Sexual Orientation Employment Discrimination Claim Survives Summary Judgment

From Thygesen v. N. Bailey Volunteer Fire Co., No. 16-00775, 2017 WL 2491451, at *2 (N.Y. App. Div. June 9, 2017):

[P]laintiff is not required to prove his claim to defeat summary judgment” (Ferrante, 90 N.Y.2d at 630). Rather, “[t]o defeat a properly supported motion for summary judgment in [a sexual orientation] discrimination case, plaintiff[ ] must show that there is a material issue of fact as to whether (1) the [Fire Company defendants’] asserted reason for [expelling him from membership] is false or unworthy of belief and (2) more likely than not the [plaintiff’s sexual orientation] was the real reason” (id. [internal quotation marks omitted] ). Viewing the facts in the light most favorable to the nonmoving party, as we must (see Victor Temporary Servs. v. Slattery, 105 A.D.2d 1115, 1117), and without making credibility determinations (see Ferrante, 90 N.Y.2d at 631), we conclude that plaintiff raised an issue of fact sufficient to defeat the motion. Plaintiff presented the deposition testimony of defendant Warren Holmes, wherein he admitted that he knew that another member of the Fire Company had been arrested, that information regarding the arrest had appeared in the media, and that the member at issue was not disciplined by the Fire Company. Holmes also admitted in his deposition that he was aware of allegations that another member of the Fire Company engaged in sexual misconduct with a child, and that the allegations were not investigated by the Fire Company and the member was not disciplined. In addition, plaintiff submitted hearsay evidence, which may be considered in opposition to a motion for summary judgment but “is by itself insufficient to defeat such a motion” (Raux v. City of Utica, 59 AD3d 984, 985), that Holmes confronted Fire Company members who voted against plaintiff’s expulsion from membership using derogatory language regarding plaintiff’s sexual orientation. We therefore conclude that “the credibility issues raised by the plaintiff are sufficient to allow the case to go forward” with respect to the first and second causes of action.

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