Sexual Orientation Discrimination, FMLA Claims Properly Dismissed

In Hutting v. Independent Living, No. 2017-09639, 6011/15, 2021 N.Y. Slip Op. 05551, 2021 WL 4763056 (N.Y.A.D. 2 Dept., Oct. 13, 2021), the court affirmed the dismissal of plaintiff’s claims of sexual orientation discrimination, as well as retaliation under the Family & Medical Leave Act.

As to plaintiff’s discrimination claims, the court explained:

The Supreme Court properly granted those branches of the defendant’s motion which were for summary judgment dismissing the causes of action alleging employment discrimination on the basis of sexual orientation in violation of Title VII and Executive Law § 296. Title VII’s prohibition against sex discrimination encompasses discrimination based on sexual orientation (see Bostock v. Clayton Cty., ___ U.S. ___, ___, 140 S Ct 1731, 1737). The standards for establishing unlawful discrimination under Executive Law § 296 are the same as those governing cases under Title VII (see Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 n 3; see also Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 N.Y.2d 326, 330). To establish entitlement to summary judgment in a case alleging employment discrimination on the basis of sexual orientation in violation of Title VII and Executive Law § 296, a defendant must demonstrate either the plaintiff’s failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a material issue of fact as to whether the defendant’s explanations were pretextual (see Forrest v. Jewish Guild for the Blind, 3 NY3d at 305; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999, 1004).

Here, the defendant met its prima facie burden by proffering legitimate, nondiscriminatory reasons for its termination of the plaintiff’s employment and demonstrating the absence of material issues of fact as to whether its explanations were pretextual (see Forrest v. Jewish Guild for the Blind, 3 NY3d at 305; Keceli v. Yonkers Racing Corp., 155 AD3d 1014, 1016). In support of its motion, the defendant submitted evidence that the plaintiff’s employment was terminated for his admitted failure to follow agency procedures regarding use of agency vehicles and submission of vouchers for expenses. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the plaintiff’s sexual orientation was a motivating factor in the defendant’s decision to terminate his employment (see 42 USC 2000e–2[m]; Keceli v. Yonkers Racing Corp., 155 AD3d at 1016).

As to plaintiff’s FMLA claim, the court held that “defendant submitted evidence demonstrating, prima facie, that the plaintiff did not suffer any adverse employment action upon his return from FMLA leave, as the change in his supervisor was contemplated before he took such leave and he did not experience any change in salary or benefits” and that, in opposition, the plaintiff failed to raise a triable issue of fact.

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