Brightman v. Prison Health Serv., Inc.

• Decision Date: 31 July 2013
• Parties: Victoria BRIGHTMAN, appellant, v. PRISON HEALTH SERVICE, INC., et al., respondents.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 739

970 N.Y.S.2d 789

2013 N.Y. Slip Op. 05510

Victoria BRIGHTMAN, appellant,

v.PRISON HEALTH SERVICE, INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

July 31, 2013.

Taubman Kimelman & Soroka, LLP, New York, N.Y. (Antonette M. Milcetic of counsel), for appellant.

Saiber LLC, New York, N.Y. (Jennine DiSomma, Rina G. Tamburro, and Christle R. Garvey of counsel), for respondents.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for unlawful retaliation in violation of Administrative Code of the City of New York § 8–107, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), entered August 24, 2011, as granted that branch of the defendants' motion which was for summary judgment dismissing the second cause of action insofar as asserted against the defendants Prison Health Service, Inc., and PHS Medical Service, P.C.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the defendants Prison Health Service, Inc., and PHS Medical Service, P.C. (hereinafter together the PHS defendants). In the second cause of action asserted in the complaint, the plaintiff alleged that the PHS defendants unlawfully retaliated against her in violation of the New York City Human Rights Law (hereinafter the NYCHRL) after she made a sexual harassment complaint against a supervisor. The plaintiff alleged that the retaliation included that she was subjected to excessive demands for her professional credentials and health clearance forms and was denied opportunities to work overtime shifts.

The defendants moved for summary judgment dismissing, inter alia, the second cause of action insofar as asserted against the PHS defendants. The Supreme Court granted that branch of the defendants' motion, and the plaintiff appeals.

The NYCHRL prohibits retaliation or discrimination against individuals who have exercised their rights under the NYCHRL ( see Administrative Code of City of N.Y. § 8–107[7] ). Under the provisions of the NYCHRL, as amended by the Restoration Act ( see 2005 N.Y. City Legis. Ann., at 528–535), a plaintiff need not establish that the alleged retaliation or discrimination “result[ed] in an ultimate action with respect to employment ... or in a materially adverse change in the terms and conditions of employment” so long as “the retaliatory or discriminatory act ... [was] reasonably likely to deter a person from engaging in protected activity” (Administrative Code of City of N.Y. § 8–107[7]; see Williams v. New York City Hous. Auth., 61 A.D.3d 62, 70–71, 872 N.Y.S.2d 27). “In assessing retaliation claims that involve neither ultimate actions nor materially adverse changes in terms and conditions of employment, it is important that the assessment be made with a keen sense of workplace realities, of the fact that the ‘chilling effect’ of particular conduct is context-dependent, and of the fact that a jury is generally best suited to evaluate the impact of retaliatory conduct in light of those realities” ( Williams v. New York City Hous. Auth., 61 A.D.3d at 71, 872 N.Y.S.2d 27).

Although, as a matter of substantive law, this “enhanced retaliation provision” contained in the NYCHRL expanded the definition of actionable retaliatory conduct to include manifestations of retaliation which might not meet the standards under comparable state and federal law (Craig Gurian, A Return to Eyes on the Prize: Litigating under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255, 307, 320–322 [2006] ), it did not serve to alter the procedural framework utilized in the prosecution of any action, including local, state, and federal retaliation claims brought in state courts ( see e.g. Delrio v. City of New York, 91 A.D.3d 900, 901, 938 N.Y.S.2d 149;Williams v. New York City Hous. Auth., 61 A.D.3d at 70–71, 872 N.Y.S.2d 27).

As such, at trial, the plaintiff still bears the ultimate burden of establishing a prima facie case of retaliation under the NYCHRL. In this regard, to make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct ( see Administrative Code of City of N.Y. § 8–107[7]; cf. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312–313, 786 N.Y.S.2d 382, 819 N.E.2d 998). Once the plaintiff has met this initial burden, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions ( see Delrio v. City of New York, 91 A.D.3d at 901, 938 N.Y.S.2d 149). Then, if the defendant meets this burden, the plaintiff has the obligation to show that the reasons put forth by the defendant were merely a pretext ( see id.; Pace v. Ogden Servs. Corp., 257 A.D.2d 101, 104, 692 N.Y.S.2d 220;see also Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 [2d Cir.] ).

“To establish its entitlement to summary judgment in a retaliation case, a defendant must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual” ( Delrio v. City of New York, 91 A.D.3d at 901, 938 N.Y.S.2d 149;see Lambert v. Macy's E., Inc., 84 A.D.3d 744, 745, 922 N.Y.S.2d 210).

Although “a plaintiff is not required to prove his [or her] claim to defeat summary judgment” ( Ferrante v. American Lung Assn., 90 N.Y.2d 623, 630, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [emphasis omitted], citing Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387), once the defendant has satisfied its initial burden, “a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a...