Retaliation Claim Survives Summary Judgment

In La Marca-Pagano v. Dr. Steven Phillips, P.C., the court denied defendant’s motion for summary judgment as to plaintiff’s retaliation claim under the New York State Human Rights Law.

Here’s the law:

In order to make out a cause of action for retaliation, [a] plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action. To establish its entitlement to summary judgment in a retaliation case, 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.

Defendant failed to carry this burden. While it submitted evidence to demonstrate that the plaintiff was terminated for legitimate, nonretaliatory reasons, it failed to establish that there exists no triable issue of fact as to whether the defendant’s explanations were pretextual.

In particular:

[D]efendant submitted the plaintiff’s deposition testimony in support of its motion, wherein the plaintiff disputed the assertion that she had simply failed to show up to work for a scheduled shift. The plaintiff testified that she sent the office manager “a text message” explaining that she could not come to work that day because she was ill. In addition, the plaintiff disputed the other grounds for her termination, testifying that the proffered reasons had no basis in fact. Specifically, the plaintiff testified that she did not call in sick because she was hung over, that her job performance was never called into question, that she was never reprimanded for unprofessional behavior, that she was not disrespectful to her supervisor and did not refuse to call him “doctor,” that she did not dress inappropriately or provocatively, that she did not take excessive cigarette breaks, and that she did not manipulate the office timecard system or improperly clock in early before beginning her shift. In addition, the plaintiff testified that she was not unprofessional with patients, that she did not flirt with patients, that she did not look through the payroll ledger, and that she did not improperly access her supervisor’s email account. This evidence tended to show that the legitimate, nonretaliatory reasons given for the plaintiff’s termination were “false” and, therefore, pretextual. (Emphasis added.)

The court, however, held that defendant was entitled to summary judgment dismissing plaintiff’s hostile work environment claim, finding that “defendant demonstrated that the allegedly discriminatory remarks and conduct attributed to the defendant were isolated incidents that were not so severe or pervasive as to permeate the workplace and alter the conditions of the plaintiff’s employment.”

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