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Basso v. EarthLink, Inc.

Supreme Court of New York, First Department

January 2, 2018

Josette Basso, Plaintiff-Appellant,
v.
EarthLink, Inc., et al., Defendants-Respondents.

          Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

          Seyfarth Shaw LLP, New York (Gena B. Usenheimer of counsel), for respondents.

          Richter, J.P., Tom, Kapnick, Kern, Moulton, JJ.

         Order, Supreme Court, New York County (Richard F. Braun, J.), entered May 20, 2016, which granted defendants' motion for summary judgment dismissing the complaint alleging age and gender discrimination under the State and City Human Rights Laws (HRLs), unanimously affirmed, without costs.

         Plaintiff carried her "de minimis burden" of showing a prima facie case of discrimination based on age and gender (Melman v Montefiore Med. Ctr., 98 A.D.3d 107, 113-114, 115 [1st Dept 2012] [internal quotation marks omitted]; Baily v New York Westchester Sq. Med. Ctr., 38 A.D.3d 119, 123 [1st Dept 2007]; see generally Executive Law § 296; Administrative Code of City of NY § 8-107[1][a]). Defendants do not dispute that plaintiff's age, 64 years, and gender are protected classes, or that plaintiff was qualified for the position at issue. In addition, plaintiff demonstrated that her employment was terminated, that she was replaced by a younger man, and that she had been the only branch manager nationwide who was over 60 years old.

         The motion court nevertheless correctly granted summary judgment dismissing the complaint because plaintiff failed to raise an issue of fact whether defendants' reason for terminating her employment was pretextual (see Melman, 98 A.D.3d at 113-114). Defendants demonstrated a legitimate, nondiscriminatory reason for eliminating plaintiff's branch manager position. Specifically, defendant EarthLink, Inc., was reorganizing and consolidating some branches to improve operational efficiency, so it eliminated one of two branch manager positions in the New York area. In addition, plaintiff's work performance, in particular, her sales record, was inferior to that of the other branch manager, Naim Mustafaj, a younger male.

         Plaintiff does not argue that the consolidation itself was pretextual, and she failed to raise triable issues of fact whether defendants' assertion that she was terminated due to her comparatively poor work performance was pretextual (see Cronin v Aetna Life Ins. Co., 46 F.3d 196, 204 [2d Cir 1995]). She does not dispute the accuracy of the objective statistical sales data on which defendants relied, which showed that Mustafaj performed better in the first quarter of 2012, leading up to her termination in April 2012. Instead, plaintiff cited facts to try to show that these three months of data are not an accurate or fair reflection of her overall performance. Her arguments, however, do not raise an issue of fact whether defendants' preference for an employee with a higher average for those three months was false. While defendants failed to find plaintiff another lateral or downgraded position, defendants terminated numerous other branch managers, including Mustafaj, plaintiff's younger male "replacement, " within nine months of her termination, without finding them other positions in the company.

         Nor do comments of her supervisor, defendant Michael Nicolosi, raise any triable issue regarding a discriminatory motive. Plaintiff's claims that Nicolosi did not spend much time with her, and her impression that he was uncomfortable around older women, and preferred to work with younger men, does not raise any triable issue. A plaintiff's "feelings and perceptions of being discriminated against are not evidence of discrimination" (Bickerstaff v Vassar College, 196 F.3d 435, 456 [2d Cir 1999], cert denied 530 U.S. 1242');">530 U.S. 1242 [2000] [internal quotation marks and brackets omitted]).

         That Nicolosi told her to terminate two younger male sales executives does not show discriminatory intent, nor do his criticisms of her team. One derogatory reference to plaintiff and her male colleagues as girls when they lagged behind on the way to a restaurant, on an unspecified date, is "at most [a] stray remark[]" that does not, without more, constitute evidence of discrimination (Hudson v Merrill Lynch & Co., Inc., 138 A.D.3d 511, 517 [1st Dept 2016], lv denied 28 N.Y.3d 902');">28 N.Y.3d 902 [2016]).

         Plaintiff incorrectly argues that the motion court failed to separately evaluate her City HRL claims under the City HRL's more liberal standard (Williams v New York City Hous. Auth., 61 A.D.3d 62');">61 A.D.3d 62 [1st Dept 2009], lv denied13 N.Y.3d 702');">13 N.Y.3d 702 [2009]; see Administrative Code § 8-130). The court cited the applicable "mixed motive standard" under the City HRL (Hudson, 138 A.D.3d at 514; Williams, 61 A.D.3d at 78 n 27), and separately, and correctly, concluded that plaintiff failed to raise a triable issue under this standard as well because she failed to show there were any issues of fact ...


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