Stafford, Trombley, Owens & Curtin, P. C., Plattsburgh (William L. Owens of counsel), for defendant. Lori A. Cantwell, Plattsburgh, for plaintiff. OPINION OF THE COURT
JAMES P. DAWSON, J. The plaintiff commenced this action by filing a summons and complaint May 28, 1997 seeking to recover damages based on allegations that she was terminated from her position with the defendant under circumstances which give rise to a claim of gender discrimination. As originally pleaded, the complaint's first cause of action asserted violations of both title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.) and Executive Law based on gender discrimination, but the plaintiff has since determined not to pursue any Federal claim.[1] The second cause of action asserts wrongful termination, and the third seeks damages based on the physical and emotional harm caused to plaintiff due to the alleged discrimination. The defendant has joined issue by service of its answer with affirmative defenses, and discovery has been had, including the depositions of, inter alia, plaintiff and Ms. Pam Prim, President of Prim Hall Enterprises, Inc. (Prim Hall). The motion pending before the court was brought by defendant and seeks an order dismissing the complaint on summary judgment grounds. (Since the motion is not founded on the grounds of CPLR 3211 [a], discussion of the defendant's defenses is unnecessary in this opinion.) The plaintiff opposed the motion and the matter was heard at Special Term. After considering the papers submitted and the arguments of counsel, the court reserved its decision.
RELEVANT FACTSThe defendant is a corporation which maintains a manufacturing facility located in the Town of Plattsburgh which is organized such that, as is relevant to this motion, there is one assembly department, colloquially referred to as the "Floor," which contains an electrical department and a mechanical department. The plaintiff began working for the defendant in May of 1994 in a full-time temporary position in the electrical department. The parties had no written employment agreement. Ms. Hughes worked in that position for approximately three months and then transferred to a position in inventory control. She was laid off in November of 1994 and does not challenge that termination in this action. Rather, she challenges a termination in October of 1995 which was made, defendant argues, as part of a reduction-in-force, but which plaintiff claims was based on her being a female in a workplace dominated by men. Ms. Hughes returned to employment with the defendant in December of 1994 when she went to Chicago, Illinois, to work on a project on behalf of Prim Hall. Once that project was completed in or about January or February of 1995, Ms. Hughes was rehired to work at the Plattsburgh facility where she was placed in an inventory control position. She worked in that position until approximately March of 1995 when she was placed in the electrical department. She was terminated from that position in October of 1995.
ARGUMENTSAs an employee-at-will, defendant states that the plaintiff's termination could be for any reason or no reason. As to the plaintiff's claim that the discharge was based on a discriminatory reason, however, the defendant argues that the plaintiff's termination in 1995 was the result of a reduction-in-force: a legitimate, nondiscriminatory reason. Indeed, Ms. Prim states in support of the motion that both male and female workers were terminated as part of the reduction-in-force and that the plaintiff was not the only employee discharged in the electrical assembly department. She states that the two male workers in the electrical department, Messrs. Bova and LaBombard, who were kept instead of plaintiff, were retained because they could perform more than one task and were used both in the mechanical and electrical assembly lines. Ms. Prim contends that Ms. Hughes did not have more company service than or even equal qualifications as Mr. Bova since he was hired a year before the plaintiff and had graduated from a vocational school after completion of a two-year program in electrical trades while the plaintiff had no vocational training in machine or electrical trades. As to Mr. LaBombard, Ms. Prim states that while the plaintiff had more company time than he did, she was not equally qualified to work in both the electrical and machine departments. Moreover, Ms. Prim adds, LaBombard had graduated from a two-year vocational school unlike plaintiff and points out that plaintiff had no electrical trade. The employment applications of Ms. Hughes and Messrs. Bova and LaBombard accompany her affidavit. The plaintiff has not presented her own affidavit in response to the motion but has instead supplied affidavits of former workers at Prim Hall attempting to counter the proffered reason The plaintiff's papers do not specifically address the employment-at-will issue raised by the defendant, focusing rather on the claim of gender discrimination in violation of the Human Rights Law (Executive Law § 290 et seq.).
