Alleyne v. Schervier Nursing Care Center et al

Filing 71

MEMORANDUM AND ORDER: Defendants' motion for summary judgment (Doc. No. 65 ) is granted. Defendants' motion to strike (Doc. No. 70 ) is denied as moot. The Clerk of Court is directed to enter judgment and close the case. Ordered by Judge Sandra L. Townes on 9/28/2017. (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------------){
DORLA ALLEYNE,
Plaintiff,

MEMORANDUM & ORDER
13-CV-3072 (SLT) (CLP)

- against -

SCHERVIER NURSING CARE CENTER
and BON SECOURS HEALTH CENTER, INC.,
Defendants.

------------------------------------------------------------){
TOWNES, United States District Judge,
In this employment action, plaintiff Dorla Alleyne, a former Nursing Supervisor at
Schervier Nursing Care Center in Riverdale, New York, contends that she was subject to
discrimination and retaliation based on her national origin, ethnicity, ancestry, disability, and age
in violation of federal, state, and city law. Defendants have moved for summary judgment with
respect to all claims. For the reasons that follow, defendants' motion is granted.

I.

Background
A.

Plaintiff's Violation of Local Civil Rule 56.1

Local Civil Rule 56.1 requires a party moving for summary judgment to submit a
"statement, in numbered paragraphs, of the material facts as to which the moving party contends
there is no genuine issue to be tried." Local Civ. R. 56. l(a). The opposing party, in turn, must
submit a counterstatement of "correspondingly numbered paragraph[ s] responding to each
numbered paragraph in the statement of the moving party, and if necessary, additional
paragraphs ... of additional material facts as to which" the opposing party "contend[s] that there
exists a genuine issue to be tried." Local Civ. R. 56.l(b). "Each statement by the movant or
opponent ... must be followed by citation to [admissible] evidence .... " Local Civ. R. 56.1 (d).

When a Rule 56.1 statement or counterstatement lacks citations, courts are "free to
disregard" the facts asserted therein. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(internal quotation marks omitted). Also, if the opposing party disputes facts asserted in the
moving party's Rule 56.1 statement without citing contradictory evidence, district courts may
deem the facts in the movant's statement true if they are supported by evidence. See, e.g.,
Garnett-Bishop v. New York Cmty. Bancorp, Inc., No. 12-CV-2285 (ADS) (ARL), 2017 WL

836562, at *3 (E.D.N.Y. Mar. 2, 2017) (collecting cases). After all, courts are not required '"to
perform an independent review of the record to find proof of a factual dispute."' Morales v. New
York State Dep 't of Labor, Div. of Employment Servs., 530 F. App'x 13, 14 (2d Cir. 2013)

(quoting Amnesty Am. v. Town of W Hartford, 288 F.3d 467, 470 (2d Cir. 2002)).
Here, all paragraphs in defendants' Rule 56.1 statement include citations to the record.
See Defendants' Statement of Undisputed Material Facts dated Jan. 15, 2016, Dkt. No. 66 ("Def.

56.1 "). Plaintiffs Rule 56.1 counterstatement, however, contains no such citations. See
Plaintiffs Response to Defendants' Statement dated Oct. 29, 2015, Dkt. No. 43-1 ("PL 56.l"). 1
Plaintiffs opposition brief includes a 40-paragraph factual statement, but that too lacks citations.
See Plaintiffs Memorandum of Law in Opposition dated Oct. 20, 2016, Dkt. No. 67 ("PL Opp.")
~~

4-44.
Thus, where cited evidence supports facts contained in defendants' Rule 56.1 statement

and plaintiff disputes those facts without citing conflicting evidence, the Court deems the facts
asserted in defendants' statement true. See, e.g., James. v. NYC. Health & Hosp. Corp., No. 15-

1 Plaintiff,

who is represented by counsel, did not even file a Rule 56.1 counterstatement with her
opposition papers. In accordance with the undersigned's individual rules, however, plaintiff
previously filed a counterstatement with her letter responding to defendants' request for a premotion conference. The Court assumes that plaintiff intended to rely on this previously filed
counterstatement, not that she neglected to file one altogether.

2

CV-6015 (PAE), 2017 WL 3923675, at *1 n.1 (S.D.N.Y. Sept. 6, 2017). Also, given the lack of
citations, the Court disregards the facts asserted in plaintiffs opposition papers. See, e.g., Paul
v. Lenox Hill Hosp., No. 13-CV-1566 (CBA) (LB), 2016 WL 4775532, at *2 n.2 (E.D.N.Y. Jan.
15, 2016), adopted by, 2016 WL 1271034 (E.D.N.Y. Mar. 29, 2016), appeal dismissed (2d Cir.
Nov. 2, 2016) ("Plaintiff makes various factual assertions in her Rule 56.1 counterstatement, but
fails to cite record evidence to support her factual assertions .... These assertions are therefore
disregarded."). 2
B.

Factual History
1.

Nursing Supervisor Position and Survey-Related Work

Plaintiff, who was born in Costa Rica and who is currently 67 years old, began working
for defendant Schervier Nursing Care Center ("SNCC") in 2006. Def. 56.1 , 1; Pl. 56.1 , 1.3 In
February 2010, plaintiff transitioned from the title of Patient Service Manager to Nursing
Supervisor. Def. 56.1 , 2 n.2; Pl. 56., 2. The letter appointing her to the Nursing Supervisor
position stated that her assignment would include evening and night shifts, but that she "may, at
times, be required to work days and/or times outside of [her] regular schedule." Def. 56.1 , 4;

2

One paragraph in the argument section of plaintiffs opposition brief contains a citation to
deposition testimony. Pl. Opp., 90. Four paragraphs of her opposition brief quote or
paraphrase testimonial or documentary evidence without citation. Id,, 42, 67, 75, 99. The
Court considers the evidence referred to in these five paragraphs but does not otherwise seek
evidentiary support for plaintiffs contentions. See Monahan v. NY.C. Dep't of Corr., 214 F.3d
275, 292 (2d Cir. 2000) (on summary judgment motion, district court "is not required to consider
what the parties fail to point out"). The Court notes that plaintiff cites her complaint in two
instances as if this pleading were evidence, which of course it is not. Pl. Opp. ,, 64, 91; see,
e.g., Hernandez v. Coca Cola Refreshments USA, Inc., No. 12-CV-234 (BMC), 2013 WL
6388654, at *3 (E.D.N.Y. Dec. 6, 2013) ("[I]t·is of course fundamental that allegations in a
complaint are not evidence that can defeat a motion for summary judgment.") (internal quotation
marks omitted).
3

Citations to paragraphs of defendants' Rule 56.1 statement incorporate by reference the
evidence cited therein.

3

Pl. 56.1, 4. Karen Wilson, SNCC's Vice President ofNursing, was plaintiffs supervisor. Def.

56.1 , 8; Pl. 56.1 , 8. Without citing evidence, plaintiff asserts that Wilson is Jamaican and
approximately 25 years younger than plaintiff. Pl. Opp. , 6.
Although plaintiff had primarily worked evening and night shifts since February 2010,
she was asked to temporarily work the day shift in November 2010 to prepare for a survey being
conducted by the New York State Department of Health the next month. Def. 56.1,,7, 30; Pl.

