| Stashenko v State of New York |
| 2025 NY Slip Op 50616(U) [85 Misc 3d 1265(A)] |
| Decided on April 14, 2025 |
| Supreme Court, Albany County |
| Lynch, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Stephanie
Stashenko, Plaintiff,
against The State of New York, NEW YORK DEPARTMENT OF LABOR, THOMAS NEUMANN, CLAUDIA CARUSONE, Defendants. |
This is an action under the Human Rights Law (Executive Law Article 15). Plaintiff alleges unlawful discriminatory practice relating to employment because of her gender and familial status (Exec. Law §292 (26) (a) and §296 (1) (a).[FN1]
A trial note of issue was filed and a jury trial date certain has been set for June 9, 2025.[FN2] [*2]Defendants now move for summary judgment to dismiss the complaint.[FN3]
Plaintiff has been employed by the State in the DOL's Unemployment Insurance Division ("UID"), Liability and Determination Section, since 2004. Plaintiff is a female, and she has two (2) children under the age of 18. In 2008, Plaintiff was promoted to the position of Senior Unemployment Insurance Reviewing Examiner ("SUIRE") in the UID's Fraud Unit, and since 2012, has held the SUIRE position in the UID's Appeals Unit. Plaintiff is a civil service salary grade 20.
Plaintiff claims she has been assigned to review the work of Associate Unemployment Insurance Reviewing Examiners ("AUIRE"), and the AUIRE position is a civil service salary grade 23, which ranks directly above the SUIRE position. In 2021 and 2022, Plaintiff applied for promotions to open AUIRE positions and was denied each time. Plaintiff claims the promotion denial was based on her sex and familial status (i.e., she is a single mother with two minor children at that time), since the 2021 positions [first provisional and then permanent] were given to a male candidate, and the 2022 position was given to a candidate who did not have children under the age of 18, and each successful candidate had less experience than plaintiff.
Plaintiff was born on XX XX, 1981, and was 41 years of age upon the commencement of this action on April 22, 2022.[FN5] As of the February 2024deposition date, she now has three children, age 14, 12, and 6 months.[FN6]
Plaintiff started working for NYS Department of Labor (DOL) in 2004 as an unemployment insurance reviewing examiner trainee.[FN7] In 2005, she worked as an unemployment insurance reviewing examiner.[FN8] In 2007-2008, a position opened but her boss told her not to apply because they wanted to give the job promotion (UIRE to an SUIRE) to Tom Neumann, who had been hired the same day as Plaintiff.[FN9] Plaintiff was promoted to another SUIRE position [*3]in 2008.[FN10]
Plaintiff went on maternity leave with her oldest son in 2009 and returned in 2010.[FN11] From 2012 to 2017, Plaintiff was assigned to the appeals unit and was supervised by Thomas Neumann and initially enjoyed a good relationship, but noted he had told her to be quiet, and challenged the merit of a memo she wrote without taking the time to read it.[FN12] She also noted Tom Neumann always had to be right.[FN13] Tom also made derogatory remarks like, "consider it practice for when you go to law school."[FN14] Plaintiff also knew Claudia Carusone as of 2012, without any adverse interactions at that time.[FN15]
Plaintiff acknowledged she had been told by her supervisor, Roxane Teal, she socializes too much.[FN16] She didn't trust Roxanne, because she disclosed an affair that Plaintiff had, discussed her own sex life, and complained about Tom Neumann.[FN17]
Plaintiff applied for other jobs during the period 2012 to 2017.[FN18] Plaintiff was interviewed by Nancy Gorski, Lynne Camillio, and Tom Neumannn.[FN19] John Hausler told Plaintiff she would not get the job because Nancy Gorski didn't like her.[FN20] Plaintiff was passed over for two AUIRE positions that went to Donna and Roxane.[FN21]
Plaintiff was permitted to work a reduced schedule so that she could get her kids off the bus, and Thomas Neumann had approved same in 2013.[FN22] As of 2022, Plaintiff believes she was [*4]retaliated against for having a history of a reduced work schedule.[FN23] Plaintiff claims that Thomas Neumann and Claudia Carusone ultimately held that fact that she was a parent against her.[FN24] Plaintiff went back to work full time (working remotely) at the beginning of the pandemic in March 2020.[FN25]
Plaintiff made complaints of discrimination in March 2021, September 2021, and February 2022.[FN26] In 2022, Plaintiff claims the defendants retaliated against her by moving her to a different unit to be under the supervision of Brian Romand, who had been promoted over her in 2021.[FN27]
On or before 2017, Plaintiff was seeing Leslie Carey, a therapist, for anxiety associated with her divorce proceedings, and she took medication (Alprazolam) therefore.[FN28] When she did not get the promotion in 2021, Plaintiff was suicidal.[FN29] Plaintiff suffered performance anxiety.[FN30]
From 2004 to 2023, all of Plaintiff's reviews were satisfactory. [FN31] From March 2020 to December 2020, Plaintiff did not have any adverse interactions with either Thomas Neumann or Claudia Carusone.[FN32]
