant Weinberg testified that Plaintiff never complained to her that she was being treated unfairly because of her race10. After a series of communications between Plaintiff, the EEO Office and the HR Chief Officer11, Plaintiff withdrew her complaint on or about February 23, 2015, although she subsequently claimed that she believed that her race and gender was the reason she received a smaller office and withdrew her complaint only because she feared retaliation and an adverse impact on her career12. Subsequently, Plaintiff alleged that Defendant Weinberg treated her as a complainer and, in early 2016, alleged that Defendant Weinberg made a racially insensitive comment about Kenesha Bartley, one of Plaintiff’s subordinates whom Plaintiff identified as African-American13. Defendant Weinberg denied making such comment14. Plaintiff further alleged that Defendant Weinberg made a racially discriminatory comment to Plaintiff about being “so street15.” Defendant Weinberg denied making said comment16. There is no indication that Plaintiff reported these comments to anyone at Defendant MetroPlus17. Plaintiff did make requests to Defendant Weinberg for additional staff18 and said requests were forwarded to higher officers19. Defendant Weinberg confirmed that Plaintiff complained to her that some of the problems revealed by the audit pre-dated Plaintiff’s management of MLTC20. Defendant Schwartz confirmed that she became aware that MLTC was understaffed21. During Plaintiff’s tenure as AED of MLTC, several employees of different races were either terminated, demoted, or transferred, including some employees under Plaintiff’s supervision and on her recommendation22. Plaintiff alleges that of those employees, the ones who were minorities were more likely to be terminated as opposed to transferred or demoted23. By letter dated January 6, 2016, the New York State Office of the Medicaid Inspector General (“OMIG”) notified MetroPlus that it would be conducting an audit of claims submitted by MetroPlus’ MLTC to the Medicaid program in New York State, which is administered by the Department of Health, of which OMIG is a part24. The OMIG audit identified Medicaid overpayments to MetroPlus between 2012 to 2016, which resulted in MetroPlus having to reimburse New York State $7,944,101.6525. Following the OMIG audit, as Chief Medical Officer for MetroPlus, Defendant Schwartz asked Plaintiff to provide a written analysis of the issues identified by the audit, Plaintiff complied and submitted her analysis on or about May 17, 201626. Defendant Schwartz found Plaintiff’s analysis inadequate because it was submitted late and lacked sufficient detail; essentially the analysis blamed staffing problems without any accountability or an explanation regarding Plaintiff’s efforts to address the alleged staffing problems27. In the wake of the OMIG audit and Plaintiff’s analysis, MetroPlus determined that Plaintiff was unfit to continue as head of its MLTC plan and would be demoted to another position; if she refused the demotion and reassignment, Plaintiff would be terminated28. On or about May 19, 2016, Defendants Schwartz, Weinberg and MetroPlus’ Director of Labor Relations Simran Kaur met with Plaintiff and she was asked to accept a demotion to the position of Associate Director of Nursing, with a consequent salary-cut from $161,846 to $120,00029. Plaintiff claimed that the new position offered included a $60,000 annual pay-cut30 and she was not qualified for that position based on her licensing qualifications31. She was offered another position, which she also refused, at which point she was asked to resign, which she also refused to do32. Plaintiff was then given a letter which stated that her employment was terminated33. Defendant Weinberg wrote a memorandum to HR requesting Plaintiff’s termination34. During the meeting, Plaintiff claimed that Defendant Schwartz told Plaintiff that she would “be in the street knocking on people’s doors” which Plaintiff construed as discriminatory35. The termination letter contained a clause which allowed Plaintiff to appeal her termination to MetroPlus’ President, Dr. Arnold Saperstein and to Simran Kaur, which Plaintiff exercised and was denied36. Plaintiff alleges that her termination from MetroPlus was actually motivated by race and not as a result of the MLTC failures revealed by the OMIG audit; two white employees, Linda Cummings, who oversaw the MLTC from 2012-2014, and Defendant Weinberg, were not penalized for any MLTC failures during their assignments there37. In April 2016, Ms. Cummings was demoted and removed from her AED position in MTLC and had her salary decreased38. Ms. Cummings said she was employed by MetroPlus but working from Florida39. In addition, Kenesha Bartley, Plaintiff’s former subordinate, was promoted into Plaintiff’s position40. As a result of the decisions rendered in the Orders dated September 28, 2018 and February 15, 2019, the discrimination based on race and retaliation claims remain pending, subject to the Decision and Order herein. After the September 28, 2018 