Johnson v. IAC/Interactivecorp.

Full title: TIFFANI JOHNSON, Plaintiff, v. IAC/INTERACTIVECORP., CONNECTED VENTURES…

Court: SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 12

Date published: Jul 19, 2018

2018 N.Y. Slip Op. 31720 (N.Y. Sup. Ct. 2018)

Opinion

INDEX NO. 155837/2014

07-19-2018

TIFFANI JOHNSON, Plaintiff, v. IAC/INTERACTIVECORP., CONNECTED VENTURES LLC, Defendants.

HON. BARBARA JAFFE Justice

NYSCEF DOC. NO. 232 PRESENT: HON. BARBARA JAFFE Justice MOTION DATE __________ MOTION SEQ. NO. 4

DECISION AND ORDER

The following e-filed documents, listed by NYSCEF document number 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 221, 222, 223, 224, 225, 226, 227, 228, 229, 230, 231 were read on this application to/for summary judgment.

By notice of motion, defendants move pursuant to CPLR 3212 for an order summarily dismissing the complaint against them. Plaintiff opposes.

The pertinent facts and procedural background are set forth in a decision and order dated June 9, 2015 (NYSCEF 174), and in a federal court opinion on plaintiff's federal case (NYSCEF 126). As relevant here, on October 27, 2014, plaintiff filed an amended complaint, alleging that in violation of the New York City Human Rights Law (NYCHRL): (1) as a condition of her employment, she was required to possess certain skills and expertise not required of males and/or Caucasians; (2) she was subjected to pornographic images during a staff meeting; (3) defendants did not provide one-on-one job training to another female African-American employee; (4) defendants maintained a workplace that was generally hostile toward females; (5) in retaliation for her complaints of discrimination, defendants falsified records of her job performance; (6) defendants violated internal policy by reviewing and evaluating her work product although it was not ready for supervisory review; and (7) in retaliation for her complaints of discrimination, defendants placed her on probation. (NYSCEF 175).

I. DISCRIMINATION CLAIMS

The provisions of the NYCHRL are to be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 478 [2011]), and with due regard for fulfilling the law's remedial goals (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 [1^st Dept 2011], lv denied, 18 NY3d 811 [2012]; Williams v New York City Hous. Auth., 61 AD3d 62, 66 [1^st Dept 2009], lv denied 13 NY3d 702). The law is "to be more broadly interpreted than similarly worded federal or State antidiscrimination provisions." (Singh v Covenant Aviation Sec., LLC, 131 AD3d 1158, 1161 [2d Dept 2015]).

A defense motion for summary dismissal of a claim brought pursuant to the NYCHRL must be analyzed pursuant to the standards set forth in McDonnell Douglas Corp. v Green (411 US 92 [1973]), and in Bennett (92 AD3d at 43-44), which imposes on the plaintiff a lesser burden than that imposed by the Court in McDonnell Douglas, in that it employs a "mixed motive" standard for determining the merits of a claim. Thus, a claim may be summarily dismissed if a jury could not find the defendant liable under the standards set forth in McDonnell or Bennett. (Id. at.31-32).

To establish a claim for discrimination under the NYCHRL, the plaintiff must show, prima facie, under both the McDonnell Douglas and the mixed motive standard articulated in Bennett, that she is a member of a protected class, qualified to hold her position, terminated from employment or suffered an adverse employment action, and the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. (Id. at 33). Upon such a showing, the burden shifts to the defendant to produce evidence of legitimate, independent, and nondiscriminatory reasons to support its employment decision. (Id. at 33-34). Thus, where a defendant offers admissible evidence of one or more nondiscriminatory motivations for its actions, "the court should ... turn to the question of whether the defendant has ... [shown] there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action." (Cadet-Legros v New York Univ. Hosp. Ctr., 135 AD3d 196, 205 [1^st Dept 2015]; see also Bennett, 92 AD3d at 39-40).

If the defendant meets its burden, the plaintiff must show that the proffered non-discriminatory motivation is pretextual (Cadet-Legros, 135 AD3d at 200), or that "regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination" (Bennett, 92 AD3d at 39). Where the plaintiff offers evidence of pretext, which is defined as "some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete" (Watson v Emblemhealth Health Servs., 158 AD3d 179 [1^st Dept 2018]), it should "in almost every case indicate to the court that a motion for summary judgment should be denied" (Cadet-Legros, 135 AD3d at 200). In other words, even if the reasons for termination are legitimate, plaintiff may nonetheless state a claim for discrimination based on allegations that the explanation is pretextual. (Johnson v Dept. of Educ. of City of New York, 158 AD3d 744 [2d Dept 2018]).