56.1 ,, 7, 30. Plaintiff testified that she had reached an agreement to allow her to return to her
prior schedule when the survey was completed. Def. 56.1, 35; Pl. 56.1, 35. Another SNCC
employee, Karen Hollingsworth-who is 59 years old and who, according to plaintiff, was "born
in the United States" and is "of African descent"-was also assigned to assist with the survey.
Def. 56.1,,31-32; Pl. 56.1,,31-32.
After the survey concluded in December 2010, SNCC w~ required to complete certain
audits and other survey-related follow-up work. Def. 56.1 , 36; Pl. 56.1 , 36. Although plaintiff
requested to return to her prior schedule, she and Hollingsworth were assigned to the day shift
until February 2011 to complete the follow-up tasks. Def. 56.1,,37-39, 41, 51; Pl. 56.1,,37-

39, 41, 51. Plaintiff and Hollingsworth worked similar hours from November 2010 to February
2011. Def. 56.1 ,, 34, 40; Pl. 56.1 , 34. 4

Plaintiff admits that she and Hollingsworth worked a similar schedule while preparing for the
survey, but disputes that they did so while performing the follow-up tasks. Pl. 56.1 ,, 34, 40.
Plaintiff alleges, without citation, that Hollingsworth returned to her prior position upon the
conclusion of the survey in December 2010, while plaintiff was left "overloaded with duties and
responsibilities." Pl. Opp.,, 28-29. Plaintiff does not explain what she means when she states
that Hollingsworth returned to her prior position. Hollingsworth's time records demonstrate that
she continued to work the day shift in January and February in 2011. Ex. K (Hollingsworth's
time records). To the extent that plaintiff believes that she worked longer hours than
Hollingsworth, any such disparity is not evident from the time records for these months.
Compare id with Ex. E (Plaintiffs time records).
4

4

On February 15, 2011, plaintiff received a written warning from Wilson for fruling to
complete survey-related audit summaries. Def. 56.1143. Although plaintiff testified at her
deposition that this written warning prevented her from returning to the evening shift, plaintiffs
time records indicate that she began working evening and night shifts again on February 20, five
days after the issuance of the warning. Id. 1150, 51, 53; Pl. 56.1151. Plaintiff testified at her
deposition that she was required to work the day shift to cover for Wilson while Wilson was on
vacation. Def. 56.l 152. After February 20, however, plaintiffs time records reflect that she
worked the day shift exclusively except for one day (February 28). Id. 154. For all of March,
plaintiff was scheduled for evening and night shifts only. Id. 156.

2.

EEOC Charge

On February 24, 2011, plaintiff filed a charge of discrimination with the U.S. Equal
Employment Opportunity Commission ("EEOC") in which she claimed, among other things, that
Wilson had discriminated against her based on her national origin by issuing the written warning
on February 15. Id. 1158-61; Pl. 56.11158-61; Ex. N (EEOC charge). 5 The notice of charge
of discrimination that the EEOC sent to defendants is dated March 4, 2011. Def. 56.1 1 59; Pl.

56.l 159. Plaintiff testified at her deposition that James Higgins, the former Chief Executive
Officer of defendant Bon Secours Health System, Inc., notified her that the company had
received her "'notice."' Def. 56.l 1162-63; Pl. 56.l 1162-63. 6 No one else at work
commented to plaintiff about her EEOC filing. Id. Higgins' employment with defendants ended
on April 12, 2011. Def. 56.1 1 64; Pl. 56.1 164.

5 As

plaintiffs opposition papers do not include exhibits, all citations to exhibits refer to those
annexed to defendants' Rule 56.1 statement.

6 Though

the parties' submissions do not address this subject, Bon Secours Health System, Inc.
appears to be the owner of SNCC. Plaintiff misidentified Bon Secours Health System, Inc. as
"Bon Secours Health Center, Inc." in her complaint.
5

3.

FMLA Leave Request

Plaintiff often used vacation time to travel to Costa Rica to care for her aunt. Def. 56.1
if 19; Pl. 56.1if19. From December 31, 2010, to January 5, 2011, plaintiff used vacation time
for this purpose. Def. 56.1 iii! 27-29; Pl. 56.1 ifif 27-29. Sometime in January 2011, plaintiff
spoke with Wilson about taking leave pursuant to the Family Medical Leave Act ("FMLA") to
care for her aunt again. Def. 56.1 if 65. Wilson informed plaintiff that she needed to submit
documentation in accordance with defendants' FMLA policies, which, among other things,
required employees to submit "medical certification of the [underlying] serious health
condition." Def. 56.1iii!15-16, 66; Pl. 56.1iii!15-16, 66. Plaintiff does not dispute having
notice of SNCC's FMLA policy. Def. 56.1if17; Pl. 56.1if17.
Plaintiff submitted an FMLA application on February 18, 2011, for leave from February
25 to March 13, 2011, stating that she sought to "care for [an] aunt who is childless-whom I am
responsible for. Emergency amputation." Def. 56.1 iii! 67-68; Pl. 56.1 if 68. After receiving
notice from a human-resources representative that her leave application was missing
documentation, plaintiff submitted another FMLA application on February 29, requesting leave
from March 11 to April 2. Def. 56. 1 iii! 70, 72; Pl. 56.1 ifif 70, 72. Plaintiff, however, never
submitted the missing documentation, apparently because she had difficulty having her aunt's
medical providers complete the necessary paperwork. Def. 56.1iii!82-83; Pl. 56.1iii!82-83.
Nevertheless, on March 25, SNCC's outside benefits-management company gave plaintiff
permission to travel to Costa Rica and to return the required paperwork one week after her
arrival. Def. 56.1 if 83; Pl. 56.1 if 83. Wilson approved plaintiffs request for vacation for this
period. Def. 56.1 if 84; Pl. 56.1 if 84. As discussed below, however, plaintiff stopped arriving

6

for work after March 14, and she did not make the trip to Costa Rica. Def. 56.1 if 86; Pl. 56. l

ir 86.
4.

Comments about Plaintiff's Age and National Origin

When asked whether coworkers had commented on her national origin, plaintiff testified
at her deposition that sometime around 2010 one nurse had said that plaintiff was "getting so
much flak" because she was not Jamaican. Ex. A (Pl. Dep.) at 35:23-36:6,

39:2~0:4,

40:22-

41 :8; Pl. Opp. if 67. According to plaintiffs deposition testimony, sometime in 2010 or 2011,
another coworker said, "maybe if [she] were a Jamaican, this wouldn't be happening." Ex. A
(Pl. Dep.) at 37: 18-38:17; Pl. Opp. if 67. Plaintiff did not testify that Wilson commented on her
national origin. Ex. A (Pl. Dep.) at 41:9-42:7. Regarding her age, however, plaintiff testified
that Wilson had said over the years that plaintiff was "the older one here and ... ha[ d] more
experience" when assigning her tasks. Id at 32: 12-34:6; Pl. Opp. if 75.

5.

