HARDING v. DONATELLA GCT LLC (2021)

The following e-filed documents, listed by NYSCEF document number (Motion 007) 14, 39, 57, 68, 87, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 101, 102, 103, 104, 105, 106 were read on this motion for SUMMARY JUDGMENT.

In this employment-discrimination action, the only remaining defendant, Donatella GCT, LLC,¹ moves for summary judgment under CPLR 3212, seeking dismissal of plaintiff Carmela Harding's claims that she was subjected to actionable harassment by a co-worker and was fired for reporting it. The motion is granted as to plaintiff's discrimination claim and denied as to her retaliation claim.

BACKGROUND

Plaintiff worked at Prova Pizzabar, a pizza restaurant owned by Donatella GCT, from January 2017 to August 2017. She has alleged that a co-worker, Kwame Murdock, frequently verbally harassed her throughout the course of her employment and groped her on the premises on August 9, 2017. She further alleges that she immediately reported the groping incident to her supervisor, Steve Rudemyer, who fired her the next day.

Plaintiff brought several claims against defendants, including that her firing was impermissible gender discrimination (the first cause of action), and that the firing also was retaliation for her report of the alleged groping incident (the second cause of action).

Defendant denies any discrimination or retaliation, knowledge of the alleged groping, or that plaintiff made any report to Rudemyer. Defendant asserts that plaintiff was chronically late to work and that this was the only reason she was fired. Defendant now moves under CPLR 3212 (e) for partial summary judgment as to plaintiff's discrimination and retaliation claims.² (See NYSCEF No. 89.)

DISCUSSION

A party moving for summary judgment under CPLR 3212 must make a prima facie showing that it is entitled to judgment as a matter of law. (Alvarez v Prospect Hosp, 68 NY2d 320, 324 [1986].) Once such a showing has been made, the burden shifts to the parties opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact that require a trial of the action. (See Zuckerman v City of New York, 49 NY2d 557, 560 [1980].) In determining whether a triable issue of fact exists, “the evidence should be analyzed in the light most favorable to the party opposing the motion.” (Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997].)

A. The Branch of Defendant's Motion Seeking Dismissal of Plaintiff's Discrimination Claim

Defendant moves for summary judgment dismissing plaintiff's first cause of action, which claims gender discrimination. The motion is granted.

A plaintiff alleging discrimination in employment must meet the initial burden of establishing a prima facie case. This requires (1) plaintiff's membership in a protected class, (2) her qualification for the position, (3) that she was terminated from the position, and (4) that the termination “occurred under circumstances giving rise to an inference of discrimination.” (Dickerson v Health Mgmt. Corp. of Am., 21 AD3d 326, 328 [1st Dept 2005].) In a gender-discrimination action, a female plaintiff also must generally show that she was replaced by a male employee.³ (See Kapila v Divney, 269 AD2d 127, 127 [1st Dept 2000].)

Plaintiff here has not made out a prima facie case of gender discrimination. For example, the record reflects that her supervisor, Rudemyer, filled her vacated job spot by hiring another woman. (See NYSCEF No. 92 at ¶ 16.) Plaintiff contends that this fact should not foreclose her from making out her prima facie case, because (plaintiff contends) she was fired after reporting a sexual assault while her male assailant (co-worker Murdock) was not fired. This court is not persuaded. That plaintiff was replaced by another female employee tends to rebut the inference that plaintiff seeks to draw, namely that she was treated differently from Murdock due to her gender, in particular—as opposed to, for example, that she was reporting sexual harassment and assault by a coworker.⁴

Additionally, plaintiff has not introduced any other evidence that the circumstances under which she was fired give rise to an inference of gender discrimination. Plaintiff has not shown, for example, that she (or other female employees) were treated “treated less favorably than a similarly situated employee outside of [her] protected group,” or that Prova Pizzabar engaged in any discriminatory policies or practices. (Castro v New York Univ., 5 AD3d 135, 136 [1st Dept 2004].) Nor has she introduced evidence that Rudemyer (or other supervisory or managerial staff) made comments that might “signal views about the role of women in the workplace” supporting a discrimination claim. (Williams v N.Y.C. Hous. Auth., 61 AD3d 62, 80 n 30 [1st Dept 2009].)

