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Equal Employment Opportunity Commission v. Bloomberg L.P.

United States District Court, S.D. New York

September 9, 2013

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
BLOOMBERG L.P., Defendant. JILL PATRICOT, TANYS LANCASTER, JANET LOURES, MONICA PRESTIA, MARINA KUSHNIR and MARIA MANDALAKIS, Plaintiffs-Intervenors,
v.
BLOOMBERG L.P., Defendant

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For Equal Employment Opportunity Commission, Plaintiff: Elizabeth Anne Grossman, Robert David Rose, LEAD ATTORNEYS, Equal Employment Opportunity Commission, New York District Office, New York, NY; Raechel Lee Adams, LEAD ATTORNEY, Equal Employment Opportunity Commission, New York, NY; Ana Consuelo Martinez, EEOC, New York, NY; Christine Jiyeun Back, Kam Sau Wong, Konrad Batog, U.S. Equal Employment Opportunity Commission, New York, NY; Justin Mulaire, U.S. Equal Employment Opportunity Commission, Chicago, IL.

For Bloomberg L.P., Defendant: Eric S. Dreiband, LEAD ATTORNEY, Jones Day (DC), Washington, DC; Hannah M. Breshin, Sherron Thomas McClain, LEAD ATTORNEYS, PRO HAC VICE, Jones Day (DC), Washington, DC; Thomas H Golden, LEAD ATTORNEY, Willkie Farr & Gallagher LLP (NY), New York, NY; M. Carter DeLorme, PRO HAC VICE, Jones Day, Washington, DC; Stephanie Holmes, Tonya M. Osborne, PRO HAC VICE, Jones Day (DC), Washington, DC; Vicki Renee Walcott-Edim, Jones Day (NYC), New York, NY.

For Jill Patricot, Tanys Lancaster, Janet Loures, Marina Kushnir, Intervenor Plaintiffs: Milo Silberstein, Dealy Silberstein & Braverman, LLP, New York, NY; William J. Dealy, Dealy & Silberstein LLP, New York, NY.

For Monica Prestia, Maria Mandalakis, Intervenor Plaintiffs: Richard Alan Roth, The Roth Law Firm, PLLC, New York, NY.

OPINION

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OPINION & ORDER

LORETTA A. PRESKA, Chief United States District Judge.

Plaintiff, the Equal Employment Opportunity Commission (" EEOC" ), filed this action against Defendant Bloombe L.P. (" Bloomberg" ) after several current and former employees had filed charges with the EEOC alleging sex/pregnancy discrimination and retaliation[1] in violation of Title

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VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § § 2000e(k), 2000e-2. (Second Amended Compl. ¶ ¶ 1, 6.) Generally, the complaint alleged that Bloomberg had discriminated and/or retaliated against the claimants and other similarly situated employees after they had announced their pregnancies and had returned to work following maternity leave. (Id. ¶ ¶ 7, 9.) Subsequently, Plaintiffs Jill Patricot, Tanys Lancaster, Janet Loures, Monica Prestia, Marina Kushnir, and Maria Mandalakis (collectively, the " Plaintiff-Intervenors" ) intervened in this action on their own behalf.

Before the Court is a motion brought by Bloomberg seeking summary judgment on claims asserted by the Plaintiff-Intervenors [dkt. no. 322]. As set forth below, Defendant's motion with respect to the Plaintiff-Intervenors is GRANTED in part and DENIED in part.[2]

