Watson v. Richmond University Medical Center
Filing
124
CORRECTED MEMORANDUM OF DECISION AND ORDER: The Court's September 30, 2019 memorandum and order 122 is VACATED. For the reasons set forth in the attached corrected memorandum and order, Defendant Nowakowskis motion for summary judgment 110 is GRANTED, and RUMC Defendants motion for summary judgment 107 is GRANTED in part and DENIED in part. Defendant Nowakowskis motion for summary judgment is GRANTED with respect to Plaintiffs equal protection and breach of contract claims, both of which are dismissed with prejudice. RUMC Defendants motion for summary judgment is GRANTED with respect to Plaintiffs claims for disparate treatment, retaliation, violations of the Fair Labor Standards Act, and breach of contract, all of which are dismissed with prejudice. RUMC Defendants motion is DENIED with respect to Plaintiffs hostile work environment claim. The only claim remaining for trial is Plaintiffs hostile work environment claim. Ordered by Judge LaShann DeArcy Hall on 10/10/2019. VACATED pursuant to 124 Order of Judge LaShann DeArcy Hall. This entry has been modified on 10/10/2019 to indicate order 122 has been vacated. (Valderrama, Freddie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MICHELLE K. WATSON,
Plaintiff,
v.
THE RICHMOND UNIVERSITY MEDICAL
CENTER; THE STATE UNIVERSITY OF NEW
YORK DOWNSTATE MEDICAL CENTER; THE
STATE OF NEW YORK, EDWARD ARSURA, M.D.,
in his individual capacity and as Senior Vice President
and Chief Medical Officer of the Richmond University
Medical Center; MAJA NOWAKOWSKI, PH.D., in her
individual capacity and as Associate Professor of
Pathology and Medicine of the State University of New
York Downstate Medical Center, and as Director of Pre and
Post Doctoral Education, Center for Allergy
Research at the State University of New York Downstate
Medical Center,
Defendants.
MEMORANDUM ORDER
14-CV-1033 (LDH) (AKT)
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Michelle K. Watson brings the instant action against Defendants The Richmond
University Medical Center (“RUMC”); Edward Arsura, M.D. (collectively, “RUMC
Defendants”); and Maja Nowakowski, Ph.D., arising out of Plaintiff’s participation in two
fellowship programs operated under the Empire Clinical Research Investigator Program
(“ECRIP”). (See generally 1st Am. Compl. Declaratory Relief, Injunctive Relief, & Damages
(“Am. Compl.”), ECF No. 36.)1 Plaintiff alleges the following: (1) disparate treatment, hostile
work environment, and retaliation in violation of Title VII against RUMC; (2) a 42 U.S.C.
1
By stipulation dated January 11, 2016, Plaintiff withdrew her claims against the State of New York and several of
her claims against the State University of New York Downstate Medical Center (“SUNY Downstate”) and the
individual Defendants in their official capacities. (ECF No. 55.) Plaintiff’s remaining claims against SUNY
Downstate were dismissed by order dated March 9, 2017. (ECF No. 68.)
§ 1983 claim against Dr. Nowakowski in her individual capacity for violations of the Equal
Protection Clause of the Fourteenth Amendment to the U.S. Constitution; (3) violations of the
Fair Labor Standards Act, 29 U.S.C. §§ 201-219, against RUMC; and (4) breach of contract
against all Defendants. Defendants move pursuant to Federal Rule of Civil Procedure 56 for
summary judgment dismissing the complaint in its entirety. (ECF Nos. 107 (RUMC Defs.), 110
(Nowakowski).)
BACKGROUND2
I.
The First ECRIP Grant
ECRIP is a fellowship program that trains physicians in clinical research. (Pl.’s Local
Civ. R. 56.1 Counterstatement Disputed Material Facts & Local Civ. R. 56.1(b) Statement
Additional Material Facts Opp’n Def. Nowakowski’s Mot. Summ. J. (“Nowakowski 56.1”) ¶ 7,
ECF No. 117-49.) Plaintiff, a 44-year-old African-American doctor, was hired to work as a
research fellow from July 1, 2009, to June 30, 2010, for the second and final year of an ECRIP
project at SUNY Downstate. (See id. ¶¶ 1, 14, 20-21; Def. Maja Nowakowski’s Corrected Resp.
Pl.’s Local Civ. R. 56.1 Counterstatement Material Facts (“Nowakowski Reply 56.1”) ¶ 73, ECF
No. 115.) Plaintiff was supervised by Dr. Nowakowski (the “First ECRIP Grant”). (See
Nowakowski 56.1 ¶¶ 20-21.) The fellowship was sponsored by Coney Island Hospital (“CIH”),
and CIH was responsible for paying Plaintiff’s salary. (Id. ¶¶ 23-24.) Due to the New York
State legislature’s failure to pass a budget, funds were not available for CIH to pay Plaintiff for
an unspecified period of time. (Id. ¶ 25.) To assist Plaintiff with expenses during this period,
Dr. Nowakowski lent Plaintiff $2,400 in July 2009, which Plaintiff has never repaid. (Id. ¶¶ 26-
The following facts are taken from the parties’ statements of material facts pursuant to Local Civil Rule 56.1. The
are undisputed unless otherwise noted.
