BENNETT v. HEALTH MGT. SYS. INC.115015/08, 5031.
92 A.D.3d 29 (2011)
936 N.Y.S.2d 112
2011 NY Slip Op 9206
KENNETH BENNETT, Appellant,
HEALTH MANAGEMENT SYSTEMS, INC., Respondent.
HEALTH MANAGEMENT SYSTEMS, INC., Respondent.
Appellate Division of the Supreme Court of New York, First Department.
December 20, 2011.
Simon, Eisenberg & Baum, LLP, New York City ( Sheldon Karasik of counsel), for appellant. Tarter Krinsky & Drogin LLP, New York City ( Richard L. Steer and Tara T. Toevs of counsel), for respondent.
SAXE, J.P., CATTERSON, ABDUS-SALAAM and ROMÁN, JJ., concur with ACOSTA, J.
OPINION OF THE COURT
This appeal gives us the opportunity to address the evidentiary
Plaintiff, Kenneth Bennett, a 47-year-old Caucasian, was hired in 2004 by defendant Health Management Systems, Inc. (HMS), in the Data Processing Operations Unit (DPO). Four years later, he was asked to consider becoming part of the Technical Operations Support (TOS) team on the night shift, and he accepted. Approximately one month into his new position, plaintiff asked to be transferred back to DPO because, he alleged, Cynthia Bowen, the African-American manager of the TOS team, "unfairly and intemperately criticized his performance often and without cause, making it impossible for [him] to master the job." Plaintiff's request was denied, and he was terminated shortly thereafter. According to plaintiff, he was terminated for age and race-related reasons, in violation of state and city human rights laws. Defendant asserted that it terminated plaintiff for poor job performance, including consuming alcohol on the job.
Plaintiff commenced this action against HMS, asserting five causes of action. The first was for breach of contract. The second and third, for age discrimination under section 296 of the Executive Law (New York State Human Rights Law [State HRL]) and section 8-107 (1) (a) of the Administrative Code of the City of New York (New York City Human Rights Law [City HRL]), respectively, alleged that defendant discriminated against him on the basis of age by denying him reassignment to his former unit, and replacing him with an individual who was significantly younger than he. Plaintiff's fourth and fifth causes of action, brought under the State HRL and the City HRL, respectively, alleged that defendant discriminated against him on the basis of race because his supervisors and coworkers in his unit were black and he was white.
Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7). The court granted the motion solely to the extent of dismissing the breach of contract claim. Defendant filed its answer, asserting various affirmative defenses, including that plaintiff was terminated because of repeated violations of company policies that prohibited the consumption of alcoholic beverages and being under the influence of alcohol while at work.
The evidentiary materials submitted by defendant included the affidavit of Claude B. Phipps, Director of Data Processing Operations and Technical Services, who submitted documentation establishing that of the 35 people in the DPO and TOS, 77% were between the ages of 40 and 64 years old, and that 80% of the white employees in DPO and TOS were between the ages of 46 and 64 years old. Phipps also stated that in 2004 plaintiff was found with alcohol on the premises and given an oral warning.
The affidavit of Cynthia A. Bowen, the manager of TOS, explained that there were problems with plaintiff's attendance and job performance from the time he joined TOS. In fact, after approximately one month he was granted a week's vacation and an additional three-week leave of absence to "get his head together." Upon his return, his performance continued to suffer. Bowen believed that the poor performance was due to plaintiff sleeping on the job and leaving his shift early without explanation or permission. She received reports from his coworkers of plaintiff drinking and sleeping on the job. Plaintiff was warned at a meeting with Bowen and Phipps in early May 2008 that his poor performance was jeopardizing his job, and given two weeks to improve, or his employment would be terminated.
Michael O'Rourke, a 47-year old white male, and Senior Director of Operations, described an incident that occurred in January 2005, while plaintiff still worked in DPO, prompting O'Rourke to write plaintiff up for having alcohol on the premises. O'Rourke had become suspicious after observing plaintiff making frequent trips to his locker, and discovered, upon investigation, that plaintiff had an alcoholic beverage disguised in a Mountain Dew bottle in an open duffel bag in his locker. Plaintiff was then given a final written warning.
