2d Dept. Affirms Dismissal of Sexual Orientation Discrimination, Retaliation Claims Under the NYS Human Rights Law

In Keceli v. Yonkers Racing Corp., 2017 NY Slip Op 08359, 2017 WL 5762297 (N.Y.A.D. 2 Dept. Nov. 29, 2017), the Appellate Division, Second Department affirmed the dismissal of plaintiff’s sexual orientation discrimination and retaliation claims under the New York State Human Rights Law.

As to plaintiff’s sexual orientation discrimination claim, the court explained the law, particularly the applicable burden-shifting mechanism:

A plaintiff alleging employment discrimination based upon sexual orientation has the initial burden to establish a prima facie case of discrimination. To establish intentional discrimination, the “plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination” (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305). The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision (see id. at 305). In order to succeed on such claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason (see id.). To establish entitlement to summary judgment in a case alleging discrimination, the defendants must demonstrate either the plaintiff’s inability to establish every element of intentional discrimination, or, having offered a legitimate, nondiscriminatory reason for the challenged action, the absence of a material issue of fact as to whether that reason was pretextual[.]

Applying the law, the court held (without explaining the context) that “defendants met their prima facie burden by offering legitimate, nondiscriminatory reasons for the challenged actions and demonstrating the absence of material issues of fact as to whether their explanations were pretextual” and that “[i]n opposition, the plaintiff failed to raise a triable issue of fact.”

Turning to plaintiff’s retaliation claim, the court explained the governing law as follows:

In order to make out a cause of action alleging unlawful retaliation, the “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” (Forrest v. Jewish Guild for the Blind, 3 NY3d at 312–313). In the context of a case of unlawful retaliation, an adverse employment action is one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination (see Burlington N. & S.F.R. Co. v White, 548 U.S. 53, 68). “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[.]

Applying the law, the court explained:

[D]efendants met their initial burden of demonstrating that the plaintiff could not make out a prima facie case of unlawful retaliation by showing that the challenged actions were not causally connected to any protected activity engaged in by the plaintiff (see Forrest v. Jewish Guild for the Blind, 3 NY3d at 313–314). In opposition, the plaintiff failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which she engaged and any adverse employment action. Merely pointing to the sequence in time of events is insufficient to establish a causal connection between the plaintiff’s complaints of sexual orientation discrimination and any adverse employment action

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