In Franco v. Hyatt Corp. d/b/a Hyatt Times Square et al, No. 12422, 153152/14, 2019-3451, 2020 WL 7346434 (N.Y.A.D. 1 Dept., Dec. 15, 2020), the court, inter alia, reversed summary judgment for defendants on plaintiff’s retaliation claims asserted under the New York State and City Human Rights Laws.
From the decision:
Defendants argue that plaintiff’s separate claim of retaliation should be dismissed because the termination of his employment was for non-discriminatory reasons. Under the State Human Rights Law, a claim for retaliation requires that (1) the employee has engaged in a protected activity, (2) of which the employer was aware, (3) the employee suffered an adverse employment action, and (4) there is a causal connection between the protected activity and the adverse action (Forrest, 3 N.Y.3d at 312–13, 786 N.Y.S.2d 382, 819 N.E.2d 998; see Executive Law § 296 ). Under the City Human Rights Law, the retaliatory act complained of need only be “reasonably likely to deter a person from engaging in protected activity” (Administrative Code of the City of N.Y. § 8–107 ). The burden then shifts to the defendant to show that it had legitimate, nonretaliatory reasons for its conduct. Where, as here, defendants are the moving party, they have the initial burden to establish prima facie why the claim should be dismissed (see Ji Sun Jennifer Kim, 120 A.D.3d at 22, 987 N.Y.S.2d 338; Suri v. Grey Global Group, Inc., 164 A.D.3d at 129–130, 83 N.Y.S.3d 9). If the defendant offers legitimate, nonretaliatory reasons for its conduct, then the plaintiff must produce evidence showing that the defendant was motivated, at least in part, by an impermissible motive (see Bantamoi v. St. Barnabas Hosp., 146 A.D.3d 420, 420, 44 N.Y.S.3d 398 [1st Dept. 2017]; Brightman v. Prison Health Serv., Inc., 108 A.D.3d 739, 740, 970 N.Y.S.2d 789 [2d Dept. 2013] ).
Defendants submitted evidence of complaints about plaintiff’s brash demeanor, insensitive comments to coworkers, and poor work ethic, which demonstrate his difficulties following orders and getting along with his peers. By doing so, defendants satisfied their prima facie burden. In opposition, plaintiff relies on Hall’s offensive conduct, including her telling him, in sum and substance, that if they could not be together then plaintiff could not work around Hall, and defendants’ failure to adequately investigate his claims prior to his termination. Plaintiff’s assertions raise disputed issues of fact about whether there was a mixed motive to terminate his employment (see Cadet–Legros v. New York Univ. Hosp. Ctr., 135 A.D.3d 196, 200, 21 N.Y.S.3d 221 [1st Dept. 2015]; see also Delrio v. City of New York, 91 A.D.3d 900, 902, 938 N.Y.S.2d 149 [2d Dept. 2012] ). Plaintiff’s admission, that he was terminated due to an injury is not necessarily inconsistent with a mixed motive for his termination; instead it goes to issues of credibility to be decided by the trier of fact.
The court also reversed summary judgment on plaintiff’s sexual harassment claims, which I discussed here.