The following e-filed documents, listed by NYSCEF document number under the motion as: 23-34, 36- 40, 42, 43, were read on this motion by defendant International Union of Operating Engineers Local 14-14B, AFL-CIO (Local 14) and Edwin Christian (Christian) for summary judgment dismissing the complaint of plaintiff Lori Kirk. DECISION + ORDER ON MOTION Upon the foregoing papers it is ordered that this motion is determined as follows: Plaintiff commenced this action sounding in employment discrimination on the basis of her gender or sex under New York State Human Rights Law, Executive Law (NYSHRL) §290 et seq. and New York City Human Rights Law, Administrative Code of City of NY §8-101 et seq. (NYCHRL). Plaintiff works as an operating engineer and is a member of Local 14, a labor union that represents workers in the construction industry known as operating engineers, who are tasked with operating heavy equipment, including cranes and hoists, on construction sites. Christian was the Business Manager and Chief Executive Officer of Local 14. When a certain number of operating engineers are employed at a construction site within Local 14′s jurisdiction, the general contractor is required to hire a “Master Mechanic,” who does not operate equipment on site, but instead acts as a foreman / shop steward and liaison between Local 14 and the contractors. Although the Master Mechanic is employed by the general contractor, Local 14 is involved in appointing the Master Mechanic for each project. No woman has ever served as Master Mechanic on any construction project appointed by Christian. In 2014, while plaintiff was assigned to work as a vacation replacement for an operating engineer at a construction site for non-party Lend Lease, a large general contractor, Lend Lease asked her to do the types of things that a Master Mechanic would ordinarily do. Plaintiff remained on that Lend Lease project for approximately three years, and was later contacted by the head superintendent to work on another Lend Lease construction project at the Museum of Modern Art (the MOMA Project). Plaintiff began working on the MOMA Project in 2017. The Lend Lease superintendent would ask plaintiff to perform typical Master Mechanic tasks and to attend supervisor meetings. Plaintiff was asked to fill in as Master Mechanic, whenever the Master Mechanic on the MOMA Project, Kurt Messenger (Messenger), needed to take time off. She subsequently completed the paperwork required by Local 14 to act as a fill in Master Mechanic, which Christian approved. In 2019, Lend Lease told plaintiff that the next major construction project would be building the new Disney headquarters in Hudson Square (the Disney Project). In September 2019, plaintiff attended a meeting with Lend Lease, during which both Lend Lease and the site owner’s representative purportedly approved her to be the Master Mechanic for the Disney Project. However, such appointment required Local 14′s approval, which Christian denied, without explanation. In October 2019, while plaintiff was still working on the MOMA Project, plaintiff asked Christian to be appointed to the Local 14 Executive Board, which functions like a board of directors. The Executive Board had never had a female member before. Plaintiff alleges that Christian responded, “it takes more than just being a woman” to be a member of the Executive Board. Defendants instead appointed a male union member, Terence McBreen (McBreen), as Master Mechanic on the Disney Project. Plaintiff alleged that she tried for months to meet with Christian to ascertain why he refused to approve her hiring as Master Mechanic for the Disney Project, but was unable to meet with him until February 2020. She claims that Christian told her she lacked the experience to be Master Mechanic on the Disney Project, berated her for meeting with Lend Lease, and said that she would never work as Master Mechanic for Lend Lease or any of the largest construction firms. She also avers that Christian offered her to either fill in for or finish out (this is disputed) McBreen’s existing Master Mechanic position on another project, at the Central Park Tower, which he had to leave in order to take the Disney Project. In her complaint, plaintiff alleges that although she was qualified to as a Master Mechanic, she was denied the opportunity to work as Master Mechanic on the Disney Project due to her gender. That is, she claims she was discriminated against for being a woman when defendants decided to not appoint her as Master Mechanic on the Disney Project, and instead chose McBreen, a male union member. The NYSHRL and NYCHRL prohibits employment discrimination on the basis of sex (Executive Law §296[1][a]; Administrative Code §8-107[1][a]; see Silvers v. Jamaica Hosp., 218 AD3d 817 [2d Dept 2023]; Bilitch v. New York City Health & Hosps. Corp., 194 AD3d 999, 1001 [2d Dept 2021]). The standards for recovery under the NYSHRL are similar to the standards under Title VII, and employment discrimination claims under both are analyzed pursuant to the burden-shifting framework established in McDonnell Douglas Corp. v. Green (411 US 792 [1973]). Under McDonnell Douglas, the plaintiff has the initial burden to establish a prima facie case of discrimination by establishing that he or she: (1) is a member of a protected class; (2) is qualified for the