Radlerv.Catholic Health Sys. of Long Island, Inc.

Supreme Court, Appellate Division, Second Department, New York.Nov 9, 2016
41 N.Y.S.3d 88 (N.Y. App. Div. 2016)

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11-09-2016

Laurie RADLER, appellant, v. CATHOLIC HEALTH SYSTEM OF LONG ISLAND, INC., doing business as Catholic Health Services of Long Island, et al., respondents.

G. Oliver Koppell, New York, NY (Julian S. Brod and Daniel F. Schreck of counsel), for appellant. Sheppard Mullin Richter & Hampton, LLP, New York, NY (Adam Pekor and John E. Kiley of counsel), for respondents.


G. Oliver Koppell, New York, NY (Julian S. Brod and Daniel F. Schreck of counsel), for appellant.

Sheppard Mullin Richter & Hampton, LLP, New York, NY (Adam Pekor and John E. Kiley of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for employment discrimination on the basis of sex and a hostile work environment in violation of Executive Law § 296, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), dated September 15, 2014, as granted those branches of the defendants' motion which were for summary judgment dismissing the first and third causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff was hired by the defendant Catholic Health System of Long Island, Inc., doing business as Catholic Health Services of Long Island, as a compliance officer with respect to Medicare and Medicaid regulations, subject to a six-month probationary period. At the close of the probationary period, the plaintiff's supervisor, the defendant Pegeen McGowan, terminated her employment. The plaintiff commenced this action, inter alia, to recover damages for employment discrimination on the basis of sex and a hostile work environment in violation of Executive Law § 296. The defendants moved, inter alia, for summary judgment dismissing those causes of action, and the Supreme Court granted those branches of the defendants' motion.

To establish entitlement to summary judgment in a case alleging discrimination, the defendants must demonstrate either the plaintiff's inability to establish every element of intentional discrimination, or, having offered a legitimate, nondiscriminatory reason for the challenged action, the absence of a material issue of fact as to whether that reason was pretextual (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Michno v. New York Hosp. Med. Ctr. of Queens, 71 A.D.3d 746, 746–747, 899 N.Y.S.2d 248 ). Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the third cause of action, alleging discrimination on the basis of sex, by demonstrating the absence of triable issues of fact as to whether the plaintiff was terminated under circumstances giving rise to an inference of discrimination (see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d at 305–307, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Smith v. Paris Intl. Corp., 267 A.D.2d 223, 224, 699 N.Y.S.2d 490 ). Neither coarse comments made by McGowan in instructing the plaintiff that her attire was unacceptable nor two comments allegedly made by an individual uninvolved in the decision to terminate the plaintiff's employment gave rise to such an inference (see Forrest v. Jewish

Guild for the Blind, 3 N.Y.3d at 308, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). Further, the defendants demonstrated, prima facie, that the proffered legitimate, nondiscriminatory reason for the plaintiff's termination—dissatisfaction with her performance—was not a pretext for discrimination (see Dzikowski v. J.J. Burns & Co., LLC, 98 A.D.3d 468, 469, 949 N.Y.S.2d 426 ). In opposition, the plaintiff failed to raise a triable issue of fact.

The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action, alleging the existence of a hostile work environment, by demonstrating that the conduct and remarks about which the plaintiff complained were not sufficiently severe or pervasive as to permeate the workplace and alter the conditions of the plaintiff's employment (see La Marca–Pagano v. Dr. Steven Phillips, P.C., 129 A.D.3d 918, 12 N.Y.S.3d 192 ; Chiara v. Town of New Castle, 126 A.D.3d 111, 126, 2 N.Y.S.3d 132 ; Thompson v. Lamprecht Trans., 39 A.D.3d 846, 847, 834 N.Y.S.2d 312 ). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention is without merit.

Accordingly, those branches of the defendants' motion which were for summary judgment dismissing the first and third causes of action were properly granted.