Injuries and Termination

On March 7, 2011, plaintiff injured her neck and back while attempting to move a
bariatric patient from bed. Def. 56.l if 90; Pl. 56.l if 90. Three days later, on March 10, plaintiff
injured her right hand, right wrist, and back while attempting to move a patient to a wheelchair.
Def. 56.l if 91; Pl. 56.1if91. Plaintiffs time records indicate that she worked on March 13 and
14, but not anytime thereafter. Def. 56.1 if 92 n.6.
Plaintiff testified at her deposition that no one told her to stop coming to work, but that
she stopped anyway because her injuries would have prevented her from doing her job. Id if 94.
At her deposition, plaintiff testified that she could have worked with "some accommodation,"
but she could not identify one that would have enabled her fo work. Id

7

iii! 96-97; Pl. 56. l

if 96.

There is no evidence in the record that plaintiff ever requested an accommodation. See Def. 56.1
,95.
On April 26, 2011, plaintiff sent Wilson an email explaining the circumstances of her
March 10 injury and noted that she was receiving treatment for it. Dkt. No. 69 (Email dated Apr.
26, 2011). It is unclear what prompted this email. 7 Wilson's employment with SNCC ended on
May 20. Def. 56.1, 9; Pl. 56.1, 9.
By letter dated September 20, 2011, Sean Ballard, who had begun acting as SNCC's
Interim Director of Human Resources a month earlier, informed plaintiff that she was
terminating her employment effective immediately for abandoning her job and being absent
without leave. Def. 56.1 ,, 102, 109; Pl. 56.1 , 109; Pl. Opp., 42; Ex. F (Ballard Deel.), 2.
The letter stated as follows:
You have not been to work since March 14, 2011, and have no leave to
cover your continued absence. You also have not provided any
documentation to support a medical or family-related leave under the
FMLA. Finally, ... you have not returned phone calls inquiring about
your absence.
Def. 56.1 , 109; Pl. 56.1 , 109. At the time of her decision to terminate plaintiff, Ballard
was unaware of any communications from plaintiff to defendants regarding her status or
her intention to return to work. Def. 56.1 , 107. At this time, Ballard had never met
plaintiff and had no knowledge of her national origin, ancestry, ethnicity, disability,
medical condition, or age.

Id,,

104--05, 113; Pl. 56.1,,105, 113. Wilson and Higgins,

7

On November 7, 2016, four days after defendants' motion for summary judgment was fully
submitted and ready for decision, plaintiff filed this April 26 email message on the docket as a
standalone document-without explaining its relevance or the reason for its untimely filing.
Dkt. No. 69. Defendants then moved to strike the email from the record arguing that it was not
produced in discovery and was not annexed to or referred to in plaintiffs opposition papers.
Dkt. No. 70. To date, plaintiff has not opposed defendants' motion to strike. Because
defendants are entitled to summary judgment even ifthe Court considers the April 26 email, the
Court need not rule on this issue and defendants' motion to strike is therefore denied as moot.
8

who were no longer employed by defendants, had no influence over Ballard's decision to
terminate plaintiff. Def. 56.l, 103; Pl. 56.1, 103.

6.

Application for Disability Benefits

On November 30, 2011, plaintiff applied to the Social Security Administration ("SSA")
for disability benefits, representing that she had been unable to work since March 15, 2011. Def.

56.l ,, 115-16; Pl. 56.1 ,, 115-16. Plaintiffs treating physician completed several reports
between March 2011 and September 2012, in which he opined that plaintiff was totally disabled.
Def. 56.1 , 125; Pl. 56.1 , 125. 8 In support of her claim for disability benefits, plaintiff
represented that her job involved "prolonged standing and walking, a~ well as frequent stair
climbing, bending, lifting and carrying." Def. 56.l, 127; Pl. 56.l, 127. Plaintiff also informed
the SSA that her position required her to walk for four hours per day; stand for one hour per day;
and write, type, or handle small objects for two hours per day. Def. 56.l ,, 119, 121; Pl. 56.l
~,

119, 121. (At her deposition, plaintiff testified that she had to stand for approximately two

hours daily. Def. 56.1 , 120; Pl. 56.1 ~ 120.) In a hearing before an SSA administrative law
judge ("ALJ"), plaintiff testified that she could stand for only 30 minutes and walk the distance
of two to three city blocks before experiencing numbness and pain. Def 56.l, 130; Pl. 56.l

, 130. She also testified that her dominant (right) hand was so debilitated that she could not
wipe herself in the bathroom. Ex. NN (SSA Tr.) at 4:3-15, 6:25-7:2 (cited in Def.

56.1,~129-

30).
In a decision dated October 18, 2012, the ALJ concluded that plaintiff had been disabled
as of March 15, 2011, enabling her to collect disability benefits. Def. 56.l
,~

8

,~

131-32; Pl. 56.l

131-32. The ALJ determined that plaintiff could not perform her past work as a Nursing

Plaintiff testified at her deposition that she agreed with her physician's assessment that she was

"100 percent" impaired. Ex. A (Pl. Dep.) at 230:2-24 (cited in Def. 56.l ,, 123-24).
9

Supervisor because her condition limited her to "sedentary work" not requiring "repetitive
motion with her right hand." Def. 56.l

C.

if 132; Pl. 56.l if 132.

Procedural History

Plaintiff commenced this lawsuit by filing a complaint dated March 12, 2013, in New
York State Supreme Court, County of Kings. See Complaint dated Mar. 12, 2013, Dkt. No. 1-2
("Compl."). In her complaint, plaintiff maintained that she had been subject to discrimination
based on her national origin, ethnicity, and ancestry in violation of 42 U.S.C. § 1981, the New
York State Human Rights Law ("SHRL"), and the New York City Human Rights Law
("CHRL"). Id

if 81.

She also asserted claims of age and disability discrimination under the

SHRL and CHRL. Id.
§ 1981. Id.

ifif 80, 82.

Finally, she claimed retaliation under the SHRL, CHRL, and

if 83. 9

Defendants removed this case from state court to this District on May 24, 2013. Dkt. No.
1. Defendants later moved for summary judgment through papers dated January 15, 2016. See
Defendants' Memorandum of Law dated Jan. 15, 2016, Dkt. No. 65-2 ("Def. Mem."). Plaintiff
opposed defendants' motion through papers dated October 20, 2016. See Pl. Opp., Dkt. No. 67.
Defendants replied on November 3, 2016. See Defendants' Reply Memorandum of Law dated
Nov. 3, 2016, Dkt. No. 68 ("Def. Reply.").

II.

Discussion
A.

Rule 56 Standard

"On a defendant's motion for summary judgment, courts must 'construe the evidence in
the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all
ambiguities in her favor."' Richardson-Holness v. Alexander, 196 F. Supp. 3d 364, 369

9

The complaint also included FMLA claims, but plaintiff later stipulated to the dismissal of
them. Compl. if 84; Dkt. No. 14.
10

(E.D.N.Y. 2016) (quoting Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 65 (2d Cir.
2014)). Summary judgment is proper when "there is no genuine dispute as to any material fact."
Fed. R. Civ. P. 56(a). An "'extra measure of caution is merited'" before granting "'summary
judgment in a discrimination action because direct evidence of discriminatory intent is rare and
such intent often must be inferred from circumstantial evidence found in affidavits and
depositions."' Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (quoting
Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001)). Still, '"summary judgment remains
available for the dismissal of discrimination claims in cases lacking genuine issues of material
fact."' Id

B.

