Forrest v. Jewish Guild for the Blind

G.B. Smith, J. (concurring).

The question on this appeal is whether appellant has raised a factual issue that precludes summary judgment. While appellant has sufficiently raised triable issues of fact on her claims of disparate treatment, hostile work environment and retaliation in the first instance, respondents have met their burden of giving nonracial reasons for her treatment and appellant has not demonstrated that those reasons are pretextual. I, therefore, concur in affirming the order of the Appellate Division.

Appellant began working for defendant as a music therapist in September 1985. From 1990 to 1991, she took a leave of absence to study for a Master’s degree in urban education.

I

Two separate but related analyses are relevant on this appeal, the standard governing summary judgment and the standard governing the allegations of racial discrimination alleged by plaintiff.

“To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented” (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; see also Zuck *315 erman v City of New York, 49 NY2d 557 [1980]). Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable (Glick & Dolleck v Tri-Pac, 22 NY2d at 441 ). On a summary judgment motion, the moving party must set forth evidence that there is no factual issue and that it is entitled to summary judgment (Zuckerman v City of New York, 49 NY2d at 560-562 ). If the moving party establishes a basis for a grant of summary judgment, the opposing party must present evidence that there is a triable issue (id.).

“It is not the court’s function on a motion for summary judgment to assess credibility” (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he [or she] is ruling on a motion for summary judgment or for a directed verdict” (see Anderson v Liberty Lobby, Inc., 477 US 242, 255 [1986]).

Moreover, the facts must be viewed in the light most favorable to the nonmoving party (see Matsushita Elec. Indus. Co., Ltd. v Zenith Radio Corp., 475 US 574, 587 [1986]). For the purposes of appealing a summary judgment motion, appellant’s allegations of fact must be taken as true (see Rajcoomar v TJX Cos., Inc., 319 F Supp 2d 430 , 433 n 4 [SD NY 2004] [“The Defendant concedes that for the purposes of this motion it takes Rajcoomar’s allegation of termination as true because all evidence must be viewed in a light most favorable to a plaintiff on a motion for summary judgment”]; Catanzaro v Weiden, 140 F3d 91, 93-94 [2d Cir 1998] [“All evidence presented by the nonmoving party must be taken as true, and all inferences must be construed in a light most favorable to the nonmoving party”]). Of course, the standard for determining the outcome of the motion is whether or not there are any genuine issues of material fact in dispute (see Glick & Dolleck v Tri-Pac Export Corp., at 441). Moreover, for the purposes of review, the facts as stated by the nonmovant must be taken as true.

The second analysis relates to the showing appellant must make to support her claim of racial discrimination and to defeat summary judgment.

*316 Forrest sues under Executive Law § 296 (1) (a) 1 and Administrative Code of the City of New York § 8-107 (1) (a) 2 proscribing racial discrimination in employment in New York State and New York City. The first cause of action is for race and color discrimination in violation of Executive Law § 296. The second cause of action is for race and color discrimination in violation of Administrative Code § 8-107. The third cause of action is for retaliation in violation of Executive Law § 296 (1) (e) and (7). The fourth cause of action is for retaliation in violation of Administrative Code § 8-107 (7). The fifth cause of action is for aiding and abetting in violation of Executive Law § 296 (6). The sixth cause of action is for aiding and abetting in violation of Administrative Code § 8-107 (6). The seventh cause of action is for constructive discharge pursuant to Executive Law § 296. The eighth cause of action is for constructive discharge in violation of Administrative Code § 8-107.

These New York State and New York City laws are in accord with the federal standards under title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.; Matter of Aurecchione v New York State Div. of Human Rights, 98 NY2d 21, 25-26 [2002]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Quinn v Green Tree Credit Corp., 159 F3d 759 [2d Cir 1998]). 3 The three-step framework established by the Supreme Court in McDonnell Douglas Corp. v Green ( 411 US 792 [1973]) for cases alleging violations of title VII of the Civil Rights Act of *317 1964 is relevant here. First, the appellant employee must make a prima facie showing of racial discrimination. Second, once the appellant has satisfied her burden, defendant must articulate a clear nondiscriminatory reason for the termination or other action. Third, appellant must show that the proffered reasons are pretextual.

