Forrest v. Jewish Guild for the Blind ( 2004 )

OPINION OF THE COURT

Chief Judge Kaye.

Racial discrimination has no place in society. Antidiscrimination laws must therefore be strictly enforced to root out this scourge whenever it occurs. But it is simply not the law that every dispute that arises between people of different races constitutes employment discrimination, or that every wrongful act perpetrated in the course of such a dispute is committed because of race. Simply put, animosity on the job is not actionable; unequal treatment based on racial animus is. Because plaintiff has failed to raise a triable issue of fact that she was unlawfully discriminated against on the basis of her race, we affirm the Appellate Division’s award of summary judgment to defendants dismissing the complaint.

I. Facts and Procedural History¹

Founded in 1914, defendant Jewish Guild for the Blind is a not-for-profit, nonsectarian agency that provides educational, health care and social services to blind, visually impaired and multidisabled persons. Its stated mission is to help those with visual disabilities lead productive, independent, satisfying lives.

Plaintiff is an African-American woman who was hired by the Guild in 1985 as a music therapist in its Continuing Treatment Program (CTP). In 1990, plaintiff began an educational leave of absence from the Guild, which lasted for more than a year. By the time she returned, in August 1991, the Guild and the CTP had undergone a substantial reorganization as mandated by the State of New York. In order to continue to receive state funding, the Guild was thus required to implement certain procedures and policies of the State Office of Mental Health. As a result, the CTP was moved from the Guild’s Educational Services Department to its Mental Health Services Department (directed by defendant Goldie Dersh), and was renamed the Continuing Day Treatment Program (CDTP).

Upon her return to the Guild, plaintiff was assigned to the CDTP, which was coordinated by defendant Eugenia Adlivankina. In order to reflect the terminology used by the State Office of Mental Health, the job titles of all art therapists, dance therapists and music therapists—including plaintiff— were changed to creative arts therapists.

As an employee of the CTI^ plaintiff’s responsibilities had been limited to providing music therapy—that is, using music to facilitate the development of goals, such as memory, sequencing or motor coordination. With programmatic restructuring, however, came changes in approach. In the CDTP, all professionals—both creative arts therapists and social workers—were viewed as members of an interdisciplinary team, charged with providing holistic services to program clients. As a result, all professional employees—no longer just social workers—were assigned cases and required to participate in developing treatment plans and maintaining accurate therapy records and documentation so as to comply with Office of Mental Health mandates. With the management of a caseload came such tasks as communicating with clients’ family members, scheduling appointments, arranging transportation and attending meetings with other team members. Ultimately, in January 1992, to reflect the shared mission of both creative arts therapists and social workers—all of whom also continued to provide therapeutic services consistent with their own specialized training and qualifications—the job titles for all such professional employees were changed to case manager. Plaintiff’s salary and benefits, however, did not change. At around the same time, the desks of all CDTP professionals were relocated into one large office so as to facilitate the shared exchange of client information.

From the start, plaintiff complained about having to share an office and resisted her additional case management responsibilities, preferring to limit her efforts to the conduct of music therapy sessions. Conflict quickly arose. As early as November 1991, plaintiff wrote a memorandum to her union delegate complaining about her case management duties, while stating that she “was not adamantly refusing to cooperate.” Moreover, because social workers had always carried caseloads and performed attendant administrative tasks, plaintiff—who neither was trained for nor provided social work services—took the position that she had been forced to undertake the “dual” job of creative arts therapist and social worker, and therefore filed a grievance with her union in which she sought increased pay. In February 1992, plaintiff complained in a memorandum to Adlivankina that her current responsibilities did not allow enough time for her to complete her recordkeeping duties, suggested that she be “free[d] up” to focus on paperwork, and warned, “I see this as being a potential problem we’ll have to work out.”

