In Lynn v. State of New York, New York State Insurance Fund, No. 2021-054-042, 2021 N.Y. Slip Op. 51151(U), 2021 WL 5830520 (N.Y.Ct.Cl., Nov. 23, 2021), the court denied the movant’s application to file a late claim against the State of New York.
In sum, the movant alleges that, during a Skype call, the supervisor allegedly asked the movant “do you date males or females?”
In reaching its decision, the court discussed and applied the factors set forth in Court of Claims Act section 10(6), which are among the factors relevant to the requested relief. Those factors are:
(1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy.
The court noted that “[t]he presence or absence of any one factor is not determinative and the list of factors is not exhaustive” and that “[w]hile no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal.”
As to that point, the court explained:
To establish an appearance of merit of a claim of employment discrimination under the HRL, movant must show that: 1) movant was a member of a protected class; 2) movant was qualified to hold the position of employment; 3) movant was terminated from employment or suffered another adverse employment action; 4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; Bilitch v New York City Health & Hosps. Corp., 194 AD3d 999 [2nd Dept 2021]; Franco v Hyatt Corp.,189 AD3d 569, 570 [1st Dept 2020]). The proposed claim does not allege movant’s membership in a protected class under Executive Law § 296 (1) (a), such as sexual orientation or gender identity or expression. Nor does the proposed claim allege with sufficient specificity that movant suffered an adverse employment action, i.e., a “materially adverse change in the terms and conditions of employment,” such as a decrease in wages or salary, a material loss of benefits, a less distinguished title, or significantly diminished material responsibilities (Forrest, 3 NY3d at 306). Rather, the proposed claim alleges in conclusory terms, without any specific facts or dates to support the allegation, that movant suffered a “loss of employment . . . loss of compensation . . . impairment of earning power”.
Movant also fails to allege or present any facts which would establish an appearance of merit of a hostile work environment in violation of the HRL (Executive Law § 297 [1] [h]). A hostile work environment exists when the workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” (Forrest, 3 NY3d at 310). The alleged isolated question in this matter, without any specific allegation as to how the remark interfered with movant’s job performance, does not establish an appearance of merit of a hostile work environment (see id. at 310 [The use of three epithets over a nine-year employment history, while deplorable, does not constitute a hostile work environment; Reichman v City of New York, 179 AD3d 1115, 1118 [2d Dept 2020] [Dismissal of a hostile work environment claim was proper where the defendants established that the complained of conduct and remarks were not so severe or pervasive as to permeate the workplace and alter the plaintiff’s conditions of employment]; La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918 [2d Dept 2015] [Dismissal of hostile work environment claim was proper where the remarks and conduct attributed to the defendant were not so severe or pervasive as to permeate the workplace and alter the conditions of plaintiff’s employment]). Moreover, the utterance of an improper or discriminatory question by a supervisor, without the knowledge or acquiescence of the employer, does not constitute an unlawful discriminatory practice which is actionable under the HRL because the employer cannot be held liable for an employee’s discriminatory act unless the employer became a party to the employee’s conduct by either encouraging, condoning or approving the conduct (Forrest, 3 NY3d at 310-311). The proposed claim does not allege that NYSIF, the State agency employer, either knew of or acquiesced in Tyson’s alleged conduct. Movant did not submit any proof that Tyson’s alleged question was reported to NYSIF and NYSIF’s statement in response to movant’s complaint filed with WCHRC stated that “NYSIF does not have any complaints or allegations against NYSIF or Ms. Tyson alleging discrimination based upon sexual orientation within the past two years” (id. at ¶ 6). Nor was it alleged or established that Tyson was of such a high level managerial employee of NYSIF that Tyson would be viewed as a proxy of NYSIF (see Franco, 189 AD3d at 570). There are no factual allegations to support an appearance of merit that NYSIF was a party to any alleged discriminatory conduct of Tyson, its employee (see Reilly v First Niagara Bank, N.A.,173 AD3d 1082, 1083 [2d Dept 2019] [Discrimination complaint properly dismissed for failure to allege an adverse employment action occurred or that the workplace was permeated with discrimination and that the employer was a party to any discriminatory conduct]).
Accordingly, the court found that the “merit” factor did not weigh in movant’s favor.