II

Appellant claims that she has met her burden of showing that there was racial discrimination and that there are factual issues concerning whether the proffered reason for her termination was pretextual.

Appellant, Forrest, worked as a music therapist and case manager for the Jewish Guild for the Blind. On November 2, 1994, appellant was terminated, allegedly due to failure to provide documentation of her father’s medical condition. Forrest was on a three-month approved leave of absence, without pay, in order to take care of her ailing father in Florida. The Guild requested that she provide proof of her father’s condition. Part of that proof was a form, provided by the Guild, to be completed by a physician indicating her father’s diagnosis, prognosis and a doctor’s recommendation that appellant’s father required an in-home caregiver. Appellant argues that she sent the required information on a form different from the one required by respondent.

Appellant alleges that during her employment with the Guild, she was subjected to several racially motivated statements and conduct directed at her by her supervisors. Specifically, appellant alleges that on or about October 19, 1992, Eugenia Adlivankina, appellant’s immediate supervisor, told her that Goldie Dersh, who was the program director in the Continuing Day Treatment Program, called appellant “an uppity nigger.” The assertion that Dersh made this statement was allegedly repeated to her by another employee, Dr. Dov Rappaport. Appellant alleges further that on or about October 26, 1992, at a staff meeting, Dersh stated, “Why is it necessary to stroke Blacks to get them to work?” The third comment, reportedly made to White staff members by Adlivankina “on at least four occasions” on the same day was that staff members should refer to Forrest as “our Black American Princess.” Appellant claims that she filed grievances on two of these incidents, although on the advice of her union representative, the grievances were filed in general terms.

*318 Appellant further asserts that she was required to perform the duties of two separate titles and was not compensated for overtime while White staff did receive such compensation. She also claims that her salary was reduced, that for over a year, she was required to sign in and out to go to the bathroom and for coffee breaks while White employees did not have to do the same. Her name, along with that of another African-American, was circled and highlighted on a sign-in sheet. Appellant reports that Adlivankina later came and apologized to her for circling her name. She alleges that she requested a description of her job duties and title, things that she was entitled to under the union agreement, but was denied them by her immediate supervisor. She claims that she filed grievances with her employer, but that these grievances were met with retaliation by means of threats, disciplinary actions that were not justified and by the assignment of additional duties. She claims that the conduct of her supervisors led to psychological problems for which she underwent treatment and incurred expenses. Finally, she claims that she was forced to resign because of defendants’ actions.

Appellant filed five grievances with her union, Local 1199. The first, dated July 9, 1992, was filed to grieve “harassment of Paula Forrest in violation of contract and article iy Section 1 and [article] XVII” of the Collective Bargaining Agreement (CBA). 4 The complaint was denied. On July 22, 1992, appellant filed a second complaint for harassment in violation of article IV section 1 and article XVII of the CBA. This complaint was never heard. On October 8, 1992, appellant filed a grievance for violations of the Collective Bargaining Agreement including article XXI, section 13 and article IV section l. 5 On November 11, 1992, Carol Handfus denied the grievance of October 8, 1992 with a lengthy explanation concerning job classifications and job duties. 6 This complaint was sent to arbitration on December 9, 1992.

*319 The fourth complaint was filed on November 19, 1992, grieving the “verbal warning of 11/3/92 and the written warning of 11/13/92 concerning job perform[ance]” and “in violation of the CBA including Article IV Section 2.” 7 This grievance was sent to the personnel director. The final grievance was filed on December 4, 1992 for harassment and “abus[e of] power and authority in a capricious manner without just cause.” The grievance alleges violations of article IV section 1 and article VII, section l. 8 The grievance was denied.