In July 1992, after the State promulgated new policies and procedures mandating the use of standardized medical record forms, all staff members, including plaintiff, were provided special training in the completion of the new forms. Plaintiff, however, appears to have had difficulty in complying with her responsibility to maintain these state-mandated patient records. Explaining that the forms were constantly changing, plaintiff fell behind in keeping her patient notes current. Throughout the fall of 1992, plaintiff received oral and written warnings from her supervisors, Dersh and Adlivankina, setting forth instances in which plaintiff had allegedly failed to write progress notes when required, not completed her notes in a timely manner, misdated notes, and written them in an incorrect sequence. Patients who had been absent from therapy sessions were sometimes marked present on medical charts, which plaintiffs supervisors had explained to her were legal documents. The supervisors further advised plaintiff that her notes were frequently unstructured and unrelated to client treatment plans and services provided. In some instances, notes were smudged or illegible.

By November 1992, plaintiffs supervisors were expressing concern that the inaccuracies and omissions in her notes— including with respect to client attendance—threatened to place the Guild out of compliance with state-mandated recordkeeping guidelines for the provision of health services, and with documentation requirements for Medicaid reimbursement. Telling plaintiff they were worried that the Guild’s licensing status and funding might be jeopardized at an upcoming audit by the State Office of Mental Health, plaintiffs supervisors relieved her of the bulk of her other responsibilities so that she could devote the majority of her time to her client charts. She was warned in writing about “what appears to be a lack of responsiveness on your part to previous guidance and instruction in these matters and what seems to be either an unwillingness or inability to properly perform charting tasks.” Plaintiff filed grievances with her union concerning the warnings about her recordkeeping, alleging that she was being “harass[ed].”

In December 1992, plaintiff received a written warning for leaving her blind patients unattended. As undisputed by plaintiff, a holiday lunch was being offered to CDTP clients during plaintiffs scheduled lunch hour. Plaintiff nevertheless chose to help serve lunch to the patients. After leaving to take her own lunch 20 minutes into the hour, plaintiff did not return for an hour and 15 minutes—20 minutes after her therapy session was scheduled to begin. Plaintiff then dismissed her group 15 minutes later, in violation of state standards requiring that no group session may be shorter than 45 minutes.

The record reflects other conflicts as well. In June 1992, plaintiff took extended vacation to be with her ailing mother. Because she had failed to provide specific information on when she would return, the Guild eventually reached out to her in Florida in an effort to arrange for patient coverage. Plaintiff thereafter sent a telegram to the Guild, updating her supervisors on her mother’s condition. On her return to work, she filed two grievances alleging “harassment” and seeking reimbursement for the cost of the telegram. In October 1992, plaintiff was disciplined for violating the policy that confidential patient records are never to be removed from the CDTP without supervisory permission, and for then refusing to discuss the issue with Adlivankina the morning after the incident on the ground that working hours had not yet begun.

Plaintiff filed complaints with the union and with defendant Carol Handfus, Director of Personnel at the Guild, because she did not like her assigned lunch hour, because a circle had been placed next to her name on a posted time sheet when she was (mistakenly, it turned out) thought to be late, and because Dersh had removed a pad from plaintiffs hand at a meeting. Other complaints were not formally filed because, according to plaintiff, the union “[f]ail[ed] to represent and pursue all of my claims” and stated, “You are so self-centered and self-involved, all you ever think about are your grievances.” Plaintiff eventually filed a complaint against her union with the New York State Division of Human Rights. In January 1993, plaintiff requested transfer to the Guild’s Day Treatment Program (DTP), which was coordinated by her friend, defendant Patricia Finocchiaro, and which provides ongoing treatment for visually impaired adults with psychiatric diagnoses, and deaf and blind persons who are cognitively impaired. The DTP is separate from the CDTP and is operated under the auspices of the State Office of Mental Retardation and Developmental Disabilities.

Plaintiffs problems with recordkeeping continued. In March 1994, Finocchiaro wrote a memorandum to plaintiff reflecting Finocchiaro’s discovery that, for more than five months, plaintiff had failed to make any progress notes in the records of several clients, though monthly patient progress notes were required. At the end of July 1994, plaintiff requested a three-month leave of absence to begin in August, pursuant to the Family and Medical Leave Act of 1993 (29 USC § 2601 et seq.) (FMLA), to care for her seriously ill father in Florida (see 29 USC § 2612 [a] [1] [C]). The Guild approved the request, subject to the submission by plaintiff of specified documentation of her father’s serious health condition (see 29 USC § 2613). Plaintiff was given the requisite form to complete and undertook to return it, with the necessary certification by her father’s physician, by August 22.

