APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
February 15, 2011
H & R BLOCK AND MONROE COLLEGE,
Chapman v H & R Block
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Schoenfeld, J.P., Shulman, J.
Plaintiff, as limited by her briefs, appeals from those portions of an order of the Civil Court of the City of New York, New York County (Kathryn E. Freed, J.), dated August 30, 2010, which (1) denied her motion to renew and reargue a prior order dated October 16, 2008, denying her motion for discovery sanctions; (2) denied her motion for summary judgment; and (3) granted defendants' respective cross motions for summary judgment dismissing the complaint.
Order (Kathryn E. Freed, J.), dated August 30, 2010, insofar as appealed from, affirmed, without costs.
Plaintiff commenced the instant action against defendants H & R Block and Monroe College to recover damages for, inter alia, alleged discrimination on the basis of her religion. Even assuming that plaintiff established a prima facie case of discrimination in violation of the State and City Human Rights Laws (see Executive Law § 296; Administrative Code of City of NY § 8-101; Tucker v New York City, 376 Fed Appx 100, 101 [2nd Cir 2010]), Civil Court properly concluded that defendants are entitled to summary judgment dismissing the complaint. In opposition to defendants' showing of entitlement to judgment as a matter of law, plaintiff failed to raise a triable issue of fact as to whether defendants' reasons for not hiring her were "pretextual," and that illegal discrimination was the real reason behind their actions (Ferrante v American Lung Assn., 90 NY2d 623, 629-630 ; see McDonnell Douglas Corp. v Green, 411 US 792, 802-806 ; Stephenson v Hotel Empls. & Rest. Empls. Union Local 100 of AFL-CIO, 6 NY3d 265, 271 ).
Indeed, plaintiff offered no evidence whatsoever that defendants' claims concerning her "rude," "combative" and "poor attitude" were false, contrived or pretextual (see Clark v Morelli Ratner, PC, 73 AD3d 591, 591-592 ; Tucker v New York City, 376 Fed Appx at 102). Her "suspicions" to the contrary were insufficient to raise a triable issue of fact with respect to her claims of discriminatory or disparate treatment (see Ferrante v American Lung Assn., 90 NY2d at 630; Mirza v HSBC Bank USA, Inc., 2010 NY Slip Op 08873 ; Brennan v Metropolitan Opera Assn., 284 AD2d 66, 71-72 ).
Since plaintiff was never actually employed by the defendants, her hostile work environment claims were also properly dismissed. In any event, plaintiff did not establish that "her workplace [was] permeated with discriminatory intimidation, ridicule and insult' that is sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment'" (Fleming v MaxMara USA, Inc., 371 Fed Appx 115, 118 [2nd Cir 2010], citing Harris v Forklift Sys., Inc., 510 US 17, 21 ; see Elfiky v Pfizer, Inc., 12 Misc 3d 1152[A], 2006 NY Slip Op 50871[U] ).
Finally, summary judgment was also properly granted in defendants' favor with respect to plaintiff's discrimination and hostile work environment claims pursuant to the New York City Human Rights Law (see Administrative Code of City of NY § 8-101; Williams v New York City Hous. Auth., 61 AD3d 62 , lv denied 13 NY3d 702 ), since plaintiff's unsupported assertions were insufficient to establish that defendants' reasons for the adverse employment action were pretextual. Nor did she establish that defendants both condoned or approved of any alleged inappropriate remarks and failed to take remedial action (see Clark v Morelli Ratner, PC, 73 AD3d at 592; see Balk v 125 W. 92nd St. Corp., 24 AD3d 193, 194 ).
The plaintiff's remaining contentions are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date:February 15, 2011
© 1992-2011 VersusLaw Inc.