On November 4, 1992, appellant sent a letter to a supervisor, Handfus, concerning “Bias Treatment in CDTP/Soc[ial] Serv[ices]/Harassment.” This letter dealt specifically with choice of lunch time, and whether or not appellant was being treated differently based upon job title. Appellant transferred from the Continuing Day Treatment Program to the Day Treatment Program on January 8, 1993. Effective January 18, 1993, appellant assumed the job title of teaching specialist.

A settlement agreement, dated February 22, 1994, purportedly resolved “all allegedly outstanding grievances and the pending arbitration case arising out of or in connection with the Employee’s former employment in CDTR” The settlement agreement addressed an increase in job classification, increase in pay, disciplinary written warnings, appellant’s new job title of teacher/human services professional in the Day Treatment Program, and withdrawal by the union of a pending arbitration case.

Respondents offer evidence rebutting appellant’s claims, including that the racially offensive statements were never made. Further, respondents allege that Forrest was terminated as a result of her failure to provide the necessary documentation for her extended leave of absence. Respondents also assert *320 that appellant’s work was inadequate and that she failed to comply with recordkeeping requirements. In addition, respondents argue that Forrest resigned before she was terminated. Respondents also state that appellant was not in Florida at the time she stated she was but she had traveled to Hawaii to visit her brother. Finally, respondents argue that the Guild has a nondiscrimination policy with respect to race and other matters.

Ill

Appellant commenced an action against respondents in 1998 in Supreme Court, New York County. In August 2002, Supreme Court denied defendants’ motion for summary judgment. After referring to the factual allegations made by appellant, that court stated:

“Plaintiff has raised a prima facie case of discrimination. The allegations raised by plaintiff, when analyzed in a light most favorable to plaintiff, may permit a trier of fact to conclude that plaintiff was forced to work in a hostile work environment as a result of her race. In addition to claims of egregiously inappropriate statements made by the individual defendants and humiliation suffered during staff meetings, she alleges that she was transferred to other positions and given additional duties and responsibilities not assigned to other employees who are not African-American.

“The court cannot conclude that, when all the circumstances and individual acts are considered, the allegations do not constitute racial discrimination as a matter of law. Whether or not the explanations offered by defendants for transferring plaintiff to different departments and changing her responsibilities are pretextual also cannot be determined as a matter of law, especially when considered in conjunction with plaintiffs claims of persistent humiliation and hostility toward her. Upon this record, a trier of fact may conclude that the defendants’ explanations for some of their actions are unpersuasive and that discrimination has occurred.”

In October 2003, the Appellate Division reversed and granted defendants’ summary judgment motion, finding that appellant had not shown that defendants’ conduct toward her was racially *321 biased, or that the nondiscriminatory reasons for terminating appellant were pretextual. The Appellate Division decision stated the following:

“Certainly, the allegations of the complaint describe egregious conduct. However, on such a summary judgment motion, once the defendants have made a showing establishing a right to dismissal, the plaintiffs burden in opposing the motion requires more than allegations that, if proven, establish conduct of which we disapprove. The plaintiff must offer evidentiary support not only to establish a prima facie case, but also evidence creating a material dispute of fact as to the showing made by the defendants. . . .

“Here, the submitted documentation satisfies defendants’ burden on a summary judgment motion of establishing their entitlement to dismissal of the complaint. They have established a legitimate and nondiscriminatory basis for almost all of the conduct of which plaintiff complains, leaving a remainder of claims that cannot alone serve as the basis for a claim of employment discrimination.

“Specifically, when we cull through plaintiffs claims in light of the evidentiary submissions, it becomes apparent that, as defendants point out, many of plaintiffs allegations are unsupported by, or actually disproved by, evidentiary materials, and that the conduct alleged to constitute discriminatory disparate treatment of plaintiff was based upon legitimate and nondiscriminatory reasons, unrelated to any racial animus. In response, plaintiff offers nothing tending to show that the proffered nondiscriminatory explanations are pretextual. All that then remains of plaintiff’s claims are the hotly disputed allegations of racial epithets, which are simply insufficient by themselves to support her claim of race discrimination. Ultimately, plaintiff has failed to provide sufficient support to create a question of fact as to whether her termination, or any adverse treatment of her during her employment, ‘occurred under circumstances giving rise to an inference of . . . discrimination’ ” ( 309 AD2d 546 , 553-554 [2002] [citations omitted]).