In denying defendants' pre-answer motion to dismiss (NYSCEF 21), I relied on the federal court's deferral of a decision on plaintiff's NYCHRL claims, thus holding that her claims based on the NYCHRL are not barred here, including new and different facts and claims. That holding does not preclude any estoppel effect arising from the federal court's resolution of factual issues identical to those raised here. (Milione v City Univ. of New York, 153 AD3d 807 [2d Dept 2017], lv denied 30 NY3d 907, cert denied 138 S Ct 2027 [2018]). Thus, any factual findings made by the federal court as to any of the elements of the claims asserted here have a preclusive effect. (Id.).

A. Gender discrimination

Defendants submit evidence that after plaintiff was terminated, she was replaced by a female. While plaintiff now argues that she was replaced by a male, she is bound by the contrary allegation set forth in her federal complaint (NYSCEF 126) and during her deposition in the federal action (NYSCEF 128). (See Morgenthow & Latham v Bank of New York Co.. Inc., 305 AD2d 74 [1^st Dept 2003], lv denied 100 NY2d 512 [dismissal of claim required as it was contradicted by allegations in earlier federal action]). Thus, absent any triable issue as to whether plaintiff was replaced by a female, an essential element of her claim of gender discrimination is precluded. (See Kapila v Divney, 269 AD2d 127 [1^st Dept 2000] [plaintiff did not make prima facie showing of gender discrimination absent evidence she was replaced by male, which is necessary element of claim]).

Even had plaintiff met her prima facie burden, the federal court's determination that defendants had a legitimate, non-discriminatory reason for terminating her based on her unsatisfactory work performance (NYSCEF 126), estops her from arguing otherwise here. (Milione, 153 AD3d at 809).

The burden then shifts to plaintiff to establish that defendants' reasons for their treatment and termination of her constitute a pretext for discrimination or that discrimination was part of their "mixed motive." Construing plaintiff's complaint liberally, she alleges that the following constitutes evidence of discrimination based on her gender: (1) the display of pornographic material in the workplace, which was permeated with ridicule and the debasement of women, including the celebration of the drugging and rape of women, which created a hostile work environment; (2) the display of a nude picture of a female at a meeting she attended; (3) disparate treatment of her by assigning her duties and responsibilities that males were not given, and the failure to mentor her or respond to her requests for advice and assistance, whereas males were mentored and given advice and assistance; (4) denying her an opportunity for advancement given only male employees; and (5) placing her on probation in furtherance of their discriminatory treatment of her. (NYSCEF 12).

In her affidavit in opposition to defendant's motion, plaintiff provides more details about some of her allegations:

(1) during a staff meeting, a director displayed on a screen a photograph of a nude woman, allegedly a porn actress, who was to play the role of Katy Perry in one of defendants' videos;

(2) another female employee complained to her about defendant's production of a parody video which showed a woman being given a date rape drug; and

(3) other videos shown or created included a woman pretending to have sex with a puppet and a man sending out messages during a sexual encounter with a woman.

In her memorandum of law, plaintiff alleges that the discriminatory treatment at issue consisted of defendants treating her less well than her male counterparts in terms of her assignments and work performance, and that this disparate treatment violates the NYCHRL. (NYSCEF 172).

As the federal court disregarded as insufficiently supported plaintiff's allegation that defendants "failed to provide her with support or feedback equivalent to that enjoyed by other video editors" (NYSCEF 126), plaintiff is estopped from advancing that allegation here. (See Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511 [1^st Dept 2016], lv denied 28 NY3d 902 [plaintiffs precluded by federal court opinion from relitigating discrete factual issues decided against them in federal action; federal court found no evidence that male employees treated differently than female plaintiffs, or that males were provided better mentoring and opportunities]).