I. BACKGROUND

The basic allegations and procedural history of this case as it pertains to the claims brought by the EEOC on behalf of the Non-Intervenor Plaintiffs are stated adequately in the Court's prior opinions, with which the Court assumes the parties' familiarity. EEOC v. Bloomberg L.P. (Bloomberg IV), [dkt. no. 557], 967 F.Supp.2d 802, (S.D.N.Y. Sept. 9, 2013); EEOC v. Bloomberg L.P. (Bloomberg III), 778 F.Supp.2d 458 (S.D.N.Y. 2011); EEOC v. Bloomberg L.P. (Bloomberg II), 751 F.Supp.2d 628 (S.D.N.Y. 2010); EEOC v. Bloomberg L.P. (Bloomberg I), No. 07 Civ. 8383, 2010 WL 3466370 (S.D.N.Y. Aug. 31, 2010). Plaintiff EEOC brought a case on behalf of a class of similarly situated women who were pregnant and took maternity leave (" Class Members" ), asserting that Defendant Bloomberg engaged in a pattern or practice of discrimination on the basis of the Class Members' sex and/or pregnancy. The EEOC alleges that Bloomberg reduced pregnant women's or mothers' pay, demoted them in title or in number of directly reporting employees (also called " direct reports" ), reduced their responsibilities, excluded them from management meetings, and subjected them to stereotypes about female caregivers, any and all of which violated the law because these adverse employment consequences were based on class members' pregnancy or the fact that they took leave for pregnancy-related reasons. The Court has dismissed all claims brought by the EEOC. (See Bloomberg IV.) The only remaining claims are those brought by the Plaintiff-Intervenors.

Consistent with their rights, the Court permitted Jill Patricot, Tanys Lancaster, Janet Loures, Monica Prestia, Marina Kushnir, and Maria Mandalakis to intervene in this action as plaintiffs to pursue claims on their own behalf. (See [dkt. nos. 6, 9, & 50].) In addition to claims brought under Title VII, the Plaintiff-Intervenors assert claims under Section 296(1) of the New York Executive Law (the " New York State Human Rights Law" or " NYSHRL" ) and Section 8-107 of the New York City Administrative Code (the " New York City Human Rights Law" or " NYCHRL" ).

The Opinion that follows proceeds in two principal parts. First, the Court sets forth the legal standards relevant to Defendant's motion for summary judgment on the

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Plaintiff-Intervenors' claims. Then, the Court analyzes the instant motion as it relates to each of the Plaintiff-Intervenors, one-by-one. In so doing, the Court defers setting forth additional background specific to each individual Plaintiff-Intervenor's claims until the portion of this opinion discussing that person's claims.[3]

II. LEGAL STANDARDS

A. Summary Judgment Standard

In considering a motion for summary judgment, the Court resolves all ambiguities and draws all reasonable inferences against the moving party. Lindsay v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 50 (2d Cir. 2009). " Summary judgment is appropriate only 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011) (quoting Fed.R.Civ.P. 56(a)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law." Lindsay, 581 F.3d at 50. " The inquiry performed is the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.

Rule 56 mandates summary judgment " against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. " [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (internal citations omitted). In the face of insufficient evidence, " there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 322-23.

" [E]ven in the fact-intensive context of discrimination cases," " [i]t is now beyond cavil that summary judgment may be appropriate." Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001); see also Weinstock v. Columbia Univ., 224 F.3d 33, 40 (2d Cir. 2000) (instructing that " trial courts should not 'treat discrimination differently from other ultimate questions of

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fact'" (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)). Accordingly, a plaintiff alleging discrimination claims " cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts . . . or defeat the motion through mere speculation or conjecture." Jones v. Hirschfeld, 348 F.Supp.2d 50, 59 (S.D.N.Y. 2004).

Finally, in accordance with Local Rule 56.1, Bloomberg submitted a statement of material facts as to which it contends there is no genuine issue to be tried. (See generally Bloomberg 56.1.) Plaintiff-Intervenors, collectively, submitted a statement in opposition, (see generally Pl.Intv'rs 56.1), and Bloomberg then submitted a reply thereto, (see generally Reply 56.1). To the extent any of these filings is not in total compliance with the local rules,[4] the Court retains " broad discretion to accept [it], even if it does not comply strictly with the Rule's requirements." Primmer v. CBS Studios, Inc., 667 F.Supp.2d 248, 254 (S.D.N.Y. 2009) (citing Photopaint Techs., LLC v. Smartlens Corp., 335 F.3d 152, 155 n.2 (2d Cir. 2003); Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)).

B. Statutes of Limitations

Title VII provides a limitations period of 300 days for a claimant to file an administrative charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1). Although Title VII sets forth an individual filing rule, a " single-filing" or " piggybacking" exception to the rule might apply. Under such an exception, claims by all individuals arising out of similar discriminatory treatment in the same time frame are deemed timely as of the date of the first-filed complaint with the EEOC. Snell v. Suffolk Cnty., 782 F.2d 1094, 1100 (2d Cir. 1986). An individual who has previously filed her own EEOC charge, however, cannot invoke the exception. See Holowecki v. Fed. Express Corp., 440 F.3d 558, 564 (2d Cir. 2006).