*322 This Court granted appellant leave to appeal.

IV

It is not often that an employer will use overt methods to discriminate (see Matter of Holland v Edwards, 307 NY 38, 45 [1954] [“Far more likely is it that he will pursue his discriminatory practices in ways that are devious, by methods subtle and elusive—for we deal with an area in which ‘subtleties of conduct . . . play no small part’ ”], quoting National Labor Relations Bd. v Express Pub. Co., 312 US 426, 437 [1941]; National Org. for Women v State Div. of Human Rights, 34 NY2d 416, 420 [1974] [“(I)Ilegal discrimination will not be announced in public but will usually be effected by ‘subtle’ and ‘elusive’ means”]). Further, employers who discriminate are not likely to do so in an “open, plainly-appearing fashion” (see Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28, 40 [1975] ). 9 “Instead, there is likely to be covert resort to subtle tactics and the pretext of intermingled motives and reasons to obscure the substantial cause” (see id.).

Appellant’s allegations of discriminatory treatment fall into several categories. Each category will be discussed.

DISPARATE TREATMENT

Prima Facie Case of Racial Discrimination

Disparate treatment is the treatment of persons in a manner less favorable than others because of their race. (International Bhd. of Teamsters v United States, 431 US 324 , 335 n 15 [1977]; see also Raytheon Co. v Hernandez, 540 US 44, 52-53 [2003].) 10 “ ‘Disparate treatment’ ... is the most easily understood type *323 of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin. Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment” (International Bhd. of Teamsters v United States, 431 US at 335 n 15).

Disparate treatment applies to complaints about acts of discrimination against an individual brought under title VII of the Civil Rights Act of 1964 (78 US Stat 253 as amended, codified at 42 USC § 2000e et seq.).

In order to establish at trial a claim of disparate treatment in employment based upon race, a prima facie showing of racial discrimination must be made (see McDonnell Douglas Corp. v Green, 411 US 792, 802-804 [1973]). 11 According to Ferrante , in order to establish a prima facie case of racial discrimination, ap *324 pellant has “the initial burden [of] prov[ing] by a preponderance of the evidence a prima facie case of discrimination” ( 90 NY2d at 629 ; see also St. Mary’s Honor Ctr. v Hicks, 509 US 502, 506 [1993]; Texas Dept. of Community Affairs v Burdine, 450 US 248, 252-254 [1981]; McDonnell Douglas, 411 US at 802 ). The following elements must be proven: (1) the complainant is a member of a class protected by the statute; (2) the complainant was actively or constructively discharged; (3) the complainant was qualified to hold the position from which she was terminated; (4) and the discharge occurred under circumstances giving rise to an inference of race discrimination.

Because Forrest is an African-American female, she is a member of a protected class. She resigned from her position, by letter effective October 22, 1994, but before the Guild received her letter, the Guild fired her, effective August 5, 1994, in a letter dated November 2, 1994. The resignation letter was marked by the Guild and received on November 4, 1994. In any event, the Guild states that it was not aware of the letter of resignation when the letter of termination was drafted and mailed. For the purposes of this motion for summary judgment, it must be assumed that Forrest was terminated. Accordingly, appellant meets criteria one and two of Ferrante .

There is no dispute that Forrest was qualified for the position as evidenced by her credentials and tenure on the job. She was a professional music therapist with graduate degrees in music therapy and urban education. Appellant argues that she was discharged after filing several grievances and a little more than two months after filing a complaint with the New York City Commission on Human Rights for race and color discrimination in September 1994. 12 Thus, taken together, the racial epithets and assertions of disparate treatment are sufficient to establish a prima facie case of racial discrimination.