Discrimination Claims
1.

McDonnell Douglas Burden-Shifting Framework

Plaintiffs claims of employment discrimination under § 1981, the SHRL, and CHRL are
subject to the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See, e.g., Jackson v. Sleepy's, LLC, No. 13-CV-2086 (FB)(SMG),
2016 WL 1223452, at *3 (E.D.N.Y. Mar. 29, 2016). At the first step, plaintiff has the burden of
establishing a prima facie case. To do so, "a plaintiff must show: ( 1) she is a member of a
protected group; (2) she was qualified for the position; (3) she experienced an adverse
employment action; and (4) that action occurred under circumstances giving rise to an inference
of discrimination." Dixon v. Int'/ Fed'n ofAccountants, 416 F. App'x 107, 109 (2d Cir. 2011)
(listing same elements for discrimination claims based on age, race, and natio.nal origin under

§ 1981, SHRL, and CHRL). The prima facie elements differ for claims of disability
discrimination. To establish a prima facie case of disability discrimination under the SHRL and
CHRL, a plaintiff must show "that (1) her employer is subject to the []SHRL and []CHRL; (2)

11

she was disabled within the meaning of the []SHRL and []CHRL; (3) she was otherwise
qualified to perform the essential functions of her job, with or without reasonable
accommodation; and (4) she suffered an adverse employment action because of her disability."
Gioia v. Forbes Media LLC, No. 09-CV-6114 (RJS), 2011WL4549607, at *9 (S.D.N.Y. Sept.
30, 2011), aff'd, 501 F. App'x 52 (2d Cir. 2012).

If the plaintiff establishes a prima facie case, the "burden then shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the disparate treatment." Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015) (internal quotation marks
omitted). "If the employer articulates such a reason for its actions, the burden shifts back to the
plaintiff to prove that the employer's reason was in fact pretext for discrimination." Id. (internal
quotation marks omitted).

2.

State and Federal Claims
a.

Prima Facie Case
i.

Adverse Employment Action

Although defendants admit that plaintiffs termination was an adverse employment
action, defendants insist that her termination was the only adverse action that plaintiff suffered.
Def. Mem. at 7. "[A] plaintiff sustains an adverse employment action ifhe or she endures a
'materially adverse change' in the terms and conditions of employment." Dickens v. Hudson
Sheraton Corp. LLC, 689 F. App'x 670, 672 (2d Cir. 2017) (citation omitted). The "change ...
must be 'more disruptive than a mere inconvenience or an alteration of job responsibilities."' Id.
(quoting Vega, 801 F.3d at 85). Examples of adverse employment actions include '"termination
of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, [and] significantly diminished material responsibilities."' Id.

12

Here, leaving aside her termination, plaintiff was required to work the day shift from
November 2010 to February 2011, even though she agreed to work this shift only until the
survey's conclusion in December 2010. See supra at 4. Also, plaintiff received a written
warning from Wilson in February 2011 for failing to complete survey-related audit summaries.

Id. at 5. Lastly, when plaintiff requested FMLA leave to care for her aunt in March 2011,
approval was delayed because of missing documentation. Id. at 6.
To the extent that plaintiff contends that any of this conduct amounts to a materially
adverse employment action, the Court rejects this argument. Courts have repeatedly concluded
that conduct of this nature is not actionable. See, e.g., Tepperwien v. Entergy Nuclear

Operations, Inc., 663 F.3d 556, 568-72 (2d Cir. 2011) (counseling, threats of termination, hostile
behavior at a meeting, being forced to work on day off under false pretenses, and assignment to
night shift were not materially adverse actions when considered individually or in the aggregate);

Pierre v. Napolitano, 958 F. Supp. 2d 461, 479 (S.D.N.Y. 2013) ("requiring an employee to
provide medical documentation is not a materially adverse action") (alteration and internal
quotation marks omitted); Hamed/ v. Weiland, No. 10-CV-2738 (SJF) (ORB), 2012 WL
3903499, at *8 (E.D.N.Y. Sept. 6, 2012) (reassignment from midnight shift to 6:00 a.m. shift not
materially adverse action); Albuja v. Nat'/ Broadcasting Co. Universal, Inc., 851 F. Supp. 2d
599, 609 (S.D.N.Y. 2012) (assignment to overnight shift was not adverse employment action
where plaintiff had "not asserted that working night shifts caused any diminution in his
compensation or job responsibilities"); Lucas v. Potter, No. 3:08-CV-480 (HBF), 2010 WL
148451, at *8 (D. Conn. Jan. 12, 2010) ("Because the failure to grant sick leave is directly
attributable to [plaintiffs] failure to provide medical documentation required by the

[employ~e]

manual, the temporary denial of sick leave was not a materially adverse action."); Smalls v.

13

Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y. 2005) ("[B]eing yelled at, receiving unfair

criticism, receiving unfavorable schedules or work assignments do not rise to the level of adverse
employment actions because they do not have a material impact on the terms and conditions of
Plaintiffs employment.") (internal quotation marks and alterations omitted). Thus, the Court
concludes that plaintiff's termination was the only materially adverse employment that she
suffered.
ii.

Adverse Action Under Circumstances Giving Rise to
Inference of Discrimination, or Adverse Action
"Because or' Plaintiff's Disability

The record is devoid of evidence that plaintiff's termination took place under
circumstances giving rise to an inference of discrimination, or that plaintiff was terminated
because of her disability. Ballard, who had only started acting as SNCC's Interim Director of
Human Resources a month earlier, decided to terminate plaintiff's employment in September
2011-approximately six months after plaintiff stopped working. See supra at 7-8. At this
point, Ballard had never met plaintiff, and she was unaware of plaintiff's national origin,
ethnicity, ancestry, medical condition, disability status, or age. Id. at 8. In opposition, plaintiff
cites no evidence to the contrary-much less evidence that Ballard harbored discriminatory
animus toward her. Given Ballard's decision-making authority and her unawareness of
plaintiffs protected characteristics, it is difficult to believe that plaintiff's termination was
discriminatory. See, e.g., McDowell v. T-Mobile USA, Inc., 307 F. App'x 531, 533 (2d Cir.
2009) (dismissing race-discrimination claim where Washington-based "critical decision-maker"
had never met New York-based plaintiff and only learned of his race after litigation began).
Although it is possible to prevail on a discrimination claim when the decision-maker is
unaware of the plaintiff's protected characteristics, see, e.g., Weber v. Parfums Givenchy, Inc.,

14

49 F. Supp. 2d 343, 361-62 (S.D.N.Y. 1999) (collecting cases), there must still be evidence that
discriminatory animus influenced the decision. Here, plaintiff has not offered evidence that any
SNCC employees who commented on her age and national origin influenced Ballard's decision
to terminate plaintiff. See supra at 7; De la Cruz v. City of New York, 783 F. Supp. 2d 622, 643
(S.D.N.Y. 2011) ("allegedly discriminatory comments made by a nondecisionmaker are, as a
matter oflaw, insufficient to raise an inference of discrimination"). Despite Wilson's comments
about plaintiff being older and more experienced, Wilson stopped working for SNCC in May
2011-four months before plaintiffs termination. See supra at 8. Ballard attested that Wilson
did not influence her decision, id. at 8-9, and plaintiff has cited no evidence to the contrary.
Although plaintiff suggests that defendants may have actually decided that plaintiff
abandoned her job while Wilson was still at SNCC (even though they did not terminate her until
later), plaintiff offers no evidence to support this theory. See Pl.

