A former associate at Goldberg, Weprin, Finkel, Goldstein who claims she was fired for complaining about inappropriate treatment while pregnant and after taking maternity leave can proceed with a lawsuit, a unanimous state appeals panel has ruled.
The Appellate Division, First Department, found that the suit was not barred by a federal court’s dismissal of her separate Family and Medical Leave Act (FLMA) suit.
Justice Rosalyn Richter (See Profile) wrote the opinion in Kim v. Goldberg Weprin, 153013/12, which was handed down Tuesday, and was joined by Justices Luis Gonzalez (See Profile), David Friedman (See Profile), Dianne Renwick (See Profile) and Helen Freedman (See Profile).
The plaintiff, Ji Sun Jennifer Kim, joined Goldberg Weprin, a Manhattan-based firm of about 30 attorneys, in January 2008 as an associate in its tax certiorari department.
A year later, she told the firm she was pregnant. She first complained of mistreatment in June 2009, when a partner, Iris Albstein, reprimanded her for allegedly reading a book during work hours. Kim said Albstein, whose brother is the firm’s managing partner, Andrew Albstein, stood close to her and screamed at her, and Kim feared she might be hit.
Kim emailed two partners, Arnold Mazel and Barry Zweigbaum, about the incident. She told them that two male attorneys were talking about baseball and reading a newspaper but were not reprimanded, and suggested that she was treated differently because of her pregnancy. Andrew Albstein responded to the email, reiterating that reading at work was inappropriate. Kim also said Mazel told her she made matters worse by complaining.
In September 2009, Kim took 12 weeks of maternity leave and claimed the inappropriate treatment continued when she returned. Kim, who was breast-feeding her baby and was expressing breast milk at the office, alleged that she heard Zweigbaum tell another attorney that “breast feeding is for cows” in her earshot. The firm said in its summary judgment brief in the federal case that Zweigbaum’s comment had nothing to do with Kim, and that he was merely relaying his wife’s opinion, not his own.
Around the same time, Kim asked to work a reduced schedule so she could take care of her baby at home, but the request was denied. Mazel told her that the firm had a policy against attorneys working a reduced schedule, and Albstein told her that no associate had been allowed to work part-time in the previous 10 years.
In April 2010, Kim was fired, purportedly for budgetary reasons, though she alleges the firm hired a new attorney for the tax certiorari department shortly before she left and hired another attorney a few months later.
In August 2010, Kim filed suit in the Southern District, alleging the firm had interfered with her Family and Medical Leave Act rights by denying her request to work part-time and retaliating against her for taking 12 weeks of maternity leave. She also alleged gender/pregnancy discrimination, hostile work environment and retaliation under the New York State and New York City Human Rights Laws.
Judge Victor Marrero (See Profile) dismissed the case in May 2012. He found that the FMLA did not give Kim a right to work a reduced schedule, and that she had failed to make a prima facie case that the firm retaliated against her. He declined to exercise supplemental jurisdiction over the Human Rights Law claims and dismissed them without prejudice.
State Court Action
Kim then brought those claims in state court. Goldberg Weprin moved for summary judgment, arguing that the suit was barred by collateral estoppel because Marrero had already decided the issues. Justice Louis York (See Profile) denied that motion, however, ruling that the FMLA claims had not dealt with all of the alleged conduct. The firm appealed.
The First Department affirmed that Kim’s retaliation claims could proceed, but reversed York on the discrimination and hostile work environment claims and dismissed them.
Richter, in the opinion, wrote that Kim’s retaliation claims were “entirely distinct” from the FMLA claims dismissed by Marrero.
“There, the court only decided whether plaintiff was retaliated against for exercising her FMLA rights,” she wrote. “Here, however, plaintiff does not claim retaliation based on her exercise of FMLA rights, but instead alleges retaliation, under the State and City Human Rights Laws, based on entirely different instances of protected activity.”
Specifically, Richter said, Kim’s retaliation claims arose from being reprimanded for reading a book and for complaining about an inappropriate comment.
“Because the federal court’s decision did not address either of these claimed bases for retaliation, it cannot be said that the federal action ‘necessarily decided’ the same issues raised by the state and city retaliation claims, and thus collateral estoppel does not apply,” the judge wrote.
However, Richter said Kim failed to show that “any conduct by defendants was severe or pervasive enough to create an objectively hostile or abusive environment.”
The alleged conduct, she said, amounts to “only isolated remarks or incidents.” The panel therefore dismissed the discrimination and hostile work environment claims.
Kim is represented by Adam Lease, an attorney at Karpf, Karpf & Cerutti.
Goldberg, Weprin is represented by Marie Hoenings, a partner at L’Abbate, Balkan, Colavita & Contini, and Nicole Feder, of counsel at that firm.
The attorneys, as well as Andrew Albstein, could not be reached for comment.