*325 Burden Shifts to Employer

Once appellant has established a prima facie case of racial discrimination, the burden 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” (see Ferrante, 90 NY2d at 629 ; Burdine, 450 US at 257-258 ; Hicks, 509 US at 507 ). The employer in this instance states that the reason for the termination was Forrest’s failure to complete the “Certification of Physician or Practitioner” form. Defendants assert that several requests were made to secure the documentation but appellant was unresponsive. Thus, defendants have put forward a nonracial reason for appellant’s termination.

Evidence That Respondents’ Claims Are Pretextual

On February 1, 1994, appellant filed a complaint with the New York State Division of Human Rights complaining that her grievances were not being taken seriously by the union. Forrest filed a complaint with the EEOC for racial discrimination just three months before the Guild fired her. The close proximity of the termination and complaints arguably suggests that there may have been nonpermissible reasons for her firing (see Reeves v Sanderson Plumbing Prods., Inc., 530 US 133, 148 [2000] [“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”]). However, in contending that the defendants’ reasons are pretextual, appellant must lay bare her proof on this motion for summary judgment.

Appellant must have a “full and fair opportunity” to demonstrate that the employer’s reason for termination is pretextual and that the real reason for termination was racially based (see Burdine, 450 US at 256 ; Ferrante, 90 NY2d at 629-630 ; McDonnell Douglas, 411 US at 805 [complainant may show that employer’s presumptively valid reasons for termination were a cover-up for racial discrimination]). Appellant contends that the employer used the failure to file the certification form as a pretext for racial discrimination (see Matter of State Div. of Human Rights v County of Onondaga Sheriff’s Dept., 71 NY2d 623, 632 [1988] [employer’s reasons for termination gave rise to an inference of discrimination]; Matter of Imperial Diner v State *326 Human Rights Appeal Bd., 52 NY2d 72, 78 [1980] 13 [anti-semitic statements made by employer to employee could give rise to constructive discriminatory discharge]).

Direct and Circumstantial Evidence in a Mixed Motive Case

A person alleging racial or other discrimination does not have to prove discrimination by direct evidence. It is sufficient if he or she proves the case by circumstantial evidence (Desert Palace, Inc. v Costa, 539 US 90 [2003]). Here, appellant could prove her case even if there were mixed motives for her firing, that is a legitimate and an illegitimate reason (id. at 99-102).

RACIALLY HOSTILE WORK ENVIRONMENT

An employee has a right under title VII of the Civil Rights Act of 1964 “to work in an environment free from discriminatory intimidation, ridicule, and insult” (Meritor Sav. Bank, FSB v Vinson, All US 57, 65 [1986]). “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include 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” (Harris v Forklift Sys., Inc., 510 US 17, 23 [1993]). The evidence is judged by the totality of the circumstances test (see id.; Williams v County of Westchester, 171 F3d 98, 100 [2d Cir 1999]; Dooner v Keefe, Bruyette & Woods, Inc., 157 F Supp 2d 265, 281 [SD NY 2001] [“(T)he Plaintiff must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of her working environment”], quoting Cruz v Coach Stores, Inc., 202 F3d 560, *327 570 [2d Cir 2000]; accord Whidbee v Garzarelli Food Specialties, Inc., 223 F3d 62, 69 [2d Cir 2000]). “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiffs position considering ‘all the circumstances’ ” (Oncale v Sundowner Offshore Servs., Inc., 523 US 75, 81 [1998]; Harris v Forklift, 510 US at 23 ). Thus, plaintiff does not have to prove an intent to discriminate.

Addressing only the racial epithets, appellant should be entitled to show that such statements interfered with Forrest’s work environment (see Schwapp v Town of Avon, 118 F3d 106, 110 [2d Cir 1997] [opprobrious racial comments were evidence enough to deny summary judgment motion]). If White staff were encouraged to call appellant “our Black American Princess,” on several occasions, and/or she was perceived to be or stated to be “an uppity nigger,” and/or appellant and other African-Americans were perceived as lazy people requiring stroking in order to work, appellant has alleged enough to withstand summary judgment.