2
2
27.) CIH ultimately paid Plaintiff in full, including back pay. (Id. ¶ 28.) Around this time,
because Plaintiff was not receiving salary payments or health care coverage, Plaintiff claims that
Dr. Nowakowski stated to Plaintiff: “If you’re so concerned about not having health coverage,
why don’t you go across the street to the county hospital and get yourself some MedicareMedicaid.” (Pl.’s 56.1 Local Civ. R. 56.1 Counterstatement Disputed Material Facts & Local
Civ. R. 56.1(b) Statement Additional Material Facts Opp’n [RUMC Defs.’] Mot. Summ. J.
(“RUMC Defs.’ 56.1”) ¶ 28, ECF No. 108-51.)
Plaintiff was informed by an administrative assistant that she was the first AfricanAmerican fellow hired to work in the pathology department. (Nowakowski 56.1 ¶ 30; RUMC
Defs.’ 56.1 ¶ 32.) Dr. Nowakowski was not aware of that fact. (See Nowakowski 56.1 ¶ 30.)
Dr. Helen Durkin, a doctor at SUNY Downstate, made racially charged comments to her, but she
did not inform anyone. (RUMC Defs.’ 56.1 ¶¶ 40-47.) A bulletin board at SUNY Downstate
displays the pictures of previous Ph.D. recipients, residents, and fellows. (Id. ¶ 40.) Upon
noticing that all of the individuals photographed were white men, Plaintiff asked Dr. Durkin if
she had “ever trained any Ph.D. recipients who are minority [sic] or of color.” (Id. ¶ 44.) Dr.
Durkin stated that she had not, because she could not find any. (Id. ¶¶ 44-45.) Dr. Durkin went
on to explain:
Well, I can’t really find any or I can’t find any blacks who are interested because I
understand that most blacks really aren’t interested in pursuing Ph.Ds. Blacks are
not interested in dedicating a lengthy number of years to advancing medical
science. I find that most blacks would just prefer to go to med school for four years,
get an M.D., make a lot of money quickly, buy a fancy car for themselves, and then
go buy a fancy house for their parents. Blacks just don’t want to work a long
number of years to get a Ph.D. to advance medical science, so that's why I haven't
trained any.
(Id. ¶ 46.) Plaintiff did not report Dr. Durkin’s statement to anyone at SUNY Downstate,
including Dr. Nowakowski. (Id. ¶ 47.)
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Plaintiff also claims that she was excluded from “journal club” meetings at SUNY
Downstate where doctors, residents, fellows, and medical students would discuss “the latest
medical literature.” (Id. ¶ 48.) Other fellows received reading materials for these meetings in
their mailboxes before the meetings. (Id. ¶ 49.) Plaintiff, however, did not have a mailbox. (Id.)
Plaintiff maintains that Dr. Nowakowski wanted Plaintiff to appear unprepared at the meetings.
(Id. ¶ 54.) Dr. Nowakowski did not regularly provide her with any materials in advance of the
meetings. (Id. ¶ 49.) Plaintiff concedes, however, that there were occasions when Dr.
Nowakowski would provide Plaintiff with these materials, and that she does not know whether
Nowakowski even regularly received the journal club materials. (Id. ¶ 54-55.) Plaintiff also was
not invited to luncheon lectures by Dr. Nowakowski, even though other supervisors invited their
fellows. (Id. ¶ 57.) Plaintiff believes this is because she is African American. (Id. ¶ 58.)
According to Plaintiff, Dr. Nowakowski did not introduce Plaintiff to visitors from other
institutions because of her race. (Id. ¶¶ 59-60.) Plaintiff never informed Dr. Nowakowski that
anyone at SUNY Downstate treated her any differently on account of her race. (Nowakowski
56.1 ¶¶ 31-32.)
II.
The Second ECRIP Grant
Shortly before the First ECRIP Grant expired, Dr. Nowakowski offered Plaintiff a new
two-year grant for which she would receive her pay and benefits through RUMC, instead of CIH
(the “Second ECRIP Grant”). (Id. ¶¶ 42, 44, 63, 65-66.) RUMC is a healthcare facility and
teaching institution that provides acute, medical, and surgical care. (Id. ¶ 1.)
Plaintiff was informed that the Second ECRIP Grant would last from July 1, 2010, to June 30,
2012. (Id. ¶ 68.) Plaintiff was further informed that RUMC had not yet received grant money
for her fellowship. (Id. ¶ 69.) Plaintiff was provided with three options: (1) reject the offer;
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(2) begin work on July 1, 2010, with an understanding that she would be paid when funds were
available; or (3) delay her start date until funds were available. (Id. ¶ 70.) Plaintiff chose to
accept the offer of employment and began work immediately with the understanding that she
would not be paid until the grant money was received. (Id. ¶¶ 71-73.) Plaintiff was ultimately
paid in full for the two-year fellowship, a total sum of $150,000. (Id. ¶ 76.) In September 2010,
Plaintiff was informed that the Second ECRIP Grant period had “shifted” and would begin on
September 16, 2010 and end on September 15, 2012. (Id. ¶ 85.) This was despite the fact that
Plaintiff had been working from July 1, 2010 for which she was ultimately paid. (Id.) Also in
September 2010, Plaintiff went to the RUMC campus to meet with Dr. Arsura, the Chief Medical
Officer at RUMC during Plaintiff’s employment. (See id. ¶¶ 4, 77-82.) Upon her arrival at Dr.