position; (3) suffered an adverse employment action; and that (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 308 [2004]; Gregorian v. New York Life Ins. Co., 211 AD3d 711, 712 [2d Dept 2022]; Blackman v. Metro. Tr. Auth., 206 AD3d 602, 603 [2d Dept 2022]). An adverse employment action requires a materially adverse change in the terms and conditions of employment (see Forrest, 3 NY3d at 306; Reichman v. City of New York, 179 AD3d 1115, 1117 [2d Dept 2020]). Once a plaintiff has established her or his prima facie case, the defendant employer must then come forth with evidence of a legitimate, nondiscriminatory reason for its employment actions (see Forrest, 3 NY3d at 316-317; Langton v. Warwick Val. Cent. School Dist., 144 AD3d 867, 869 [2d Dept 2016]; King v. Brooklyn Sports Club, 305 AD2d 465 [2003]). The burden then shifts back to plaintiff to demonstrate by a preponderance of the evidence that the proffered reason is merely a pretext for discrimination (see Forrest, 3 NY3d at 316-317; King, 305 AD2d 465). To defeat summary judgment, “the plaintiff’s admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination” (Atencio v. United States Postal Serv., 198 F Supp 3d 340, 354 [SDNY 2016], quoting Stern v. Trustees of Columbia Univ. in City of New York, 131 F3d 305, 312 [2d Cir 1997] [internal citation and quotation marks omitted]). “To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe the plaintiff’s explanation of intentional discrimination” (Weinstock v. Columbia Univ., 224 F3d 33, 42 [2d Cir 2000] [internal citation and quotation marks omitted]). Thus, for a defendant to prevail on a summary judgment motion alleging discrimination, it must demonstrate either that the plaintiff’s failure to establish every element of intentional discrimination or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a triable issue of fact as to whether the explanations were pretextual (see Forrest, 3 NY3d at 305; Lefort v. Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 710 [2d Dept 2022]; Bilitch, 194 AD3d at 1001. While the NYCHRL must be more liberally construed than its state and federal counterparts, courts continue to apply the analytical framework set out in McDonnell Douglas, as well as a newer “mixed motive” framework, which imposes a lesser burden, to NYCHRL claims (see Bilitch v. New York City Health & Hosps. Corp., 194 AD3d 999, 1002 [2d Dept 2021]; Reichman, 179 AD3d at 1117). Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find the defendant liable under any of the evidentiary routes — McDonnell Douglas, mixed motive, direct evidence, or some combination thereof (see Bilitch, 194 AD3d at 1002; Sanderson-Burgess v. City of New York, 173 AD3d 1233, 1235 [2d Dept 2019], quoting Persaud v. Walgreens Co., 161 AD3d 1019, 1020 [2d Dept 2018]). Under the lesser burden of the NYCHRL, a plaintiff pursuing a claim of discrimination need not establish that he or she was subjected to a “materially adverse” change for purposes of liability for discriminatory or retaliatory acts, but only that he or she was “subject to an unfavorable change or treated less well than other employees on the basis of a protected characteristic” (Golston-Green v. City of New York, 184 AD3d 24, 29 [2d Dept 2020]; Harrington v. City of New York, 157 AD3d 582, 584 [1st Dept 2018]). Applying this lesser burden under a “mixed motive” analysis, the plaintiff must produce evidence that the unlawful discrimination was one of the factors, even if not the sole motivating one, for the employment decision (see Gregorian v. New York Life Ins. Co., 211 AD3d 711, 712 [2d Dept 2022]; Bilitch, 194 AD3d at 1002; Melman v. Montefiore Med. Ctr., 98 AD3d 107, 127 [1st Dept 2012]). The NYCHRL thus prohibits unlawful discrimination from playing any role in an employment decision (Ellison v. Chartis Claims, Inc., 178 AD3d 665, 668 [2d Dept 2019]). Stated differently, summary judgment dismissing a claim under the NYCHRL should only be granted if no jury could find that discrimination played a role in a defendant’s challenged actions (Blackman, 206 AD3d at 604). In moving for summary judgment, defendants argue that plaintiff cannot establish that she was not appointed Master Mechanic of the Disney Project due to her sex because she was not qualified for the position, no circumstances gave rise to an inference of discrimination, and her sex had nothing to do with the decision to not appoint her Master Mechanic. In support of their motion, defendants submit Christian’s affidavit stating how he determines the experience a candidate has working as a Master Mechanic before appointing him or her to such position, and lists the prior Master Mechanic experiences possessed by McBreen prior to the Disney Project. Here, plaintiff’s claim of gender bias appears to rest on Christian’s comment that “it takes more than just being a woman” to be a member of the Executive Board, coupled with the fact that no woman has ever been appointed as Master Mechanic by Christian, and followed by Christian’s appointment of McBreen, a male union member outside plaintiff’s protected group. Although plaintiff argues that an inference of discrimination arises from the evidence presented, the record is scant with respect to any gender-based animus or unlawful invidious intent. An inference of discrimination can arise from circumstances including, but not limited