RETALIATION

In order to make a prima facie showing of retaliation, Forrest must show: (1) participation in a protected activity known to defendant; (2) an adverse employment action; and (3) a causal connection between the protected activity and the adverse employment action (see Francis v Chemical Banking Corp., 62 F Supp 2d 948, 961 [ED NY 1999]). Forrest filed several grievances with the union and with personnel director, Carol Handfus. For a union member, filing grievances with the union is a protected activity (see Vara v Mineta, 2004 WL 2002932 , *13-14, 2004 US Dist LEXIS 17961 , *41-46 [SD NY, Sept. 7, 2004]; Feingold v New York, 366 F3d 138, 156 [2d Cir 2004]). Filing complaints with the EEOC and Human Rights Commission are also protected activities (id.). Defendants’ knowledge of appellant’s assertions is evidenced by the signatures of Carol Handfus and Dersh on the grievance letters and the meetings on the grievances.

Adverse actions are those which affect the “terms, privileges, duration, or conditions of the plaintiffs employment” (see Dortz v City of New York, 904 F Supp 127, 156 [SD NY 1995] [citation omitted]). Forrest claims that after filing grievances, her job title, office space, vacation requests, and job duties were adversely affected. Appellant alleges that she was demoted from music therapist to creative arts therapist, case manager and/or *328 that she was required to perform the duties of both the creative arts therapist and case manager. Appellant filed a grievance concerning the increase in job duties without any commensurate increase in pay. Further, appellant claims that she suffered a reduction in pay of approximately $2,500 as a result of her grievances.

Appellant claims retaliation by changing the conditions of her employment (e.g., change of her lunch hour, and constant complaints about her written work product). Appellant in a letter to Handfus complained about the denial of her previous lunch hour, and made a request for clarification concerning what if any changes had been made which would cause her to have a different lunch hour than prior to November 1992.

Respondent claims that any changes in job title and duties were the result of a state-mandated restructuring which occurred in 1991. Because of the restructuring, the employees with titles of music therapist were allegedly changed to creative arts therapist and later case manager. What restructuring was required is not shown in this record. However, even with the restructuring, many of the complaints of appellant to her supervisor came much later in 1992 and concerned the change in matters of benefits, not just job title. Further, appellant consistently stated that her credentials were superior to the new job duties, and that the new job was not the job she accepted with the Guild.

Whether or not these changes occurred as a result of the grievances filed by appellant would arguably be a question of fact for the jury. Further, whether or not appellant was terminated as a result of her grievances and for filing a complaint in September 1994 with the EEOC and New York City Human Rights Commission would also arguably be questions for the jury.

CLAIMS OF AIDING AND ABETTING RACIAL DISCRIMINATION

Appellant asserts that Handfus, Dersh, Adlivankina, and Finocchiaro aided and abetted the racial discrimination in employment against her. Appellant points to Executive Law § 296 (6) and Administrative Code § 8-107 (6) which both proscribe aiding and abetting in unlawful discrimination. The standard for proving aiding and abetting is that the defendants “actually participate^]” in the alleged discriminatory acts (see Dunson v Tri-Maintenance & Contrs., Inc., 171 F Supp 2d 103, 114 [ED *329 NY 2001] [finding of actual participation in firing]). The person alleged to have engaged in the discrimination does not have to have power to hire and fire, just “direct participation” in the discrimination (see id.).

Appellant claims that the Guild failed to act on her numerous grievances, and failed to remedy the problems of harassment. While there are no grievances explicitly stating racial harassment, appellant alleges that this was due to the advice and guidance of her union representative and there is a grievance for “harassment” and “special treatment” and for “a standard only being applied to me.”

Appellant has made out a prima facie case of racial discrimination. What is lacking in the record and in appellant’s presentation is an adequate showing that respondents’ claims are pretextual. The Appellate Division considered each of appellant’s claims and concluded that the respondents had met their burden of showing legitimate reasons for their actions. In response to respondents’ assertions, plaintiff had to lay bare her proof that these claims were pretextual.