Between August and October 1994, the Guild sent several letters to plaintiff at the Florida address, by certified mail and Federal Express, requesting the required documentation and providing additional copies of the necessary form. The first certified letter was returned by the post office as unclaimed. The next informed plaintiff that, if she did not submit the mandated certification, she would be considered on unauthorized leave of absence and subject to termination. On October 6,1994, plaintiff called the Guild and promised to provide the documentation by the following week.

In the meantime, plaintiff had applied for and received unemployment insurance benefits from the New York State Department of Labor on the ground that she was “available and seeking employment in the State of Florida.” On October 18, the Guild received a copy of a form requested by the Department of Labor’s Unemployment Insurance Division on September 6, and completed by a physician on October 7, diagnosing plaintiff’s father with “[hjypertension, aging and prostate,” recommending medication as treatment, and—in response to the question, “What home care, if any, is needed?”—stating, “Needs family member.”

Because the certification contemplated by the FMLA requires more specific information than was contained on the unemployment insurance form,² the Guild sent two more letters by express mail, informing plaintiff of the inadequacy of her submission and setting a new compliance deadline of October 31. Three days before the deadline, the Guild was notified by Federal Express that its last letter had been refused and that the courier had been advised by plaintiffs father that plaintiff was not at that address. Handfus then called plaintiffs father, who informed her that plaintiff had left his home three weeks earlier and gone to Hawaii, and that he had been living without any help at home since that time. Finally, on November 2, 1994, Handfus sent a letter to plaintiff detailing the events surrounding her leave, and advising her that her employment had been terminated on the ground of job abandonment.

Two days later, a resignation letter dated October 22, 1994, and “effective immediately,” arrived from plaintiff:

“I want to express my gratitude for the opportunity to serve, utilize my talents, and grow both professionally and personally. It was most rewarding for me to see the value of my contributions in helping others.

“Extenuating circumstances, the most paramount one being the care of my father, has brought me to this juncture in my life. That care is now required beyond the Hmitations of my leave of absence which the Guild has already granted.”

By November, plaintiff had begun a new job as a school teacher in Florida.

Meanwhile, in September 1994, after having started her FMLA leave, plaintiff filed a complaint with the New York City Commission on Human Rights and the Equal Employment Opportunity Commission (EEOC), alleging that defendants had discriminated against her on the basis of race and color and in retaliation. In her complaint, plaintiff alleged that in October 1992, she was told that Dersh had referred to her as an “uppity nigger.” In June 1997, plaintiff filed an amended complaint with the City Commission, alleging additional acts—including that Adlivankina had encouraged plaintiffs coworkers to refer to her as “our Black American Princess”—that were purported to have occurred prior to the filing of the original complaint but omitted from that pleading.

Dissatisfied with the investigation conducted by Commission attorneys, plaintiff wrote letters regarding a supervisor’s “unwarranted attitude,” and accusing the Commission of racial discrimination and failure to render “unbiased assistance to all people”: “[M]y complaint against the employer with whom I encountered conflict has already been recorded. It is not an encouraging experience to have it occur within the Commission as well.” Because plaintiff failed, despite the Commission’s request, to rescind the right-to-sue letter she had received from the EEOC, as required in order for the Commission to continue its investigation, the Commission administratively closed her case. Within weeks, plaintiff filed suit against defendants in the United States District Court for the Southern District of New York, alleging violations of federal, state and city antidiscrimination laws. Three months later, she voluntarily dismissed that action.

