Summary
applying heightened standard for constructive discharge to NYSHRL claim
Summary of this case from Aslin v. Univ. of RochesterOpinion
2012-12-4
Kate GAFFNEY, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents.
Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Michael Shender of counsel), for respondents.
Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York (Michael Shender of counsel), for respondents.
, J.P., FRIEDMAN, ACOSTA, RENWICK, FREEDMAN, JJ.
Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered September 29, 2011, dismissing the complaint as against all defendants, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered September 26, 2011, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Defendants met their burden of demonstrating plaintiff's failure to establish her claims of age discrimination, hostile work environment, constructive discharge, and retaliation ( see Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305–306, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ).
In opposition, plaintiff failed to raise a triable issue of material fact. As to her age discrimination claim, there is no evidence that plaintiff suffered from an adverse employment action ( see Forrest, 3 N.Y.3d at 306–307, 786 N.Y.S.2d 382, 819 N.E.2d 998). The assignment of plaintiff to certain nonsupervisory tasks ordinarily performed by teachers constituted “merely an alteration of her responsibilities and did not result in a ‘materially adverse change,’ since [she] retained the terms and conditions of her employment, and her salary remained the same” ( Matter of Block v. Gatling, 84 A.D.3d 445, 445, 922 N.Y.S.2d 327 [1st Dept.2011],lv. denied17 N.Y.3d 709, 2011 WL 4089761 [2011],quoting Forrest, 3 N.Y.3d at 306, 786 N.Y.S.2d 382, 819 N.E.2d 998). Nor did the alleged disciplinary memos in her file, threats of unsatisfactory ratings, disciplinary meetings and allegations of corporal punishment constitute adverse employment actions. Plaintiff received “satisfactory end-of-year performance rating[s], and none of the [alleged] reprimands resulted in any reduction in pay or privileges” ( Silvis v. City of New York, 95 A.D.3d 665, 665, 946 N.Y.S.2d 22 [1st Dept.2012] ).
Plaintiff failed to raise a triable issue of fact as to her hostile work environment claim, as the alleged conduct and insults by her employer and coworkers were not “sufficiently severe or pervasive to alter the conditions of [her] employment” ( Ferrer v. New York State Div. of Human Rights, 82 A.D.3d 431, 431, 918 N.Y.S.2d 405 [1st Dept.2011], quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 [1993] ).
The standard for establishing a claim of constructive discharge is “higher than the standard for establishing a hostile work environment” where, as here, the alleged constructive discharge stems from the alleged hostile work environment ( Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 725 [2d Cir.2010] ). Accordingly, because plaintiff failed to raise a triable issue of fact as to her hostile work environment claim, “her claim of constructive discharge also fails” ( id.).
With respect to plaintiff's retaliation claim, there is no evidence of an adverse employment action resulting from her filing of a notice of claim against defendants ( see Mejia v. Roosevelt Is. Med. Assoc., 95 A.D.3d 570, 573, 944 N.Y.S.2d 521 [1st Dept.2012] ). Nor is there any evidence of a causal connection between plaintiff's commencement of litigation and the allegedly adverse actions against her. Indeed, the conduct at issue began months before plaintiff filed the notice of claim ( see Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 129, 946 N.Y.S.2d 27 [1st Dept.2012] ).