In rare cases, a " continuing violation" exception may be observed under which, " if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone." Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004). The doctrine, however, clearly does not apply to " [d]iscrete acts such as termination, failure to promote, [or] denial of transfer." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).

Greene v. Trs. of Columbia Univ. in N.Y., 234 F.Supp.2d 368 Cuttler v. Fried, Frank, Harris, Shriver and Jacobson,

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No. 10 Civ. 296 (DAB), 2012 WL 1003511, at *4 (S.D.N.Y. Mar. 23, 2012); Siddiqi v. N.Y.C. Health & Hosps. Corp., 572 F.Supp.2d 353, 373 (S.D.N.Y. 2008).

C. Title VII & NYSHRL

As the parties are aware, claims asserted under Title VII and the NYSHRL are analyzed pursuant to the same standard; therefore, analysis of identical claims brought by an individual under both of these laws can be performed in tandem. See Pucino v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010). Plaintiff-Intervenors assert claims under Title VII and the NYSHRL arising in: (1) discrimination; (2) retaliation; (3) hostile work environment; and (4) constructive discharge.

1. Discrimination

" Title VII of the Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e et seq., prohibits various forms of employment discrimination on the basis of race, color, religion, sex, or national origin." United States v. City of N.Y., 713 F.Supp.2d 300, 316 (S.D.N.Y. 2010). As amended by the Pregnancy Discrimination Act of 1978 (" PDA" ), Title VII prohibits " discrimination based on a woman's pregnancy [because it] is, on its face, discrimination because of her sex." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983). Specifically, the PDA adds this definition to Title VII:

The terms " because of sex" or " on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.

42 U.S.C. § 2000e(k); see id. § 2000e-1(a)-(b).

An action for violation of Title VII may be brought by the person affected or by the EEOC. Here, the EEOC has brought an enforcement action under 42 U.S.C. § 2000e-5(f) on behalf of the twenty-nine Non-Intervenor Plaintiffs. Individuals may also intervene to assert their own claims, as has been done here by the Plaintiff-Intervenors.

Similarly, the NYSHRL makes it " an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's . . . sex . . . to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." N.Y. Exec. Law § 296(1).

Velez v. Novartis Pharms. Corp., 244 F.R.D. 243 Dimino v. N.Y.C. Transit Auth., 64 F.Supp.2d 136 Fisher v. Vassar Coll., 70 F.3d 1420 114 F.3d 1332 by Reeves v. Sanderson Plumbing Prods.,

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530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

At the summary judgment stage, such " claims are ordinarily analyzed under the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny." [5] Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008); see also Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.) (applying McDonnell Douglas in pregnancy discrimination case). Under the McDonnell Douglas framework, the plaintiff has the initial burden of establishing a prima facie case. Id. The plaintiff's burden of proof at this first stage " is not onerous." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

A plaintiff fulfills the burden of establishing a prima facie case of discriminatory treatment by showing that: (1) she belonged to a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Mathirampuzha, 548 F.3d at 78.

Once the plaintiff has established a prima facie case, the burden shifts to the defendant to offer a non-discriminatory justification for its actions. As the Court of Appeals has noted, " [a]ny legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher, 114 F.3d at 1335-36. The defendant's burden is one of production, meaning that to rebut the presumption the defendant must " clearly set forth, through the introduction of admissible evidence, the reasons" for the adverse employment action. Burdine, 450 U.S. at 254-55.

At that point, the presumption of discrimination disappears, and the plaintiff must prove " that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.2001) (quoting Reeves, 530 U.S. at 143 (quoting Burdine, 450 U.S. at 253)). If the plaintiff cannot prove the presence of such a pretext by a preponderance of the evidence, then summary judgment is appropriate. See Abdu-Brisson, 239 F.3d at 470.