There are several reasons why appellant’s responses on pretext are inadequate. First, appellant does not rebut respondents’ claims that some of their administrative moves were mandated by the State. A proper response would have been to show that there was no mandated state policy or that respondents did not address that policy in their actions involving appellant. Second, appellant does not adequately address the allegedly comprehensive settlement agreement of February 1994 and show that the settlement included racial matters or, if it did not, why not. Third, appellant does not address why she did not respond to the communications sent to her in Florida in the manner requested, specifically why she did not obtain from her father’s doctor the specific information sought. Finally, appellant does not present adequate medical evidence that her psychological treatment was related to the racial hostility of the defendants. In sum, appellant has not demonstrated that the respondents’ reasons for their various actions toward her were pretextual and that the real motivating factor was racial.

If appellant had met her burden of demonstrating that the respondents’ claims were pretextual, a jury should determine whether appellant’s evidence supported her claims of discrimination based on race. Thus, she would be entitled to present evidence of whether the racial epithets, combined with the alleged *330 actions toward her, were enough to alter her job conditions and work and even resulted in a constructive discharge (see Matter of Imperial Diner v State Human Rights Appeal Bd., 52 NY2d 72 [1980], supra; Matter of Pace Coll. v Commission on Human Rights of City of N.Y., 38 NY2d 28 [1975], supra). Similarly, whether or not the conduct towards her was the result of grievances filed and whether her termination resulted from her grievances and her filing a complaint in September 1994 with the EEOC and the New York City Human Rights Commission would be questions for a jury.

Because respondents have offered nonracial reasons for their actions and because appellant did not lay bare her proof and show that the respondents’ claims were pretextual, I concur in the affirmance of the order of the Appellate Division.

Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur with Chief Judge Kaye; Judge G.B. Smith concurs in result in a separate opinion.

Order affirmed, with costs.

. Human Rights Law (Executive Law) § 296 (1) (a) states: “It shall be an unlawful discriminatory practice . . . [f]or an employer or licensing agency, because of the age, race, creed, color, national origin, sex, disability, genetic predisposition or carrier status, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

. Administrative Code § 8-107 states:

“Unlawful discriminatory practices.

“1. Employment. It shall be an unlawful discriminatory practice:

“(a) For an employer or an employee or agent thereof, because of the actual, or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to 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.”

. Plaintiff in Ferrante raised a triable issue of fact that he had been fired because of age discrimination. Specifically, plaintiff demonstrated that defendant’s reasons for terminating him could be pretextual for age discrimination.

. Article IY section 1 pertains to management rights and article XVII addresses vacation schedules.

. Article XXI, section 13 pertains to job classification.

. Letter to Thomas Winter from Carol Handfus in pertinent part—

“In light of the foregoing, I have concluded that the addition of case management functions to the Grievant’s job content does not justify a new classification nor prompt the need to negotiate an upgrade in compensation. And, while your argument that in job evaluation the whole can be greater that [szc] the sum of its parts is an interesting one, I take the traditional position that *319 salary upgrades are usually not warranted where an employee is asked to perform additional job duties that are of the same type as those being performed by other staff members, in a job classification that is in the same labor grade as that of the employee. This argument is particularly relevant when, as in this case, the new duties in question do not represent those that require the highest skill and attainment levels required by the other classification.

“For all of the foregoing reasons, I am denying this grievance and the remedies proposed by the Union.”

. Article W section 2 addresses client care and the participation of employees in the process of client care.

. Article VII, section 1 refers to discharge and penalties.

. Complainant filed a claim of gender discrimination and failure to promote against the former Pace College, now Pace University. The New York City Commission on Human Rights found that Pace discriminated against women faculty generally and complainant, Dr. Winsey, in particular. The Appellate Term set aside the decision, and Appellate Division affirmed for lack of sufficient evidence. The Court of Appeals determined that there was not enough evidence to determine that there was a pattern of discrimination but that there was enough to find that Pace had discriminated against Dr. Winsey.

