Discrimination claim highlights distinction between federal law and NYC Human Rights Law

You don't see too many cases where lawyers are suing their former employers for discrimination. In this case, a lawyer sues Con Edison, claiming she was fired based on age and gender. She loses the case under federal law, but the case is reinstated under the New York City Human Rights Law so that the district court can take another look at her claim under the proper legal framework. This case highlights the differences between federal law and the New York City Human Rights Law.

The case is Goldzweig v. Con Edison, a summary order issued on January 5. The analysis on the federal claim resembles what we often see in these cases: plaintiff argues that management lied about her alleged poor job performance as justification for her termination. But the court will not second-guess negative performance reviews without some affirmative evidence of discrimination. The Court (Park, Perez and Nathan) writes, "The consistency of the viewpoint expressed about Goldzweig's performance supports Con Edison's proffered nondiscriminatory reason for terminating her." We might have a different result if the positive performance reviews turned sour for no objective reason, but that does not seem to be the case here. While plaintiff challenges the credibility of defendant's witnesses, that does not force a trial; the Court holds that "Broad, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact." Nor does the Court find contradictions or implausibilities in defendant's justification for firing plaintiff.

On the retaliation claim, same result. Plaintiff did complain about discrimination, and she was terminated afterwards, but that sequence will get you a trial on the retaliation claim without evidence that the justification for plaintiff's termination was knowingly false. The Court says that Con Edison's "sustained, documented criticism of Goldzweig's performance is sufficient to meet its burden ... and Goldzweig has failed to demonstrate that Con Edison's proffered explanation is pretextual. "Although Goldzweig complained about how [supervisor] D'Angelo treated her, documentation of her performance deficiencies long predates these complaints." 

The City law claim is different, as the NYC Human Rights Law carries a more lenient standard for plaintiffs; the City Council did not want the stringent tests under federal law to guide City law claims. On the retaliation claim, the Court notes that the City law "takes a broader approach than Title VII and the ADEA as to what constitutes a protected activity for the purpose of a retaliation claim." While the district court said that one of plaintiff's four complaints qualified as protected activity under federal law, it did not consider whether these complaints qualified under the City law. And, while federal law applies a strict "but for" causation test in retaliation cases, that is not the case under the City law, which recognizes the more lenient "motivating factor" test. Moreover, under the City law, "a plaintiff need not prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant to the decision to take adverse action." The authority for this is Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 127 (1st Dept. 2012). The Court adds, 

it is unclear whether the district court independently analyzed the weight accorded to different forms of evidence under New York law.  See, e.g., La Marca-Pagano v. Dr. Steven Phillips, P.C., 129 A.D.3d 918, 921 (2d Dep’t 2015) (concluding that “close temporal proximity between the plaintiff’s protected activity and the adverse employment action is sufficient to demonstrate the necessary causal nexus” for a retaliation claim); Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 25 (1st Dep’t 2014) (same); Calhoun v. Cnty. of Herkimer, 114 A.D.3d 1304, 1307 (4th Dep’t 2014) (same).