In 2021, Plaintiff sought a promotion to AUIRE and Plaintiff claims she was the most qualified person for the job.[FN33] On March 12, 2021, Plaintiff was interviewed by Thomas Neumann or Claudia Carusone.[FN34] Plaintiff noted that during the interview they expressed no [*5]interest in her presentation.[FN35] Plaintiff noted Brian got the job and then testified:
"There has been a history in our office of women who have children not being treated appropriately, so specific to the interview did I have any inclination because of something that happened in the interview? No. Was that — you know, is it known that that's happened in the past in the office and could come into play? Yes." [FN36] (Emphasis added)
Plaintiff was working remotely from home, when she received a call from Claudia Carusone, who advised that the job went to Brian Romand, which Plaintiff described as follows:
"She called me on my cell phone, I was working at home, and she told me that they had decided to go with Brian, and she said something as to the effect of given the current circumstances." [FN37] (Emphasis added)
This was upsetting to Plaintiff, since Brian Romand had far less experience than her.[FN38] Plaintiff described Brian's reaction to getting the job as follows:
"When I was back in the office, he had come down to the appeals unit, and I believe I said congratulations, and he made an off-the-cuff comment about not knowing why he even — you know, he didn't expect to get the job, not even knowing why he got the job, especially considering he doesn't test well and probably wouldn't be reachable."[FN39]Plaintiff discussed this matter with Thomas Neumann or Claudia.[FN40] Plaintiff identified Thomas Neumann or Claudia Carusone as being unfair to women with children.[FN41]
Ms. Carusone was retired at the time of the deposition but had participated in the 2021 interviews of Plaintiff and Brian Romand for the AUIRE position, albeit she didn't recall the specifics of the interview.[FN43] She noted that Brian was effectively already doing the job and stated,
"So in our opinion, at that point it would have been Brian unless there was a reason to not give the job to Brian."[FN44]She also stated,
" . . . we were hoping to be able to fill an associate position so that we could give Brian that job."[FN45]
With respect to Plaintiff, the following colloquy took place:
"Q. Now, comparatively, Brian to Stephanie, what made you want to choose Brian over Stephanie for the AUIRE position that was open in January of 2021?
A. Again, he was already doing the job to our satisfaction but — I mean, I hesitate to get into this, but I guess I will have to. Also things that I had seen would make me doubt that Stephanie could do it.
Q. What did you see that made you doubt that Stephanie could do the job?
A. She spent a lot of time talking to other people, not at her desk . . . I don't want to say chase her down, but to make sure it was done on time. She's extremely thorough, Stephanie. Smart, analyzes things thoroughly, beautiful work. But I felt that having a multiple — multiple things would not work out well for Tom and I." [FN46] (Emphasis added)Ms. Carusone never expressed her doubts to Plaintiff.[FN47] She noted that Tom Neumann was her boss, and he made the decision not to promote Plaintiff.[FN48]
She recalled meeting with Plaintiff and Tom Neumann on March 12, 2021, and reviewed the audiotape thereof.[FN49]
She recalled interviewing Plaintiff for the 2022 AUIRE position, and the job went to [*6]Maria Zandri, not Plaintiff.[FN50]
Neumann asked Plaintiff to move to a different unit, and noted,
" . . . So Stephanie had gone out to coverage at my request. She was not required to, and I remember the conversation that I had when I asked if she would like to do that or be willing to do that. I had made it optional because I knew that she was interested in being promoted and had not yet been promoted, and she would be working for somebody that had been previously promoted."[FN52] (Emphasis added)He noted Plaintiff was on a "reduced schedule."[FN53] He also noted, "she had been putting her name out there as interested in advancement for some time."[FN54] He expressed concerns that Plaintiff was "not great at prioritizing", "not always receptive to feedback", and "she would spend a lot of time going from desk to desk and chatting with people."[FN55]
In January 2021, the job vacancy posting was issued for a new AIURE position.[FN56] He and Claudia Carusone conducted the interviews.[FN57] With respect to the posting, the following colloquy took place:
Q. Well, at the time that the Associate UIRE position was posted in January of 2021, did you have any anybody in mind for filling that position?
A. It's going to depend on who puts their name forward but, you know, we had a vacant position in coverage. Brian was, to a large degree, doing a lot of the duties that Donna had previously done before she retired.
MR. CULLEN: Do you mean Brian Romand.
A. Brian Roman."[FN58] (Emphasis added)
Q. Did you have any opinion as to — you know, before you conducted any interviews, did you have any opinion as to which applicant or candidate that you wanted to fill this particular position?