Arsura’s office, Plaintiff introduced herself to Dr. Arsura’s administrative assistant, Sharon
Clarke. (See id. ¶¶ 5, 78.) In response, Clarke initially “stayed silent and her mouth was open.”
(Id. ¶ 79.) She then said “you’re Dr. Michelle Watson.” (Id.) Clarke left her chair, “hastened”
into Dr. Arsura’s office, and shut the door. (Id. ¶ 80.) Approximately seven minutes later,
Clarke re-emerged looking “anxious, shaken, [and] like her face was red.” (Id.) Plaintiff
attributes Clarke’s reaction to Plaintiff’s race. (Id. ¶ 81.)
During the Second ECRIP Grant period, Plaintiff alleges that unnamed or unknown
individuals treated her poorly because of her race on several occasions. First, Plaintiff recalled
that petri dishes containing her research were frequently missing. (Id. ¶ 99.) Plaintiff has no
idea who did this, but believes that it was due to her race. (Id. ¶¶ 101-02.) Second, Plaintiff
recalls another occasion when the door to the shared laboratory was locked. (Id. ¶ 105.) Three
doctors, including Dr. Nowakowski, asked Plaintiff whether she had locked the door. (Id.
¶ 106.) Dr. Durkin stated: “[B]efore certain people showed up here we didn’t have this problem,
5
we didn’t have doors being locked, we didn’t have petri dishes missing and all of these things
going on in this lab.” (Id. ¶ 107.) Other fellows accused Plaintiff of having locked the door. (Id.
¶ 108.) Plaintiff was not disciplined in any way in connection with the locked door. (Id. ¶ 110.)
Third, Plaintiff was not invited to join doctors, fellows, residents, and students for lunch. (Id.
¶ 111.) Plaintiff does not know why she was not invited to lunch, but she believes it was on
account of her race, or because others had observed her doing menial work at Dr. Nowakowski’s
request, or some combination of the two. (Id. ¶¶ 112-14.) Fourth, Plaintiff was not provided
with a machine required to do her work (the “NiOx machine”). (Id. ¶ 115-18.) Because RUMC
could not provide the NiOx machine, Plaintiff was informed by Dr. Nowakowski that her
research project would need to change. (Id. ¶¶ 134-37.) Plaintiff is not aware of any other
fellow whose project changed during their grant period. (Id. ¶ 138.) Fifth, Plaintiff recalled an
occasion when she arrived at Dr. Arsura’s office “unannounced” without an appointment. (Id.
¶ 124.) Clarke informed Plaintiff that they were not expecting Plaintiff. (Id. ¶ 125.) Clarke
further informed Plaintiff that Dr. Arsura could not meet with her that day. (Id. ¶¶ 127-29.)
Plaintiff checked Dr. Arsura’s office and, when Plaintiff turned around, noticed Dr. Arsura
quickly moving away from her down the hallway. (Id. ¶¶ 128-30.) Plaintiff also recalled that
Clarke would, on some occasions, call her Michelle, rather than Dr. Watson. (Id. ¶ 132.) Sixth,
Dr. Nowakowski asked Plaintiff to teach students, in particular African American students from
Edward R. Murrow high school. (Id. ¶¶ 139-40.) Plaintiff was also asked to perform other
“menial” tasks such as taking out the garbage, cleaning off Dr. Nowakowski’s desk, filing Dr.
Nowakowski’s mail, rearranging bookshelves, bookcases, journals and books, hauling nitrogen
tanks, and cleaning out the refrigerator. (Id. ¶ 142.) Seventh, Plaintiff did not receive a letter of
recommendation from Dr. Durkin, despite asking for one. (Id. ¶ 149.) Dr. Durkin told Plaintiff
6
that she did not have time to write a letter of recommendation and that, because Dr.
Nowakowski—and not Dr. Durkin—was Plaintiff’s supervisor, Plaintiff should ask Dr.
Nowakowski for a recommendation. (Id. ¶¶ 150-11.)
III.
The Third ECRIP Grant
Dr. Nowakowski applied for and received approval for an additional two-year ECRIP grant
(the “Third ECRIP Grant”). (Id. ¶ 56.) This project was slated to run from July 1, 2011, to June
30, 2013. (Id.) The parties dispute the extent to which Plaintiff was officially hired to serve as a
research fellow for this third grant and whether Plaintiff was hired to serve for one or two years.
(See id. ¶¶ 59-61.)
IV.
Plaintiff’s Termination
On May 18, 2012, Plaintiff was told that her employment would end on June 29, 2012.
