Gender Discrimination Dismissal Affirmed; Court Held That Poor Performance Was a Legitimate, Nondiscriminatory, Non-Pretextual Reason for Termination

In Park v. Kurtosys Sys., Inc., 2022 NY Slip Op 04129 (N.Y. App. Div. 1st Dept. June 28, 2022), the court unanimously affirmed the lower court’s (Judge Kotler) order granting defendants’ motion for summary judgment dismissing plaintiff’s complaint alleging discrimination and retaliation under the New York State and City Human Rights Laws.

From the decision:

Defendants demonstrated a legitimate, nondiscriminatory reason — poor performance — for terminating plaintiff’s employment (see Hudson v Merrill Lynch & Co., Inc., 138 AD3d 511, 514-515 [1st Dept 2016], lv denied 28 NY3d 902 [2016]). They showed that, based on her previous experience generating sales and building a pipeline of clients, plaintiff was hired as the director of enterprise sales at defendant Kurtosys and was expected “very quickly” to “start doing while learning.” However, despite those expectations, during her time at Kurtosys, plaintiff entered only 11 activities into Salesforce, the company’s customer relationship management software, attended no in-person meetings with potential clients, and had $0 in forecasted recurring and one-time fees from closed deals.

In opposition, plaintiff failed to raise an issue of fact whether defendants’ reasons for terminating her employment were a pretext for discrimination on the basis of gender (see Hudson, 138 AD3d at 515-516). While plaintiff cited a male coworker as a comparator, the record shows that his salary was about half of hers, that he was brought into the company in an entry-level position, and that he was promoted to his role managing mid-market accounts that had the lowest revenue probability. Moreover, as reflected in the company’s Salesforce data, his performance significantly surpassed hers.

In support of dismissing her retaliation claim, defendants demonstrated that plaintiff did not engage in any protected activity (see Franco v Hyatt Corp., 189 AD3d 569, 571 [1st Dept 2020]). Her complaints about feeling excluded from meetings and conferences fail to indicate that her coworkers’ conduct was motivated by her gender, particularly as she acknowledged that female coworkers were included. In any event, as indicated, defendants established a legitimate nonretaliatory reason for terminating her employment, and plaintiff failed to counter their showing (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 740-741 [2d Dept 2013]).

The court further held that dismissal of plaintiff’s “aiding and abetting” claims, in light of the absence of evidence that plaintiff suffered unlawful discrimination or retaliation.

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