DISCUSSIONIt is undisputed that the plaintiff was hired without a written contract of employment; thus she was an employee-at-will. In Patrowich v Chemical Bank (98 AD2d 318 [1st Dept], affd 63 NY2d 541 [1984]), the plaintiff was employed by the defendant without a written contract and brought a lawsuit alleging violations of Federal and State law based on discrimination with causes of action also set forth based on breach of employment agreement and wrongful discharge. In reversing the lower court and granting partial summary judgment to the defendant dismissing those claims founded on breach of contract and wrongful discharge, the Appellate Division stated that "there is no cause of action recognized in New York for abusive or wrongful discharge of an employee" (supra, 98 AD2d, at 323). As such, there is no basis for the plaintiff to pursue a claim of wrongful termination as set forth in the second cause of action in the complaint. (Sabetay v Sterling Drug, 69 NY2d 329, 333, 336-337 [1987]; Traviglia v Fleet Bank, 219 AD2d 644 [2d Dept 1995]; Janneh v Regency Hotel, 870 F Supp 37, 40 [ND NY 1994]; Melnyk v Adria Labs., 799 F Supp 301, 306-308 [WD NY 1992].) Defendant is therefore granted partial summary judgment dismissing the second cause of action. The court's attention thus turns to the plaintiff's claim founded on a violation of the Human Rights Law. No discussion of an employment discrimination claim is possible without reference to the familiar burden-shifting analysis which follows. To establish a prima facie claim of gender discrimination, a plaintiff must initially show: "(1) that the employee is a member of protected class, (2) that she was discharged, (3) that she was qualified for the position, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination (McDonnell Douglas Corp. v Green, 411 US 792; Ferrante v American Lung Assn., 90 NY2d 623). However, this burden has been referred to as `de minimis'" (Schwaller v Squire Sanders & Dempsey, 249 AD2d 195, 196 [1st Dept 1998] [citations omitted]).[2] An inference of discrimination may be shown by circumstantial evidence. (Melnyk v Adria Labs., 799 thus cannot be indicative of direct discrimination at the time of Ms. Hughes's discharge, the defendant must also recognize that the statements may relate to the decision-making process since they were uttered by Ms. Prim who made hiring and firing decisions. And that decision was made in the face of plaintiff's supervisor recommending another worker to be let go who, the supervisor insists, was less qualified than Ms. Hughes, a conclusion disputed by Ms. Prim. When all this evidence is taken as a whole, and with the court construing it in favor of the nonmovant which it is required to do on a motion for summary judgment, the court finds that the evidence that plaintiff has provided, while certainly not the strongest, raises an issue of fact as to whether the reason offered by defendant for plaintiff's termination is unworthy of belief and more likely than not the plaintiff was let go from the electrical department because she was a woman. As such, the court denies that part of the motion which seeks summary judgment dismissing the claim for gender discrimination based on a violation of the Executive Law. Any relief requested which is not specifically granted herein is denied. No motion costs are awarded to any party. [1] Since the plaintiff apparently did not obtain a right-to-sue letter from the Equal Employment Opportunity Commission, the Federal claim could not be pursued. An academic query is raised with regard to whether this court would have jurisdiction over an alleged violation of Federal law, but based on the status of this matter, that obviously need not be decided. [2] Elements of employment discrimination claims, whether arising under either Federal or State law, are virtually identical; thus reference to either Federal or State citation, or both, is appropriate. (Gallagher v Delaney, 139 F3d 338, 345 [2d Cir 1998]; Lacoparra v Pergament Home Ctrs., 982 F Supp 213, 225 [SD NY 1997]; Melnyk v Adria Labs., 799 F Supp 301, 312 [WD NY 1992], supra.) [3] In Adeniji v Administration for Children Servs. (43 F Supp 2d 407, 424 [SD NY 1999]), a claim of disparate treatment was described as one "in which the employer `simply treats some people less favorably than others because of their [membership in a protected class]' * * * To state a disparate treatment claim * * * [a plaintiff] must allege: (1) [s]he is a member of a protected class; (2) [s]he satisfactorily performed the duties of h[er] position; (3) [s]he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of membership in the protected class." (Citation omitted.) [4] The deposition testimony of the plaintiff, not addressed specifically in the affidavits on this motion but nonetheless provided as part of the record before the court, reveals that the plaintiff did not know of the prior experience of Messrs. Bova and LaBombard; rather, she asserts that they were less qualified than her because she had more time in the electrical department. [5] In support of this conclusion, defendant's counsel cited to the unreported case of Nawrocki v Daeman Coll. (1997 WL 211338, 1997 US Dist LEXIS 5606 [WD NY, Apr. 25, 1997, Elfvin, J.]). That case stated that isolated remarks made to a plaintiff are not enough to defeat summary judgment where the remarks are not temporally proximate to the discharge and unrelated to the decisional process. That case cited, among others, Rush v McDonald's Corp. (966 F2d 1104, 1116 [7th Cir 1992]) which reached the same conclusion in applying the standard set forth in Price Waterhouse v Hopkins (490 US 228 [1989]), that: "`[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision.'"
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