(RUMC Defs.’ 56.1 ¶ 88.) No one at RUMC told Plaintiff to continue working beyond June 29,
2012. (Id. ¶ 91.) Dr. Nowakowski, who was not an employee of RUMC, informed Plaintiff that
she was trying to keep Plaintiff working beyond June 29, 2012, but never confirmed her ability
to do so. (Id. ¶ 92.) Plaintiff claims that she performed work from June 29 to July 24, 2012, for
which she was not paid. (Id. ¶ 93.) No RUMC employee witnessed Plaintiff perform any work
during this period of time. (Id. ¶ 94.) Plaintiff emailed Clarke on July 23, 2012 to inform Clarke
that she had not received a paycheck for the previous pay period. (See id. ¶ 95.) At some point,
Clarke informed Dr. Arsura of Plaintiff’s e-mail, and, in response, Dr. Arsura reiterated to
Plaintiff that her last day of work had been June 29, 2012. (See id. ¶ 96.)
V.
Plaintiff’s Administrative Complaints
On February 23, 2012, Plaintiff filed an administrative charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging discrimination based upon her race.
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(Id. ¶ 162.) The EEOC dismissed Plaintiff’s charge and issued a right-to-sue letter on May 3,
2013. (Id. ¶ 163.) On September 20, 2012, Plaintiff filed an administrative charge with the New
York State Division of Human Rights (“NYSDHR”), which was cross-filed with the EEOC,
alleging race-based discrimination and retaliation. (Id. ¶ 164.) On March 14, 2013, the
NYSDHR issued a “No Probable Cause” determination, finding that RUMC did not engage in
the alleged misconduct. (Id. ¶ 165.) The EEOC dismissed Plaintiff’s charge and issued a rightto-sue letter on December 30, 2013. (Id. ¶ 166.)
STANDARD OF REVIEW
Summary judgment must be granted when there is “no genuine dispute as to any material
fact and the movant[s] [are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute of
material fact exists “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248. At summary judgment, the movants bear the
initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.
2004). Where the non-movant bears the burden of proof at trial, the movants’ initial burden at
summary judgment can be met by pointing to a lack of evidence supporting the non-movant’s
claim. Celotex Corp., 477 U.S. at 325.
Once the movants meet that burden, the non-movant may defeat summary judgment only
by adducing evidence of specific facts that raise a genuine issue for trial. See Fed. R. Civ. P.
56(c); Anderson, 477 U.S. at 248; Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). The
court is to view all facts in the light most favorable to the non-movant, drawing all reasonable
inferences in her favor. Anderson, 477 U.S. at 255. To survive summary judgment, the non-
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movant must present concrete evidence and rely on more than conclusory or speculative claims.
Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (“The litigant
opposing summary judgment . . . ‘may not rest upon mere conclusory allegations or denials’ as a
vehicle for obtaining a trial.”).
DISCUSSION
I.
Plaintiff’s Title VII Claims Against RUMC
A.
Discrimination
Plaintiff alleges disparate treatment on account of her race in violation of Title VII. (Am.
Compl. ¶¶ 102-05.) It is now long established that Title VII claims are analyzed under the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Ruiz v. Cty. of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). “To establish a prima facie
case of discrimination, a plaintiff must show: (1) membership in a protected class;
(2) qualification for the position [s]he held; (3) an adverse employment action; and (4) that the
adverse employment action occurred under circumstances that give rise to an inference of
discrimination.” Hartley v. Rubio, 785 F. Supp. 2d 165, 176 (S.D.N.Y. 2011). There is no
dispute that Plaintiff is a member of a protected class and was qualified for the position she held.
(RUMC Defs.’ 56.1 ¶¶ 14, 218.) The parties dispute whether Plaintiff suffered an adverse
employment action and whether such action occurred under circumstances giving rise to the
necessary inference of discrimination. (RUMC Defs.’ Mem. Supp. Mot. Summ. J. (“RUMC
Mem.”) at 7-10, ECF No. 107-18; Pl.’s Mem. Opp’n RUMC Defs.’ Mot. Summ. J. (“Pl.’s
RUMC Opp’n”) at 6-9, ECF No. 108-50.)
“A plaintiff sustains an adverse employment action if he or she endures a ‘materially
adverse change’ in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000), abrogated on other grounds as recognized in Davis-Garett v.
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Urban Outfitters, Inc., 921 F.3d 30, 43-44 (2d Cir. 2019) (clarifying legal standard for claims of
retaliation). “To be ‘materially adverse,’ a change in working conditions must be ‘more
disruptive than a mere inconvenience or an alteration of job responsibilities.’” Id. (quoting
Crady v. Libert Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Adverse
employment actions can include “termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a particular situation.”
Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (quoting Galabya, 202 F.3d at 640).
Here, Plaintiff identifies four potential adverse employment actions: (1) Dr.
Nowakowski’s inducing Plaintiff into agreeing to work on the Second ECRIP Grant while
knowing that Plaintiff would be unable to perform the essential functions of that grant; (2) Dr.
Nowakowski’s assigning Plaintiff menial tasks; (3) Dr. Nowakowski “switch[ing]” Plaintiff from
the Second ECRIP Grant to a Third ECRIP Grant; and (4) Dr. Nowakowski’s terminating
Plaintiff prematurely or failing to hire her for the full term of the Third ECRIP Grant. (Pl.’s
RUMC Opp’n. at 6-9.) RUMC Defendants argue that Plaintiff has failed to adduce evidence that
this conduct actually occurred, and to the extent it did, that none of this alleged conduct amounts
to an adverse employment action.3 (RUMC Mem. at 7-10.) The Court agrees in part.
