(concurring in part and dissenting in part). I disagree with my colleagues in the majority that the Supreme Court erred in awarding summary judgment to the defendants dismissing the cause of action to recover damages for employment discrimination in violation of Executive Law § 296. Therefore, I respectfully concur in part and dissent in part, and vote to affirm the order appealed from in its entirety.
To establish a prima facie case of discrimination under Executive Law § 296, a plaintiff who has been terminated from his or her employment must demonstrate that (1) he or she is a member of a protected class, (2) he or she was actively or constructively discharged, (3) he or she was qualified to hold the position from which he or she was discharged, and (4) the discharge occurred under circumstances giving rise to an inference of discrimination (see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Pramdip v Building Serv. 32B-J Health *127Fund, 308 AD2d 523 [2003]). “To prevail on their summary judgment motion, [the] defendants must demonstrate either [the] plaintiffs failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see Dzikowski v J.J. Burns & Co., LLC, 98 AD3d 468, 469 [2012]; Morse v Cowtan & Tout, Inc., 41 AD3d 563, 564 [2007]).
I agree with the majority’s conclusion that a plaintiff may demonstrate, prima facie, membership in a protected class by showing that he or she was discriminated against because of a spouse’s religion. Here, however, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff cannot establish that his discharge occurred under circumstances giving rise to an inference of discrimination. The defendants also demonstrated, prima facie, legitimate, nondiscriminatory reasons for terminating the plaintiffs employment and that there are no material issues of fact as to whether those explanations were pretextual (see Dzikowski v J.J. Burns & Co., LLC, 98 AD3d at 469; King v Brooklyn Sports Club, 305 AD2d 465, 465-466 [2003]; see also Oross v Good Samaritan Hosp., 300 AD2d 457, 458 [2002] [“the Hospital established its entitlement to judgment as a matter of law on the second cause of action alleging discrimination by submitting evidence demonstrating that the plaintiff was terminated from her job as a result of her misconduct and not as a result of discrimination”]).
In support of their motion, the defendants submitted evidence demonstrating that the plaintiff was terminated from his employment by the Town in March 2007 after having been found guilty of five charges of misconduct or insubordination occurring between January 2005 and May 2006. The defendants’ evidence revealed that, following a hearing at which several witnesses testified, a Hearing Officer found that on January 23, 2005, the plaintiff cursed at his superior. In addition, the Hearing Officer found that the plaintiff had missed a mandatory departmental meeting on March 28, 2006, and that when the plaintiff was informed by a superior that he had missed the meeting, he replied, “Aw shucks.” The plaintiff was also found to have used sick leave time when he admittedly was not sick, and to have left work without authorization. *128Lastly, the Hearing Officer determined that on May 9, 2006, the plaintiff extended his coffee break beyond the permitted time period, and was later observed sitting in a town vehicle for at least 45 minutes while he was supposed to be working. The Hearing Officer recommended that the plaintiffs employment be terminated based on the plaintiffs “bad behavior, poor performance and a lack of commitment,” and the Town adopted that recommendation.
Significantly, the plaintiff subsequently commenced a CPLR article 78 proceeding challenging the Town’s determination, and this Court confirmed the determination in 2009 (see Matter of Chiara v Wells, 61 AD3d 973 [2009]). This Court held that the plaintiff failed to allege sufficient facts to show that the initiation of the disciplinary charges was in retaliation for his commencement of a lawsuit against the Town and the Town Administrator, and, in particular, that the determination that he was guilty of misconduct was supported by substantial evidence in the record (see id.). This Court also concluded that the penalty of dismissal was not so disproportionate to the offenses as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law (see id.).