and February 15, 2019 Orders, Plaintiff was deposed on October 4, 2019 and October 25, 2019, Defendant Weinberg was deposed on December 17, 2019, Defendant Schwartz was deposed on January 13, 2020 and Ms. Cummings was deposed on March 6, 2020. POSITION OF THE PARTIES Defendants now move for summary judgment pursuant to CPLR §3212 seeking dismissal of the remaining claims in their entirety on grounds that Plaintiff cannot meet her burden of establishing a prima facie case of retaliation or discrimination under the NYSHRL or the NYCHRL, much less show that there is any genuine issue of material fact that could establish Defendants’ liability under those statutes. Plaintiff claims that she established a prima facie case of discrimination in violation of NYSHRL and NYCHRL by meeting the four necessary thresholds. First, as an African-American, she is a member of a protected class. Second, having received repeated “exceeds expectations” performance reviews, Plaintiff has established that she was qualified to hold the position. Third, her demotion and firing, coupled with the racially charged comments made to her, constituted adverse employment actions that were discriminatory. Last, Plaintiff was terminated under circumstances that give rise to an inference of discrimination because the stated reasons for her termination were false and pretextual, based on the Defendants’ contradictory EBT testimony41. DISCUSSION The NYSHRL and NYCHRL prohibit employment discrimination on the basis of race, and for retaliation against an employee for opposing discriminatory practices. See Executive Law §296(1), (7); Administrative Code §8-107(1), (7); see also Reichman v. City of New York, 179 A.D.3d 1115, 1116 (2nd Dep’t 2020); Ellison v. Chartis Claims, Inc., 178 A.D.3d 665 (2nd Dep’t 2019); Overbeck v. Alpha Animal Health, P.C., 124 A.D.3d 852, 853 (2nd Dep’t 2015). On a motion for summary judgment, the moving party must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); see Idi Jewels, Inc., v. Abramov, 193 A.D.3d 699 (2nd Dep’t 2021); see also Bennett v. Health Management. Systems., Inc., 92 A.D.3d 29, 30 (1st Dep’t 2011), lv. den., 18 N.Y.3d 811 (2012). This burden is heavy, and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Idi Jewels, 193 A.D.3d at 700. Where the moving party fails to meet this burden, summary judgment cannot be granted, and the non-moving party bears no burden to otherwise persuade the court against summary judgment. William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 N.Y.3d 470, 475 (2013); see Idi Jewels, 193 A.D.3d at 700. The Unlawful Retaliation Cause of Action A plaintiff alleging unlawful retaliation in violation of NYSHRL must show that she engaged in a protected activity by opposing conduct prohibited thereunder, the defendant must be aware of that activity, she suffered an adverse action based upon her activity, and there is a causal connection between the protected activity and the adverse action. Reichman, 179 A.D.3d at 1119; Ellison, 178 A.D.3d at 665. The NYCHRL offers broader protection than the NYSHRL in that the basis is whether she engaged in a protected activity as defined by the NYCHRL, her employer was aware that she participated in such activity, his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and there is a causal connection between the protected activity and the alleged retaliatory conduct. Id. To establish its prima facie entitlement to judgment as a matter of law in a retaliation case commenced pursuant to either the NYSHRL or the NYCHRL, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual. See Reichman, 179 A.D.3d at 1117, 1119- 1120; Overbeck v. Alpha Animal Health, P.C., 124 A.D.3d at 853. While it is unlawful to retaliate against an employee for opposing discriminatory practices, pursuant to both the Executive Law (Exec. L. §296[1][a]) and the Administrative Code (§8-107[7]), the instant case has a dearth of evidence that would support a jury’s finding that Plaintiff’s demotion and discharge was retaliatory following her complaints that her office was too small. Nor is there evidence that Plaintiff complained about having heard racially offensive comments, much less that she was retaliated against for having done so. Cf. Reichman, 179 A.D.3d at 1116-1117 (claim that anti-Semitic remarks by colleague were alleged to have been ignored and negatively acted upon by supervisors in the form of an unfavorable evaluation and transfer, compounding the religiously-motivated retaliation, could not defeat summary judgment motion); Ellison, 178 A.D.3d at 668 (speculation that challenged actions were motivated, even in part, by retaliation, was insufficient to defeat summary judgment). The evidence presented by both sides shows that Plaintiff’s complaint, as well Defendants’ actions in response to the complaint, appeared independent of, and very insignificant to, the evidence presented by Plaintiff and Defendants regarding the OMIG audit, Defendants’ and Plaintiff’s responses to the overcharges found by New York State, and the subsequent meeting