Plaintiff thus has not made out a prima facie case that her firing was an instance of gender discrimination. The branch of defendant's motion seeking dismissal of her discrimination claim is granted.⁵

B. Defendant's Motion for Summary Judgment as to Plaintiff's Second Cause of Action

Defendant also moves for summary judgment dismissing plaintiff's second cause of action, which claims retaliation. The motion is denied.

To make out a claim for retaliation, a plaintiff must show that (1) she engaged in a protected activity, (2) her employer was aware that she participated in this activity, (3) she suffered an adverse employment action based upon her activity, and (4) a causal connection exists between the protected activity and the adverse action. (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 312—313 [2004].)

Plaintiff has introduced evidence, principally in the form of her affidavit (see NYSCEF No. 104), that satisfies each of these criteria. Plaintiff's affidavit represents that she was sexually harassed repeatedly by Murdock, culminating in an incident in which he groped her; that plaintiff reported the groping incident to her supervisor, Rudemyer; and that Rudemyer fired her the next day. (See Ramos v Metro North Commuter R.R., 190 AD3d 570, 571 [1st Dept 2021] [holding that plaintiff raised an issue of fact about the existence of a causal connection by providing evidence that her protected activity and her termination occurred within weeks of each other].)

Defendant contests plaintiff's contentions that Murdock sexually assaulted her (see NYSCEF No. 98 [Murdock affidavit]) and that plaintiff reported that assault to Rudemyer (see NYSCEF No. 92 at ¶ 17 [Rudemyer affidavit]). This dispute, though, merely raises an issue of credibility requiring resolution by a jury.

Defendant also contends that Rudemyer fired plaintiff because she was consistently tardy or absent to work, not because she complained to him about Murdock groping her. (See NYSCEF No. 92 at 1-4.) Plaintiff's affidavit, though, disputes the extent of her tardiness, suggests that other employees were equally tardy without being fired, and states that Rudemyer gave her a nontardiness-based reason for having fired her. (See NYSCEF No. 104 at ¶¶ 10-14.) These contentions, coupled with the tight temporal proximity between plaintiff's claimed reporting of the groping incident and her termination, suffices to raise a factual dispute about whether retaliation was at least one motivating factor in Rudemyer's decision to fire plaintiff, rendering summary judgment inappropriate. (See Ramos, 190 AD3d at 570.)

Accordingly, it is hereby

ORDERED that the branch of defendant's motion for summary judgment seeking dismissal of plaintiff's gender-discrimination claim is granted; and it is further

ORDERED that the branch of defendant's motion for summary judgment seeking dismissal of plaintiff's retaliation claim is denied; and it is further

ORDERED that plaintiff is to serve a copy of this decision with notice of its entry on all parties.

FOOTNOTES

1.   Defendants Donatella Arpaia and Mark Geragos are principal owners of Donatella GCT. They were named as defendants under other causes of action that have since been dismissed.

2.   The motion does not address plaintiff's other remaining cause of action, a claim for violation of the Fair Chance Act. (See NYSCEF No. 68.) Plaintiff asserted five causes of action in November 10, 2017 amended complaint. (NYSCEF Doc No. 14.)

3.   This requirement is subject to exceptions—for example where a female plaintiff replaced by another female employee can show that she was fired for failing to “conform to her employer's stereotypical expectation of women in her position.” (Chauvancy v. Dresdner Bank AG, 2004 NY Slip Op 51225[U], at *4 [Sup Ct, NY County June 23, 2004].) Plaintiff does not argue that her termination resulted from such stereotyping.

4.   The possibility that plaintiff was treated differently from Murdock because she was reporting sexual harassment and assault is encompassed by her retaliation claim, discussed infra.

5.   Plaintiff does not contend that defendant could be vicariously liable for Murdock's alleged assaultive conduct in groping her. This court therefore does not address that potential ground for liability.

Gerald Lebovits, J.