Cuccia v. Martinez & Ritorto, P.C., 447.

• Decision Date: 30 April 2009
• Docket Number: 447.
• Citation: 61 A.D.3d 609,877 N.Y.S.2d 333,2009 NY Slip Op 03444
• Parties: JANET CUCCIA, Appellant, v. MARTINEZ & RITORTO, P.C., Respondent, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

61 A.D.3d 609

877 N.Y.S.2d 333

2009 NY Slip Op 03444

JANET CUCCIA, Appellant, v. MARTINEZ & RITORTO, P.C., Respondent, et al., Respondent.

447.

Appellate Division of the Supreme Court of New York, First Department.

Decided April 30, 2009.

Judgment, Supreme Court, New York County (Walter B. Tolub, J.), entered April 16, 2008, dismissing this proceeding to vacate respondent agency's determination, unanimously affirmed, without costs. [See 2008 NY Slip Op 30890(U).]

Petitioner was employed by respondent law firm as a legal secretary for approximately 2½ months before her termination, purportedly due to poor job performance including excessive lateness. Denial of unemployment benefits on the ground of termination for misconduct was upheld by the Unemployment Insurance Appeal Board, and her judicial appeal of that determination was untimely (see Matter of Cuccia [Martinez & Ritorto, P.C.—Commissioner of Labor], 55 AD3d 1115 [2008]).

Petitioner also filed a complaint of disability discrimination with respondent agency (Division of Human Rights [DHR]), stating that her lateness and the adjustments to her work schedule were necessary to attend doctors' appointments and undergo diagnostic tests for a medical condition. The law firm denied that petitioner ever told them she had a disabling medical condition and pointed to her statements attributing her discharge to other factors, such as a lull in work and the firm's desire to avoid unemployment insurance claims.

After investigation, DHR determined there was no probable cause to believe the firm had engaged in unlawful discrimination, pointing to the fact that petitioner was often permitted to make medical appointments during work hours, and she never alleged that she had told the firm about her medical condition. DHR concluded that the record suggested petitioner was terminated for nondiscriminatory reasons related to her work performance.

In order to recover under New York and federal law, petitioner has the initial burden of proving, by a preponderance of the evidence, a prima facie claim of discrimination, i.e., that she suffers from a disability, was qualified to hold the position at issue, and suffered an adverse employment action or was terminated from employment under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by setting forth, through the introduction of admissible evidence, legitimate...