A. I know that Brian was already functioning in — largely in what was Donna's role. I know the strengths and weaknesses of the different candidates. I would think this would be particularly challenging for Stephanie.[FN59] (emphasis added)He did not have a specific recall of interviewing Plaintiff, albeit he remembered being hired on the same day as Plaintiff in 2004, and that she had young children.[FN60]
He and Claudia picked Brian and noted why they chose him over Plaintiff:
Q. And why did you choose Brian over Stephanie?
A. Well, again, I would love to be convinced otherwise but I am — you know, have had some concerns about Stephanie's ability to step into a higher-level role.
Q. Are those the concerns that you had discussed earlier?
A. Yeah.
Q. Are there any other concerns that you had?
A. She's — you know, she can be very difficult. to work with. She can — well, the pennies e-mail tried to say what we were trying to say. You need somebody that's going to make your job easier. Not make your job harder.[FN61]
On March 11, 2021, he announced that Brian [Romand] had been promoted on a provisional basis, since he was not on the Civil service list of three.[FN62] Same date, he noted Plaintiff left work, and stated, "she was upset that she hadn't been promoted."[FN63]
On March 12, 2021, he referenced the recorded meeting he had with Plaintiff and Claudia Carusone.[FN64] He had previously sent an e-mail advising that recording TEAMS conferences was prohibited.[FN65] He referred to the "infamous pennie's e-mail" dated April 7, 2021.[FN66]
With respect to the February 1, 2022, job interview of Plaintiff, Maria Zandri, and Melissa Bloom, he described Plaintiff's [referred to as SS] reaction to not being selected as follows:
"Notified SS and MB of MZ appointment," parenthesis, "This one SS chewed me out, " question mark, in parenthesis."[FN67] (Emphasis added)
"This one," really! From the Court's perspective such a reference to Plaintiff readily leads to an inference of animus and differential treatment.
Ms. Teal was a supervisor of Plaintiff.[FN69] She described Plaintiff as follows:
"She was very smart, very knowledgeable, and could do extremely thorough work."[FN70]
In a performance evaluation, she noted Plaintiff made and effort to cut down on her "chat times."[FN71]
She recalled a one-time incident between Plaintiff and Brian Romand, after Brian's promotion and during the period she was assigned to his supervision.[FN72] She opined why Brian was promoted, and plaintiff wasn't as follows:
Q. Did you have any opinion with regard to Brian receiving the associate UIRE position in 2021 and not Stephanie?
A. Yes.
Q. What was your opinion?
A. He was doing the job already and he had been a lot of help and he was a very good worker and very productive and he was the most knowledgeable at that time about that unit and everything that was going on in that unit.[FN73]
She noted Plaintiff had told her she was being discriminated against because she was a single mom with young children; she did not claim Tom Neumann discriminated against her.[FN74]
Ms. Bloom is a co-worker, and she was promoted to AUIRE in 2023, and had a three-year-old child at the time.[FN76] She also supported the promotion of Brian Romand in 2021 and Maria Zandri in 2022.
Ms. Zandri is a co-worker, and she was promoted to AUIRE in 2022. She does not have any children. She has not witnessed any discrimination.
He offered the following relative to the 20221 provisional AUIRE appointment:
12. On or about January 20, 2021, I learned that Ms. Miknavich's position was being posted. As there was no civil service list, the position would be offered on a provisional basis, until the civil service test was reactivated, and a reachable list was re-established.
13. I felt my work experience in the Coverage Unit made me uniquely qualified for the Associate UI Reviewing Examiner ("AUIRE") position in Coverage and therefore I applied for the position.
14. I was interviewed by Thomas Neumann and Claudia Carusone. During each interview process that I have participated in, I have not been subjected to or observed any inappropriate questioning about my personal and family life. I have also not witnessed, experienced or observed any discriminatory behavior during these interview processes.
15. The AUIRE position was offered to me, and I accepted. I was provisionally appointed to the position of AUIRE on March 18, 2021.[FN79]
He scored an 85 on the Civil Service exam, and his position was made permanent on September 30, 2021.[FN80] He didn't witness any discrimination. [FN81]
He supervised Plaintiff and acknowledged a heated interaction disagreement took place, which he was directed to put in her performance evaluation.[FN82]
In 2016 and 2021, she applied for a promotion to a SUIRE.[FN84] In 2016 she was offered the position and took it but had to give it up after 6 months to take care of her child.[FN85] Defendant Thomas Neumann told her she had to work 9 to 5 in the SUIRE position, and would not allow a reduce work schedule to accommodate her need to care for her child.[FN86] She felt pressured to withdraw from the position because Tom Neumann would not allow a reduced schedule to accommodate her child care needs.[FN87]
She described the office gossip:
Q. What was the office gossip that you referred to?
A. Just the, I guess, general gossip that Tom would promote men over women.[FN88]
She agreed, stating, Tom Neumann preferred promoting people who were not "dealing with childcare needs and juggling children."[FN89]
In 2021, she again applied for a promotion to a SUIRE, but the job was awarded to Brian Gardner, a male with three years less experience than she had.[FN90] The following colloquy took place:
Q. Were you ever given an explanation for why you were not chosen for the senior UIRE position in experienced rating in 2021?