In addition, RUMC Defendants’ argue that Plaintiff failed to administratively exhaust her claim for failure to hire
her for the Third ECRIP Grant by failing to include it in her EEOC complaint. (Id.) Not so. Exhaustion may be
effectuated by filing a complaint with the EEOC or a state equivalent, such as the NYSDHR. Holtz v. Rockefeller &
Co., 258 F.3d 62, 82-83 (2d Cir. 2001) (noting that a plaintiff can exhaust by filing a timely charge with “a state or
local agency with authority to grant or seek relief from such practice” (quoting 42 U.S.C. § 2000e-(5)(e)). Although
Plaintiff did not raise the Third ECRIP Grant in her EEOC complaint, she did allege in her complaint filed with the
NYSDHR that her employment was terminated early. (Compare Decl. Ann Shields Supp. Mot. Summ. J. Ex. 13,
ECF No. 100-15, with id. Ex. 15, ECF No. 100-17.) Thus, Plaintiff exhausted her remedies. RUMC Defendants
further argue that Plaintiff’s failure to include in her amended complaint a claim for failure to hire her for a Third
ECRIP Grant should preclude the Court’s consideration of such a claim. (RUMC Mem. at 10.) Because, as
discussed in this opinion, any failure to hire did not occur under circumstances giving rise to an inference of
discrimination, the Court need not address this argument.
3
10
1.
The Alleged Adverse Employment Actions
a.
Fraudulent Inducement
Plaintiff claims that Dr. Nowakowski knew that a NiOx machine was required for
Plaintiff to complete the Second ECRIP Grant project, and yet offered Plaintiff this project with
the purpose of forcing Plaintiff to choose between “either not do[ing] any productive work at all
or alternatively, [doing] the menial duties that Nowakowski directed.” (Pl.’s RUMC Opp’n at 67.) The Court cannot conclude that this alleged conduct constitutes an adverse employment
action. Put simply, the conduct alleged here is that Dr. Nowakoski offered Plaintiff a job.
Offering an individual employment necessarily cannot constitute an adverse employment action.
This is particularly the case where Plaintiff was aware that the NiOx machine was not
functioning when she accepted the offer of employment. (Nowakowski 56.1 ¶¶ 49, 105.)
b.
The Assignment of Menial Tasks
Plaintiff alleges that, during the course of the Second ECRIP Grant, Dr. Nowakowski
“directed Plaintiff to perform administrative and even janitorial duties, including cleaning
Nowakowski’s desk, emptying garbage, filing mail, and reorganizing bookshelves and
bookcases.” (Pl.’s RUMC Opp’n. at 7.) Plaintiff also claims that she “was directed to teach high
school and Master’s students.” (Id.) Drawing every inference in Plaintiff’s favor, the
assignment of these tasks could constitute an adverse employment action. While “mere
inconvenience[s] or an alteration of job responsibilities” do not constitute adverse employment
actions, the Second Circuit has indicated that a diminution in duties can constitute an adverse
employment action where the diminution is “so significant as to constitute a setback to the
plaintiff’s career.” Galabya, 202 F.3d at 641. Plaintiff testified at deposition that the assignment
of menial tasks affected how she was perceived by colleagues and limited her networking
opportunities. (Decl. Ann Shields Supp. Mot. Summ. J. Ex. 5, 27:21-30:19, ECF No. 110-7.) A
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reasonable juror could conclude that such diminution of duties constituted an adverse
employment action.
c.
Switching Plaintiff from the Second ECRIP Grant to the Third
ECRIP Grant
Plaintiff claims that Dr. Nowakowski’s “switching” of Plaintiff from the Second ECRIP
Grant to the Third ECRIP Grant prior to the Second ECRIP Grant’s expiration constituted an
adverse employment action. It is undisputed that Dr. Nowakowski adjusted the focus of
Plaintiff’s research from “Immunological and inflammatory response to HAART (Highly Active
Anti-Retroviral Treatment) in subjects with HIV-1 disease and allergic asthma” to “Mechanism
of Sophorolipid Suppression of Septic/Endotoxic Shock.” (Nowakowski Reply 56.1 ¶¶ 97, 109,
114-17.) Plaintiff cites no evidence, however, from which a jury could conclude that this
“switch” caused a materially adverse change in the terms and conditions of Plaintiff’s
employment. See Galabya, 202 F.3d at 640. Plaintiff has not explained how this switch “was to
an assignment that was materially less prestigious, materially less suited to [her] skills and
expertise, or materially less conducive to career advancement.” Id. Moreover, Plaintiff does not
claim that she received a reduced salary or benefits pursuant to the switch. This shift in research
focus, therefore, amounts to nothing more than an “alteration of job responsibilities” that is not
actionable. Id. (quoting Crady, 993 F.2d at 136).
d.
Terminating or Failing to Hire Plaintiff for the Third ECRIP
Grant
Plaintiff claims that RUMC Defendants, in concert with Dr. Nowakowski, prematurely
terminated Plaintiff on July 24, 2012, or, in the alternative, failed to hire Plaintiff for the second
year of the Third ECRIP Grant. (Pl.’s RUMC Opp’n at 9.) The parties dispute whether Plaintiff
was hired as the fellow for the entire term of the Third ECRIP Grant or whether she was only
hired to serve as a fellow for the first year of the Third ECRIP Grant. (Nowakowski 56.1 ¶¶ 109,
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113.) Premature termination or failure to hire may constitute adverse employment actions. See
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (identifying “acts such as
termination . . . or refusal to hire” as examples of adverse employment actions). Therefore, the
parties’ dispute on this issue constitutes a triable issue of fact.