. After 25 years of employment as a product test specialist with Hughes

Missile Systems, later Raytheon Company, complainant in Raytheon was forced to resign because of workplace misconduct. He tested positive for cocaine while at work. Two years later, he reapplied for his job but his application was denied. He later filed a complaint with the Equal Employment Opportunity Commission (EEOC) for discrimination based on the Americans with Disabilities Act (ADA). Complainant argued that he was denied his position because of his past drug and alcohol abuse but that he was now rehabilitated. *323 Complainant put forth claims of both disparate impact and disparate treatment. The District Court rejected the disparate treatment claim and denied review of the disparate impact claim as untimely. Petitioner’s summary judgment motion was granted.

The Court of Appeals, Ninth Circuit, determined that there were triable issues of fact regarding whether complainant was denied his position because of his past record of drug addiction. The Court of Appeals then applied a disparate impact analysis to a disparate treatment claim by determining that Raytheon’s legitimate reason for firing was illegitimate as applied to recovering drug addicts. Summary judgment was vacated.

The Supreme Court determined that the Ninth Circuit erred in its analysis, and thus, set out the proper analysis for both disparate treatment and disparate impact claims. Further, after applying the proper analysis to the disparate treatment claim, the Supreme Court held that the employer had met its burden in showing a legitimate reason for failing to rehire.

. McDonnell is a seminal case in the area of disparate treatment. In this case, complainant worked for McDonnell for eight years as a mechanic and laboratory technician when he was laid off as a result of work force reduction. (See 411 US at 794 .) Complainant as part of a civil rights protest of the racially discriminatory policies of the employer, engaged in civil disobedience by blocking the main roads to petitioner’s plant preventing workers from participating in the morning shift change. (See id.) Complainant was arrested for his participation in what was referred to as the “stall-in.” (Id.) Another civil rights action took place some weeks later but it was unclear to what extent complainant participated in the second action. Subsequently, petitioner advertised for mechanics and complainant applied for re-employment but was rejected.

Upon rejection, complainant filed a complaint with the EEOC. The Commission found discrimination based upon civil rights violations but not racial discrimination. The District Court found no discrimination in hiring and no discrimination based on civil rights activities. The Court of Appeals, Eighth Circuit, reversed and determined that an EEOC claim was not a judicial determination and that the trial court could make a finding based upon racial *324 discrimination. The United States Supreme Court granted certiorari to clarify standards for a claim of racial discrimination. The Court set out the standards for proving a title VII claim for disparate treatment based upon a prima facie showing of racial discrimination. The Court was especially concerned about complainant’s opportunity to rebut petitioner’s legitimate reason for its employment determination as pretext (see id. at 806 ).

. A complaint was filed with the Commission on Human Rights in September 1994. The complaint was closed on June 30, 1997. Appellant filed an action in the Federal District Court for the Southern District of New York in July 1997 alleging discrimination raising federal, state, and New York City antidiscrimination claims. The complaint was withdrawn in October 1997.

. “As in other areas of discrimination it is unrealistic to hold that an employee can only be said to have been the victim of a discriminatory discharge when the employer has expressly fired him on the basis of race or creed or some other discriminatory ground. It is also possible, and perhaps more likely, that an employer who believes certain individuals are undesirable employees because of some discriminatory factor, will engage in conduct which encourages the employee to quit, in which case it may be said that there has been a constructive discriminatory discharge” ( 52 NY2d at 78 ).

Complainant was told by her company president that she was “Just like all the other f—ing Jewish broads around here” ( 52 NY2d at 76 ). The president then went on to say that in this diner the “f—ing Jewish women . . . think they are something special and deserve more than the others” ( 52 NY2d at 76 ). The president then refused to apologize for his comments. Complainant resigned. The Court of Appeals found that there was enough evidence to support a claim of constructive discharge.