A. Yes.
Q. What was that explanation?
A. So I had spoken with Tom Neumann about instead of working 9:00 to 5:00, working an 8:00 to 4:00 schedule, and I was told that that could not be approved.
Q. Who told you that could not be approved?
A. Tom Neumann.
Q. Did Tom tell you why the 8:00 to 4:00 could not be approved?
A. He stated the ones who are hired for those positions, they're always 9:00 to 5:00 and that was what it was.[FN91]She described a conversation with Tom Neumann in 2020 as follows:
"When we had the conversation after my interview when it was just he and I, he stated that — he asked me if I was — really wanted the job because I didn't really want to have to figure out child care and all of that and said that I wasn't able to handle it before and what was different now."[FN92]
She did not feel she was being discriminated against by being denied a reduced work schedule.[FN93]
Defendants moved for summary judgment to dismiss the complaint as a matter of law. The gist of their argument is that the record does not support a discrimination claim based on Plaintiff's gender and/or familial status.
In Zuckerman v. New York, 49 NY2d 557, 562 [1980], where the Court held,
"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form." (Internal quotations and citations omitted)." (Emphasis added)
Recognizing that summary judgment is a "drastic remedy" the "facts must be viewed in the light most favorable to the non-moving party (seeVega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]) (emphasis added). The Court's function is "not to determine credibility, but [*7]whether there exists a factual issue, or if arguably there is a genuine issue of fact" (see S. J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]); see also Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] where the Court held, "issue-finding, rather than issue-determination, is the key to the procedure" (emphasis added).
In context of a human rights complaint, the summary judgment review standard has an additional nuance (see Reichman v City of New York, 179 AD3d 1115, 1117 [2d Dept. 2020] where the Court held,
"In order to prevail on a claim of discrimination under the NYCHRL, a plaintiff must prove that unlawful discrimination was one of the motivating factors of the complained-of conduct (see Johnson v Department of Educ. of City of NY, 158 AD3d 744, 746, 73 NYS3d 196 [2018]; Melman v Montefiore Med. Ctr., 98 AD3d 107, 127, 946 NYS2d 27 [2012]). A defense motion for summary judgment in an action alleging discrimination in violation of the NYCHRL "must be analyzed under both the familiar framework of McDonnell Douglas Corp. v Green (411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 [1973]) and under the newer mixed motive framework, which imposes a lesser burden on a plaintiff opposing such a motion'" (Sanderson-Burgess v City of New York, 173 AD3d at 1235, quoting Persaud v Walgreens Co., 161 AD3d 1019, 1020, 76 N.Y.S.3d 613; see Hamburg v New York Univ. Sch. of Medicine, 155 AD3d 66, 72-73, 62 N.Y.S.3d 26). " Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find [the] defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof'" (Sanderson-Burgess v City of New York, 173 AD3d at 1235, quoting Persaud v Walgreens Co., 161 AD3d at 1020)." (Emphasis added)
(See also, Smith v. NY & Presbyterian Hosp., 440 F. Supp. 3d 303, 327 [SDNY 2020], where the Court held,
"In cases that involve claims of discrimination or retaliation, courts must use "an extra measure of caution" in determining whether to grant summary judgment "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." However, "the salutary purposes of summary judgment—avoiding protracted, expensive and harassing trials—apply no less to discrimination cases." Thus, even in the context of a discrimination case, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment," and courts may grant summary judgment against "discrimination claims in cases lacking genuine issues of material fact.") (Emphasis added; citations omitted)With a measure of caution as a guide, let's review this case!
Plaintiff claims she was discriminated against based on gender and familial status. In Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 311 [2004] (hereinafter referred to as Forrest), the Court identified the elements of a discrimination claim, holding,
"A plaintiff alleging . . . discrimination in employment has the initial burden to establish a prima facie case of discrimination. 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 [*8]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. 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. 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 . . . " (id. At 305). (Internal quotations and citations omitted; emphasis added)In Forrest, the Court also held,
"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" . . . 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 plaintiff's employment [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 ["Being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of adverse employment actions"]). (Id. at 306-307)
In context of the foregoing, the Court is mindful of competing factual claims made on both sides.
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 [*9]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."[FN95] (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 (Long v. Aerotek, Inc., 202 AD3d 1216, 1222 [3d Dept. 2022]).
For the reasons more fully stated above, Defendants motion for summary judgment to dismiss the Complaint is denied.
This memorandum constitutes both the decision and order of the Court.
Dated: April 14, 2025