In Buczakowski v. Crouse Health Hospital, Inc., et al, 5:18-CV-0330 (LEK/ML), 2022 WL 356698 (N.D.N.Y. Feb. 7, 2022), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s retaliation claim asserted under the New York State Human Rights Law.
From the decision:
Viewing the record in the light most favorable to Plaintiff, she has produced evidence from which a reasonable jury could find that Defendants’ reasons for suspending and disciplining Plaintiff are false and pretextual. To begin, Plaintiff raises triable issues regarding procedural deviations during Plaintiff’s suspension and disciplinary hearing. Plaintiff claims that no progressive discipline was employed by Defendants, as required by the collective bargaining agreement. Additionally, Dittrich admitted that she did not verbally warn Plaintiff that her conduct was going to result in discipline. Still, there appears to be a factual dispute, which is best left to a jury to resolve, on what happened at the meeting in Bergemann’s office, and whether progressive discipline was properly employed. According to Defendants, Plaintiff was yelling, and “[d]iscipline for yelling in this similar circumstance would start at, at the very least, a suspension,” Dittrich Dep. at 90:3–5. However, Plaintiff claims that the meeting was cordial and her voice was very quiet. See Buczakowski Dep. at 136:10–20. Drawing all reasonable inferences in favor of Plaintiff, there were procedural irregularities that could support an inference of retaliatory motivation. See Eldaghar v. City of N.Y. Dep’t of Citywide Admin. Servs., No. 02-CV-9151, 2008 WL 2971467, at *12–13 (S.D.N.Y. July 31, 2008) (finding evidence of procedural irregularities to raise “genuine issues of material fact regarding … retaliatory motivation”); see also Villar v. City of New York, 135 F. Supp. 3d 105, 125 (S.D.N.Y. 2015) (“Departures from procedural regularity can be evidence of pretext.”). Plus, temporal proximity can be considered as evidence of pretext, even if timing alone is not enough to establish pretext. See Dedjoe v. McCarthy, No. 15-CV-1170, 2017 WL 4326516, at *15 (N.D.N.Y. Sept. 28, 2017) (“temporal proximity can be considered as some evidence of pretext [for retaliation]”) (Kahn, J.); see also Yoselovsky v. Associated Press, 917 F. Supp. 2d 262, 281 (S.D.N.Y. 2013) (“While timing alone may be a basis for establishing a prima facie case, it is not enough to establish pretext at the third stage of the McDonnell Douglas analysis.”).
Furthermore, the Court observes that the form of discipline (in particular, applying Plaintiff’s vacation time during the time of her suspension) can also be evidence of pretext in this case. Plaintiff claims that she told Bergemann that she had repeatedly been threatened with termination since becoming ill, and that the Hospital’s management was aware that Plaintiff used her vacation time for her medical treatment. Thus, a jury could reasonably find that this specific form of discipline (taking away Plaintiff’s vacation time which Defendants knew or should have known was used for Plaintiff’s medical treatments) was to punish her for her complaints about discriminatory treatment. Cf. Salerno v. MPI Mgmt., LLC, No. 19-CV-0145, 2020 WL 4587405, at *5 (W.D. Mo. May 13, 2020) (considering “the availability of lesser forms of discipline” as evidence of pretext).
The court concluded that “[e]ven if the Court does not consider this as evidence of pretext, the Court finds that the very short gap of time between Plaintiff’s complaints and her suspension/discipline, along with the procedural irregularities that preceded Plaintiff’s discipline, are sufficient to permit a reasonable jury to conclude that Plaintiff’s discipline would not have been made but-for Plaintiff’s complaints.”