A plaintiff's disagreement with her employer's actions or her belief that the employer is wrong in perceiving her work as unsatisfactory does not raise an inference of pretext (Melman v Montefiore Med. Ctr., 98 AD3d 107, 121 [1^st Dept 2012]), nor does her subjective belief that her work was satisfactory (Dawson v Bumble & Bumble, 246 F Supp 2d 301 [SD NY 2003], affd 398 F3d 211 [2005] [plaintiff's subjective views of qualifications and job performance insufficient to raise factual dispute as to pretext]). Plaintiff thus fails to show that at least one of the reasons proffered by defendants for her probation or termination is false, misleading, or incomplete.

Consequently, plaintiff's feeling or belief that she was being treated differently than other employees does not establish disparate treatment absent evidence other than her own subjective opinion. (Cf. Lloyd v Holder, 2013 WL 6667531 [SD NY 2013] [a plaintiff's sense of being discriminated against does not constitute evidence of discrimination]).

Even had plaintiff demonstrated that she was the victim of disparate treatment, she offers no evidence that it was motivated at least in part by gender discrimination. She neither alleges nor proves that any gender-based comments were made to her, about her, to or about other female employees or females in general, in her presence or in the workplace in general. (See e.g., Thomas v Westchester County Health Care Corp., 232 F Supp 2d 273 [SD NY 2002] [inference of gender discrimination not raised absent, among others, discriminatory comments indicating gender bias]). To the extent that plaintiff relies on statements allegedly made to her by a female co-worker about incidents underlying the co-worker's alleged allegations of a hostile work environment, the co-worker's deposition testimony does not support plaintiff's allegations. (NYSCEF 162).

It is significant here that plaintiff was employed to produce video content for an internet comedy website that operated the "CollegeHumor Network," a self-described "leading online entertainment company targeting a core audience of people ages 18-49 . . . deliver[ing] daily comedic content, including videos, pictures, articles and jokes," with "admittedly 'raunchy'" humor (NYSCEF 126), and it is undisputed that defendants' mission was furthered by the production of content exemplified by that displayed at staff meetings. That plaintiff was offended by such content is of no moment, as defendants are precluded by no law or rule from producing such content. Thus, the display of a photograph of a nude woman in a meeting and the display or creation of three crude, lewd, or debasing videos shown during other meetings, attended by both male and female employees, and/or produced by defendants do not warrant an inference that defendants were motivated by discrimination against plaintiff or other females on account of their gender. In other words, plaintiff fails to meet her burden that defendants' display or creation of the photograph or videos was motivated, at least in part, by their discriminatory attitude toward females, rather than defendants' work purposes.

In Lyle v Warner Bros. Television Prods., the plaintiff was employed as a writer on a popular television show. The court rejected her claim of a hostile work environment, finding that

[t]here is no dispute that Friends was a situation comedy that featured young sexually active adults and sexual humor geared primarily toward adults . . . The circumstance that

this was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes is significant in assessing the existence of triable issues regarding whether the writers' sexual antics and coarse sexual talk were aimed at plaintiff or at women in general, whether plaintiff and other women were singled out to see and hear what happened, and whether the conduct was otherwise motivated by plaintiff's gender.
. . .

[T]he record here reflects a workplace where comedy writers were paid to create scripts highlighting adult-themed sexual humor and jokes, and where members of both sexes contributed and were exposed to the creative process spawning such humor and jokes. In this context, the defendant writers' nondirected sexual antics and sexual talk did not contribute to an environment in which women and men were treated disparately.

(38 Cal 4^th 264, 287-288 [Sup Ct, CA 2006]). The court thus concluded that the sexual antics and language, which were greater in volume and intensity than those in issue here, did not involve and were not aimed at plaintiff or any other female employee, observing that such "nondirected" conduct was undertaken in group sessions with both female and male employees in attendance. (Id. at 288).

Moreover, as found by the federal court in determining that plaintiff had failed to establish evidence of pretext related to her race discrimination claim (infra, I.B.), plaintiff here does not prove that any of the alleged incidents involving the photograph and videos were directed by or involved any of her supervisors or individuals responsible for her assignments or dismissal, thereby eliminating any possible and necessary link between defendants' alleged gender bias and their treatment and termination of her. (See Forrest v Jewish Guild for the Blind, 3 NY3d 295 [2004] [racial epithets uttered by non-decisionmakers do not establish discriminatory intent or inference of discrimination]; Radler v Catholic Health Sys. of Long Is., Inc., 144 AD3d 781 [2d Dept 2016] [comments made by individual not involved in decision to terminate plaintiff's employment did not give rise to discriminatory inference]).

