### Pastor v August Aichhorn Ctr. for Adolescent Residential Care, Inc. 2024 NY Slip Op 32243(U) July 2, 2024 Supreme Court, New York County Docket Number: Index No. 154065/2021 Judge: Leslie A. Stroth Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York State and local government sources, including the New

York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.NYSCEF DOC. NO. 68 INDEX NO. 154065/2021 RECEIVED NYSCEF: 07/03/2024

PRESENT: 

### SUPREME COURT OF THE STATE OF NEWYORK NEW YORK COUNTY HON. LESLIE A. STROTH PART Justice 12M



### --------------------------- -------X INDEX NO. 154065/2021

ELIZABETH PASTOR, Plaintiff,

- V - THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. and RENELLE POPE Defendant. --------------------X MOTION DATE 01/25/2023 MOTION SEQ. NO. 002
DECISION + ORDER ON MOTION

The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39,40,41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,60,61,63, 64, 65,66,67 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER) Plaintiffcommenced this employment discrimination action against defendants The August Aichhom Center for Adolescent Residential Care, Inc. (Aichhom), plaintiffs employer, and Renelle Pope, an employee ofAichhorn, onthe basis ofher race and ethnicity in violation of the New York Human Rights Law and New York City Human Rights Law. Plaintiffclaims that inthe summer of2020, while Aichhorn was transitioning its employees to a successor entity, the Child Center ofNew York (Child Center), plaintiffwas delayed in starting with the Child Center by approximately two months due to discrimination by Aichhorn and Ms. Pope, their employee. Plaintiffalleges that Ms. Pope failed to include plaintiffin the original transitioning employees list because Ms. Pope is a "racist and hated Puerto Ricans" (Comp., ifl5). Defendants move here, pursuantto CPLR 3212, for summaryjudgmentand to dismiss the complaint in its entirety onthe grounds that plaintiffhas failed to showthat any discrimination occurred in violation ofNew York State Human Rights Law (NYSHRL) orthe New York City Human Rights Law (NYCHRL). Boththe NYSHRL and the NYCHRL prohibit

154065/2021 PASTOR, ELIZABETH vs. THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. ET AL Motion No. 002 1 of 6 Page 1 of6 

### [* 1]NYSCEF DOC. NO. 68 INDEX NO. 154065/2021 RECEIVED NYSCEF: 07/03/2024
employment discrimination and retaliation onthe basis ofan individual's race orethnicity. See NewYork Exec. Law§ 296(1); NY City Administrative Code §8-107(1). Defendants assertthat plaintiffherselfis responsible for causing any alleged damages. Oral argument was held for the instant motion onMay 7, 2024. It is well-establishedthat the "function ofsummaryjudgmentis issue finding, not issue determination."Assaf v Ropog Cab Corp., 153 AD2d 520 (1st Dept 1989), quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). As such, the proponent ofa motion for summaryjudgmentmusttender sufficient evidence to showthe absence ofany material issue offact and the right to entitlement tojudgmentas a matter oflaw. SeeAlvarezv Prospect Hospital, 68 NY2d 320 (1986); WinegradvNew York University Medical Center, 64 NY2d 851 (1985). Where the moving party has demonstrated its entitlementto summaryjudgment, the party opposing the motionmust demonstrate by admissible evidence the existence ofa factual issue requiring a trial ofthe action. Alvarezv ProspectHosp., 68 NY2d 320, 324 (1986); Zuckerman v City of New York, 49 NY2d 557 (1980). This burden to establish a triable issue of fact may only be demonstrated by actual admissible evidence, ratherthan conclusory or subjunctive statements. Platzman vAmerican Totalisator Co., 45 NY2d 910, 912 (1987); Mallad Constr. Corp. v County FedSav. & LoanAssn., 32 NY2d 285 (1973). The Courtnotes that, as a threshold matter, plaintifffailed to provide the sections of eitherNYSHRL orNYCHRL that defendants allegedly violated in her Complaint dated April 27, 2021. Moreover, for a plaintiffto succeed on a claim for discrimination underboththe NYSHRL and NYCHRL, a plaintiffmustprove that: (1) they are members ofa protected class; (2) they are qualified to holdthe position; (3) they suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference ofdiscrimination. See

