In Piscitelli v. Deloitte Touche Tohmatsu Services, Inc., No. 159272/2020, 2024 WL 5202602 (N.Y. Sup Ct, New York County Dec. 17, 2024), the court, inter alia, denied the parties’ motions for summary judgment on plaintiff’s claims of sex/pregnancy discrimination under the New York State and City Human Rights Laws.
From the decision:
A prima facie case of discrimination requires a showing by the plaintiff that: [1] he is a member of a protected class; [2] he was qualified to hold the position; [3] he was terminated from employment or suffered another adverse employment action; and [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]). Only if these elements are satisfied will there be a rebuttable presumption of discrimination which the employer can then rebut by proving a legitimate, independent, non-discriminatory reason for the adverse employment action (id. citing Ferrante v. American Lung Association, 90 NY2d 623 [1997]; see also McDonnell Douglas Corp. v. Green, 411 US 792 [1973]). If the employer is successful, the burden then shifts back to plaintiff who must prove that the reason being offered is a pretext, and therefore false.
Deloitte argues that Piscitelli cannot establish an inference of sex/pregnancy discrimination because “she testified at her deposition that she only disclosed her pregnancy during “the first week of February 2019.” However, the fact that Deloitte was preparing a case for termination against Piscitelli, which, as plaintiff alleges began because of unlawful discrimination on the basis of sex and Piscitelli’s first pregnancy. On this record, there is a triable issue of fact as to whether the conduct plaintiff complains of gives rise to the inference of discrimination, which implicitly requires credibility determinations of Piscitelli and Deloitte’s employees as well. There is also a triable issue of fact as to whether, if plaintiff has established a prima facie case of discrimination, a jury must determine whether Deloitte’s proffered reasons for refusing to grant Piscitelli remote work days, identifying Piscitelli as having performance problems, etc., were pretextual, particularly in light of Piscitelli’s claims about contemporaneous comments she endured and targeting by her supervisors, i.e. how she was treated regarding the October 6, 2017 incident and the fact that Deloitte created a timeline recording only negative information about Piscitelli and her supervisors did not create such a timeline for any other employee.
Accordingly, the court held that, on this record, summary judgment was not warranted.