2.
Inference of Discrimination
A plaintiff may establish the necessary inference of racial discrimination by proffering
either direct or indirect evidence of discriminatory intent. Haskell v. Kaman Corp., 743 F.2d
113, 119 (2d Cir. 1984). Direct evidence of discrimination would exist in the form of
disparaging comments regarding a plaintiff’s protected class. Id. Indirect evidence of racial
discrimination could include evidence that similarly situated comparators outside of Plaintiff’s
protected class were treated more favorably than the plaintiff. See Deuel, 2015 WL 4394085, at
*5 (citing Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001)). To succeed
on such a claim, however, the proffered comparator must indeed be similarly situated. An
employee is considered similarly situated to co-employees if they were (1) “subject to the same
performance evaluation and discipline standards” and (2) “engaged in comparable conduct.”
Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). “[T]he standard for comparing
conduct requires a reasonably close resemblance of the facts and circumstances of [the]
plaintiff’s and comparator’s cases, rather than a showing that both cases are identical.” Id.
As discussed above, here, Plaintiff has adduced sufficient evidence to support two
potential adverse employment actions: (1) the assignment of menial tasks during the course of
the Second ECRIP Grant and (2) the premature termination of Plaintiff’s employment or failure
to hire Plaintiff in July 2012. As Defendants correctly argue, however, Plaintiff has failed to
adduce evidence that this conduct occurred under circumstances giving rise to an inference of
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discrimination.
First, the little direct evidence of race discrimination, such as the statements Plaintiff
attributes to Dr. Durkin and others, cannot support Plaintiff’s claim because none of these
individuals were decisionmakers with respect to any adverse employment action. See Patterson
v. Cnty. of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir. 2004) (evidence that plaintiff's colleague
made racially derogatory remarks were insufficient to raise an inference of discrimination, where
there was no evidence that the colleague played a role in the decision to terminate plaintiff, and
where there was no evidence of bias on the part of those who did decide to terminate plaintiff).
While Dr. Durkin’s comments, if true, are abhorrent, it is undisputed that Dr. Durkin was not
Plaintiff’s supervisor (RUMC 56.1 ¶ 13), and Plaintiff has adduced no evidence that Dr. Durkin
had any role in any employment decision related to Plaintiff. Moreover, Plaintiff concedes that
Dr. Nowakowski, the individual who made decisions related to Plaintiff’s employment, was
unaware of Dr. Durkin’s statements. (Id. ¶ 47.) Plaintiff adduces no evidence to suggest that Dr.
Nowakowski was aware of the comments made by the “young African American female”
administrative assistant who, according to Plaintiff, greeted her by saying: “None of us have
ever worked back there doing what you are going to be doing. Usually we’re here typing or
we’re out sweeping as a part of the staff, but we’re not back there doing what you’re doing. So
welcome.” (See RUMC 56.1 ¶¶ 32, 37.) Nor has Plaintiff adduced any evidence to suggest that
this unnamed individual played any role with respect to any adverse employment action.4
4
Plaintiff argues that SUNY Downstate employees, such as Dr. Durkin, could be considered agents of RUMC
Defendants for purposes of the Second and Third ECRIP Grants. (Pl.’s RUMC Opp’n at 4.) However, these
statements occurred during the course of the First ECRIP Grant. Therefore, even under an agency theory, Dr.
Durkin’s and the unidentified administrative assistant’s statements cannot be attributed to RUMC. Farganis v.
Town of Montgomery, 397 F. App’x 666, 668 (2d Cir. 2010) (“A party seeking to introduce a vicarious admission
under this rule must establish (1) the existence of the agency relationship, (2) that the statement was made during the
course of the relationship, and (3) that it relates to a matter within the scope of the agency.”) (quotations omitted).
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Second, the conduct that Plaintiff has adduced related to her supervisors, Dr.
Nowakowski and Dr. Arsura, does not support an inference of discrimination. Plaintiff claims
that in July, or August of 2010, Dr. Nowakowski stated to Plaintiff: “[I]f you’re so concerned
about not having health coverage, why don’t you go across the street to the county hospital and
get yourself some Medicare-Medicaid.” (RUMC Defs.’ 56.1 ¶ 28.) Plaintiff maintains that,
“while the mere suggestion to someone to apply for Medicaid is not, in and of itself, a racially
tinged statement, Kings County Medical Center is widely known to serve poor people of color
who in many cases utilize its facilities with the assistance of Medicaid.”5 ([RUMC Defs.’]
