Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered July 12, 2007, which denied so much of defendant's summary judgment motion to dismiss the claim for employment discrimination, but granted so much of that motion to dismiss the claim based on unlawful retaliation, unanimously modified, on the law, to dismiss the employment discrimination claim insofar as it is based on the allegation that plaintiff was denied promotions due to racial discrimination, and, except as thus modified, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Saxe, J.P., Nardelli, Moskowitz, DeGrasse, Freedman, JJ.
Plaintiff, an African American who held managerial positions from 1992 to 2005 with defendant Cablevision Systems Corp., claims that, as a result of his employer's discriminatory practices, he was passed over for three vice president positions for which he was as qualified as the successful candidates. Plaintiff also alleges that, after he complained internally about Cablevision's alleged discrimination and then filed this lawsuit, Cablevision retaliated and further discriminated against him by first "constructively" demoting him, next by giving him unfairly negative performance evaluations, and finally by terminating him. In his complaint, plaintiff asserts causes of action for employment discrimination and retaliation in violation of both the State Human Rights Law (Executive Law § 296 et seq.) and the New York City Human Rights Law (Administrative Code of City of NY § 8-101 et seq.).
Plaintiff now appeals and Cablevision cross-appeals from the July 2007 order which granted Cablevision's motion for summary judgment dismissing the retaliation claims but denied its motion dismissing the discrimination claims.*fn1 For the reasons set forth below, we modify the order of the motion court by limiting the discrimination claim to plaintiff's termination.
In February 1992, plaintiff began working for Cablevision as Director of Human Resources for the company's New York City operation. He held this position until 1999, when, as part of the reorganization of Cablevision's human resources functions, he was promoted to Area Director of Employee Relations for Connecticut, Westchester, and New York City. Plaintiff states that, in his first 11-plus years with Cablevision, he consistently received excellent performance evaluations.
In 2002, plaintiff applied for the position of Vice President of Employee and Labor Relations -- Madison Square Garden. However, John Moran, a Caucasian, was hired for the position.
As part of a reorganization of Cablevision's Human Resources operations, in late 2002 Cablevision eliminated the four Area Director of Employee Relations positions, including plaintiff's, and created two new vice president positions. Cablevision promoted Robert Doodian (a Caucasian), another of the Area Directors, to one of the new positions (Corporate Vice President of Employee Relations and Staffing). Plaintiff alleges that Cablevision never posted nor announced this position. Plaintiff applied for the other new position of Vice President of Employee Relations for Cable & Communications, but another Area Director, Susan Crickmore (a Caucasian), was given the job. Thereafter plaintiff's attorney notified Cablevision by letter addressed to James Dolan, the company's President and CEO, that he had been retained to represent plaintiff in connection with Cablevision's alleged discrimination.
After his Area Director position was eliminated, plaintiff was appointed to the newly created position of Director of Human Resources of Field Operations in New York City, which according to plaintiff, constituted a demotion.*fn2 He remained in this position until he was terminated in July 2005.
In his new position, plaintiff was supervised by Dan Timoney, who in turn reported to Thomas Monaghan, Vice President of Field Operations for New York City. In June 2003, plaintiff's supervisor for the prior review period gave plaintiff an "Overall Performance Rating" of 4 for "Exceeded Expected Performance," the second-highest rating. Timoney, plaintiff's new supervisor, wrote that he looked forward to working with him in the coming year.
According to Cablevision, one of plaintiff's primary responsibilities in his new position was to make sure the employees understood that they had an advocate and that their concerns were being heard, to reduce the likelihood that they would turn to a third party, like a union, for intervention. In late 2003, Timoney directed plaintiff to conduct meetings with employees in the New York City area concerning company benefit plans. Timoney believed there was a need to go out and "sell" the plans, but by January 2004, according to Timoney, plaintiff had not executed this directive, and no benefit meetings had been held.
That month, Timoney downgraded plaintiff's Overall Performance Rating from 4 to 3, for "Achieved Expected Performance." Timoney complimented plaintiff's performance in some areas but criticized him for missing deadlines, being "reactive" rather than "proactive," and for other ...