Defendants thus meet their ultimate burden of showing that, based on the evidence and drawing all reasonable inferences in plaintiff's favor, no jury could find them liable for gender discrimination under any of the evidentiary standards. (Bennett, 92 AD3d at 45).

B. Racial discrimination

The federal court also held that plaintiff had failed to raise a triable issue as to her claim of racial discrimination, finding that the record "clearly and consistently supports defendants' contention that plaintiff's poor performance - and not unlawful discrimination - prompted her termination." It also observed that defendants' evidence before it was sufficient to support defendants' assertion that plaintiff's termination was based on her poor performance and not on unlawful discrimination. It disregarded as "unpersuasive" plaintiff's attempts to rebut defendants' evidence, observing that emails "referenc[ing] plaintiff's] specific skill deficits and individual video projects on which [her] work was inadequate . . . surely fulfilled [the requirement that they offer clear and specific non-discriminatory reasons]." The court also stated that the issue was not the truth of defendants' allegations concerning the quality of plaintiff's work but what motivated them, and that the record contained "serious, independent, documented, good faith complaints, the substance of which were conveyed to plaintiff at the start of her probationary period and prior to her termination." (NYSCEF 126, pp. 18-21 [internal citations omitted, emphasis in original]).

In a footnote, the court also observed that plaintiff's allegations that a fellow male employee performed as she had but received better treatment, were not supported by the record, which reflected none of the "serious, independent, documented and therefore good faith complaints" about his work that were made about plaintiff's work, "or indeed any internal discussion of performance issues with [him] at all." (NYSCEF 126, p. 21, fn. 5).

The federal court rejected plaintiff's allegations that defendants' treatment of her was motivated by racial discrimination, finding that the three comments on which plaintiff relied, one employee's "ghetto cut" email, another employee's misidentification email ("Haha looks like I am racist. I meant Jordan"), and a director's comment regarding "plug-ins" in plaintiff's hair, even if racially-charged, were not made by decisionmakers "and are, as a matter of law, insufficient to raise an inference of discrimination." (NYSCEF 126, p. 22).

In Milione v City Univ. of New York, the plaintiff's discrimination claims under the NYCHRL were held to have been properly dismissed as the federal court in the federal discrimination action before it had determined that the defendants had legitimate, nondiscriminatory reasons for their employment actions, they were not motivated by racial animus, their reasons were not a pretext for discrimination, and the plaintiff was treated no differently than other employees. The federal decision was thus dispositive of the plaintiff's state and city Human Rights Law claims even under the "broader standard" of the NYCHRL, and the plaintiff was thus collaterally estopped from relitigating those claims. (153 AD3d 807, 809 [2d Dept 2017], lv denied 30 NY3d 907, cert denied 138 S Ct 2027 [2018]; see also Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511 [1^st Dept 2016], lv denied 28 NY3d 902 [plaintiffs' NYCHRL gender discrimination claim dismissed based on dismissal of claim under federal law and NYSHRL, as federal court decision estopped plaintiffs from relitigating discrete factual issues found against them in federal action]; Johnson v Dept. of Educ. of City of New York, 158 AD3d 744 [2d Dept 2018] [determination by hearing officer that reasons for plaintiff's termination were not pretextual or motivated by discrimination given collateral estoppel effect in action for discrimination, and discrimination claim dismissed]).

Even under the broad standards of the NYCHRL, plaintiff fails to establish that any of defendants' explanations for their behavior are false, misleading, or incomplete.

II. HOSTILE WORK ENVIRONMENT

Under the NYCHRL, a plaintiff need not show that instances of conduct resulting in a hostile work environment were severe and pervasive, but only that she experienced disparate or unequal treatment on account of a protected characteristic. (Hernandez v Kaisman, 103 AD3d 106 [1^st Dept 2012]; Williams v New York City Hous. Auth., 61 AD3d 62, 76-79 [1^st Dept 2009], lv denied 13 NY3d 702 [1^st Dept 2009]). The conduct or instances of such animus must, moreover, result in more than a "petty slight or trivial inconvenience." (Hernandez, 103 AD3d at 115; Williams, 61 AD3d at 79).

