BELLE v. ZELMANOWICZ

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

George W. BELLE, et al., Plaintiffs-Appellants, v. Chaim ZELMANOWICZ, etc., et al., Defendants-Respondents.

Decided: May 20, 2003

TOM, J.P., MAZZARELLI, ROSENBERGER, ELLERIN and WILLIAMS, JJ. Jay M. Weinstein, for Plaintiffs-Appellants. Susan G. Rosenthal, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered July 25, 2002, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss plaintiffs' causes of action for employment discrimination and loss of consortium, unanimously affirmed, without costs.

 Plaintiff claims a systematic pattern of discriminatory conduct by defendants extending over nearly 30 years, but the only purported acts of discrimination or retaliation alleged to have occurred within the three-year limitations period are a false offer of a generous retirement package intended to dissuade plaintiff from filing a discrimination claim, the lack of a pay raise, and utterance of racial epithets.   The allegations concerning the retirement offer and plaintiff's salary do not show an adverse change in plaintiff's employment (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308), and the allegations concerning the epithets do not show who did it, when and how often it occurred, how it affected plaintiff's ability to do his job and whether he ever complained about it (see Harris v. Forklift Sys., 510 U.S. 17, 21-23, 114 S.Ct. 367, 126 L.Ed.2d 295).   Accordingly, plaintiff's discrimination claims were properly dismissed for lack of allegations sufficient to show at least one adverse employment action (see Cordone v. Wilens & Baker, 286 A.D.2d 597, 598, 730 N.Y.S.2d 89;  Lane-Weber v. Plainedge Union Free School Dist., 213 A.D.2d 515, 516, 624 N.Y.S.2d 185, lv dismissed 87 N.Y.2d 968, 642 N.Y.S.2d 196, 664 N.E.2d 1259), or at least one discrete act contributing to a hostile work environment (see National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105, 122 S.Ct. 2061, 153 L.Ed.2d 106), within the limitations period.   In addition, a cause of action for loss of consortium cannot be based on employment discrimination (see Mehtani v. New York Life Ins. Co., 145 A.D.2d 90, 95, 537 N.Y.S.2d 800, lv. denied in part and dismissed in part 74 N.Y.2d 835, 546 N.Y.S.2d 341, 545 N.E.2d 631).