Melman v. Montefiore Medical Center, 946 N.Y.S.2d 27 (1st Dep’t May 29, 2012): The New York Appellate Division, First Department recently held that plaintiffs bringing discrimination claims under the New York City Human Rights Law (NYCHRL) must produce evidence of actual discrimination to survive summary judgment. It was less than one year ago when the First Department’s expansive interpretation of the NYCHRL in Bennett v. Health Management Systems, Inc., 936 N.Y.S.2d 112 (1st Dep’t 2011), suggested that NYCHRL discrimination or retaliation claims could overcome summary judgment even in the absence of evidence that the employer acted unlawfully simply by showing that a non-discriminatory justification proffered by the employer is “false, misleading, or incomplete.” In Melman, the First Department applied both the McDonnell Douglas standard and the mixed-motive test and concluded that the plaintiff had not met his burden on either because he had not presented “any evidence—either direct or circumstantial—from which it could rationally be inferred that age discrimination was a motivating factor, even in part, for Montefiore’s treatment of him.” The decision explained that even under the more lenient mixed-motive test, a plaintiff must still produce some evidence of actual discrimination.

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