                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 29, 2015                    518004
________________________________

HOWARD MIRANDA,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

ESA HUDSON VALLEY, INC.,
                    Respondent.
________________________________


Calendar Date:    November 12, 2014

Before:   McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

                              __________


     Russell A. Schindler, Kingston, for appellant.

      Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Robert
Cook of counsel), for respondent.

                              __________


Egan Jr., J.

      Appeal from an order of the Supreme Court (Gilpatric, J.),
entered February 7, 2013 in Ulster County, which, among other
things, granted defendant's motion for summary judgment
dismissing the complaint.

      Plaintiff began working for defendant as an ambulette
driver in February 2009 and, after renewing his certification,
was employed by defendant as a paramedic. In addition to
providing patient care, plaintiff had certain responsibilities
relative to defendant's supply of controlled substances, which
were stored in a locker or "narcotics box" at defendant's
facility. The locker/box in question contained two locked doors;
for each shift, the emergency medical technician (hereinafter
EMT) would be assigned a key to the outer door, and his or her
paramedic partner would be assigned a key to the inner door – the
                              -2-                518004

basic premise being that no one individual would have access to
the narcotics secured therein. In addition to maintaining the
security of the controlled substances on hand, plaintiff also was
responsible for conducting an inventory thereof and logging the
controlled substances kit in and out of the locker at the
beginning and end of each shift.

      In October 2009, a fellow employee complained that
plaintiff had touched him inappropriately, in response to which
plaintiff was required to attend a sexual harassment seminar. No
further disciplinary action was taken against plaintiff as a
result of this incident. Thereafter, in December 2009, a nurse
at a local hospital filed a complaint regarding plaintiff's
allegedly abrasive behavior and, in a separate incident,
plaintiff was overheard discussing patient care issues in public
in violation of defendant's policies and the Health Insurance
Portability and Accountability Act. Again, although the
disciplinary violations were noted in plaintiff's personnel file,
no further action was taken. In January 2010, however, defendant
became aware of certain discrepancies and/or inaccuracies in the
entries made by plaintiff in defendant's controlled substances
log and daily inventory sheets. After discovering the noted
discrepancies, defendant's representatives reviewed the video
surveillance of the area where the controlled substances locker
is kept, at which time it was noted that the locker had not been
properly secured. Specifically, after plaintiff and his EMT
partner completed their assigned shift on the day in question and
placed the controlled substances kit back in the locker,
plaintiff locked the inner door with his assigned key; his EMT
partner, however, not only failed to lock the outer door, but
actually left his key in the outer door for approximately 45
minutes until he discovered his error. Citing what it believed
to be a "serious violation of company policy regarding the
security of controlled substances," defendant terminated
plaintiff's employment.

      Plaintiff thereafter commenced this action against
defendant alleging that he had been fired due to his sexual
orientation. Following joinder of issue and discovery, defendant
moved for summary judgment dismissing the complaint, and
plaintiff cross-moved to strike defendant's answer based upon the
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spoilation of evidence – specifically, certain records pertaining
to the use and possession of the controlled substances kits
during the time period at issue. Supreme Court granted
defendant's motion and denied plaintiff's cross motion, prompting
this appeal.

      We affirm. To support a prima facie case of discrimination
under the Human Rights Law (see Executive Law § 296 [1] [a]), a
plaintiff must establish: "(1) that he [or she] is a member of
the class protected by the statute; (2) that he [or she] was
actively or constructive discharged; (3) that he [or she] was
qualified to hold the position from which he [or she] was
terminated; and (4) that the discharge occurred under
circumstances giving rise to an inference of . . .
discrimination" (Ferrante v American Lung Assn., 90 NY2d 623, 629
[1997]; see DeKenipp v State of New York, 97 AD3d 1068, 1069
[2012]; Singh v State of N.Y. Off. of Real Prop. Servs., 40 AD3d
1354, 1355-1356 [2007]). Assuming that low threshold is met,
"[t]he 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"
(Ferrante v American Lung Assn., 90 NY2d at 629 [internal
quotation marks and citation omitted]; accord Horwitz v L. & J.G.
Stickley, 305 AD2d 956, 957 [2003]; see Di Mascio v General Elec.
Co., 27 AD3d 854, 855 [2006]; Moon v Clear Channel
Communications, 307 AD2d 628, 632 [2003]). If, in turn, the
employer proffers the required nondiscriminatory reasons, "the
plaintiff can avoid summary judgment by proving that the
employer's stated reasons were merely a pretext for
discrimination by demonstrating both that the stated reasons were
false and that discrimination was the real reason" (Singh v State
of N.Y. Off. of Real Prop. Servs., 40 AD3d at 1356 [internal
quotation marks and citation omitted]; see Ferrante v American
Lung Assn., 90 NY2d at 629-630; Di Mascio v General Elec. Co., 27
AD3d at 855; Sommerville v R.C.I., 257 AD2d 884, 885 [1999]).
"Notably, a challenge by a discharged employee to the correctness
of an employer's decision does not, without more, give rise to
the inference that the employee's discharge was due to . . .
discrimination" (Kelderhouse v St. Cabrini Home, 259 AD2d 938,
939 [1999]; accord Ospina v Susquehanna Anesthesia Affiliates,
                              -4-                518004

