Summary
holding that plaintiff who alleged gender discrimination based on disparate pay under the NYCHRL failed to state a claim because "she was paid $5,000 more than two male assistant vice presidents . . . but was paid $5,000 less than the man who replaced one of [those] men" and had therefore "failed to allege that she was paid less than similarly[] situated male counterparts, as two of the three male assistant vice presidents were paid less than she was."
Summary of this case from Talwar v. Staten Island Univ. Hosp.Opinion
2014-06-17
Sherry HERRINGTON, Plaintiff–Appellant, v. METRO–NORTH COMMUTER RAILROAD COMPANY, Defendant–Respondent.
David M. Fish, New York, for appellant. Littler Mendelson P.C., New York (Eric D. Witkin of counsel), for respondent.
David M. Fish, New York, for appellant. Littler Mendelson P.C., New York (Eric D. Witkin of counsel), for respondent.
MAZZARELLI, J.P., FRIEDMAN, SAXE, FEINMAN, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 10, 2013, which granted defendant's motion to dismiss the first amended complaint, unanimously affirmed, without costs.
Plaintiff failed to state a claim for discrimination based on sexual orientation under the New York City Human Rights Law (City HRL), because she failed to sufficiently allege that she was treated differently because of her sexual orientation ( see Askin v. Department of Educ. of City of N.Y., 110 A.D.3d 621, 622, 973 N.Y.S.2d 629 [1st Dept.2013] ). The only direct factual allegation in the first amended complaint of discrimination based on sexual orientation is plaintiff's allegation that in “late 2008,” two “high-level Metro–North employees ... made inappropriate and offensive comments about her sexual orientation.” The statute of limitations for claims under the City HRL, however, is three years ( see Administrative Code of City of N.Y. § 8–502[d] ). Since plaintiff did not file her complaint in this action until four years later, these remarks are too remote in time to support her discrimination claim ( see Stembridge v. New York City Dept. of Educ., 88 A.D.3d 611, 611, 931 N.Y.S.2d 72 [1st Dept.2011], lv. denied19 N.Y.3d 802, 2012 WL 1538436 [2012] ). Nor may the court consider these remarks pursuant to the continuing-violation doctrine, as plaintiff has not alleged facts comprising “a single continuing pattern of unlawful conduct extending into the [limitations] period immediately preceding the filing of the complaint” ( Ferraro v. New York City Dept. of Educ., 115 A.D.3d 497, 497–498, 982 N.Y.S.2d 746 [1st Dept.2014]; see Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 [2d Cir.1996] ).
Plaintiff's claim for gender discrimination based on disparate pay from 2003 to 2009 is time-barred. To the extent plaintiff, who was herself an assistant vice president, alleges that she was paid $5,000 more than two male assistant vice presidentswho retired by 2012, but was paid $5,000 less than the man who replaced one of the retired men, she failed to state a cause of action. Since all four individuals, including plaintiff, were assistant vice presidents, and plaintiff has not otherwise distinguished among their responsibilities, she has failed to allege that she was paid less than similarly-situated male counterparts, as two of the three male assistant vice presidents were paid less than she was ( see Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 114 n. 2, 946 N.Y.S.2d 27 [1st Dept.2012]; Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 176, 806 N.Y.S.2d 553 [1st Dept.2005], lv. dismissed in part, denied in part7 N.Y.3d 859, 824 N.Y.S.2d 597, 857 N.E.2d 1129 [2006] ).
Plaintiff also failed to state a claim for retaliation under the City HRL ( see Fletcher v. Dakota, Inc., 99 A.D.3d 43, 51–52, 948 N.Y.S.2d 263 [1st Dept.2012] ). The initial protected activity alleged by plaintiff—her late–2008 complaint about offensive comments by two “high-level” coworkers—is far too removed from defendant's alleged post–2009 (non-time-barred) actions to establish the requisite causal nexus between the protected activity and the adverse action ( see Matter of Parris v. New York City Dept. of Educ., 111 A.D.3d 528, 529, 975 N.Y.S.2d 42 [1st Dept.2013], lv. denied2014 N.Y. Slip Op. 71978, 2014 WL 1887333 [2014] ). Further, plaintiff's contention that her April 2011 request for a salary review and increase constituted a protected activity lacks merit, as she makes no allegation that she informed defendant that she was being underpaid because of her gender ( see Fletcher, 99 A.D.3d at 54, 948 N.Y.S.2d 263).
We have considered plaintiff's remaining contentions and find them unavailing.