In rare cases, discrimination claims are subject to a mixed-motive standard of analysis under Price Waterhouse. This dual-motive framework is available where the plaintiff demonstrates the availability of direct evidence of discrimination. " Evidence potentially warranting a Price Waterhouse burden shift includes, inter alia, policy documents and evidence of statements or actions by decisionmakers that may be viewed as directly reflecting the alleged discriminatory attitude. [T]o warrant a mixed-motive burden shift, the plaintiff must be able to produce a 'smoking gun' or at least a 'thick cloud of smoke' to support [her] allegations of discriminatory treatment. Where . . . the plaintiff

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fails to produce any such evidence, the plaintiff cannot withstand a motion for summary judgment by arguing that a jury might reasonably find in [her] favor under the mixed-motives framework." Price v. Cushman & Wakefield, Inc., 808 F.Supp.2d 670, 687 (S.D.N.Y. 2011) (internal quotation marks and citations omitted).

The Court of Appeals has noted, however, that " [a]n employer who discriminates is unlikely to leave a 'smoking gun,' such as a notation in an employee's personnel file, attesting to a discriminatory intent." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991). " A victim of discrimination is therefore seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Id. Thus the existence of direct evidence in a case has been termed " a rare exception." Bateman v. Project Hospitality, Inc., No. 07-CV-2085 (RRM)(RML), 2009 WL 3232856, at *8 (E.D.N.Y. Sept. 30, 2009) ; see also Sulehria v. City of N.Y., 670 F.Supp.2d 288, 305 (S.D.N.Y. 2009) (" Direct evidence that the adverse employment action was motivated by discrimination, 'a smoking gun,' is typically unavailable, however." ).

2. Retaliation

Title VII also prohibits an employer from retaliating against an employee because she has engaged in a protected activity, that is, " has opposed any practice made an unlawful practice by [Title VII], or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 2000e-3(a). Similarly, the NYSHRL safeguards employees against retaliation for engaging in protected activities. N.Y. Exec. Law § 296(7).

Like discrimination claims, retaliation claims are usually governed by the McDonnell Douglas standard. Holtz v. Rockefeller & Co., 258 F.3d 62, 79-81 (2d Cir. 2001). To establish a prima facie retaliation claim, the plaintiff must show: " (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action." Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). While the framework for analyzing retaliation claims mirrors that for discrimination claims, a plaintiff need not succeed on one in order to succeed on the other. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

3. Hostile Work Environment

Title VII and the NYSHRL prohibit " discriminatorily hostile or abusive [work] environment[s]." See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). To prevail on such a claim, the plaintiff must establish two elements: " (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, and (2) that there is a specific basis for imputing the conduct creating the hostile work environment to the employer." Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009) (internal quotation marks and citations omitted).

Kalp v. Kalmon Dolgin Affiliates of Long Island Inc.,

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No. 11-CV-4000 (JG), 2013 WL 1232308 (E.D.N.Y. Mar. 27, 2013) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995)).

The first element is both subjective and objective. This means that the victim must " subjectively perceive [the] environment to be abusive" and that the conduct complained of also must be " severe or pervasive enough to create an objectively hostile or abusive work environment." Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) (citation omitted). When evaluating this element, the Court must look at the entirety of the circumstances, including " the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." See Harris, 510 U.S. at 23.

4. Constructive Discharge

Constructive discharge " occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily. Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Serricchio v. Wachovia Secs. LLC, 658 F.3d 169, 185 (2d Cir. 2011). However, an employee's mere dissatisfaction with job assignments or criticism from a supervisor do not, alone, give rise to such a claim. See, e.g., Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993).

C. NYCHRL

Given the slow development of case law regarding the appropriate standard by which to evaluate NYCHRL claims at the summary judgment stage, it is unsurprising that the parties do not agree on just how much more liberally the NYCHRL requires this Court to examine the Plaintiff-Intervenors' claims than is demanded under Title VII and the NYSHRL.[6] Such continues to be a contentious legal issue in almost every case in which such claims are asserted alongside Title VII and NYSHRL claims. Nonetheless, while Plaintiffs' brief proved helpful in distinguishing some of the differences between how Title VII and NYSHRL claims and NYCHRL claims should be examined, the Court of Appeals has more recently provided additional guidance to district courts based on decisions of the Appellate Division of the New York State Supreme Court, First Department.

">In Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102 (2d Cir. 2013), the Court of Appeals notes that district courts " must analyze NYCHRL claims separately and independently from any federal and state law claims" and " constru[e] the NYCHRL's provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." Id. at 109 (internal quotation marks omitted).

