Barone v Emmis Communications Corp.2016 NY Slip Op 31049(U)

June 7, 2016Supreme Court, New York County

Docket Number: 155032/12Judge: Shlomo S. Hagler

Cases posted with a "30000" identifier, i.e., 2013 NY SlipOp 30001(U), are republished from various state and

local government websites. These include the New YorkState Unified Court System's E-Courts Service, and the

Bronx County Clerk's office.This opinion is uncorrected and not selected for official

publication.

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SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 17

-------------------------------------------------------------------------)( ANDREA BARONE,

Plaintiff,

- against -

EMMIS COMMUNICATIONS CORPORATION and ALE)(ANDRA CAMERON,

Defendants. ------------------------------------------------------------------------)( SHLOMO S. HAGLER, J.S.C.:

Index No.: 155032112

Motion Seq. No.: 008

DECISION & ORDER

,.

Plaintiff Andrea Barone ("Barone" or "plaintiff') seeks to recover damages for alleged

gender discrimination in violation of the New York City Human Rights Law (Administrative (

Code of the City of New York [Administrative Code§ 8-101 et seq.]) ("NYCHRL") ("First

Cause of Action") and disparate treatment based on gender ("Second Cause of Action"). By

letter, dated May 12, 2015, plaintiff withdrew her claims for violation of the NYCHRL based on

hostile work environment ("Third Cause of Action") and retaliation ("Fourth Cause of Action")

(Affirmation of J. Patrick DeLince, Exhibit "A"). 1 Defendants move pursuant to CPLR 3212 for

summary judgment dismissing the complaint. Plaintiff opposes the motion. ·"

Factual Background

Defendant Emmis Communications Corporation ("Emmis") owns and operates radio and

magazine entities in the United States. Defendant Alexandra Cameron ("Cameron") is a former

Senior Vice President Market Manager at Emmis (Cameron Affidavit at ii 2) . In or about

February 2003, plaintiff began working for Emmis (Verified Complaint at~ 13). Five months

after joining the company, she was promoted to the National Sales Manager position (Verified

1See Tr. of Oral Argument, dated July 20, 2015, at 2.

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Complaint at~ 14; Barone Affidavit at~ 17). After two additional promotions, Barone was

promoted to Director of Sales (Verified Complaint at~~ 15-17; Barone Affidavit at~~ 8-11 ).

Barone was an at-will employee and Director of Sales at Emmis from February 2010 until June

30, 2011, when her employment with Emmis was terminated (Verified Complaint at~~ 17, 55;

Barone deposition at 316; Barone Affidavit at~ 4). As Director of Sales, Barone was

responsible for Emmis' radio station brands, overseeing and directing sales for the entire Emmis

New York market (Verified Complaint at~ 17). Barone reported to Cameron and had eighteen

employees who reported to her, ten of whom were managers (Barone Affidavit at~ 11; Verified

Complaint at ~ 18).

Non-party Gordon Johnson ("Johnson") was hired by Emmis in 2007 as a Group Mobile

and Digital Sales Director. Johnson voluntarily resigned on July 5, 2011 shortly after Barone's'

termination (Johnson Deposition at 24, 215).2 Johnson was Barone's former subordinate at

Emmis (Johnson deposition at 27) and her paramour (Johnson deposition at 21-24). Johnson was

previously married to Cameron.

Barone asserts that she always received satisfactory ratings on her annual performance

reviews, and was never placed on a performance improvement plan at any time during her

employment at Emmis (Barone Affidavit at~ 12). Rather, she received multiple bonuses and

awards throughout her tenure (id. at~ 13) . Barone contends that in March 2011, Emmis hired

James lntagliata, Ph.D. to become plaintiffs executive coach to groom her for an even higher

position and for the purpose of her "advancement and continued development" (id. at ~~ 15-16;

Verified Complaint at~ 23). Both Cameron and the chief executive officer of Emmis, Jeff

2Barone claims that Cameron was "instrumental in having [J]ohnson work at Emmis" (Barone Affidavit at ~ 25).

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Smulyan were previously coached by Dr. Intagliata (Verified Complaint at ~ 23 ). Barone claims

that there were never any oral or written warnings issued to her in connection with Dr.

Jntagliata's coaching, whether during her June 2011 performance review, or at any other time

(Barone Affidavit at~ 22).