Opp.~

69; Kolivas v. Credit

Agricole, No. 95-CV-5662 (DLC), 1996 WL 684167, at *4 (S.D.N.Y. Nov. 26, 1996), aff'd, 125
F.3d 844 (2d Cir. 1997) ("[A] plaintiff may not rely solely on a request that the factfinder

disbelieve testimony about when an employer made the decision to fire the plaintiff .... ").
Plaintiff also argues that Wilson's "notations" in plaintiffs file may have influenced Ballard. Pl.
Opp.~

75. But plaintiff cites no evidence of such notations or any influence that they may have

had on Ballard.
Plaintiff also argues that an employer's "dissembling" can be persuasive evidence of
discrimination. Pl. Opp.~~ 48-51. The implication is that defendants lied about the reason for
terminating plaintiff to conceal their discriminatory motives. The problem is that plaintiff points
to no evidence of dissembling. To survive summary judgment, the plaintiff must offer evidence
to allow a jury to "rationally infer-as opposed to speculate-that [defendants were]

15

'dissembling to cover up a discriminatory purpose.'" Kolesnikow v. Hudson Valley Hosp. Ctr.,
622 F. Supp. 2d 98, 114 (S.D.N.Y. 2009) (quoting Reeves v. Sanderson Plumbing Prod., Inc.,
530 U.S. 133, 147 (2000)).
Finally, plaintiff argues that similarly situated younger Jamaican (or at least non-Costa
Rican) employees-namely, Joan Constantine, Karen Hollingsworth, and Delbert Harrisreceived preferential treatment relative to her. Pl.

Opp.~

64; see also Compl. ~~ 62, 61-62, 64-

65. 10 "To support a minimal inference of discrimination, a plaintiff may allege disparate
treatment by showing the more favorable treatment of employees not in the protected group, who
are similarly situated in all material respects." Carris v. First Student, Inc., 682 F. App'x 30, 32
(2d Cir. 2017) (internal quotation marks and citations omitted). Although plaintiff maintains that
Constantine, Hollingsworth, and Harris are similarly situated to her, she cites no evidence to
support this assertion. Pl.

Opp.~~

64-65; see, e.g., Taylor v. Local 32E Serv. Employees Int'!

Union, 118 F. App'x 526, 528 (2d Cir. 2004) (granting summary judgment where plaintiff
"provides no evidence" that plaintiff was similarly situated to purported comparators).
Even assuming that she was similarly situated to them, plaintiff offers no proof that these
three coworkers enjoyed preferential treatment. Plaintiff alleges that Constantine received leave
in November 2010 to care for her mother in Jamaica without submitting the necessary FMLA
documentation. Pl.

Opp.~~

32-33. Yet Constantine's time records do not reflect her taking

leave around this month, and plaintiff submits no evidence of such leave. Def. 56.1
56.1

~

~

89; Pl.

89. Plaintiff complains that Hollingsworth returned to her regular schedule following the

conclusion of the survey in December 2010. In her Rule 56.1 statement, however, plaintiff
admits that Hollingsworth also assisted with survey-related follow-up work. Pl. 56.1

10

~

39.

Although plaintiff testified at her deposition that Hollingsworth was American, see supra at 4,
her opposition papers suggest that she is Jamaican. Pl. Opp. ~ 64.
16

Although plaintiff appears to believe that she worked longer hours than Hollingsworth in January
and February 2011, she offers no explanation or evidence to support this assertion. See supra at
4 n.4. Lastly, plaintiff complains that Harris was not disciplined for failing to complete reports
and other misconduct. Pl.

Opp.~~

34-35. To the extent that this allegation is true, plaintiff has

neglected to support it with evidence. Id. For these reasons, the Court concludes that plaintiff
has failed to raise an inference of discrimination for purposes of her federal and state claims.

iii.

Qualified for Position

Defendants argue that plaintiff is judicially estopped from claiming that she was qualified
for her position as a Nursing Supervisor given her representations to the SSA that she had
become unable to work in March 2011. Def. Mem. at 3-6, 19-21. "[J]udicial estoppel prevents
a party from asserting a factual position in a legal proceeding that is contrary to a position
previously taken by that party in a prior legal proceeding," including a prior SSA proceeding.

Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 137 (2d Cir. 2016) (internal
quotation marks omitted); see also Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999).
As the Supreme Court concluded in Cleveland, however, a plaintiff's representation to the SSA
that she is unable to work for purposes of a claim for disability benefits does not necessarily
preclude her from arguing that she was qualified for a position for purposes of establishing a

primafacie case of employment discrimination. Cleveland, 526 U.S. at 802-03. Yet the
plaintiff "cannot simply ignore the apparent contradiction" and "must proffer a sufficient
explanation" for it. Id at 806.
Here, plaintiff appears to offer two explanations. First, she contends that she could have
continued working had SNCC offered her a reasonable accommodation. Pl. Opp.~~ 52-53, 57,
89-91. This explanation, which the Supreme Court addressed in Cleveland, is based on the fact

17

that a plaintiff claiming disability discrimination must show that she is qualified to "perform the
essential functions of her job with reasonable accommodation, whereas disability under the
Social Security Act does not take into account the possibility of reasonable accommodation."
Kovaco, 834 F.3d at 137-38 (citing Cleveland, 526 U.S. at 803). 11

Here, plaintiff has offered no evidence that a reasonable accommodation would have
allowed her to perform the essential functions of her former position. Plaintiff represented to the
SSA that her position required her to walk for four hours per day; stand for one hour per day; and
write, type and handle small objects for two hours per day. See supra at 9. (As noted above,
plaintiff testified at her deposition that she spent two hours daily standing. Id.) In her hearing
before an ALJ, however, plaintiff testified that she could only walk the distance of two or three
city blocks before experiencing numbness and pain, and that her dominant hand was so
debilitated that she could not even use it to wipe herself in the bathroom. Id. At her deposition,
when asked whether she could have performed the duties of her prior position, plaintiff replied,
"No, not as a nurse supervisor" and later testified that she could not "think of anything" that she
could have done in that role. Ex. A (Pl. Dep.) at 386:24-387:6 (cited in Def. 56.1if135); Pl.
Opp. if 90. Plaintiff said that she could answer phones but, by her own admission, that was the
work of a "receptionist," not a nurse. Def. 56.l if 98. Plaintiff's belief that she could have
performed the functions of another position, standing alone, is insufficient to meet the

