In Breitstein v. Michael C. Fina Co., 2017 NY Slip Op 08883 (App. Div. 1st Dept. Dec. 21, 2017), the court affirmed the dismissal of plaintiff’s religious discrimination, age discrimination, and retaliation causes of action under the New York State and City Human Rights Laws.
This decision teaches/confirms that, in a discrimination case, the question is not whether the employer’s reasons for taking an adverse action against an employee are correct or justified, but rather whether they are a mere “pretext” for unlawful discrimination.
Here, the defendant employer terminated the plaintiff; the proffered reason is that plaintiff disclosed a prospective client’s confidential pricing information and engaged in unethical negotiating tactics with defendant Michael C. Fina Company’s vendors.
In ruling for defendant, the court explained that plaintiff failed to raise an inference of pretext, and that the comments cited by plaintiff to show a discriminatory motive were mere “stray remarks.”
From the decision:
Plaintiff contends that an issue of fact was raised by the conflict between his assertion that he was trained to, and throughout his 10 years at the company did, disclose pricing information unless told otherwise, and the testimony of defendant George Fina, who trained and supervised plaintiff, that he had told plaintiff never to reveal the name of a customer or prospective customer to a vendor. Plaintiff also contends that an issue of fact was raised by the conflict between his claimed training to disclose and the confidentiality agreement, receipts and acknowledgments he signed, in which he agreed not to disclose confidential information of the company or its clients. However, these purported issues of fact pertain to whether the company’s decision to terminate plaintiff’s employment was correct or justified. They do not raise an inference of pretext, i.e., that defendants’ reason for the termination was false and that discrimination was the real reason (Melman, 98 AD3d at 120-121) or among the real reasons (see Williams v New York City Hous. Auth., 61 AD3d 62, 78 n 27 [1st Dept 2009], lv denied 13 NY3d 702 ).
Nor do the comments of defendant Tim Lorenz, plaintiff’s supervisor, show a discriminatory motive (see Sandiford v City of New York Dept. of Educ., 94 AD3d 593, 604 [1st Dept 2012], affd 22 NY3d 914 ). The comments were not made in connection with a decision to terminate plaintiff, and, while Lorenz discovered the conduct that led to plaintiff’s termination, the ultimate decision to terminate plaintiff was made by defendant Michael Fina, not Lorenz. Moreover, since plaintiff failed to specify when the remarks were made, there is no showing that any of them were close in time to his termination. In any event, these were “at most stray remarks,” which, in these circumstances, ” even if made by a decision maker, do not, without more, constitute evidence of discrimination'” (see Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 517 [1st Dept 2016], lv denied 28 NY3d 902 , quoting Melman, 98 AD3d [*2]at 125). To the extent plaintiff relies on his former supervisor defendant George Fina’s comments about Jewish people, there is no evidence that George Fina was involved in the decision to terminate him.
The court next held that plaintiff’s retaliation claim was properly dismissed, noting that he failed to demonstrate that he engaged in “protected activity.”