154065/2021 PASTOR, ELIZABETH vs. THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. ET AL Motion No. 002 2 of 6 Page 2 of 6 

### [* 2]NYSCEF DOC. NO. 68 INDEX NO. 154065/2021 RECEIVED NYSCEF: 07/03/2024
Stephenson v Hotel Empls. & Rest. Empls. Union Local I00 of AFL-CIO, 6 NY3d 265, 270 (2006); see also Forrest vJewish Guild for the Blind, 3NY3d 295, 305 (2004). After establishing its primafacie case, "The burdenthen shifts to the defendant to rebut plaintiffs' primafacie case ofdiscrimination with a legitimate reason for the firing [ upon which showing] the plaintiffs must showby apreponderance ofthe evidence that defendant's reasons
are pretextual." Stephenson, 6 NY3d at 271 (internal citation omitted). The City HRL applies a
more lenient standard, wherein the plaintiffneeds to "only show she was treated differently from others in a way that was more thantrivial, insubstantial, or petty." Dimitracopoulos v City of New York, 26 F Supp 3d 200, 216 (ED NY 2014). However, the City HRL is not a "general civility code," and a plaintiffmust still show "thatthe conduct is caused by a discriminatory motive." See Mihalik v CreditAgricole Cheuvreux N Am., Inc., 715 F 3d 102, 110 (2d Cir 2013). "Toprevail on a summaryjudgmentmotion, an employer "must demonstrate either the employee's failure to establish every element ofintentional discrimination, or-having offered legitimate, nondiscriminatory reasons for the challenged action-the absence ofa material issue offact as to whether its explanations were pretextual." Dickerson v. Health Mgmt. Corp. of Am., 21 AD3d 326 (1st Dept 2005). Defendants argue thatplaintiffhas failed to establish her prima facie case of discrimination by satisfying the necessary factors underNYSHRL and NYCHRL. The only evidence she alleges in support ofher claim ofdiscrimination is a hearsay statementby her supervisor Carmen Torres that Renelle Pope delayed adding plaintiffto the transitioning employees list, thereby causing the delay in her commencing employment with the Child Center, because Ms. Pope "was racist and hated Hispanics." But contrary to plaintiff's claims, Ms.

154065/2021 PASTOR, ELIZABETH vs. THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. ET AL Motion No. 002 3 of 6 Page 3 of 6 

### [* 3]NYSCEF DOC. NO. 68 INDEX NO. 154065/2021 RECEIVED NYSCEF: 07/03/2024

Torres testified in her deposition that she did not believe Ms. Pope was discriminatory against Hispanics, nor did she say to plaintiffthat Ms. Pope was racist. (Exh F, p 24). Carmen Torres denies in her deposition that she ever made that statementto plaintiffnor does she believe that about Renelle Pope. In response to the instant motion, plaintiffdid notprovide any evidence in admissible form to prove that the third or fourth requirements underNYSHRL orNYCHRL had beenmet, that plaintiffsuffered an adverse employment action or that any adverse action occurred under circumstances giving rise to an inference ofdiscrimination. In addition, plaintifffailed to demonstrate any history or existence ofbias, racism, or discriminatory behavior by defendants that interfered with plaintiffs employmentwith Aichhom or hertransition to the Child Center. Moreover, even in consideration ofthe more, "lenient"NYCHRLrequirements, plaintifffailed to submit any evidence in oppositionto the instant motion to sufficiently to showthat she was treated differently, on the basis ofher race and ethnicity at Aichhom or in the transition to the Child Center, than members ofa different class. Although plaintiffclearly failed to establish aprima facie claim ofdiscrimination causing her delay in beginning her employmentwiththe Child Center, defendants put forth a valid, nondiscriminatory explanation for plaintiffs delay by pointing outthat she missed an appointment for mandatory fingerprinting, a prerequisite ofher employment with the Child Center on August 11, 2020, and that the appointmenthad to be rescheduled to August 18, 2020, which resulted in plaintiffnot being able to complete her onboarding paperwork until August 21, 2020. Furthermore, defendants allege that plaintiffstartedher employment at the Child Center shortly thereafter, and thather own absence from the fingerprinting appointment was the sole cause of her start date delay.