The qualification prong to establish a prima facie case of disability discrimination differs from
the qualification prong of other types of discrimination. See Kovaco, 834 F.3d at 136.
Specifically, a plaintiff claiming disability discrimination must show that she was "'qualified to
perform the essential functions of his job, with or without reasonable accommodation,'" whereas
a plaintiff claiming other types of discrimination must simply show that she was qualified for the
position. Id. (emphasis in original); see supra at 11-12 (listingprimafacie elements). The
Second Circuit has concluded, however, that "Cleveland provides the proper framework for
evaluating whether judicial estoppel bars" claims of disability and non-disability discrimination
alike. See Robinson v. Concentra Health Servs., Inc., 781F.3d42, 46 (2d Cir. 2015).
11

18

qualification prong of the primafacie case. See, e.g., Hudson v. W. New York Bies Div., 73 F.
App'x 525, 529 (2d Cir. 2003) (employers "are not required to find another job for an employee
who is not qualified for the job he or she was doing") (internal quotation marks omitted);
Weiglein v. Nat'! Grid, No. 11-CV-809A, 2013 WL 4718499, at *9 (W.D.N.Y. Sept. 3, 2013)

("Plaintiffs conclusory assertions that defendant should have reassigned him to another position
are insufficient to establish the existence of an available and appropriate position as a reasonable
accommodation.").
In short, to the extent that plaintiff could have worked with a reasonable accommodation,
plaintiff has not cited evidence to demonstrate as much. Plaintiffs speculation that some
unidentified accommodation may have existed is insufficient to create a triable issue of fact. See
Sefovic v. Mem 'l Sloan Kettering Cancer Ctr., No. 15-CV-5792 (PAC), 2017 WL 3668845, at *4

(S.D.N.Y. Aug. 23, 2017) ("The plaintiff must show that a reasonable accommodation existed at
the time of his dismissal. ... The burden of persuasion on the existence of an effective
accommodation is not satisfied by mere speculation.") (citing Stevens v. Rite Aid Corp., 851 F.3d
224, 231 (2d Cir. 2017) and Jackan v. NY. State Dep 't ofLabor, 205 F.3d 562, 566 (2d Cir.
2000)) (internal quotation marks omitted).
Second, plaintiff emphasizes that there is no evidence that her injuries were permanent-

meaning that, but for her termination, she may have returned to work after she healed. Pl. Opp.

1 54.

As defendants note, however, the question is whether plaintiff was qualified for the

position at the time of her termination-not some later date. Def. Reply at 8-9; see, e.g.,
Kovaco, 834 F.3d at 136 (noting plaintiffs burden to show "that he was qualified for the position

he held at the time of termination") (emphasis added); Sefovic v. Mem 'l Sloan Kettering Cancer
Ctr., No. 15-CV-5792 (PAC), 2017 WL 3668845, at *5 (S.D.N.Y. Aug. 23, 2017) (report stating

19

that plaintiff could perform light work two months after termination did not establish that
plaintiff could work "'at the time of his dismissal'") (quoting Stevens, 851 F.3d at 231). For
these reasons, plaintiff has failed to create a triable issue of fact as to whether she was qualified
for her position at the time of her termination.

b.

Legitimate, Nondiscriminatory Reason

Even if plaintiff could establish a prima facie case, defendants have articulated
legitimate, nondiscriminatory reasons for her termination. At the second step of the McDonnell

Douglas framework, any '"such stated purpose is sufficient to satisfy the defendant's burden of
production; the employer does not have to persuade the court that the stated purpose was the
actual reason for its decision."' Pierce v. Highland Falls-Fort Montgomery Cent. Sch. Dist., No.
08-CIV-1948 (RKE), 2011WL4526520, at *10 (S.D.N.Y. Sept. 28, 2011) (quoting Austin v.

Ford Models, 149 F.3d 148, 153 (2d Cir. 1998)); see also Dallman v. Mast Indus., Inc., 731 F.
Supp. 2d 328, 339 (S.D.N.Y. 2010) (defendant "is required to articulate-but not prove-a
legitimate, nondiscriminatory reason for the discharge" and, thus, the "burden of production is
not a demanding one") (internal quotation marks and citations omitted).
The September 20, 2011 letter terminating plaintiffs employment noted that she had not
"been to work since March 14, 2011" and had not received "leave to cover [her] continued
absence." Def. 56.1ii109; Pl.

56.1~109;

Pl. Opp. ii 42. Although plaintiff repeatedly asserts

that she was on "leave" while recovering from her injury, she has cited no evidence to that effect.
Pl. Opp. ~~ 68, 71. Consequently, defendants have met their burden of articulating a legitimate,
nondiscriminatory reason for terminating her. See Campbell v. Cty. of Onondaga, No. 5:04-CV1007 (NAM) (GHL), 2009 WL 3163498, at *18 (N.D.N.Y. Sept. 29, 2009) (unexcused absences
over 10-day period formed legitimate basis for termination) (citing cases); Butler v. Potter, No.

20

06-CV-3828 (JFB) (WDW), 2009 WL 804722, at *13 n.6 (E.D.N.Y. Mar. 26, 2009)
("[D]efendant has offered a legitimate, non-discriminatory reason for its action-namely, that
plaintiff was continuously absent from work from June 8, 2005 to October 17, 2005, without
approved leave or the submission of appropriate medical documentation."); Constance v. Pepsi

Bottling Co. ofNY, No. 03-CV-5009 (CBA) (MDG), 2007 WL 2460688, at *24 (E.D.N.Y. Aug.
24, 2007) ("Many courts have found job abandonment and excessive absenteeism to be
legitimate business reasons for termination.") (collecting cases); Jackson v. Nor Loch Manor

Healthcare Facility, 297 F. Supp. 2d 633, 636 (W.D.N.Y. 2004), ajf'd, 134 F. App'x 477 (2d
Cir. 2005) ("Certainly, an employer is entitled to discharge an employee who fails to follow
company rules and fails to appear for work without notification, even if the absences are
attributable to a medical problem.").

c.

No Pretext for Discrimination

To meet her burden at the third step of the McDonnell Douglas framework, plaintiff must
"identify evidence that would allow a reasonable fact finder to conclude that Defendants'
explanation is pretext and discrimination more likely than not motivated Defendants." Fenner v.

News Corp., No. 09-CV-9832 (LOS), 2013 WL 6244156, at *22 (S.D.N.Y. Dec. 2, 2013). Here,
plaintiff argues that defendants' "false ... and mistaken basis for terminating a supervising nurse
while on leave recovering from a work related injury, is the clearest example of pretext one
could find." Pl.

Opp.~

71. According to plaintiff, defendants' proffered explanation for her

termination was "fabricated" to conceal that she was terminated "for reasons involving [her] age
[or] national origin." Id
Plaintiff has not offered evidence to support this theory. To begin, plaintiff has not
directed the Court to evidence that defendants' stated reason for her termination was false.

21

Plaintiff alleges that she faxed medical documentation to defendants monthly to update them on
her condition. Pl.