Barone asserts that on June 9, 2011, at her "Performance Review: Emmis Manager

Review" she received a "good review and positive feedback" (Verified Complaint at~ 47;

Barone Affidavit at~ 53). She received an overall rating of "3" which is described as "Fully

Successful," and is defined as "good performance with individual fulfilling position requirements

overall; generates results above those expected of the position in many instances" (Barone

Affidavit, Exhibit "D").3 Plaintiff claims that during the performance review meeting, no

mention was made of negative performance is,sues; including, but not limited to, any issues with

Dina Sontag ('~Sontag"), one of plaintiffs former subordinates. Issues were also not raised

regarding Barone's taking time off, bringing her son to work, her disengagement from duties, or

her relationship with Johnson (Barone Affidavit at~ 54).

Plaintiff testified at her deposition that she and Cameron worked together at a prior

company before they joined Emmis (Barone deposition at 26). They also attended several family

events, including Barone's wedding, and went on vacations together (Barone deposition at 6 I 3-

614, 635-636, 739-740). Barone claims that prior to 20 I 1, Cameron encouraged her to date

Johnson, but that at the time, she was not interested (Barone Affidavit at~ 36). Johnson and

Cameron were married in I 999, and separated in 2004 but remained friends (Cameron Affidavit

3Cameron states in her Affidavit that she completed an annual review of Barone in April 2011 and presented such review to Barone in June 2011 (Cameron Affidavit at~ 12).

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at~ 3).4 ·.During Barone's employment at Emmis, Cameron advocated for Barone's promotion

four times and authorized yearly raises and bonuses (id. at~ 6).

Between approximately March 2010 until the end of June 2011, when Barone was

·,

terminated, Johnson reported directly to Barone (Cameron Affidavit at~ 4). In or around April

2011, Barone began to date Johnson, and allegedly informed Cameron of such (Barone Affidavit

at 37). 5 Barone claims that commencing that April, Cameron "began saying inappropriate and

negative things of a personal nature" to her and during meetings "would demonstratively disagree

with [her] in front of other managers, which had not [been] her habit in the past" (id. at~ 40,'43;

Barone deposition at 230-238). Plaintiff contends that in May 2011, Cameron ceased speaking to

her, and in addition "began to nitpick [her] work" (Barone Affidavit at~~ 44-45; Barone

deposition at 234).

According to Barone, in May 2011, Johnson began reporting to Lin Dai, vice president of

digital programming and entertainment at Emmis.6 Plaintiff claims that the decision to place

Johnson under the supervision of another manager was made between Cameron and Barone, with

the assistance of Human Resources, in light of the fact that Barone and Johnson were dating

(Barone Affidavit at~ 38; Verified Complaint at~ 27).

4Cameron and Johnson remained legally married until their divorce in January 2015 (Cameron Affidavit at~ 3)

5Cameron claims that Barone told her in April 2011 that Barone and Johnson had been seeing each other for "some time'', "although [Barone] did not disclose for how long" (Cameron Affidavit at~ 13).

6 Johnson testified that he began reporting to Lin Dai in March 2011 (Johnson Deposition at 27) while Cameron attests that Johnson continued to report to Cameron until June 23, 2011 (Cameron Affidavit at~ 19; See Cameron Affidavit, Exhibit "I" [emails dated June 23, 201 l regarding change ofreporting structure and the naming of Johnson as Group Manager, Digital Planning]).

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Defendants claim that while Barone was recognized as a talented salesperson at Emmis,

once she became Director of Sales, several interpersonal challenges began to arise, namely, that

Barone's subordinates complained to Cameron about Barone's management style, which they

described as "punitive" and "retaliatory" (Cameron Affidavit at ,-i 8). In or about January 2011,

one such subordinate, Sontag, commenced suit against Emmis and Barone for, among other

things, discrimination and retaliation under the New York State Human Rights Law, and the

NYCHRL (id. at ,-i 9; id., Exhib~t "C"). Another sales associate wrote a formal complaint to

Cameron and human resources regarding Barone's management style (id. at ,-i 9; id., Exhibit

"D").