P.C., 23 AD3d 797, 799 [2005], lv denied 6 NY3d 705 [2006]).
Stated another way, "[i]t is not enough for the plaintiff to show
that the employer made an unwise business decision, or an
unnecessary personnel move. Nor is it enough to show that the
employer acted arbitrarily or with ill will. These facts, even
if demonstrated, do not necessarily show that [discrimination]
was a motivating factor. [A] [p]laintiff cannot meet his [or
her] burden of proving pretext simply by refuting or questioning
the defendant['s] articulated reason" for terminating the
plaintiff's employment (Ioele v Alden Press, 145 AD2d 29, 36
[1989] [internal quotation marks and citations omitted]).

      Here, there is no question that plaintiff is a member of a
class protected by the statute, that he was terminated from his
employment and that he was otherwise qualified – during the
relevant time period – to hold the position of a paramedic in
defendant's organization. Although we are not entirely convinced
that plaintiff was discharged under circumstances that give rise
to the inference of unlawful discrimination, we will assume for
purposes of the underlying summary judgment motion that plaintiff
established a prima facie case of discrimination based upon his
sexual orientation (cf. Ospina v Susquehanna Anesthesia
Affiliates, P.C., 23 AD3d at 798), thereby shifting the burden to
defendant.

      In this regard, the record reflects that defendant indeed
established a legitimate and nondiscriminatory basis for firing
plaintiff – namely, plaintiff's violation of defendant's
controlled substances policies and procedures. The EMT who was
working with plaintiff on the day in question conceded that he
left the outer door to the controlled substances locker unlocked
and unattended – with the key in the lock – for approximately 45
minutes, and plaintiff acknowledged at his examination before
trial that both doors of the controlled substances locker were to
be locked at all times and, further, that leaving the outer door
unlocked and unattended "wasn't something you're supposed to do."
Further, defendant's director of human resources averred – and
another of defendant's representatives testified – that, as the
paramedic, plaintiff was responsible for ensuring that both doors
were securely locked at all times. As defendant demonstrated a
nondiscriminatory reason for terminating plaintiff's employment,
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our inquiry distills to whether plaintiff, in turn, tendered
sufficient admissible proof "to show the existence of a material
issue of fact as to the falsity of the employer's asserted
reason[s] for the termination and that the discrimination was
more likely than not the real reason for such termination"
(Sommerville v R.C.I., 257 AD2d at 885; see Singh v State of N.Y.
Off. of Real Prop. Servs., 40 AD3d at 1356).

      Even assuming, as plaintiff now contends, that he was
falsely accused of entering inaccurate information on the
controlled substances log and inventory sheets and, further, that
defendant mistakenly held him accountable for ensuring that both
doors to the controlled substances locker were secured,
plaintiff's Executive Law claim survives only if he can
demonstrate that the stated basis for his termination "was
designed to mask . . . discrimination" (Sommerville v R.C.I., 257
AD2d at 885). This he failed to do. Plaintiff testified that,
as early as July 2009, he notified his superiors that some of his
coworkers were making inappropriate sexual comments in the
workplace (not necessarily directed at him); in the course of
doing so, plaintiff advised certain of his superiors that he was
gay. Plaintiff further acknowledged that defendant did not take
any adverse action against him due to his sexual orientation
prior to October 2009. Although plaintiff contends that, from
that point on, he was on a "hit list," the fact remains that
plaintiff was the subject of disciplinary complaints in October
2009 and December 2009 and, yet, remained employed because
defendant concluded that such incidents "did not warrant taking
any further disciplinary action against [plaintiff]." The fact
that defendant refrained from terminating plaintiff's employment
based upon these earlier – and comparatively minor – disciplinary
infractions militates against a finding that discrimination was
the real reason behind plaintiff's termination from his
employment in January 2010. As defendant's director of human
resources succinctly stated, "If we wanted to terminate
[plaintiff] due to his sexual orientation, clearly we [c]ould
have done so when we received the employee complaint of
[inappropriate touching]" in October 2009. Accordingly, we are
satisfied that defendant demonstrated its entitlement to summary
judgment dismissing the complaint. Plaintiff's remaining
contentions, including his assertion that Supreme Court abused
                              -6-                  518004

its discretion in denying his cross motion to strike defendant's
answer, have been examined and found to be lacking in merit.

     McCarthy, J.P., Devine and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