In February 1998, more than three years after her employment with the Guild had ended, plaintiff commenced the instant lawsuit seeking several million dollars in damages, alleging that defendants discriminated against her on the basis of race and color and retaliated against her for complaining about such discrimination, in violation of the New York State Human Rights Law (see Executive Law § 296 [1] [a]; [7]) and the New York City Administrative Code (see Administrative Code of City of NY § 8-107 [1] [a]; [7]). In her complaint, plaintiff pleaded an additional racial slur made by Dersh, not previously alleged, said to have been uttered in 1992: “Why do we always have to stroke Blacks to get them to work?”

After plaintiff and three of the individual defendants were deposed, defendants moved for summary judgment dismissing the complaint. Supreme Court denied defendants’ motion, and the Appellate Division reversed. We now affirm.

II. Racial Discrimination

A. Discriminatory Employment Action

A plaintiff alleging racial discrimination in employment has the initial burden to establish a prima facie case of discrimination.³ To meet this burden, plaintiff must show that (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she 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 (see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). The burden then shifts to the employer “to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision” (id. [citations omitted]). In order to nevertheless succeed on her claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason (see id. at 629-630).

To prevail on their summary judgment motion, defendants must demonstrate either plaintiffs failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual. In that event, summary judgment would constitute “a highly useful device for expediting the just disposition of a legal dispute for all parties and conserving already overburdened judicial resources” (Matter of Suffolk County Dept. of Social Servs. [Michael V.] v James M., 83 NY2d 178, 182 [1994]), inasmuch as no valid purpose is served by submitting to a jury a cause of action that cannot survive as a matter of law. Defendants have satisfied their burden.

The first two elements necessary to establish a claim of discrimination are not in dispute. Plaintiff is an African-American woman, qualified for the job she held at the Guild. She has, however, failed to raise a triable of issue of material fact as to whether any adverse employment action she alleges she suffered occurred under circumstances giving rise to an inference of discriminatory motive. Preliminarily, plaintiffs proof of adverse action is in large measure wanting. She asserts three such actions: her “demotion” from music therapist to creative arts therapist and then to case manager; a series of interpersonal conflicts with her supervisors; and her ultimate termination.

An adverse employment action requires a materially adverse change in the terms and conditions of employment. To be materially adverse, a change in working conditions must be “more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation” (Galabya v New York City Bd. of Educ., 202 F3d 636, 640 [2d Cir 2000] [citations and internal quotation marks omitted]).

Plaintiff has offered no evidence that her change in job title constituted a demotion. Rather, the undisputed proof is that the title of creative arts therapist was adopted as part of the Guild’s 1991 restructuring in an effort to be consistent with the terminology used by its state regulatory agency, and was applied to all similarly situated employees. Later, all professionals in the CDTP were restyled case managers to reflect the holistic approach valued by the program. Plaintiffs salary and benefits were unaffected by these changes.⁴

Nor does the alleged mistreatment suffered at the hands of her supervisors rise to the level of adverse action as defined by law. The snatching of a pad from her hands, the patting of a seat in an allegedly humiliating way, the shouting at her in a meeting, the circling of her name on a time sheet, the rolling of eyes when she spoke—none of these constitutes a materially adverse change in the terms and conditions of plaintiffs employment (see e.g. Fridia v Henderson, 2000 WL 1772779, *7, 2000 US Dist LEXIS 17295, *22 [SD NY, Nov. 30, 2000] [excessive work, denials of requests for leave with pay and a supervisor’s general negative treatment of the plaintiff are not materially adverse changes in the terms, conditions or privileges of employment]; Katz v Beth Israel Med. Ctr., 2001 WL 11064, *14, 2001 US Dist LEXIS 29, *44 [SD NY, Jan. 4, 2001] [“Being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments ... do not rise to the level of adverse employment actions”]).

Plaintiff has, however, raised a triable issue of fact as to whether she was terminated from her employment. Clearly, termination constitutes an adverse action. Plaintiff concedes that she intended to resign from the Guild on October 22, 1994, effective immediately. But she asserts that she was nevertheless terminated because the Guild sent her a letter of discharge prior to its receipt of her resignation. Whether in these circumstances the Guild’s action preempted and rendered ineffective her resignation presents a question of fact that a jury might resolve in her favor. But plaintiff still cannot avoid summary judgment for defendants because, even assuming that she has made a prima facie showing as to the fourth element, she has failed to rebut defendants’ proof that the purported termination did not arise under circumstances giving rise to an inference of discrimination—that is, that she was not terminated “because of [her] race” (Executive Law § 296 [1] [a]; Administrative Code of City of NY §8-107 [1] [a]).