Defendants contend that in February 2011, in response to complaints about Barone and at

Cameron's urging, Emmis retained a management coach, Dr. James Intagliata, to "address her

[Barone's] shortcomings" (id. at ,-i 10). Cameron claims that she "counseled [B]arone on several

occasions about her management difficulties to help her both be and appear more open and

approachable" (id. at ,-i 11 ).7 During her annual review in April 2011, Barone's management

deficiencies were noted, and although she received an overall rating of "3" denoting 'Fully

Successful', she receiving less than 'Fully Successful ratings' in three out of six categories:

developing people, culture fit, and strategic focus (id. at ,-i 12; id., Exhibit "H").

In April 2011, Cameron claims that she first learned from Barone that Barone and

Johnson were involved in a romantic relationship (id. at ,-i 13). Cameron states that she was

"shocked and hurt, not by the relationship itself, but by the fact that two people whom I had

7Cameron attaches an email, dated May 2, 2011, she sent to Barone entitled 'NY Projections' outlining one such example of Barone's managerial difficulties (Cameron Affidavit, Exhibit "G").

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considered friends had concealed the relationship from me" (id. at~ 14). Further, she was

"worried and disappointed that [Barone] did not appear to see the problem of continuing a

romantic, and what appeared to be a sexual, relationship with her subordinate" (id.).

In April 2011, Cameron and her fiance took Barone and Johnson out for Barone's

birthday and invited them to vacation with Cameron in Florida. Cameron noticed, however, that

Barone was "becoming less engaged as a manager, such as by missing meetings, sitting silently

or texting during meetings and coming in later than usual" (id. at~ 15) . Cameron claims that

Barone continued to engage in insubordinate behavior including missing her scheduled one-on­

one meetings, rescheduling her performance evaluation for a furniture delivery, and electing not

to attend an important national sales meeting which Cameron was therefore required to cover.

Barone also failed to respond to Dr. Intagliata's emails (id. at~ 20) .

On June 21, 2011, Emmis entered into a contract to sell one of its radio st-ations to Merlin

Media. On Friday, June 24, 2011,just days after Emmis announced the sale to Merlin, Barone

left with Johnson for vacation allegedly without checking with Cameron about what needed to be

done while she was to be away. According to Cameron, "Barone's lack of accountability for her

job was unacceptable for someone at her level, and particularly at a time of instability in the

company" (id. at~~ 21-22)

Plaintiff's Termination

It is undisputed that June 24, 2011 was plaintiffs last day of work before she took a

previously scheduled vacation with Johnson (Barone Affidavit at~ 56; Cameron Affidavit at~

22). At 6:07 p.m. that day, Cameron sent an email to Barone stating "swung by your office a

number of times today .... enjoy your vacation!" (Barone Affidavit, Exhibit "K"). On Sunday,

June 26, 2011, Barone emailed Patricia Robinson, Cameron and her staff reminding them that

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she would be on vacation, but that she would be "available for emergencies by cell/email" (id.,

Exhibit "L"). On Monday, June 27, 2011 at 3:52 p.m., Cameron sent an email to Barone stating

in part:

"I was hoping we could connect before you left, particularly related to all the sensitivities around this transition so, a few things for you to be aware of...

4.) Giancarlo asked about the possibility of continuing to sell three brands for continued leverage and since Merlin will only have one station ... what are your thoughts on that?

safe travels, Alex"

(id.). Cameron claims that Barone never responded to the email (Cameron Affidavit at~ 23). On

June 28, 2011, at about 5:38 p.m., Cameron emailed Barone stating, "sorry to disturb you on your

vacation - need to chat, do you have a minute?" (id., Exhibit "M"). Cameron contends that

Barone never responded to the email, and that she called Barone on June 29, 2011 (Cameron

Affidavit at ~ 24, 25). In that conversation, Cameron states that she spoke to Barone about her

[Barone's] "disengagement and continued management issues". She also claims that she asked

Barone to take an extra paid week of vacation to "allow [Barone] to come back to work at the

same time [Cameron] did so8 [they] could work through what [Ca!11eron] saw as [Barone's]

managerial deficiencies." Cameron alleges that Barone refused such request which Cameron

considered "insubordination" (id. at~ 25).

According to Barone, in response to Cameron's June 28 email, she called Cameron who

screamed and demanded to know whether Barone was sleeping with Johnson. Cameron

8Cameron states that she told Barone that she [Cameron] was going on vacation the week following Barone was away (Cameron Affidavit at~ 25).