Waldemar Rivera, a Technical Operations Support Analyst, stated in his affidavit that he was assigned to train plaintiff when plaintiff was transferred to TOS. He stated that it was "very difficult and frustrating" trying to work with and attempting to train plaintiff, because he often reeked of alcohol, slurred his words, and did not pay attention or take notes. Rivera also stated that plaintiff's confusion seemed to increase
In opposition, plaintiff averred that he believed that defendant's refusal to allow him to transfer back to his former unit was "solely for purposes of harassment motivated by hostility to his age and race." He denied receiving any warning that he was guilty of misconduct or poor job performance that, if left uncorrected, could lead to his termination. He asserted that he was not an alcoholic, and never appeared for work under the influence of alcohol. He admitted that he did take naps during his shift, but asserted that other employees did the same, since it was common practice to do so during the overnight shifts. Plaintiff averred that prior to his transfer, he was supervised by a white male and received a "very good" performance appraisal in November 2007. Plaintiff denied allegations that he failed to take notes during his training, and maintained that he was replaced by a much younger, inexperienced individual.
By order entered March 11, 2010, the court granted defendant's summary judgment motion, finding that there was no evidence in the record to support plaintiff's claim of age discrimination (2010 NY Slip Op 33753 [U] ). The court found that plaintiff's affidavit in opposition to the motion did not contain any factual allegations to support his second and third causes of action for age discrimination, since it stated little more than the fact that he was 47 years old at the time of his termination. The court noted that plaintiff made no allegations that derogatory comments were made concerning his age or that younger individuals were treated more favorably, and did not refute the fact that he was replaced by a 54-year-old employee. With regard to plaintiff's fourth and fifth causes of action for racial discrimination, the court noted that plaintiff's claims that his termination raised an inference of discrimination were based on the fact that both of his supervisors and his unit coworkers were black. However, the court observed that defendant submitted evidence that plaintiff was fired because he performed his job poorly, was found sleeping on the job, had brought a bottle of alcohol to work in violation of company policy, and reeked of alcohol. The court noted that although plaintiff's affidavit in opposition stated that criticism of his work was "unfounded," he offered no facts or evidence to establish that the suspicions and concerns offered by defendant were pretextual. And plaintiff did
This appeal followed.
Six years after the passage of the New York City Local Civil Rights Restoration Act (Local Law No. 85  of City of NY) (Restoration Act), it is beyond dispute that the City HRL now "explicitly requires an independent liberal construction analysis in all circumstances," an analysis that "must be targeted to understanding and fulfilling what the statute characterizes as the City HRL's `uniquely broad and remedial' purposes, which go beyond those of counterpart state or federal civil rights laws" (Williams v New York City Hous. Auth.,
Our Court of Appeals has emphasized that the Restoration Act's amendment of section 8-130 of the City HRL was enacted to ensure the liberal construction of the City HRL by requiring that all provisions of the City HRL be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York,
Despite these clear directives, no court has yet undertaken an examination of whether, and to what extent, the three-step burden-shifting approach set forth in McDonnell Douglas Corp. v Green (
As a preliminary matter, the identification of the framework for evaluating the sufficiency of evidence in discrimination cases does not in any way constitute an exception to the section 8-130
The McDonnell Douglas (
If this caution is not taken, the result will be inconsistent with the intent of McDonnell Douglas, and, more importantly, with that of the City HRL. As the Supreme Court said long ago, the burden of establishing a prima facie case of discrimination is "not onerous" (Texas Dept. of Community Affairs v Burdine,
Unlike the intended role for a de minimis prima facie showing, the task of challenging a defendant's proffered nondiscriminatory reasons can frequently be onerous. It often involves questions such as appropriate comparators and evidence of work performance (and discipline) of others. To conflate this broader obligation with the initial prima facie obligation contravenes the purpose of the McDonnell Douglas procedure for the order and requirement of proof, a procedure that is simply a mechanism designed to give a full opportunity for cases of possible discrimination to be heard. In fact, to conflate this obligation improperly merges the proof and role of the prima facie case with the proof and role of plaintiff's ultimate burden.