between Defendants and Plaintiff. Cf. id. The instant case is distinguishable from the facts in Overbeck and the Appellate Division’s holding therein. Cf. 124 A.D.3d at 854 (triable issues of fact remained to defeat summary judgment where the plaintiff employee believed she would suffer repercussions from defendant employer if she refused sexual relations with him and alleged that she was terminated after ceasing relations with defendant). Accordingly, Plaintiff’s cause of action on retaliation must be dismissed. The Racial Discrimination Cause of Action To establish a prima facie case of discrimination on the basis of race under the NYSHRL, a plaintiff must show that he or she is a member of a protected class, the plaintiff was qualified to hold the position, the plaintiff suffered an adverse employment action, and the adverse action occurred under circumstances giving rise to an inference of discrimination. See Blackman v. Metropolitan Tr. Auth., 206 A.D.3d 602, 603 (2nd Dep’t 2022); Ellison, 178 A.D.3d at 665. Under the NYCHRL, unlawful discrimination must play no role in an employment decision. Id. at 668. To prevail on a motion for summary judgment dismissing a discrimination cause of action, a defendant must demonstrate either the plaintiff’s failure to establish every element of intentional discrimination, or offer legitimate, nondiscriminatory reasons for the challenged actions demonstrating the absence of a material issue of fact as to whether the explanations were pretextual. See Blackman, 206 A.D.3d at 603; Overbeck, 124 A.D.3d at 853. With respect to a cause of action alleging discrimination in violation of the NYCHRL, where a defendant has moved for summary judgment and has introduced evidence of one or more nondiscriminatory motivations for its actions, a court should then ascertain whether the defendant has met its burden of showing that no jury could find the defendants liable under any evidentiary route. Overbeck, 124 A.D.3d at 853-854; see Blackman, 206 A.D.3d at 603; Ellison, 178 A.D.3d at 668. In Bennett, the lower court granted defendant’s summary judgment motion, noting that, with respect to the age discrimination claim, plaintiff had not only failed to provide factual allegations to support it, but that his claim was undercut by the fact that he had been replaced by someone seven years older than him. See 92 A.D.3d at 33. With respect to the plaintiff’s race discrimination claims, while the claims raised the inference of discrimination since his new supervisor and new co-workers were black, defendant provided sufficient evidence of plaintiff’s alcohol use and poor job-performance to override that inference. See id. Further, plaintiff failed to offer “facts or evidence to establish that the suspicions and concerns offered by defendant were pretextual”, nor did plaintiff deny that he brought alcohol to work. See id. at 33-34. Even if defendant had legitimate motivation to terminate plaintiff, the First Department in Bennett stated that plaintiff could have defeated the summary judgment motion had it shown that “the defendant was motivated at least in part by discrimination.” See id. at 39; see also Administrative Code §8- 101 (discrimination shall play no role in decisions relating to employment). The Bennett Court added that “[w]here a defendant in a discrimination case has moved for summary judgment and has offered evidence in admissible form of one or more nondiscriminatory motivations for its actions…[it becomes a] question of whether the defendant has sufficiently met its initial burden…of showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action.” See id. at 39-40, 45; Overbeck, 124 A.D.3d at 854; see also Administrative Code §8-101. But where there is some evidence that at least one of the reasons proffered by the defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play. See Bennett 92 A.D.3d at 43, 45. As to Defendant’s motion to dismiss Plaintiff’s claim of racial discrimination, based on all the evidence before it and drawing all reasonable inferences against the movant, the Court finds that a jury could not find Defendants liable under any evidentiary route. In Bennett, the Caucasian plaintiff was hired in 2004 by defendant and four years later accepted a transfer into a different unit. See 92 A.D.3d at 31. One month later the plaintiff requested a transfer back to his old position because his new African-American supervisor created a hostile work environment. See id. The plaintiff’s transfer request was denied and he was then terminated, which he claimed was for age and race-related reasons, while the defendant asserted that he was terminated for poor job performance, including consuming alcohol at work. See id. Two of plaintiff’s causes of action, brought under the NYSHRL and the NYCHRL alleged that defendant discriminated against him on the basis of race and age. See id. The Defendant in Bennett moved to dismiss the complaint pursuant to CPLR §3211(a)(1) and (7), and 3212, arguing that plaintiff’s termination was legitimate and nondiscriminatory, and could