Opp.~

40. Even if plaintiff did so and she was thereby in compliance with

defendants' leave policies, the indefinite nature of plaintiffs absence may have still formed a
legitimate basis for her termination. See, e.g., Daley v. Cablevision Sys. Corp., No. 12-CV-6316
(NSR), 2016 WL 880203, at *6 (S.D.N.Y. Mar. 7, 2016), aff'd, 675 F. App'x 97 (2d Cir. 2017)
(employer not required "'to hold an injured employee's position open indefinitely while the
employee attempts to recover"') (quoting Parker v. Columbia Pictures Indus., 204 F.3d 326, 338
(2d Cir. 2000)).
More important, even ifthe Court assumes that defendants' stated reasons for terminating
plaintiff were false, plaintiff has cited no evidence that Ballard (or anyone else involved in the
decision to terminate her) were motivated by discriminatory animus. See Shepherd v. BCBG
Max Azria Grp., Inc., No. 11-CV-7634 (RJS) (AJP), 2012 WL 4832883, at *20 (S.D.N.Y. Oct.

11, 2012), adopted by, 2012 WL 6150854 (S.D.N.Y. Dec. 10, 2012) ("Even assuming arguendo
that [plaintiff] has presented sufficient evidence to show that [defendant's] proffered nondiscriminatory justification is false, that does not suffice to satisfy the third prong of the
McDonnell Douglas test, which [also] requires a showing ... that the real reason is

discrimination") (citing cases). Absent such evidence, there is no triable issue of fact. See
Escribano v. Greater Hartford Acad. ofArts, 449 F. App'x 39, 41 (2d Cir. 2011) (to show

pretext, plaintiff must offer "'not simply some evidence, but sufficient evidence to support a
rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were
false, and that more likely than not discrimination was the real reason' for the challenged
actions") (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996)). For

22

these reasons, the Court concludes that defendants are entitled to summary judgment with respect
to plaintiffs state and federal discrimination claims.

3.

City Claims

Courts must analyze CHRL claims "separately and independently from any federal and
state law claims, construing [CHRL] provisions broadly in favor of discrimination plaintiffs."

Ya-Chen Chen v. City Univ. ofNew York, 805 F.3d 59, 75 (2d Cir. 2015) (internal alternations
and quotation marks omitted). Although courts evaluate CHRL claims using the McDonnell

Douglas framework set forth above, a plaintiff asserting a CHRL claim must only show that "her
employer treated her less well, at least in part for a discriminatory reason." Mihalik v. Credit

Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013); see also McCalla v. City
o[New York, No. 15-CV-8002 (LAK) (AJP), 2017 WL 3601182, at *44 (S.D.N.Y. Aug. 14,
2017). Thus, under the CHRL, the adverse employment action need not be "material[]." See,

e.g., Varughese v. Mount Sinai Med Ctr., No. 12-CV-8812 (CM) (JCF), 2015 WL 1499618, at
*39 (S.D.N.Y. Mar. 27, 2015), aff'd, 2017 WL 2889483 (2d Cir. July 7, 2017) ("[C]ase law ...
removed the materiality requirement from the NYCHRL's adverse action prong"). Also, though
the "employer may present evidence of its legitimate, non-discriminatory motives to show the
conduct was not caused by discrimination, ... it is entitled to summary judgment on this basis
only ifthe record establishes as a matter oflaw that discrimination played no role in its actions."

Mihalik, 715 F.3d at 110 n.8 (internal alternations, emphasis, and quotation marks omitted).
Although plaintiff argues that she was treated less well than Hollingsworth, Constantine,
and Harris during her employment with SNCC, evidence supporting this contention is lacking.

See supra at 16-1 7. Plaintiff testified that Wilson had said that she was ''the older and ... more
experience[d]" one when assigning her tasks, Pl.

Opp.~

23

75, but plaintiff has failed to cite

evidence that her workload differed from that of similarly situated younger coworkers such as
Hollingsworth. See supra at 4 n.4, 16-17. Plaintiff asserts that Constantine was permitted to
take leave without completing FMLA paperwork and that Harris failed to complete reports but
was never written up. Id. at 16-17. These contentions, however, lack evidentiary support.
Thus, there is not a triable dispute of fact as to whether plaintiff was treated less well than her
coworkers. See, e.g., Fenner, 2013 WL 6244156, at *14 (dismissing CHRL claim of race
discrimination on summary judgment where plaintiffs argued that "they were treated worse than
their white colleagues in a multitude of ways-lower pay, inferior assignments, dismissive
supervisors, less access to resources-but they have not supported their allegations with
evidence").
No evidence suggests that discrimination played any role in plaintiffs termination. See

supra at 14-17. Indeed, Ballard attests that she was unaware of plaintiffs protected
characteristics at the time of her decision to terminate plaintiff, and plaintiff has offered no
evidence to the contrary. Id. at 14. Notwithstanding any discriminatory comments made by
other SNCC employees, plaintiff has not cited evidence that anyone who made such remarks was
involved in her termination. Id. at 14-15. Consequently, no triable issue of fact exists as to
whether discrimination played a role in this action. See Joseph v. Owens & Minor Distribution,

Inc., 5 F. Supp. 3d 295, 321 (E.D.N.Y. 2014), aff'd, 594 F. App'x 29 (2d Cir. 2015) (dismissing
CHRL claim where "[o]ther than Plaintiffs allegations that a co-worker-who Plaintiff has not
shown had any involvement with Plaintiffs termination, or any influence over the decision
makers-made racially insensitive comments to him, there is no evidence whatsoever that the
individuals who decided to terminate Plaintiff harbored any discriminatory animus"). For these
reasons, summary judgment is granted with respect to plaintiffs CHRL discrimination claims.

24

C.

Retaliation Claims
1.

McDonnell Douglas Burden-Shifting Framework

Plaintiff claims that she was retaliated against for filing an EEOC charge of
discrimination in violation of§ 1981, the SHRL, and CHRL. Compl. if 83; Pl. Opp.

~if

94-98.

Such claims are subject to the three-step McDonnell Douglas burden-shifting framework. See,
e.g., McCalla, 2017 WL 3601182, at *27. At the first step, the plaintiff must make out aprima
facie case of retaliation by demonstrating that (1) she engaged in protected activity; (2) the

employer was aware of that activity; (3) the plaintiff suffered a materially adverse employment
action; and (4) there was a causal connection between the protected activity and the adverse
action. See, e.g. Pena-Barrero v. City of New York, No. 14-CV-9550 (VEC), 2017 WL 1194477,
at *17 (S.D.N.Y. Mar. 30, 2017) (citing Kelly v. Howard I Shapiro & Assocs. Consulting
Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013)). To satisfy the third prong under the CHRL, the

plaintiff need not prove that the adverse employment action was material-only that "something
happened that would be reasonably likely to deter a person from engaging in protected activity."
Salahuddin v. New York City Dep 't of Educ., No. 15-CV-6712 (LTS) (DCF), 2017 WL 3724287,

at *3 (S.D.N.Y. Aug. 28, 2017) (internal quotation marks omitted).
If plaintiff makes out a prima facie case, the employer must "articulate a legitimate, non-

retaliatory reason for the adverse employment action." Forest v. New York State Office of
Mental Health, 672 F. App'x 42, 43 (2d Cir. 2016). If the employer does so, the burden shifts to

the plaintiff to demonstrate that the proffered reason was pretextual and that discrimination was a
but-for cause of the adverse employment action. See, e.g., Alvarado v. Nordstrom, Inc., 685 F.
App'x 4, 7 (2d Cir. 2017); South v. Cont'! Cas. Co., No. 15-CV-1627 (WHP), 2017 WL 782909,
at *4 (S.D.N.Y. Feb. 28, 2017). Under the CHRL, however, '"summary judgment is appropriate

25

only if the plaintiff cannot show that retaliation played any part in the employer's decision."'