Rather, the undisputed facts establish that plaintiff repeatedly failed to comply with her obligation to submit documentation in support of her family medical leave substantiating the nature of her father’s serious illness. Plaintiffs lack of cooperation and failure to adhere to her commitments by themselves establish legitimate, nondiscriminatory reasons for ending her employment. And plaintiffs actions in traveling to Hawaii and leaving her father, without notifying the Guild of this substantial change, placed her in violation of statutory standards for entitlement to family medical leave and provided further justification for the Guild’s decision.⁵

In response to this showing by defendants that their actions were justified by plaintiffs conduct, plaintiff has offered no evidence that defendants’ legitimate explanations were a pretext for unlawful discrimination—that is, that they were false and that racially motivated discrimination was the real reason.⁶ Indeed, plaintiff fails to demonstrate any causal relationship between the racial epithets allegedly uttered in 1992 by Dersh and Adlivankina, and her purported termination from Finocchiaro’s department in 1994, that could conceivably demonstrate that the termination occurred under circumstances giving rise to an inference of discrimination (see Price Waterhouse v Hopkins, 490 US 228, 277 [1989] [O’Connor, J., concurring in judgment] [“statements by nondecisionmakers, or statements by decision-makers unrelated to the decisional process itself,” are insufficient to establish discriminatory intent]).

Simply put, plaintiff has failed to raise an issue of fact as to whether she was discriminated" against on the basis of her race. To be sure, the record establishes that there was no love lost between plaintiff and her supervisors. Indeed, as a cycle unfolded of supervisory dissatisfaction with plaintiffs work; the giving of warnings; complaints about the warnings; a perceived lack of improvement; and more warnings followed by more complaints, any number of fair inferences could be drawn from the record as to the motives underlying such events.

Racial animus, however, is not among them. Plaintiff herself was hard pressed at her deposition to articulate any basis for her claim that defendants’ alleged unfair treatment and harassment was race-based, other than a repeated assertion—or assumption—that she was the only one so treated:⁷ only she was told that she was jeopardizing the department (but only she had such difficulties with her charts); only she and another African-American employee had the spaces next to their names circled on a time sheet (but only they had not yet signed in and so were thought to be late); only she had to sign out for breaks (but when cross-examined, she admitted that others actually signed out as well); only she was refused overtime compensation (but although her overtime request arose from having stayed late to complete her reports, plaintiff did not dispute defendants’ evidence that overtime is simply not available to employees of the Guild and that compensatory time is available only for direct patient care, not paperwork).

Indeed, prior to having taken her final leave from the Guild, plaintiff did not complain of racial discrimination in any forum. Although her grievances made clear that she felt “harass[ed],” she never alleged that the harassment was racially motivated. Rather, her union grievances for harassment alleged violations of articles iy VII and XVII of the Collective Bargaining Agreement—pertaining to management rights over employees’ job responsibilities, procedures for disciplining employees and vacation rights—not article V, which specifically prohibits discrimination, including racial discrimination. Nor did her resignation letter—thanking the Guild for “the opportunity to serve, utilize my talents, and grow both professionally and personally”—give any hint that she had ever been, or believed she had been, subjected to discrimination based on her race.