In her federal complaint, plaintiff argued that her hostile work environment claim encompassed the three allegedly racially-charged remarks (supra, I.B.), as well as "rude but racially-neutral comments delivered to [her] in a demeaning tone, the hiring of a Caucasian woman as a video editor in the months after Johnson's departure, an undesirable apportionment of assignments, inadequate support, premature review of her work, the strict standard of review applied to her work, and the storylines and general nature of the humor videos, some of it race-based, that defendants' business produces." (NYSCEF 126, p. 26).

The federal court found that plaintiff had not raised a triable issue as to this claim, as the three remarks, even if racist, did not constitute the required severe and pervasive treatment, that the other conduct could not be linked to racial discrimination, and that rude behavior without more, does not create an actionable hostile work environment, while the record "at minimum calls into question the accuracy of many of the facts alleged, including contentions of insufficient support or unfair division of assignments." (Id., pp. 27-28). Thus, as to the race discrimination claim asserted here, based on the court's factual findings, plaintiff fails to establish that she was treated differently because of her race.

For the same reasons, the hostile work environment claim based on plaintiff's gender is also insufficient, absent any evidence that plaintiff was treated less well because of her gender. (Supra, I.A.).

III. RETALIATION

To establish a prima facie case of unlawful retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) her employer was aware that she participated in such activity, (3) the defendant took an action that disadvantaged her, and (4) there is a causal connection between the protected activity and the adverse action. (Harrington v City of New York, 157 AD3d 582 [1^st Dept 2018]). When a defendant, on a motion for summary dismissal of claims of retaliation brought pursuant to the city HRL, offers evidence of nondiscriminatory motivations for its actions, the plaintiff must establish that the defendant's reasons are a pretext for discrimination. (Brightman v Prison Health Serv., Inc., 108 AD3d 739, 741 [2d Dept 2013]).

The federal court dismissed plaintiff's retaliation claim in which she alleged that the retaliation consisted of defendants' criticism of her to prospective employers after her termination in retaliation for commencing the federal lawsuit, finding she had failed to provide any non-speculative evidence of retaliation. (NYSCEF 126, p. 28).

Here, however, plaintiff asserts that the retaliatory behavior at issue is defendants' decision to place her on probation and terminate her after she complained to them about the unequal treatment she was receiving and the hostile work environment, in that after she made complaints, defendants retaliated by engaging in a campaign of fabricating a record of her poor work performance. (NYSCEF 175).

In light of the federal court's detailed findings that plaintiff's work performance was unsatisfactory, plaintiff is estopped from alleging that defendants falsified a record of her poor performance. (See e.g., Simmons-Grant v Quinn Emanuel Urquhart & Sullivan, LLP, 116 AD3d 134 [1^st Dept 2014] [as federal court decision precluded plaintiff from asserting that immediate reassignment was possible, plaintiff would be unable to prove that that the alleged failure to reassign her was due, in Whole or in part, to retaliation, and thus retaliation claim under NYCHRL dismissed]; see also Clark v Morelli Ratner PC, 73 AD3d 591 [1^st Dept 2010] [claim of retaliatory termination properly dismissed as plaintiff failed to rebut showing of legitimate, nondiscriminatory reason for termination]).

In any event, plaintiff offers no evidence that her alleged complaints to defendants referenced her race or gender. (See Fruchtman v City of New York, 129 AD3d 500 [1^st Dept 2015] [no prima facie case of retaliation shown as plaintiff's complaints did not reference or implicate her gender and thus did not constitute "protected activity"]; Gonzalez v EVG, Inc., 123 AD3d 486 [1^st Dept 2014] [retaliation claim dismissed absent evidence that plaintiff complained that she had been discriminated against because of her sex]).

Plaintiff thus fails to establish that she engaged in a protected activity or that defendants' decision to terminate her employment was causally connected to her alleged complaints of discrimination. (See Andaya v Atlas Air, Inc., 146 AD3d 740, 741 [2d Dept 2017] [retaliation claim dismissed as defendant established plaintiff was terminated for legitimate, nonretaliatory reasons, and plaintiff failed to raise triable issue]).

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that defendants' motion for summary judgment is granted, and the complaint is hereby dismissed in its entirety, with costs and disbursements to defendants upon submission of an appropriate bill of costs. 7/19/2018

DATE

/s/ _________

BARBARA JAFFE, J.S.C.