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threatened "maybe we don't even need a DOS in New York or maybe, I should eliminate your job

as part of the sale of WRXP" (Barone Affidavit at ii 61 ). Barone claims Cameron continued to

scream" 'You are sleeping with him, aren't you?' and stated that [Barone] was disengaged from

[her] work, which was a 'bad look' for [Barone]" (id. at ii 62). Barone states she told Cameron

that she was not disengaged from work and that she felt Cameron was treating her differently and

in an aggressive manner (id. at ii 63). Barone contends she asked to continue the conversation

with Cameron in person, when she returned to work, because she was on vacation at the time with

her son. Cameron responded, "fine," and hung up (id.).

Later that day on June 29, 2011, Barone received an email from Cameron' setting up

another phone meeting for the following day, stating "It is important that I speak with you at 9:00

am tomorrow. Please confirm that I can reach you on your cell at that time. Thanks, Alex"

(Barone Affidavit, Exhibit "M"; Cameron Affidavit, Exhibit "N"). At 9:47 p.m. that evening,

Cameron sent out another email stating "Since I have not heard back from you, we will just plan

on calling you at 9am and would appreciate you taking the call" (id.). Barone responded by email

at 10:36 p.m. stating "Apologies for the delay. Tomorrow isn't a good day/time for me, personal

reasons. I'd be glad to talk when return on Tuesday" (id.). Cameron contends that this "again

controverted [Cameron's] prior directive that [Barone] take an additional week of vacation, and

again' constituted insubordination" (Cameron Affidavit at ii 26). Cameron asserts she consulted

with Human Resources and the legal department at Emmis concerning Barone and that a

collective decision was made that Barone should be terminated immediately (id. at ii 27).

On June 30, 2011, it is undisputed that Cameron left a voice message on Barone's phone

informing Barone that she was terminated stating:

"Andrea it's Alex. I had indicated it was critical that I speak with you and I

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want to notify you about an email in your inbox. I understand that this is unfortunate timing and I apologize for that however I have made the decision that terminating your employment is in the best interest of the cluster at this time. And I hate leaving this in a voicemail but I don't want you to hear it elsewhere. As you know, we have had discussions over the past few months regarding the need [sic] improvement areas related to your performance. They are very important now particularly now [sic] considering the transition, and some of your recent actions and behaviors, as I called you about, have, heightened my concerns and led me to this decision. So, I'm happy to discuss this further with you. You can call me or we can meet when we're both back. But I did want you to get this message so that you would check your email since your refuse to speak to with me before your return. I'm sorry about this, Andrea and I do wish you the best. Bye" (Cameron Affidavit at ii 28; Barone Affidavit at ii 67, Exhibit "N").

On that same day at 10:04 p.m., Cameron sent Barone an email confirming her [Barone's]

termination, which states in part:

"Andrea, I understand that this is unfortunate timing and apologize for that. However, I've made the decision that terminating your employment is in the cluster's best interests. As you know we have had discussions over the past few months regarding the 'need improvement' areas related to your performance, which are very important, particularly now, and some of your recent actions and behavior have heightened my concerns and led me to this decision .. ·."(Cameron Affidavit at ii 29, Exhibit O; Barone Affidavit at ii 68, Exhibit "O"):

Summary Judgment

The movant has the initial burden of proving entitlement to summary judgment (Wine grad

v NY U Medical Ctr., 64 NY2d 851 [ 1985]). Once the movant has provided such proof, in order

to defend the summary judgment motion, the opposing party must show facts sufficient to require

a trial of any issue of fact (CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557

[1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d I 065 [1979]!.

Discussion

Section 8-107(l)(a) of the NYCHRL provides that "it shall be an unlawful discriminatory

practice: (a) for an employer .... because of the actual or perceived ... gender ... of any person, to

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refuse to hire or employ or to bar or to discharge from employment such person or to discriminate

against such person in compensation or in terms, conditions or privileges of employment." "A

motion for summary judgment dismissing a City Human Rights Law claim can be granted 'only if

the defendant demonstrates that it is entitled to summary judgment under both [the McDonnell

Douglas burden-shifting framework and the 'mixed-motive' framework]'" (Hudson v Merrill

Lynch & Co, Inc., 138 AD3d 511, 514 [l51 Dept. 2016] quoting Melman v Montefiore Med. Ctr.,

98 AD3d 107, 113 [l51 Dept. 2012].

The NYCHRL, as amended by the Local Civil Rights Restoration Act of 2005 (Local Law

No. 85 of City of New York [2005]) ("Restoration Act"), "explicitly requires an independent

liberal construction analysis in all circumstances ... targeted to understanding and fulfilling ...

the City HRL's 'uniquely broad and remedial' purposes, which go beyond those of counterpart

state or federal civil rights Jaws" Williams v New York City Housing Authority, 61 AD3d at 66.