154065/2021 PASTOR, ELIZABETH vs. THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. ET AL Motion No. 002 4 of 6 Page 4 of 6 

### [* 4]NYSCEF DOC. NO. 68 INDEX NO. 154065/2021 RECEIVED NYSCEF: 07/03/2024

This Court finds that plaintiffhas failed to establish herprima facie claim of discrimination, but that defendants have met theirs in showing that no triable issue ofmaterial fact exists as to whetherplaintiffwas racially discriminated againstby defendants in violation of State HRL or City HRL. Although plaintiffmaintains that her employment did not begin until October 2020, which would have been laterthan other employees who had transitioned to the Child Center, an email dated August 10, 2020, supports defendants' argument that plaintiffwas initially delayed in starting due to her own actions. The email, sent by the Child CenterHuman Resource Assistant Nayeli Daza-Romo states, "GoodMorning Elizabeth, Attachedplease find your Appointment Details for fingerprinting." See NYSCEF Doc. No. 45, Exhibit K. Moreover, four days later, on August 14, 2020, Human Resource Assistant Daza-Romo followed up with plaintiffto see ifshe was able to attend the fingerprinting appointment. Id. Plaintiffhas failed to show any significant delay in Ms. Pope adding her to the transitioning employees list, as she was given the same opportunity as the othertransitioning employees to have her fingerprints taken and complete the necessary paperwork to begin in August. Although Ms. Pope stated in her deposition that there were issues withplaintiffs work which she reported to the Child Center, it was herjobto take this into consideration in compiling the list, as well as shift, probation, write-ups, and lateness (Exh E, p 20). Ms. Pope indicated various complaints regarding plaintiffsrefusal to performherjob while working at Aichorn1, but plaintiffhas failed to showthat discrimination ofany kind played a role in Ms. Pope's

1 There were times that she would become combative when she was asked to do somethingthat was outside ofwhat she was normally allowed to do
...She was polishing hernails. She was soliciting items at the front desk. She was doing her laundry. She was spending a lot oftime in the kitchen with the kitchen staff. She was actually doing yoga at some point. And none ofthe books, the logbooks from the front desk was updated on Monday morning. There were a lot ofthings that werejustnot being done as far as the paperwork was concerned. Id., p 24.

154065/2021 PASTOR, ELIZABETH vs. THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. ET AL Motion No. 002 5 of 6 Page 5 of 6 

### [* 5]NYSCEF DOC. NO. 68 INDEX NO. 154065/2021 RECEIVED NYSCEF: 07/03/2024

recommendations for the list. Despite Ms. Pope's opinionregarding plaintiffs work performance, she stated that, "the H.R. people at The Child Center did notthink there was enough in Ms. Pastor's file to keep them from transitioning her". Id., p 49. Given that plaintiffhas failed to show any actions on the part ofAichom or Ms. Pope that constitute discrimination, and the Child Center agreed to transition plaintiffeven considering her reported workhabits, plaintiffhas failed to put forth a prima facie cause ofaction for
. discrimination, and this matter is dismissed as to both defendants. The court notes that there appears to be no explanation in the record for the delay in plaintiffs start date at the Child Center beyond her delayed fingerprinting date. In any event, after her fingerprinting and "onboarding" by the Child Center in August, 2020, plaintiffwas employed by the Child Center, and they are not a named defendant here. There is no evidence that Ms. Pope or Aichom had anything to do with said delay given that the transition of employees, including plaintiff, was complete in August 2020. It is not for this court to speculate
as to why plaintiffs start date as a Child Center employee was further delayed. For all ofthe foregoing reasons, defendants' motion for summaryjudgment and dismissal is granted, and this matter is dismissed. ORDERED that defendants motion for summaryjudgment is GRANTED and that the action is dismissed. This constitutes the Decision and Order ofthe Court.
7/2/2024

DATE
CHECK ONE:
APPLICATION: CHECK IF APPROPRIATE: CASE DISPOSED GRANTED**□** DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT

154065/2021 PASTOR, ELIZABETH vs. THE AUGUST AICHHORN CENTER FOR ADOLESCENT RESIDENTIAL CARE, INC. ET AL Motion No. 002 6 of 6 

# TH J.S.C**□** OTHER**□** REFERENCE

Page 6 of 6 

### [* 6]