In the context of a summary judgment motion, of course, once a defendant has laid bare its proof, a plaintiff is compelled to do the same. But that is the point: once the defendant has revealed its evidence, the case has moved to a different level of specificity. At the summary judgment stage, a court should not confuse the limited assessment of all the evidence in the case (an issue identification function, not an issue resolution function) with a retroactive critique of the adequacy of the initial prima facie showing. If a court were to tarry at all at the summary judgment stage on the question of whether a prima facie
Therefore, where a defendant on a summary judgment motion has produced evidence that justifies its adverse action against the plaintiff on nondiscriminatory grounds, the plaintiff may not stand silent. The plaintiff must either counter the defendant's evidence by producing pretext evidence (or otherwise), or show that, regardless of any legitimate motivations the defendant may have had, the defendant was motivated at least in part by discrimination. The point of the McDonnell Douglas procedure was to recognize the imbalance between the information initially available to a plaintiff and the information possessed by a defendant. In the interests of making real the promise of anti-discrimination law, the McDonnell Douglas three-prong approach requires a defendant to come forward to provide nondiscriminatory reasons for its actions, in order to eliminate the presumption of discrimination that the prima facie case had theretofore established. A defendant's production of evidence supporting its position that it acted for nondiscriminatory reasons does not mean that a prima facie case had not been created in the first instance, and courts should not treat such evidence as doing so.
Does it even make sense to examine at the summary judgment stage whether an initial prima facie case has been made out? As the Supreme Court held almost 30 years ago:
This reasoning applies in this context as well.
Where a defendant in a discrimination case has moved for summary judgment and has offered evidence in admissible form of one or more nondiscriminatory motivations for its actions, a court should ordinarily avoid the unnecessary and sometimes
There remain two factors to consider. First, it is essential to remember that the McDonnell Douglas evidentiary framework is not the only evidentiary framework applicable to discrimination cases. It is not uncommon for covered entities to have multiple or mixed motives for their action, and the City HRL proscribes such "partial" discrimination since "[u]nder Administrative Code § 8-101, discrimination shall play no role in decisions relating to employment, housing or public accommodations" (see Williams, 61 AD3d at 78 n 27; see also Rep of Comm on Gen Welfare, Local Law No. 85  of City of New York, 2005 NY City Legis Ann, at 537; Weiss v JP Morgan Chase & Co., 2010 WL 114248, *1, 2010 US Dist LEXIS 2505, *1-2 [SD NY 2010] [the City HRL "requires only that a plaintiff prove that age was `a motivating factor' for an adverse employment action"]).
A plaintiff's response to a defendant's showing of nondiscriminatory reasons for its actions can take a variety of forms. In some cases, the plaintiff may present evidence of pretext and independent evidence of the existence of an improper discriminatory motive. In other cases, the plaintiff may leave unchallenged one or more of the defendant's proffered reasons for its actions, and may instead seek only to show that discrimination was just one of the motivations for the conduct.
On a motion for summary judgment, defendant bears the burden of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes: under the McDonnell Douglas test, or as one of a number of mixed motives, by direct or circumstantial evidence.
The critical remaining question concerns the proper impact of a plaintiff's evidence that one or more of the nondiscriminatory reasons put forward by a defendant is false, incomplete, or misleading—generally referred to as pretext evidence. A sharply divided Supreme Court ruled that a factfinder's rejection of what the employer has proffered as a legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff, reasoning that a pretext is not necessarily a pretext for discrimination (see St. Mary's Honor Center v Hicks,
The Supreme Court did not simply caution lower courts that juries should be issued a permissive rather than mandatory instruction as to the inference of discrimination to be drawn from evidence of a false reason for action. It effectively suggested that summary judgment could still be routinely granted in a defendant's favor even where evidence of falsity had been produced by plaintiff:
Whatever the merits of the Supreme Court's decision as a matter of federal law may or may not be, Reeves did not sufficiently consider factors crucial to interpreting the City HRL in a way that is "uniquely broad and remedial." These factors include: (a) the traditional power to be accorded to the inference of wrongdoing that arises from evidence of consciousness of guilt; (b) the importance of deterring a defendant's proffer of false reasons for its conduct; and (c) the impropriety of a court weighing the strength of evidence in the context of a summary judgment motion.