Contrary to the majority’s conclusion, in opposition to the defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact. The plaintiff maintains that his coworker, Michael Molnar, made improper remarks, including antiSemitic comments, and that the Town condoned such conduct. However, after the Town Administrator learned of the confrontation between Molnar and the plaintiff in May 2002, no adverse action was taken against the plaintiff by the Town. Molnar, on the other hand, received a significant punishment, as he was suspended by the Town for 14 calendar days without pay. Additionally, Molnar was warned that any further misconduct by him involving the use of offensive, threatening, or demeaning language in his interaction with coworkers would result in his immediate termination. Further, Molnar was required to enroll in an anger management counseling program, as well as a diversity training program.
Moreover, and indeed significantly, the plaintiff testified that, as a result of his confrontation with Molnar, all of the employees of the Town were directed to attend sensitivity training. The plaintiff even conceded and acknowledged that the town-wide sensitivity training was aimed, in part, at discouraging people from discriminating on the basis of religion. Importantly, *129the plaintiff did not recall any disparaging comments by Molnar regarding the plaintiff or his wife’s religious background after 2002. Thus, the record reflects that when the plaintiff reported Molnar’s anti-Semitic comments in the course of the Town’s investigation into the May 17, 2002 incident, the Town did not punish the plaintiff but instead penalized Molnar. The Town also evidenced a concern for a proper workplace environment for all of its employees by directing all town employees to attend sensitivity training. It is this same Town that the plaintiff now contends reacted to his claim of new inappropriate comments by terminating his employment without proper justification. Notably, however, the charges of misconduct against the plaintiff sustained by the Hearing Officer included verifiable misconduct by the plaintiff, such as falsely calling in sick to work, failure to attend departmental meetings, and leaving work without authorization.
In sum, the plaintiff failed to raise a triable issue of fact as to whether the Town encouraged or condoned improper conduct on the part of Molnar (see Doe v State of New York, 89 AD3d 787, 788-789 [2011]). To the contrary, the record reflects that the Town took appropriate remedial measures to address the situation and to prevent discriminatory behavior in the workplace. Although Molnar eventually received a promotion to a supervisory position, he was not promoted by the Town until 2007 or 2008, approximately five to six years after the allegedly discriminatory conduct by Molnar last occurred. Contrary to the plaintiffs contention, Molnar’s promotion does not reflect that the Town rewarded or condoned his discriminatory behavior.
Although the plaintiff averred that his supervisors Michael Clifford and John O’Hearn made various improper remarks, these alleged remarks were not directed at the plaintiff or his wife. Additionally, while the plaintiff also maintained that his supervisor Charlie Bergstrom made disparaging remarks about his wife’s religion throughout his employment, right up to 2007, this conflicted with the plaintiffs prior testimony that after 1996, Bergstrom “backed off” and his remarks were “few and far between.” The plaintiff failed to demonstrate any causal relationship between the alleged remarks and his termination
“that could conceivably demonstrate that the termination occurred under circumstances giving rise to an inference of discrimination (see Price Waterhouse v Hopkins, 490 US 228, 277 [1989] *130[O’Connor, J., concurring in judgment] [‘statements by nondecisionmakers, or statements by decision-makers unrelated to the decisional process itself,’ are insufficient to establish discriminatory intent])” (Forrest v Jewish Guild for the Blind, 3 NY3d at 308).
Under the circumstances, the plaintiff failed to raise a triable issue of fact as to whether his discharge occurred under circumstances giving rise to an inference of intentional discrimination, or whether the reasons proffered by the Town for his discharge were merely pretextual (see Morse v Cowtan & Tout, Inc., 41 AD3d at 563-564).
The plaintiffs remaining contentions are without merit.
Accordingly, based on the foregoing, I would affirm the order granting the defendants’ motion for summary judgment dismissing the complaint in its entirety.
Rivera, J.R, and Hall, J., concur with Leventhal, J.; Roman, J., concurs in part and dissents in part, and votes to affirm the order appealed from, in a separate memorandum.Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging discrimination on the basis of religion in violation of Executive Law § 296, and substituting therefor a provision denying that branch of the defendants’ motion; as so modified, the order is affirmed, without costs or disbursements.