to, the employer’s criticism of the plaintiff’s performance in terms of the protected characteristic; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge (see Littlejohn v. City of New York, 795 F3d 297, 312-313 [2d Cir 2015], quoting Leibowitz v. Cornell Univ., 584 F3d 487, 502 [2d Cir 2009] [internal quotation marks omitted]). While case law suggests that an inference of discrimination may arise where an employee outside the plaintiff’s protected class was more favorably treated, in order to satisfy the prima facie stage of the analysis (Littlejohn, 795 F3d at 312-313, quoting Zimmermann v. Assoc. First Capital Corp., 251 F3d 376, 381 [2d Cir 2001]), plaintiff must do more than cite her alleged mistreatment (that is, defendant’s decision to not appoint her) and ask the court to conclude that it must have been related to her gender in order to defeat summary judgment (see e.g. Grillo v. New York City Transit Auth., 291 F3d 231, 235 [2d Cir 2002] [internal quotation omitted]. Indeed, plaintiff’s allegations that defendants discriminated against her merely by appointing a male Master Mechanic are insufficient to raise a triable issue of fact that gender bias played a role in defendants’ decision to not appoint her as Master Mechanic on the Disney Project. Even if the court were to credit the scant evidence of discriminatory intent, it is insufficient to create an inference of gender discrimination given the support proffered by defendants regarding the legitimate and nondiscriminatory reasons plaintiff was not chosen as Master Mechanic on the Disney Project. In this regard, defendants highlight the superior qualifications of McBreen, the Master Mechanic appointed to the Disney Project: his excellent track record already working as a Master Mechanic for Lend Lease on other projects, as well as his significant history working as a full-time Master Mechanic generally on eight projects, which Christian enumerated in his affidavit in support of the motion. Furthermore, they assert that plaintiff was not qualified or ready to assume the Master Mechanic position, having only worked two times as a fill-in Master Mechanic, first as a one-day fill-in on a project many years ago, and the second during the MOMA Project, totaling approximately three to six months of on and off coverage for Messenger, between 2017 to 2020. According to Christian’s deposition testimony, plaintiff had not handled enough situations to appoint her in a full-time Master Mechanic position. Christian also testified that he would have continued to offer plaintiff opportunities to perform Master Mechanic duties in other capacities in order to develop the skills necessary to be considered for a full-time appointment on a major project in the future. Thus, defendants have articulated legitimate, nondiscriminatory reasons for the decision to appoint McBreen as Master Mechanic instead of plaintiff. Moreover, the defendants’ choice of someone outside of plaintiff’s protected class is probative, but insufficient, evidence of pretext, standing alone, without evidence that the replacement was less qualified (see Goonewardena v. New York Workers Compensation Bd., 258 F Supp 3d 326, 341 [SDNY 2017], affd sub nom. Goonewardena v. New York State Workers’ Compensation Bd., 788 Fed Appx 779 [2d Cir 2019] [citations omitted]). In her affidavit submitted in opposition to the motion, plaintiff avers that she is not alleging that McBreen was not qualified for the position, but rather, that she is “just as qualified [as McBreen].” However, plaintiff’s mere belief that she deserved the appointment over another candidate that, in her own words, was “just as qualified,” is not grounds for the court to act as a super-personnel department in second-guessing or reviewing an employer’s business decisions (see Baldwin v. Cablevision Sys. Corp., 65 AD3d 961, 966 [1st Dept 2009], quoting Dale v. Chicago Tribune Co., 797 F2d 458, 464 [7th Cir 1986], cert denied 479 US 1066 [1987]; see also Hamburg v. New York Univ. School of Medicine, 155 AD3d 66, 77 [1st Dept 2017]; Melman, 98 AD3d at 121). Under the NYSHRL, plaintiff thus fails to raise, by a preponderance of the evidence, triable issues as to whether defendants’ proffered reasons for their decision to not appoint her as Master Mechanic were merely pretext for a discriminatory motive based on her gender (see Hutting v. Ind. Living, Inc., 198 AD3d 739, 741 [2d Dept 2021]; Bilitch, 194 AD3d at 1002; Reichman, 179 AD3d at 1117; Bull v. Metro. Jewish Health Sys., Inc., 152 AD3d 639, 640-641 [2d Dept 2017]). Likewise, even under the more liberal standard of the NYCHRL, there is no evidentiary route by which a factfinder could conclude that unlawful discrimination played any role in the defendant’s employment decision (see Ellison, 178 AD3d at 669; Sanderson-Burgess, 173 AD3d at 1235; Persaud, 161 AD3d at 1020; Messana v. Long Is. R.R. Co., 126 AD3d 677, 678 [2d Dept 2015]). Therefore, summary judgment is warranted insofar as the record supports a finding that the reasons given for defendants’ alleged adverse employment determination against plaintiff were nondiscriminatory, and no triable issues remain regarding whether defendants’ explanations for the alleged discrimination were pretextual. Accordingly, defendants’ motion for summary judgment dismissing the complaint is granted. Dated: July 27, 2024