not be shown to be pretextual. See id. at 32. The evidence submitted by the defendant included an affidavit of a supervisor confirming there were multiple Caucasian employees in the units plaintiff was assigned; that the plaintiff was previously warned about having alcohol on premises; that plaintiff had a history of attendance and job-performance issues and co-workers commented on these issues; and plaintiff was counseled and warned that he would be terminated if the problems continued. See id. There, the credible evidence established that plaintiff was written up by another white male supervisor for using alcohol, and other employees reported similar issues. See id. at 32-33. In opposition, the plaintiff claimed that defendant’s refusal to allow him to transfer back to his old position was harassment motivated by discrimination, that he had never received any warnings for poor performance or for drinking, and that he received a “very good” performance appraisal from his prior white supervisor. See id. at 33. In the instant case, Defendants put forward evidence of nondiscriminatory motivation, including, credible evidence of Plaintiff’s unsatisfactory work performance, namely the OMIG audit that resulted in Defendant MetroPlus being required to return millions of dollars to the government due to overcharges42. Further, Defendants showed that white employee Linda Cummings, who managed Plaintiff’s unit during a period also addressed by the OMIG audit, was demoted as a result. Cf. id. (plaintiff failed to show that a similarly situated employee was treated differently than him). In addition, Plaintiff was replaced by a person of the same race, akin to the replacement of the plaintiff in Bennett. Cf. id. at 46 (plaintiff replaced by older employee). Considering those factors, along with the small and vague sample size provided by the instant Plaintiff, it would also appear that Plaintiff’s evidence of discrimination is questionable, at best. Cf. Ellison, 178 A.D.3d at 669 (plaintiff’s reliance on numerical data to support an inference of racial discrimination was insufficient because of the small sample size). While Defendants’ burden is heavy to prevail on its summary judgment motion as a matter of law where the facts must be viewed in the light most favorable to the non-moving party and the non-moving party bears no burden to otherwise persuade the court against summary judgment, the proof presented by Defendants warrants this Court’s granting of summary judgment, as was done in Bennett and Ellison. In reviewing the deposition testimony and exhibits in the instant case, the Court does not conclude that Defendants’ evidence was false or misleading, and to the extent that Plaintiff believes she was being singled-out, that would be insufficient to rebut Defendant’s credible evidence of Plaintiff’s poor performance necessitating at a minimum a demotion. Notwithstanding Plaintiff’s proof that she worked for Defendants for more than ten years, was promoted and received strong performance reviews prior to her complaints about her office size and the OMIG audit, Defendants put forward evidence of nondiscriminatory motivations for its actions. Cf. Jensen v. Klein, 2010 N.Y. Misc. LEXIS 1267 at 2 (Sup. Ct., NY County, Kenney, J.) (teacher, who after years of satisfactory ratings, received an unsatisfactory rating, appealed on grounds that he was “scapegoat[ed]” after the school received an unsatisfactory rating, because he was over fifty years-old, and because he filed a previous grievance, was without merit); Lebowitz v. New York City Dept. of Educ., 2022 N.Y. Misc. LEXIS 5350 at 24 (Sup. Ct., Kings County, Abadi, J.) (the fact that plaintiff teacher previously received good reviews failed to prove that the recent negative reviews were based on his age, and even if those reviews resulted in an unwise adverse employment determination, an unwise decision does not prove a pretext for discrimination). Plaintiff’s claim that Defendants Weinberg and Schwartz made racially offensive comments is not only disputed but is unsupported by corroborating or credible evidence, especially given the magnitude of the adverse financial impact suffered by Defendant MetroPlus as a result of the audit. Cf. id. at 7 (claim that school principal discriminated against plaintiff and sought to use him as a scapegoat for the school’s poor rating was unsubstantiated); Lebowitz v. New York City Dept. of Educ., at 23-24 (Sup. Ct., Kings County, Abadi, J.) (ambiguously agist comments were insufficient to prove defendant principal targeted plaintiff and not actionable as “ they constitute isolated stray remarks that constitute no more than petty slights”). Given the analysis above, this Court is granting Defendants’ motion for summary judgment in its entirety. Plaintiff’s complaint is dismissed with prejudice. A copy of this Decision and Order with Notice Of Entry shall be served upon all parties to the consolidated action by Defendants within (30) days of its entry. This constitutes the Decision and Order of this Court. Dated: May 16, 2023