As to consciousness of guilt, it is hardly a new proposition that "[r]esort to a pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct" (Sheridan v E.I. DuPont de Nemours & Co.,
This principle is especially important in the employment discrimination context. As the four dissenters noted in Hicks, the McDonnell Douglas procedure invests the employer (via its decision on how to meet its burden of production) with "the right to choose the scope of the factual issues to be resolved by the factfinder" (Hicks, 509 US at 529). Not only is it the case that the procedure "has no point unless the scope it chooses binds the employer as well as the plaintiff" (id.), but there is
It is often the case that the dispute involves not a single, easily isolated incident, but rather an ongoing relationship that has context and nuance. It is difficult enough to discern a defendant's motive or motives in those circumstances without giving it a tactical advantage to throwing numerous nondiscriminatory justifications against the wall and seeing which stick. It must thus be the defendant's obligation to articulate its true reasons for acting in the way that it did. And the maximum deterrent effect sought by the City HRL can only be achieved where covered entities understand that, whatever the urge may be to cover up their actual motivations before arriving in court, there can be no benefit for doing so once in court (cf. Hicks, 509 US at 543 [Souter, J., dissenting] ["I see no reason why Title VII interpretation should be driven by concern for employers who are too ashamed to be honest in court, at the expense of victims of discrimination who do not happen to have direct evidence of discriminatory intent"]).
The Supreme Court in Reeves was not wrong to state that the strength of a prima facie case can vary. Likewise, the strength of "consciousness of guilt" evidence is not a constant from case to case, and the totality of evidence available to be assessed is case specific. All of these factors are sound reasons why a jury is instructed that it may (not must) infer discrimination when it finds that an employer's explanation of its conduct is unworthy of credence. But the extraordinary remedy of summary judgment presents a different context.
Once there is some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, such as whether a false explanation constitutes evidence of consciousness of guilt, an attempt to cover up the alleged discriminatory conduct, or an improper discriminatory motive coexisting with other legitimate reasons.
We recognize that there has been a growing emphasis on using summary judgment in discrimination cases to promote "judicial efficiency."
To summarize, then, for purposes of consideration of summary judgment motions in discrimination cases brought under the City HRL:
(1) If a court were to find it necessary to consider the question of whether a prima facie case has been made out, it would need to ask the question, "Do the initial facts described by the plaintiff, if not otherwise explained, give rise to the McDonnell Douglas inference of discrimination?"
(2) Where a defendant has put forward evidence of one or more nondiscriminatory motivations for its actions, however, a court should ordinarily avoid the unnecessary and sometimes confusing effort of going back to the question of whether a prima facie case has been made out. Instead, it should turn to the question of whether the defendant has sufficiently met its burden, as the moving party, of showing that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, "direct" evidence, or some combination thereof.
(3) If the plaintiff responds with some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete, a host of determinations properly made only by a jury come into play, and thus such evidence of pretext should in almost every case indicate to the court that a motion for summary judgment must be denied.
Applying these principles to the case at hand, defendant is entitled to summary judgment.
Given the circumstances of this case, it makes sense to proceed directly to looking at the evidence as a whole. Defendant put forward evidence of nondiscriminatory motivations,
Defendant's proof is equally unrebutted when it comes to plaintiff's claims of race discrimination. Plaintiff did not, for example, produce any evidence that there were black coworkers who were similarly situated to plaintiff in terms of poor performance or nonperformance, let alone evidence that a similarly situated black coworker was treated more leniently, and he did not produce any of the innumerable other types of evidence that can point to race playing a role in his employer's decision-making.
Because plaintiff's claims fail under the more protective City HRL, they fail under the State HRL as well. We have reviewed plaintiff's remaining claims and they have no merit.
Accordingly, the order of the Supreme Court, New York County (Marylin G. Diamond, J.), which granted defendant's motion to dismiss the complaint, should be affirmed, without costs.
Order, Supreme Court, New York County, entered March 11, 2010, affirmed, without costs.
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