City HRL claim in New York

2022Under a complete City HRL analysis, rather than shifting the burden back to plaintiff to show pretext, defendants' proffered nondiscriminatory reason would merely present additional questions for the trier of fact to consider ( see Bennett , 92 AD3d at 40 [in mixed-motive cases, "the plaintiff may leave unchallenged one or more of the defendant's proffered reasons for its actions, and may instead [*13]seek only to show that discrimination was just one of the motivations for the conduct"]).

2022Under a complete City HRL analysis, rather than shifting the burden back to plaintiff to show pretext, defendants' proffered nondiscriminatory reason would merely present additional questions for the trier of fact to consider ( see Bennett , 92 AD3d at 40 [in mixed-motive cases, "the plaintiff may leave unchallenged one or more of the defendant's proffered reasons for its actions, and may instead [*13]seek only to show that discrimination was just one of the motivations for the conduct"]).

2022The City HRL plaintiff will defeat summary judgment by offering "some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete" ( Bennett , 92 AD3d at 45 ; accord Watson v Emblem Health Servs. , 158 AD3d 179 , 183 [1st Dept 2018]; see Franco v Hyatt Corp. , 189 AD3d 569, 571 [1st Dept 2020] ["If the defendant offers legitimate, nonretaliatory reasons for its conduct, then the plaintiff must produce evidence showing that the defendant was motivated, at least in part, by an impermissible motive"]).

2022The City HRL plaintiff will defeat summary judgment by offering "some evidence that at least one of the reasons proffered by defendant is false, misleading, or incomplete" ( Bennett , 92 AD3d at 45 ; accord Watson v Emblem Health Servs. , 158 AD3d 179 , 183 [1st Dept 2018]; see Franco v Hyatt Corp. , 189 AD3d 569, 571 [1st Dept 2020] ["If the defendant offers legitimate, nonretaliatory reasons for its conduct, then the plaintiff must produce evidence showing that the defendant was motivated, at least in part, by an impermissible motive"]).

2022In this regard, under a City HRL analysis, the arbitrator's finding merely reinforces a claim that already presents factual issues ( see Tirschwell v TCW Group Inc. , 194 AD3d 665, 666 [1st Dept 2021] [protected activity may not serve as "'extra factor'" pushing employer from "dissatisfaction" to "discharge"], quoting Cadet-Legros , 135 AD3d at 207 ).

2022In this regard, under a City HRL analysis, the arbitrator's finding merely reinforces a claim that already presents factual issues ( see Tirschwell v TCW Group Inc. , 194 AD3d 665, 666 [1st Dept 2021] [protected activity may not serve as "'extra factor'" pushing employer from "dissatisfaction" to "discharge"], quoting Cadet-Legros , 135 AD3d at 207 ).

2022Accordingly, plaintiff has not split his claims ( see Board of Mgrs. of Dickerson Pond Condominium I v Jagwani , 276 AD2d 517, 518 [2d Dept 2000]).

2022Accordingly, plaintiff has not split his claims ( see Board of Mgrs. of Dickerson Pond Condominium I v Jagwani , 276 AD2d 517, 518 [2d Dept 2000]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

2016Nor were defendants entitled to assert the “Faragher-Ellerth” affirmative defense (see Faragher v Boca Raton, 524 US 775 [1998]; Burlington Industries, Inc. v Ellerth, 524 US 742 [1998]), assuming that the issue is preserved, since that defense is unavailable in a City HRL claim (Zakrzewska v New School, 14 NY3d 469, 479-480 [2010]).

2014Notwithstanding the differing burdens of proof at trial under the State HRL and the City HRL, an employer moving for summary judgment with respect to an employee’s claims under both statutes still has the burden of showing that the employee’s evidence and allegations present no triable material issue of fact (see Ferrante v American Lung Assn., 90 NY2d 623, 630 [1997] [concluding that an employer must carry its burden on a summary judgment motion with respect to an employee’s age discrimination claim under the State HRL, notwithstanding that the employee bears the ultimate burden at trial]; se

2014Thus, unlike the State HRL, the City HRL places the burden on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business (see Romanello, 22 NY3d at 885 , citing Phillips, 66 AD3d at 183 ).

2014Turning from the summary judgment burden to the substance of the statutes at issue, the State HRL forbids employment discrimination on the basis of an employee’s disability, and the City HRL provides even greater protection against disability-based discrimination (see Romanello, 22 NY3d at 883-885 ; Matter of Delta Air Lines v New York State Div. of Human Rights, 91 NY2d 65, 72 [1997]; see also Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]).

2014Indeed, even under the mixed-motive analysis applicable to the City HRL claim, there was insufficient evidence to support a finding that sex was a motivating factor, even in part, for the decision to terminate plaintiff (see Melman, 98 AD3d at 122-128; Forrest, 3 NY3d at 308 ).

2014Turning from the summary judgment burden to the substance of the statutes at issue, the State HRL forbids employment discrimination on the basis of an employee’s disability, and the City HRL provides even greater protection against disability-based discrimination (see Romanello, 22 NY3d at 883-885 ; Matter of Delta Air Lines v New York State Div. of Human Rights, 91 NY2d 65, 72 [1997]; see also Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]).

2014Although the complained-of behavior does not rise to the level of “severe and pervasive” for purposes of a hostile environment claim under the State HRL, plaintiff’s claim under the City HRL is viable (see Hernandez v Kaisman, 103 AD3d 106, 114-115 [1st Dept 2012]).

2014Turning from the summary judgment burden to the substance of the statutes at issue, the State HRL forbids employment discrimination on the basis of an employee’s disability, and the City HRL provides even greater protection against disability-based discrimination (see Romanello, 22 NY3d at 883-885 ; Matter of Delta Air Lines v New York State Div. of Human Rights, 91 NY2d 65, 72 [1997]; see also Phillips v City of New York, 66 AD3d 170, 176 [1st Dept 2009]).

2014Notwithstanding the differing burdens of proof at trial under the State HRL and the City HRL, an employer moving for summary judgment with respect to an employee’s claims under both statutes still has the burden of showing that the employee’s evidence and allegations present no triable material issue of fact (see Ferrante v American Lung Assn., 90 NY2d 623, 630 [1997] [concluding that an employer must carry its burden on a summary judgment motion with respect to an employee’s age discrimination claim under the State HRL, notwithstanding that the employee bears the ultimate burden at trial]; se