Counter-Statement Pl.’s “Statement Additional Material Facts Which Contended Exists Genuine
Issue Be Tried Pursuant Local Civ. R. 56.1(b)” ¶ 226, ECF No. 107-20.) This does not suffice as
direct evidence, particularly because Plaintiff does not tie this statement in any way to any
adverse employment decision made by Dr. Nowakowski. See Tyler v. Bethlehem Steel Corp.,
958 F.2d 1176, 1185 (2d Cir. 1992) (“Strictly speaking, the only ‘direct evidence’ that a decision
was made ‘because of’ an impermissible factor would be an admission by the decisionmaker
such as ‘I fired him because he was too old.’”). Moreover, Plaintiff’s supposition regarding the
motivations for this statement does not suffice to create a triable issue of fact. “[A] jury cannot
infer discrimination from thin air. Plaintiff[ ] ha[s] done little more than cite to [her]
mistreatment and ask the court to conclude that it must have been related to [her] race.” Lizardo
Plaintiff suggests that Magistrate Judge Bloom’s June 24, 2016 report & recommendation found that this statement
alone could suggest the necessary discriminatory inference. (Pl.’s RUMC Opp’n at 12-13.) Not so. Magistrate
Judge Bloom found that this alleged statement, accepted as true and taken together with all of Plaintiff’s factual
allegations, sufficed to create an inference of discriminatory intent at the motion-to-dismiss stage. (R. & R. at 23,
ECF No. 64.) Although Plaintiff’s allegations, accepted as true at the time, were sufficient to survive Defendants’
motions to dismiss, bare allegations, without more, are insufficient at the summary-judgment stage. “When the
[summary judgment] motion is made, we go beyond the paper allegations of the pleadings, which were enough to
survive the common law demurrer. The time has come . . . ‘to put up or shut up.’” Weinstock v. Columbia Univ.,
224 F.3d 33, 41 (2d Cir. 2000) (citation omitted).
5
15
v. Denny’s, Inc., 270 F.3d 94, 104 (2d Cir. 2001) (citation omitted).6
With respect to Dr. Arsura, Plaintiff has adduced even less evidence. Specifically,
Plaintiff recalls an occasion on which Dr. Arsura was rude to her, and complains that Dr. Arsura
did not respond to Plaintiff’s request for new equipment. (RUMC Defs.’ 56.1 ¶¶ 116-17, 12430.) Absent again, however, is evidence that this conduct was in any way related to any adverse
employment action.
In lieu of direct evidence of discrimination, Plaintiff argues that the necessary
discriminatory inference can be established by the comparatively more favorable treatment of
other ECRIP fellows, and by the fact that Plaintiff was “the first and only African-American ever
to have worked either under Dr. Nowakowski or for RUMC as an ECRIP fellow.” (Pl.’s RUMC
Opp’n at 10-11.) While a plaintiff can demonstrate disparate treatment with proof that an
employer treated a plaintiff less favorably than “similarly situated” employees outside of her
protected group, to succeed on such a claim, a plaintiff must, in fact, identify such comparators.
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 65 (2d Cir. 1997).
Plaintiff does not specifically identify a single purported comparator. Instead, she
vaguely refers to two groups of potential comparators: (1) “other ECRIP fellows working in the
SUNY Pathology laboratory at the same time” and (2) Dr. Nowakowski’s prior ECRIP fellows.
(Pl.’s RUMC Opp’n at 12.) But such generalized allegations do not permit the Court to
determine whether these comparators are, in fact, similarly situated to Plaintiff, particularly with
respect to the adverse employment actions at issue. See Hongyan Lu v. Chase Inv. Servs. Corp.,
412 F. App’x 413, 417–18 (2d Cir. 2011) (summary order) (affirming summary judgment where
Plaintiff also recalls an occasion when Dr. Nowakowski’s hand brushed the hand of an African American
“custodial gentleman” and, in response, Dr. Nowakowski “screamed and jumped away.” (RUMC 56.1 ¶ 228.)
While Plaintiff reads into this incident an inference of racial discrimination, the Court cannot find that this isolated
incident, disassociated in time from any adverse employment action, gives rise to such an inference.
6
16
the plaintiff offered “little more than conclusory statements” and “sweeping allegations
unsupported by admissible evidence” regarding alleged comparators); Shumway, 118 F.3d 60, 65
(2d Cir. 1997) (same).
With respect to the other ECRIP fellows working in the SUNY Pathology laboratory at
the same time as Plaintiff, Plaintiff does not identify these individuals’ supervisors, the projects
they worked on, their relative experience, or their qualifications. (See RUMC Defs.’ 56.1 ¶¶ 31,
49, 57, 143; RUMC Defs. Reply 56.1 ¶¶ 231, 236-37, 242-43, 249.) Indeed, rather than
presenting affidavits from individuals with personal knowledge, such as the other ECRIP fellows
and their supervisors, Plaintiff summarily states that, based on her own personal observations,
other fellows were not required to engage in menial tasks. (RUMC 56.1 Reply ¶ 249.) This
conjecture is insufficient to create a triable issue of fact, as Plaintiff lacks the requisite personal
knowledge necessary to attest to the scope of other fellows’ employment, especially given her
previous testimony regarding her limited interaction with other fellows. (See Decl. Geoffrey
Schotter, Esq., Opp’n [RUMC Defs.’] Mot. Summ. J. & Opp’n Def. Maja Nowakowski’s Mot.
Summ. J. (“Schotter Decl.”) Ex. A at 48:7-49:10, 49:23-51:17; 54:2-55:16, ECF No. 102-3).