To be sure, discrimination, when it occurs, is a serious evil to be dealt with seriously. But mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws “become a general civility code” (Faragher v City of Boca Raton, 524 US 775, 788 [1998] [citation and internal quotation marks omitted]; see also Gorley v Metro-North Commuter R.R., 2000 WL 1876909, *7, 2000 US Dist LEXIS 18427, *25-26 [SD NY, Dec. 22, 2000] [“Even if (plaintiffs supervisor) did harbor personal animosity against plaintiff . . . Title VII provides relief only for racial discrimination, not fickleness”], affd 29 Fed Appx 764 [2d Cir 2002]; Gibson v Brown, 1999 WL 1129052, *12, 1999 US Dist LEXIS 18555, *34 [ED NY, Oct. 19, 1999] [“Personal animosity is not the equivalent of . . . discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a . . . discrimination case by accusation” (citations omitted)], affd 242 F3d 365 [table; text at 2000 WL 1843914, 2000 US App LEXIS 33119 (2d Cir 2000)]; Padob v Entex Info. Serv., 960 F Supp 806, 813 [SD NY 1997] [“It might be just as likely that Plaintiff was excluded because of her acknowledged personality conflict with (her supervisor)— but such behavior is not prohibited by (antidiscrimination laws)”]).⁸

B. Hostile Work Environment⁹

Even one racial epithet is inexcusable. Employers are therefore both free and well advised to adopt zero tolerance policies in the workplace. But in the absence of a single affidavit from anyone who heard the alleged epithets, or of any written report filed by plaintiff or anyone else, at any time, alleging the remarks, plaintiffs assertion that defendants used three racial slurs—in one instance asserted for the first time nearly six years after the comment was purportedly made—as a matter of law cannot establish a hostile work environment.

A racially hostile work environment exists “[w]hen 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” (Harris v Forklift Sys., Inc., 510 US 17, 21 [1993] [citations and internal quotation marks omitted]). While deplorable, the use of three epithets over a nine-year employment history does not satisfy this test.

Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. The effect on the employee’s psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive” (id. at 23). Moreover, the conduct must both have altered the conditions of the victim’s employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment—one that a reasonable person would find to be so (see id. at 21).

Of course, even a “mere[ly] offensive” (id. at 23) racial slur is reprehensible. But it is not actionable. Here, the epithets complained of did not pervade plaintiffs work environment, having allegedly occurred on three occasions over nine years. A hostile work environment requires “more than a few isolated incidents of racial enmity” (Snell v Suffolk County, 782 F2d 1094, 1103 [2d Cir 1986]). “[I]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments” (Schwapp v Town of Avon, 118 F3d 106, 110 [2d Cir 1997] [citation omitted]; see also Harris, 510 US at 21 [“mere utterance of an . . . epithet which engenders offensive feelings in an employee . . . does not sufficiently affect the conditions of employment” (citation and internal quotation marks omitted)]; Brown v Coach Stores, Inc., 163 F3d 706, 713 [2d Cir 1998] [no hostile work environment where supervisor made, on occasion, racist remarks, including one directed at the plaintiff]). Nor has plaintiff shown, or even alleged, that the egregious remarks interfered in any way with her job performance.

Moreover, the use of racial slurs and insults by a supervisor without the knowledge or acquiescence of the employer does not constitute an unlawful discriminatory practice actionable under the State Human Rights Law (see Matter of General Motors Corp., Fisher Body Div. v State Human Rights Appeal Bd., 54 NY2d 905 [1981], affg 78 AD2d 1006 [4th Dept 1980]; see also Hart v Sullivan, 55 NY2d 1011 [1982], affg 84 AD2d 865 [3d Dept 1981]). For an “employer cannot be held liable [under state law] for an employee’s discriminatory act unless the employer became a party to it by encouraging, condoning, or approving it” (Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 684, 687 [1985], quoting Matter of Totem Taxi, Inc. v New York State Human Rights Appeal Bd., 65 NY2d 300, 305 [1985]). Plaintiff has failed to offer any evidence that the Guild knew of let alone condoned or acquiesced in, the epithets. The record is devoid of proof that plaintiff ever reported any of the alleged remarks or indeed any other allegations of racial harassment to anyone at the Guild, or brought a complaint utilizing the procedures established pursuant to the Guild’s antidiscrimination policy, which is contained in the record.¹⁰