See Administrative Code§ 8-130; Albunio v City of New York, 16 NY3d 472, 477-478 [2011];

Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 [l51 Dept. 2011]; Nelson v HSBC Bank USA, 87

AD3d 995, 996-997 [2d Dept. 2011]; Vig v New York Hairspray Co., L.P., 67 AD3d 140, 145 [1 51

Dept. 2009] (state law provides greater disability protection than federal law and city law provides

even broader disability protections than the state).

Under the McDonnell Douglas [McDonnell Douglas Corp. v. Green, 411 US 792]

framework as applied to employment discrimination claims made under the NYCHRL, plaintiff

has the initial burden to establish a prima facie case of discrimination by showing 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

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discrimination" (Melman v Montefiore Med. Ctr., 98 AD3d at 113). If the plaintiff makes such a

showing, the burden then shifts to the employer to rebut the presumption of discrimination by

showing a legitimate, independent, and nondiscriminatory reason to support its employment

decision (id. at 113-114). If the employer succeeds in doing so, the burden shifts back to the

plaintiff to prove "that the legitimate reasons proffered by the defendant were merely a pretext for

discrimination" (id. at 114) [internal citation omitted].

Under the mixed-motive framework, the question on summary judgment is whether there

exist triable issues of fact that discrimination was one of the motivating factors for the defendants'

conduct. "'I_'hus, under this analysis, the employer's production of evidence of a legitimate reason

for the challenged action shifts to the plaintiff the lesser burden of raising an issue as to whether

the [adverse employment] action was motivated at least in part by ... discrimination" (Hudson v

Merrill Lynch & Co, 1nc., 138 AD3d at 514-515 [P1 Dept. 2016] [internal quotation marks and

citations omitted].

Plaintiff satisfies the first three prongs of her prima facie case. As a woman, plaintiff is a

member of a protected class. She was qualified for the position she held as she received an

overall rating of "fully successful" in her position as Director of Sales. She also suffered an

adverse employment action by being terminated on June 30, 2011. With respect to the fourth

prong, the court will assume, for purposes of this motion, that plaintiff has met the "minimal

requirements of a prima facie case" giving rise to an inference of discrimination (Melman v

Montefiore Med. Ctr., 98 AD3d at 122).

The burden thus shifts back to defendants to rebut the presumption of discrimination.

Here, defendants have "articulated legitimate nondiscriminatory reasons" for terminating Barone

(Hudson v Merrill Lynch & Co, Inc., 13 8 AD3d at 515). Defendants contend that plaintiff was

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terminated for a number of factors unrelated to her gender, such as plaintiffs managerial

difficulties, and disengaged and insubordinate behavior. The Cameron Affidavit states that she

"counseled Ms. Barone on several occasions about her managerial difficulties to help her both be

and appear more open and approachable" (Cameron Affidavit at ~11,). As an example, defendants

proffer an email, dated May 2, 2011, Cameron sent to Barone entitled "NY Projections" which

includes advice to Barone on developing a "broader reputation and perception" (Cameron

Affidavit, Exhibit "G"). Barone admitted in her deposition that Cameron had spoken-with her

about trust issues (Barone deposition at 747).

In addition, defendants claim that Barone concealed her workplace relationship with

Johnson (id .. at ~~ 13-14 ), missed at least one one-on-one meeting, rescheduled her performance

review for a furniture delivery and elected not to attend a national sales meeting (id. at~ 20).

Defendants also allege that Barone went on vacation several days after Emmis announced a major

sale of one of its radio stations without checking in with Cameron "about what needed to be done

while she was out during this critical time" (id. at~ 22). Cameron claims further that Barone

demonstrated insubordination in not responding to initial emails sent to her while she was on

vacation, and refusing Cameron's request to take an additional paid week of vacation (Cameron

Affidavit at~~ 23-26).

