Balzac v. Columbia University Press , 114 A.D.2d 792 ( 1985 )

—Order, Supreme Court, New York County (David H. Edwards, Jr., J.), entered March 11, 1985, which denied defendant’s motion for summary judgment dismissing the complaint, affirmed, without costs.

This is an action for employment discrimination stemming from the defendant Columbia University Press’ (CUP), discharge of the plaintiff, Frederick Balzac. Balzac was initially hired in 1980. In July 1981 he was promoted to the position of sales representative, and traveled across the eastern United States selling books to various colleges and universities. Following his return on October 19, from a four-day sales trip to Buffalo, Rochester, Syracuse and Ithaca, he spent the next few days in the office discussing politics and belligerently exhorting his colleagues to reform work conditions. He consequently neglected to make travel arrangements and appointments for his scheduled trip to Philadelphia. Upon the advice of a friend, he sought and obtained treatment and hospitalization on October 22. After 10 days he was deemed fully capable of returning to work, as long as he continued his lithium medication, and was released.

Balzac returned to work on November 9, and reported for an appointment with his supervisor, Carl Hansen. During the meeting, rather than recanting the criticisms he had voiced about management in his manic-depressive state, Balzac reiterated his commitment to activism and office reform. Balzac’s ensuing comments lie at the heart of this litigation, and are controverted. Carl Hansen avers the plaintiff professed an unwillingness to carry out his duties as a sales representative, refused to continue covering his entire territory, and stated that he intended to switch to the marketing department in February, the height of the traveling season. Balzac maintains he merely expressed an interest in returning to the marketing department. At the conclusion of their meeting, Hansen fired Balzac. The director of CUP ratified the decision the following day because the plaintiff "had lost his boss’ confidence.”

The complaint alleges that the defendant discharged Balzac because of a mental impairment, and engaged in an unlawful discriminatory practice in violation of section 296.(1) (a) of the New York State Executive Law (Human Rights Law) and section 504 of the Federal Rehabilitation Act of 1974 (29 USC § 794). CUP denied the allegations in the complaint, and moved for summary judgment dismissing it.

We agree with Special Term that summary judgment is inappropriate. It is manifest that triable issues of material fact are presented. CUP maintains that an independent, legitimate reason justified its action, since Balzac allegedly announced his unwillingness to continue to work as a sales representative, or was unable to perform his job. However, equivocal circumstances surround Balzac’s discharge. He had been promoted five months earlier, and was fired the day he returned from treatment. Whether he professed unwillingness and was unable to perform his job in a reasonable manner are sharply contested. These issues bear upon the ultimate fact in issue, whether the November 9 meeting and the defendant’s stated reasons were a mere pretext to obscure an action substantially motivated by impermissible discrimination. (See, Matter of Pace Coll. v Commission on Human Rights, 38 NY2d 28, 40.)

Our dissenting colleague concludes that Balzac Can claim no protection under section 296.(1) (a) of the Human Rights Law. He finds both that the plaintiff was unwilling to continue working in the sales department, and that his mental illness impaired his competence, as evidenced by his disruption of the office work routine and his dereliction in his duties the week of October 19. In so concluding, the dissent accepts the defendant’s stated reasons for the challenged discharge at face value and resolves the factual issues in the defendant’s favor. These factual issues require a trial for their resolution. We find it unnecessary to reach the other contentions of the parties. Concur—Sullivan, Carro, Fein and Rosenberger, JJ.