Plaintiffs arguments reflect a fundamental misapprehension of the law of summary judgment. To be sure, plaintiff has identified disputed issues of fact. But factual disputes are not enough; they must relate to material issues. Whether Dersh snatched a pad from plaintiffs hand out of sheer rudeness or because she was struck by the quality of plaintiffs notetaking is irrelevant when, as a matter of law, in neither event would a claim of racial discrimination be established. Nor do we find material whether defendants’ contemporaneous assessment of plaintiffs recordkeeping skills was justified. “The mere fact that [plaintiff] may disagree with [her] employer’s actions or think that [her] behavior was justified does not raise an inference of pretext” (Estrada v Lehman Bros., Inc., 2001 WL 43605, *5, 2001 US Dist LEXIS 288, *15 [SD NY, Jan. 18, 2001] [citations omitted]; see also Jimoh v Ernst & Young, 908 F Supp 220, 226 [SD NY 1995] [“As a matter of law, an employee’s disagreement with an employer’s business decision is insufficient to prove discriminatory conduct”]).

Similarly, a resolution of whether or not plaintiffs supervisors used racial epithets—an allegation denied by defendants— could not alter the conclusion that, even were they uttered, on this record they are insufficient to make out a hostile work environment.

III. Retaliation

Under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices (see Executive Law § 296 [7]; Administrative Code of City of NY § 8-107 [7]). In order to make out the claim, plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action.

Plaintiffs showing fails on every prong. No triable issue of fact exists that plaintiff engaged in a protected activity—that is, opposing or complaining about unlawful discrimination¹¹ —or, a fortiori, that the Guild was aware of any such complaint. Although plaintiff filed numerous grievances claiming generalized “harassment,” she never alleged that she was discriminated against because of race, or invoked the article of the Collective Bargaining Agreement prohibiting such practices.¹² Moreover, plaintiff has “failed to submit sufficient evidence from which a jury could reasonably conclude a causal connection between any protected activity [s]he engaged in and any adverse employment action” (Francis v Chemical Banking Corp., 213 F3d 626 [table; text at 2000 WL 687715, *1, 2000 US App LEXIS 11896, *3 (2d Cir 2000)], cert denied 532 US 949 [2001]), or, as with her discrimination claim, to rebut defendant’s evidence that any adverse action taken against her was justified by the legitimate, nondiscriminatory reasons already described.

Nor can plaintiff avoid summary judgment “by merely pointing to the inference of causality resulting from the sequence in time of the events” (Chojar v Levitt, 773 F Supp 645, 655 [SD NY 1991]; see also Feliciano v Alpha Sector, Inc., 2002 WL 1492139, *12, 2002 US Dist LEXIS 12631, *35 [SD NY, July 12, 2002] [“As a matter of law, (t)he mere fact that the incidents of which (a plaintiff) complains occurred after . . . grievances were filed does not create an issue of fact as to causality” (citations and internal quotation marks omitted)]).¹³

Further, because plaintiff has failed to raise a triable issue of material fact that she was either retaliated against or discriminated against because of her race, her claims that defendants aided and abetted each other in any discrimination or retaliation cannot survive (see Executive Law § 296 [6]; Administrative Code of City of NY § 8-107 [6]).

In short, we agree with the Appellate Division that, on this record, it does no favor to the litigants, or to the law, or to the rigorous enforcement of genuine discrimination claims, to deny summary judgment and allow this case to proceed to trial.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

1 . Except where noted, the facts are undisputed. They are also set out in a comprehensive writing by the Appellate Division (see Forrest v Jewish Guild for Blind, 309 AD2d 546, 547-552 [1st Dept 2003]).

2 . 29 USC § 2613 (b) provides that certification by a health care provider of the serious medical condition of an eligible employee’s family member shall be sufficient if it states the date on which the serious health condition commenced; the probable duration of the condition; the appropriate medical facts within the knowledge of the health care provider regarding the condition; and a statement that the eligible employee is needed to care for the family member and an estimate of the amount of time that such employee is so needed. The Guild’s form, which plaintiff agreed to submit, additionally requested her father’s regimen of treatment and schedule of medical visits or treatment; information from the physician concerning assistance her father might need for basic medical, hygiene or nutritional needs, safety, or transportation; and a statement from plaintiff as to the care she would be providing.