Defendants also argue that the "same actor" defense creates a presumption against

discrimination. "[I]n cases where the hirer and firer are the same individual and the termination

of employment occurs within a relatively short time span following the hiring, a strong inference

exits that discrimination was not a determining factor for the adverse action taken by the

employer. This 'same actor inference' is more compelling where the termination occurs within a

relatively short time after the hiring" (Dickerson v Health Mgt. Corp. of Am., 21 AD3d 326, 329

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[!51 Dept. 2005] [internal quotation marks and citations omitted]). Here, Cameron is the same

individual who advocated for Barone's promotions (and yearly bonuses and raises), and who

made the decision to terminate her only fifteen months after she supported Barone's promotion to

Director of Sales (Cameron Affidavit at~ 6).

Given that defendants have articulated nondlscriminatory reasons for terminating Barone,

the burden shifts back to Barone to raise a triable issue that the proffered reasons were pretextual.

" '[I]t matters not whether the [employer's] stated reason for [the challenged action] was a good

reason, a bad reason, or a petty one. What matters is that the [employer's] stated reason for [the

action] was nondiscriminatory" (Melman v Montefiore Med. Ctr., 98 AD3d at I21 [internal

quotation marks and citation omitted]).

Barone has failed to raise an issue of fact that defendants' stated reasons for her

termination were pretextual. Most significantly, Barone's allegations that she was terminated

because of her gender is belied by the statements in her sworn Affidavit and at her deposition that

attribute her termination to Cameron's jealousy rather than to Barone's gender. Barone's

Affidavit provides:

In May 20 I I, I met with Ms. Cameron and informed her that ' .. .I [was] being treated differently as a result of informing [her] that I [was] dating Gordon .. .' and that I felt Ms. Cameron was being' ... aggressive and angry with [me] and creating a highly uncomfortable situation at work"' (Barone Affidavit at~ 48 quoting Verified Complaint at 37, 38).

Plaintiffs Affidavit further provides that Cameron responded by stating she [Cameron]

was" 'angry with Gordon', that it 'wasn't a good look for [Barone] and Barone's career to be

dating him, that 'corporate was not impressed with Gordon,' and that 'Gordon is a liar and a

womanizer"' (Barone Affidavit at iii! 48-49 quoting Verified Complaint at 39, 4I)). In her

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deposition, Barone testified as follows:

Q. Did you believe that [Ms. Cameron's treatment of you was] because you were a woman or because you were involved in a relationship with Mr. Johnson? A. I think her behavior was based [sic] because of the fact that I was dating her husband ... Q. But your view is that the [sic] - the base of the reason why she was hostile to you, to use your term, and why she ultimately had you terminated was because you were involved in a relationship with Mr. Johnson; is that correct? A. Yes (Barone deposition at 483-484).

Even if Barone was terminated due to Cameron's jealousy, the Court is unable to find a case

interpreting the NYCHRL which holds that a termination motivated by spousal9 jealousy alone,

constitutes gender or sex based discrimination. 10

Barone also relies on certain remarks made by Cameron as proof that Barone's

termination was the result of gender based discrimination. Barone states in her Affidavit that

"Ms. Cameron believed there were greater expectations placed on wom[en] in the workplace

than were placed on men in the workplace" (Barone Affidavit at i-178). Barone refers to remarks

made by Cameron in an email dated April 19, 2011 stating "everyone's got their stuff, this yours

9 Although Gordon and Cameron were still legally married in 2011 at the time of Barone's termination, they had been separated since 2004 rendering Cameron comparable to a "jealous ex."

10Cases in other jurisdictions have held that spousal jealousy alone is not sufficient to sustain a gender discrimination cause of action under state laws or federal law. See e.g. Nelson v James H. Knight DDS, P.C., 834 NW2d 64 [Iowa 2013] (The court affirmed the lower court's granting of summary judgment to defendants holding that plaintiff was terminated not because of her gender "but because of the wife's perception that the relationship between defendant and plaintiff was a threat to [defendant's] marriage" which did not constitute gender discrimination under the Iowa Civil Rights Act (Id. at 67, 81 fnt. 5); Platner v Cash & Thomas Contrs., Inc., 908 F2d 902 [11th Cir 1990] (Title VII claim dismissed where plaintiff was terminated because of an alleged sexual relationship between her and the employer's owner's son causing the owner's son's wife to be jealous, threatening their marriage).