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Such is true " even if the challenged conduct is not actionable under federal and state law." Id. Specifically, the Court of Appeals provided district courts with the following guidelines when reviewing NYCHRL claims:

(1) NYCHRL claims must be analyzed separately and independently from federal and state discrimination claims;
(2) the totality of the circumstances must be considered because " the overall context in which [the challenged conduct occurs] cannot be ignored" ;
(3) the federal severe or pervasive standard of liability no longer applies to NYCHRL claims, and the severity or pervasiveness of conduct is relevant only to the scope of damages;
(4) the NYCHRL is not a general civility code, and a defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory motives or if the defendant proves the conduct was nothing more than " petty slights or trivial inconveniences" ;
(5) while courts may still dismiss " truly insubstantial cases," even a single comment may be actionable in the proper context; and
(6) summary judgment is still appropriate in NYCHRL cases[] but only if the record establishes as a matter of law that a reasonable jury could not find the employer liable under any theory.

Id. at 113 (citations omitted).

At this point, additional observations of the Court of Appeals bearing on how burdens shift under the NYCHRL should be noted. Although it is clear a court must analyze NYCHRL claims independently of Title VII and NYSHRL claims and must consider both the McDonnell Douglas and mixed-motive frameworks, the Mihalik court noted that it remains " unclear whether, and to what extent the McDonnell Douglas burden-shifting analysis has been modified for NYCHRL claims." Mihalik, 715 F.3d at 110 n.8. The court made this observation after comparing the opinions filed by the First Department in Bennett v. Health Management Systems, Inc., 92 A.D.3d 29, 936 N.Y.S.2d 112 (1st Dep't 2011), and Melman v. Montefiore Medical Center, 98 A.D.3d 107, 946 N.Y.S.2d 27 (1st Dep't 2012). Id. (" Although Bennett seemed to suggest the analysis has changed, the First Department later narrowly construed Bennett [in Melman] as only requiring trial courts to consider whether plaintiff's claim could survive under either the McDonnell Douglas analysis or a mixed-motive theory of liability. It is unclear how this differs from the federal standard." (citation omitted)). In the end, though, what remains clear is that the NYCHRL has " simplified the discrimination inquiry: the plaintiff need only show that her employer treated her less well [than other similarly situated employees], at least in part for discriminatory reasons. The employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record established as a matter of law that discrimination played no role in its actions." Id. (internal quotation marks omitted). This Court further observes that the Melman court seemed to consider the possibility that a plaintiff could sustain a showing under a mixed-motive standard by relying principally on circumstantial evidence.[7]

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See Melman, 98 A.D.3d at 128. Given the liberal framework of the NYCHRL, this Court will consider circumstantial evidence when conducting its mixed-motive analysis of NYCHRL claims.

Using these principles as a guide, the Court now reviews the legal standards for discrimination and retaliation claims under the NYCHRL.

1. Discrimination[8]

Section 8-107(1)(a) of the NYCHRL makes it " an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because of the actual or perceived . . . gender . . . of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a).

" To establish a [pregnancy] discrimination claim under the NYCHRL, the plaintiff need only demonstrate 'by a preponderance of the evidence that she has been treated less well than other employees because of her gender.'" Mihalik, 715 F.3d at 110 (quoting Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 78, 872 N.Y.S.2d 27 (1st Dep't 2009)). " At the summary judgment stage, judgment should normally be denied to a defendant if there exist triable issues of fact as to whether such conduct occurred." Williams, 61 A.D.3d at 78. Moreover, the challenged conduct need not even amount to something tangible, like hiring or firing. Id. at 79, 80.

However, this Court remains " mindful that the NYCHRL is not a 'general civility code.'" See Mihalik, 715 F.3d at 110 (quoting Williams, 61 A.D.3d at 79). " The plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive. It is not enough that a plaintiff has an overbearing or obnoxious boss. She must show that she has been treated less well at least in part because of her gender. Id. (internal quotation marks omitted).

Even upon such a showing, though, " defendants may assert an affirmative defense whereby [they] can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences." Id. (citations omitted) (internal quotation marks omitted). The burden at this stage is on the defendant to prove the conduct's triviality. Id. Nevertheless, the defendant may prevail at summary ...


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