In Stashenko, Stephanie v. The State of New York et al, No. 903130-22, 2025 N.Y. Slip Op. 50616(U), 2025 WL 1228825 (Sup Ct Albany Cty, Apr. 14, 2025), the court denied defendant’s motion for summary judgment on plaintiff’s claim of gender discrimination under the New York State Human Rights Law.
After summarizing the black-letter law – including the four elements of a discrimination claim – the court applied it to the facts as follows:
Under the first element, Plaintiff met her burden to establish she is a member of a protected class based on her gender and familial status pursuant to Exec. Law § 292 (26) (a) and § 296 (1) (a).
Under the second element, the record also established she was qualified for the AUIRE position.
Under the third and fourth elements, the record also established an adverse employment action arising from denial of the AUIRE promotion in 2021 and 2022, due to her reassignment to a position under the direct supervision of Brian Romand. In so finding, the Court is mindful that Brian Romand was the not only the sole male applicant, but he was also afforded preferential treatment by a predetermination on the part of Neumann and Carusone to promote him to the AUIRE position in 2021, in blatant disregard of the other candidates qualifications, and he was the least qualified for the promotion among the other candidates, including Plaintiff (See Serrano v. City of New York, 226 AD3d 575, 576 [1st Dept. 2024], where the Court held, ” . . . plaintiffs raised an inference of animus through their allegations of differential treatment of similarly situated white officers in terms of assignments, evaluations, and placement on performance monitoring.”)
Thus, in this Court’s view Plaintiff met her initial burden to establish a prima facie case of discrimination.
On the burden shift, defendants proffered nondiscriminatory reasons for the promotion denials. Notably, the defense claims:“In contrast to the inadmissible hearsay relied upon by Plaintiff, Defendants offered declarations of several of the witnesses identified by Plaintiff disputing Plaintiff’s representations. NYSCF Nos. 66-69, See generally, Bloom Aff, Romand Aff., Real Aff., Zandri Aff. Since these Declarations go unaddressed by Plaintiff, the sworn statements contained in those declarations should be accepted by the Court.”95 (Emphasis added)
I think not! At this stage of the proceeding, the Court is focused on issue finding, not determination. To be blunt, the stated reasons for the promotion denial (e.g. that she talked too much to other employees, asked a lot of questions, and was untimely in completing some work during the pandemic) are not entirely persuasive, and appear to constitute mere pretext for discrimination. Certainly, in context of her recognized intelligence and abilities, a reasoned jury could find the proffered reasons for the promotion denial were false and concocted to fit the occasion. With respect to the depositions/affidavits proffered by the defendants, all such evidence must be evaluated in context of the fact that everyone is still an active DOL employee, except Carusone who is retired.
Here, the circumstances give rise to an inference of discrimination, since Romand, a male, and Zhandri, a female without minor children, were promoted with arguably less qualifications than Plaintiff (see e.g. Heather Mikesh v County of Ulster, 2025 NY App. Div. LEXIS 1987 [3d Dept. 4/3/2025]).
It is not enough to give lip service to the oft cited premise that summary judgment is a drastic remedy. It is, especially in a human rights case! Moreover, it is essential to recognize the importance of allowing a jury to not only hear the testimony but to observe the witnesses as they testify, all to determine the credible evidence. By affording every reasoned inference to the facts alleged, I cannot say as a matter of law that Plaintiff’s allegations are insufficient to establish a prima facie case of discrimination, nor that no jury could find each defendant liable.
Accordingly, summary judgment was not warranted.