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[sic] and it's being amplified because you are in a high profile seat and female. It's the way of

. the world ... now you just need to learn to work it within that context;-)" (Barone Affidavit at ~

79; id., Exhibit "E") . Quoting Cameron's deposition testimony, Barone states that "by Ms.

Cameron's own admission[,] she had ongoing conversations with me in which she said that

woman needed a higher level of emotional intelligence th[a]n men" (Barone Affidavit at~ 80).

Plaintiffs reliance on such stray remarks to support her allegation of gender

discrimination is unavailing. "(S]tray derogatory remarks, 'without more, [do not] constitute

evidence of discrimination" (Fruchtman v City of New York. l 29 AD3d 500, 501 [1st Dept. 2015]

quoting Melman v Montefiore Med. Ctr., 98 AD3d at 125); Hudson v Merrill Lynch & Co, Inc.,

13 8 AD3d at 51 7; Godbolt v Verizon N Y Inc., 115 AD3d 493 ,494 [1st Dept. 2014 ]). In any

event, Barone fails to "demonstrate a nexus between [Cameron's] remark and the decision to

terminate [her]" (Id.).

Plaintiffs second cause of action alleges that defendants treated her "in a disparate

manner and treated her less favorably than similarly situated males with respect to the terms and

conditions of her employment in violation of the [NYCHRL]" (Verified Complaint at~ 86).

Plaintiff argues that 'similarly situated' males who had performance problems at Emmis were

given opportunities to improve their performance, notices of termination, and severance packages

and benefits, whereas Barone was "abruptly" terminated without being afforded any of such

benefits (Verified Complaint at~~ 61--64). "No inference of discrimination arises, however,

unless [Barone] is_ able to demonstrate that a similarly situated male employee benefitted from

terms and conditions of employment that were denied to her" (Matter of Washington County v

New York State Div. of Human Rights, 7 AD3d 895, 896 (3'd Dept. 2004].

In her Verified Complaint, Barone identified six male employees, whom she claims were

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treated better than she was. 11 It is uncontroverted however that none of the alleged 'similarly

situated' males described in the Verified Complaint were Directors of Sales at the time they were

terminated. The only individual who was a Director of Sales at the time of his termination, Matt

Ross ("Ross"), was not described by Barone in the Verified Complaint as part of her primafacie

case but was first identified by Cameron in support of defendants' motion (Cameron Affidavit at

~ 39; Reply Memorandum of Law at 11 ). Ross was purportedly terminated as a result of an

inappropriate relationship with a subordinate and, like plaintiff, did not receive severance. In

any event, Mr. Ross was replaced by Cameron which further undermines, rather than supports,

Barone's claim of disparate treatment based on gender. In addition, although several of the

named male employees did receive a severance package, their terminations, unlike Barone's,

occurred under circumstances which provided for such a benefit. 12 Given that none of the male

co-workers offered as comparators were similarly situated, Barone has failed to raise an issue of

fact to support her claim of disparate treatment based on gender.

Moreover, even under the mixed-motive analysis, plaintiff has failed to proffer evidence

that gender was a motivating factor, even in part, for defendants' termination of plaintiff (See

Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 40-41 [!51 Dept. 2011]; Williams v New York City

Haus. Auth., 61 AD3d 62, 78-79, n. 27; Godbolt v Verizon NY. Inc., 115 AD3d at 494). Most

notably, plaintiff herself admitted in her sworn Affidavit and deposition testimony that she was

11The Verified Complaint does not identify such "similarly situated males by name. Such individuals were named in the motion papers.

12Emmis' Severance Pay Plan provides for severance only when termination ofregular employment is due to a staff reduction, a corporate reorganization, or the elimination of a subject job or position (Affirmation of Jennie Woltz in Support of Defendants' Motion, Exhibit "G"). Barone was not terminated under any of these circumstances.

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tenninated not because of her gender but because she was involved in a relationship with a

subordinate (Johnson) who was the husband (although separated) of her direct supervisor,

Cameron.

Conclusion

Accordingly, it is

ORDERED, that the motion by defendants Emmis Communications and Alexandra

Cameron for summary judgment dismissing the complaint is granted; and it is further

ORDERED, that the Clerk is directed to enter judgment accordingly.

Dated: ·~\nG 11 2--0 /{.o ENTER:

/( / / J.~

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