IN RE: Application of Makebra MATTHEWS (2000)

Supreme Court, Appellate Division, First Department, New York.

IN RE: Application of Makebra MATTHEWS, Petitioner-Appellant, For a Judgment, etc., v. CITY OF NEW YORK, Respondent-Respondent.

Decided: March 07, 2000

ROSENBERGER, J.P., WALLACH, ANDRIAS and FRIEDMAN, JJ.

Jeffrey L. Kreisberg, for Petitioner-Appellant. Mordecai Newman, for Respondent-Respondent.

Judgment, Supreme Court, New York County (Beatrice Shainswit, J.), entered October 27, 1998, which denied petitioner's application to annul respondent's determination terminating her employment as a provisional caseworker with the Administration for Children's Services, and dismissed the petition, unanimously affirmed, without costs.

Petitioner's submissions, which adduced no facts tending to show either that her job performance was satisfactory or that respondent was enforcing a dress code that allowed men, but not women, to wear sexually provocative or otherwise inappropriate clothes, fail to make out a prima facie case of discrimination based on sex (see, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668). We note that respondent adduced abundant evidence showing reasons for being dissatisfied with petitioner entirely apart from her manner of dress. Absent a prima facie showing of discrimination, the mixed-motive analysis of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 is inapplicable.

MEMORANDUM DECISION.

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