Heidi Leibowitz, appellant, v. New York County Lawyers Association, respondent. (2026)

Argued—January 5, 2026

DECISION & ORDER

G/

In an action, inter alia, to recover damages for employment discrimination on the basis of gender in violation of Executive Law § 296 and Administrative Code of the City of New York § 8–107, the plaintiff appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.) dated July 25, 2024.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In April 2016, the plaintiff, who was employed by the defendant, took a pregnancy-related leave.  During the plaintiff's leave, the defendant converted the plaintiff's position from full time to part time.  In August 2016, the defendant repeatedly inquired about the plaintiff's planned return-to-work date.  On August 9, 2016, after the plaintiff's repeated failure to commit to an exact return date, the defendant terminated her employment, effective September 8, 2016, at the end of her leave.

On August 7, 2019, plaintiff commenced this action alleging, inter alia, employment discrimination on the basis of gender and retaliation under the New York State Human Rights Law (N.Y.SHRL) (Executive Law § 296) and the New York City Human Rights Law (N.Y.CHRL) (Administrative Code of the City of New York § 8–107).  The defendant moved for summary judgment dismissing the complaint.  In an order dated July 25, 2024, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

At the time the plaintiff commenced this action on August 7, 2019, a plaintiff alleging discrimination in violation of the NYSHRL was required to establish that “(1) he or she is a member of a protected class, (2) he or she was qualified to hold the position, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination” (Niemotko v. Mount St. Mary Coll., 241 AD3d 701, 702 [internal quotation marks omitted];  see Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708, 709–710).  A plaintiff seeking to prove a cause of action alleging discrimination “may raise such an inference by showing that the employer subjected him [or her] to disparate treatment, that is, treated him [or her] less favorably than a similarly situated employee outside his [or her] protected group” (Castro v. City Univ. of N.Y., 238 AD3d 1106, 1107 [internal quotation marks omitted];  see Dotson v. J.C. Penney Co., Inc., 159 AD3d 1512, 1514).  “When plaintiffs seek to draw inferences of discrimination by showing that they were similarly situated in all material respects to the individuals to whom they compare themselves, their circumstances need not be identical, but there should be a reasonably close resemblance of facts and circumstances” (Castro v. City Univ. of N.Y., 238 AD3d at 1107–1108 [internal quotation marks omitted];  see Diaz v. Minhas Constr.  Corp., LLC, 188 AD3d 812, 814).  “The key is that they be similar in significant respects” (Castro v. City Univ. of N.Y., 238 AD3d at 1108 [internal quotation marks omitted] ).

“To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of triable issue[s] of fact as to whether the explanations were pretextual” (Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d at 710 [internal quotation marks omitted] ).

Here, the defendant met its prima facie burden by demonstrating that the plaintiff's employment was terminated for a nondiscriminatory reason, namely her failure to commit to a return-to-work date (see Niemotko v. Mount St. Mary Coll., 241 AD3d at 703).  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant's reason for terminating her employment was a pretext for pregnancy discrimination (see D'Agostino v. MMC E., LLC, 184 AD3d 719, 722).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging pregnancy discrimination in violation of the NYSHRL.

“Under the NYCHRL, unlawful discrimination must play no role in an employment decision” (Ellison v. Chartis Claims, Inc., 178 AD3d 665, 668 [internal quotation marks omitted];  see Wright v White Plains Hosp. Med. Ctr., 237 AD3d 1143, 1146).  Thus, a defendant's motion for summary judgment must be analyzed under both the familiar framework of McDonnell Douglas Corp. v. Green (411 U.S. 792) and under the newer mixed-motive framework, which imposes a lesser burden on a plaintiff opposing such a motion (see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1145;  Reichman v. City of New York, 179 AD3d 1115, 1117).  “A defendant must make a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions” (Ellison v. Chartis Claims, Inc., 178 AD3d at 668 [internal quotation marks omitted];  see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146).  “A plaintiff may defeat summary judgment by coming forward either with evidence that the defendant's stated reasons were a pretext for discrimination or with evidence that discrimination was one of the motivating factors for the defendant's conduct” (Ellison v. Chartis Claims, Inc., 178 AD3d at 668;  see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146).

Here, the defendant met its prima facie burden by establishing that there was no evidentiary route that could allow any jury to believe that the plaintiff's employment was terminated for discriminatory reasons (see Ellison v. Chartis Claims, Inc., 178 AD3d at 669).  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the proffered explanation was a pretext for discrimination or whether discrimination was one of the motivating factors for the challenged action (see Wright v White Plains Hosp. Med. Ctr., 237 AD3d at 1146;  Reichman v. City of New York, 179 AD3d at 1118).  Thus, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging gender discrimination in violation of the NYCHRL.

“To make a prima facie showing of retaliation under the NYSHRL, a plaintiff must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff suffered an adverse employment action based upon that activity, and (4) there is a causal connection between the protected activity and the adverse action” (Makharadze v. Ognibene, 239 AD3d 844, 846–847 [internal quotation marks omitted];  see Reichman v. City of New York, 179 AD3d at 1119).  “Under the NYCHRL, the test is similar, except that the plaintiff need not establish an adverse action;  rather, the plaintiff must show only that the defendant took an action that disadvantaged him or her” (Makharadze v. Ognibene, 239 AD3d at 847).  “To establish its entitlement to summary judgment in a retaliation case [under either the NYSHRL or the NYCHRL], a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual” (Reichman v. City of New York, 179 AD3d at 1119–1120 [internal quotation marks omitted];  see Bilitch v New York City Health & Hosps.  Corp., 194 AD3d 999, 1004).

Here, the defendant met its prima facie by proffering a nondiscriminatory, nonretaliatory reason for the plaintiff's termination of employment, namely the plaintiff's failure to specify a date for her return from maternity leave (see Reichman v. City of New York, 179 AD3d at 1120).  Additionally, by showing it had cleared a 134–case backlog in the plaintiff's department, the defendant provided a nondiscriminatory, nonpretextual reason for its action of redefining the plaintiff's position from full time to part time.  In opposition, the plaintiff failed to raise triable issues of fact as to whether the defendant's proffered reasons for either her termination of employment or the redefinition of her position were pretextual or whether the defendant's conduct was causally related to a protected activity (see Makharadze v. Ognibene, 239 AD3d at 847).  Therefore, the Supreme Court properly granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging retaliation in violation of the NYSHRL and the NYCHRL.

The plaintiff's remaining contention is improperly raised for the first time on appeal.

CONNOLLY, J.P., FORD, VOUTSINAS and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court