Marshall v. Kingsborough Cmty. Coll. of Cuny, No. 11-CV-2686 (PKC) (RML), 2015 WL
5773748, at *9 (E.D.N.Y. July 27, 2015), adopted by, 2015 WL 5774269 (E.D.N.Y. Sept. 30,
2015) (quoting Mihalik, 715 F.3d at 116).

2.

Application to Federal, State, and City Claims

Defendants concede that all elements of the prima facie case are met except the fourth
one, which requires plaintiff to demonstrate a causal link between the protected activity and
adverse employment action. Def. Mem. at 22-25. Defendants admit that plaintiff engaged in a
protected activity when she filed an EEOC charge on February 24, 2011, and that defendants
became aware of the charge by notice dated March 4. Id. at 22-23; see supra at 5. 12 More than
six months later, on September 20, plaintiff was terminated. See supra at 8. District courts in
the Second Circuit "have consistently held that the passage of two to three months between the
protected activity and the adverse employment action does not allow for an inference of
causation to make aprimafacie case." Paul v. Postgraduate Ctr.for Mental Health, 97 F. Supp.
3d 141, 195 (E.D.N.Y. 2015) (internal quotation marks omitted); see also Baldwin v. Cablevision

Sys. Corp., 888 N.Y.S.2d 1, 6 (1st Dep't 2009) (four months between protected act and alleged
retaliatory action was "not temporally proximate enough to satisfy the causality element of
plaintiffs [CHRL] retaliation claim").
Here, the gap of more than six months is too large for plaintiff to establish a causal link
though temporal proximity alone. In opposition, plaintiff points to no other evidence of
causation. Pl.

Opp.~~

94-98. Plaintiff notes that she stopped working a few weeks after filing

12

Defendants represent that plaintiffs EEOC filing was her only protected activity. Def. Mem.
at 22-24. Plaintiff has not asserted any claims ofretaliation based on any other protected
activity in her complaint or opposition papers.
26

the EEOC charge, which, according to plaintiff, "basically eliminated the need to terminate the
Plaintiff immediately ... because ... she was no longer at the job physically." Id.

ii 96.

On the

present record, the relevance of plaintiffs absence is unclear. There is, for example, no evidence
that plaintiffs absence would have made it more difficult to terminate her earlier than
September. Cf Espinal v. Goard, 558 F.3d 119, 129-30 (2d Cir. 2009) (retaliation may not have
been feasible until six months passed); Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d
Cir. 1980) (opportunity to retaliate only arose after eight months). Nor is there evidence that
plaintiff was on the verge of returning when she was terminated so as to make the timing of her
termination suspicious. With respect to her termination, plaintiff has failed to establish the
fourth element of her prima facie case.
For purposes of her CHRL claim, plaintiff has not argued that other adverse employment
actions, aside from her termination, were retaliatory. Pl. Opp. iii! 94-98; see also Compl. ii 83.
Nonetheless, the Court notes that, by the time that she filed her EEOC charge, plaintiff had
already returned to working evening shifts, and she had already received the written warning for
failing to complete survey-related audit summaries. Consequently, these actions cannot form the
basis of a retaliation claim. See Adams v. City ofNew York, 837 F. Supp. 2d 108, 123
(E.D.N.Y.2011) (actions preceding protected activity "cannot be retaliatory as a matter oflaw
and logic"). To the extent that plaintiff believes that approval of her leave request was delayed
because of her EEOC charge, plaintiff has cited no evidence that defendants' human-resources
representatives, or the outside company that handled her FMLA request, knew about her charge,
or that they were influenced by someone with this knowledge. See Seivright v. Montefiore Med.
Ctr., No. 11-CV-8934 (AJN), 2014 WL 896744, at *12 (S.D.N.Y. Mar. 3, 2014) ("Second

Circuit precedent suggests that where the individual decision-maker lacked knowledge of the

27

protected activity, there must be evidence that the decision-maker was at least influenced or
encouraged to take the adverse action by a superior with knowledge of the protected activity.").
For these reasons, plaintiff has failed to satisfy the fourth element of her primafacie case.
Even if plaintiff had established a prima facie case, defendants have articulated
legitimate, non-retaliatory reasons for their actions. As noted above, plaintiffs six-month
absence formed a legitimate basis for her termination. See supra at 20-21. To the extent that
plaintiff believes that defendants' actions with respect to her FMLA leave request were
retaliatory, defendants had a legitimate interest in securing documentation certifying the reasons
for her leave. See Klausner v. Indus. Risk Insurers, Inc., No. 98-CV-1267 (RPP), 1999 WL
476285, at *5 (S.D.N.Y. July 8, 1999) ("[I]t is legitimate and nondiscriminatory for an employer
to want to know that an employee is absent because of an unavoidable medical problem as
opposed to her desire simply not to come to work.").
At the third step, plaintiff argues that defendants' stated reason for her termination was
"fabricated" and that their "motivation to terminate Plaintiff was related her protected activity."
Pl. Opp. iii! 95, 98. Yet plaintiff cites no evidence to support this theory and, as a result, does not
carry her burden at this step of the McDonnell Douglas framework. See supra at 21-23; e.g.,

McWhite v. New York City Haus. Auth., No. 05-CV-991 (NG) (LB), 2008 WL 1699446, at *12
(E.D.N.Y. Apr. 10, 2008) (granting summary judgment where "plaintiff offers no evidence to
prove that [defendant's proffered] reason is false"). Even assuming that defendants' stated
reasons for plaintiffs termination are false, plaintiff must offer evidence that retaliation was a
real reason for her termination, which plaintiff fails to do. See Marshall v. NYC Bd. of Elections,
322 F. App'x 17, 19 (2d Cir. 2009)(even if defendants' stated reasons for the adverse action

28

were pretextual, plaintiff must still offer evidence that the reasons were a pretext for retaliation)
(citing Rage v. NYP Holdings, Inc., 257 F.3d 164, 170 (2d Cir. 2001)). 13
III.

Conclusion

For these reasons, defendants' motion for summary judgment (Dkt. No. 65) is granted.
Defendants' motion to strike (Dkt. No. 70) is denied as moot. The Clerk of Court is directed to
enter judgment and close the case.

SO ORDERED.

s/SLT
United States District Judge
Dated: Brooklyn, Ne}s
York

lt1 ~

, 2017

13

Defendants argue that plaintiff is precluded from seeking damages given that she has not
searched for employment or applied for any positions since she stopped working for SNCC in
March 2011. Def. Mem. at 25. Given that plaintiffs underlying claims are dismissed, the Court
need not address issues involving damages .

29