3 . The standards for recovery under the New York State Human Rights Law (see Executive Law § 296) are the same as the federal standards under title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.; see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]). Thus, “[b]ecause both the Human Rights Law and title VII address the same type of discrimination, afford victims similar forms of redress, are textually similar and ultimately employ the same standards of recovery, federal case law in this area also proves helpful to the resolution of this appeal” (Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 26 [2002] [citation omitted]). Further, the human rights provisions of the New York City Administrative Code mirror the provisions of the Executive Law and should therefore be analyzed according to the same standards.

4 . The concurrence’s statement that plaintiff alleges a reduction in pay as a result of discrimination is misleading (see concurring op at 318, 328). Plaintiffs salary did not change when her job title changed from music therapist to creative arts therapist to case manager. When she later requested a voluntary transfer to a different department, which she does not claim was discriminatory, she accepted a different job at a lower pay grade.

5 . Of course, it matters not whether the Guild’s stated reason for terminating plaintiff was a good reason, a bad reason, or a petty one. What matters is that the Guild’s stated reason for terminating plaintiff was nondiscriminatory.

6 . Plaintiffs mere assertion that defendants’ explanations were pretextual is not enough. As the concurrence notes (see concurring op at 325), “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated” (Reeves v Sanderson Plumbing Prods., Inc., 530 US 133, 148 [2000]). But plaintiffs prima facie case, combined with no evidence that the stated justification is false other than plaintiffs unsupported assertion that this is so, may not.

7 . In other instances—the shift in job titles, the assumption of management responsibilities, the consolidation of professional employees’ offices— plaintiff continues to insist without explanation that these actions, when applied to her, were racially discriminatory, even while admitting that others were subjected to identical changes and policies. Such conclusory assertions cannot rebut the evidence proffered by defendants that the actions taken were nondiscriminatory.

8 . While we agree with the conclusion reached by the Appellate Division, that Court should not have preliminarily left aside the asserted racial epithets in analyzing whether the remainder of the complained-of conduct occurred under circumstances giving rise to an inference of discrimination. All of the relevant facts and circumstances must be considered together.

9 . Plaintiff’s claim that she has suffered disparate treatment in the workplace may be shown through proof either of discriminatory employment action or that she has been subjected to a hostile work environment.

10 . Since plaintiff has failed to establish the elements of a hostile work environment claim with respect to either her state or city causes of action, we need not address the affirmative defense to such a claim against an employer— that the employer exercised reasonable care to prevent and correct promptly discriminatory conduct committed by its supervisory personnel, such as by promulgating an antidiscrimination policy with complaint procedure, and that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm (see Burlington Indus., Inc. v Ellerth, 524 US 742, 765 [1998]; Faragher v City of Boca Raton, 524 US 775, 805-808 [1998]).

11 . The concurrence states that “[flor a union member, filing grievances with the union is a protected activity” (concurring op at 327). Under the New York State and City Human Rights Laws—the only statutes under which plaintiff has brought causes of action—retaliation is actionable only when it is done because the employee has, for example, filed a complaint, testified, or assisted in any proceeding, or opposed any practices forbidden “under this article” (Executive Law § 296 [7]) or “under this chapter” (Administrative Code of City of NY § 8-107 [7]). Filing a grievance complaining of conduct other than unlawful discrimination—as plaintiff did—is simply not a protected activity subject to a retaliation claim under the statutes at issue here.

12 . Plaintiffs discrimination complaint with the New York City Commission on Human Rights was filed in September 1994, after plaintiff had begun her final leave of absence from the Guild. Plaintiff has offered no evidence that the Guild was made aware of this complaint before her alleged termination.

13 . Indeed, although plaintiff argues that the close proximity of the termination and complaints suggests that there may have been nonpermissible reasons for her firing, all of plaintiffs grievances were filed in 1992. Plaintiffs alleged termination, however, did not occur until early November 1994. And although plaintiff filed a complaint with the Commission on Human Rights in September 1994, there is no evidence that defendants had yet learned of the existence of this complaint prior to her termination.