Moreover, Plaintiff has failed to adduce any evidence that other ECRIP fellows were not subject
to termination after one year of a two-year fellowship or, alternatively, were hired for the Third
ECRIP Grant in her stead.
With respect to Dr. Nowakowski’s former ECRIP fellows, Plaintiff has adduced
similarly scant evidence. While Plaintiff established that Dr. Nowakowski’s previous fellows
were not African American, Plaintiff does not identify the projects these individuals worked on,
their relative experience, or their qualifications. And, fatal to Plaintiff’s claims, Plaintiff has
failed to adduce evidence that these individuals were treated differently than Plaintiff.
17
Specifically, Plaintiff has failed to adduce any evidence that Dr. Nowakowski’s prior ECRIP
fellows were not assigned purportedly menial tasks. Moreover, Plaintiff has failed to adduce any
evidence that Dr. Nowakowski never terminated a previous ECRIP fellow one year into a twoyear fellowship, or, regularly hired current ECRIP fellows for future ECRIP grants. In the
absence of such evidence, Plaintiff has failed to create a genuine issue of material fact worthy of
trial.
B.
Hostile Work Environment
To establish a hostile-work-environment claim under Title VII, a plaintiff must adduce
sufficient evidence to demonstrate that “the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Demoret v. Zegarelli,
451 F.3d 140, 149 (2d Cir. 2006) (citations omitted). In addition, a plaintiff must show that the
environment was both subjectively and objectively hostile and abusive. Id. In assessing a
hostile-work-environment claim, a district court looks to the record as a whole and considers the
totality of the circumstances, evaluating a variety of factors including “the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. Defendants maintain that Plaintiff fails to make the requisite showing and
thus her hostile work environment claim should be dismissed accordingly. (RUMC Mem. at 1115.) The Court agrees, in part.
As a threshold matter, Plaintiff’s hostile-work-environment claim is overbroad. Plaintiff
seeks to extend liability to RUMC for conduct that occurred before her employment by RUMC
and include her time spent in the employ of SUNY Downstate. (Pl.’s RUMC Opp’n at 2-3.)
18
Specifically, Plaintiff claims that two statements made during the First ECRIP Grant should be
attributed to RUMC, one by Dr. Durkin, and the other by an unidentified administrative assistant.
(Id. at 11, 13.) Because neither Dr. Durkin nor the administrative assistant were employed by
RUMC at the time the statements were made, their statements are cannot form the basis of a
hostile-work-environment claim against RUMC.7 See supra Note 4. Accordingly, the Court has
limited its consideration to only those incidents alleged to have occurred after July 1, 2010 – the
date on which Plaintiff became employed by RUMC.
Plaintiff has adduced evidence that petri dishes containing her research were left out of
the incubator or with their covers removed; the door to the laboratory was locked and she was
asked by doctors and other fellows whether she had locked it; she was not invited by her
supervisors and peers to join them for lunches; Dr. Durkin stated, in Plaintiff’s presence, that
“Before certain people showed up here we didn’t have this problem, we didn’t have doors being
locked, we didn’t have petri dishes missing and all of these things going on in this lab;” Plaintiff
was not provided with a NiOx machine necessary to complete her research project; Plaintiff’s
research project was changed; Dr. Arsura was rude to Plaintiff; Plaintiff was not provided with
all of the letters of recommendation that she requested; and Dr. Nowakowski stated to Plaintiff:
“If you’re so concerned about not having health coverage, why don’t you go across the street to
the county hospital and get yourself some Medicare-Medicaid.” (RUMC Defs.’ 56.1 ¶¶ 28; 99;
105-08; 111; 124-31; 134-36; 139-42; 143-51.) This is just not the sort of severe or pervasive
conduct proscribed by Title VII. Petrosino v. Bell Atl., 385 F.3d 210, 223 (2d Cir. 2004) (finding
that “[s]imple teasing, offhand comments, or isolated incidents of offensive conduct (unless
7
Even if the Court were to hold RUMC liable for misconduct that allegedly occurred during the First ECRIP Grant,
such as Dr. Nowakowski’s refusal to provide Plaintiff with some but not all letters of recommendation, or failure to
provide Plaintiff with the necessary materials for “journal club,” these incidents fall short of the level of severity or
pervasiveness necessary to defeat Defendant’s motion for summary judgment.
19
extremely serious) will not support a claim of discriminatory harassment.”). That is, although
Plaintiff has presented evidence of conduct that may have been rude and even insulting, these
incidents are properly viewed as trivial workplace grievances not actionable under law. See
Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (affirming summary judgment where the
remarks, including one about “black food,” did not qualify as “a steady barrage of opprobrious
racial comments that altered the conditions of [plaintiff’s] employment” (quoting Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997))).
Even if some of Plaintiff’s allegations could be construed as sufficiently severe or
pervasive—such as the change in Plaintiff’s research project – there is no evidence that they
were motivated by race. “Everyone can be characterized by sex, race, ethnicity, or (real or
perceived) disability; and many bosses are harsh, unjust, and rude. It is therefore important in
hostile work environment cases to exclude from consideration personnel decisions that lack a
linkage or correlation to the claimed ground of discrimination.” Alfano c. Costello, 294 F.3d
365, 377 (2d Cir. 2002); see also Chukwuka v. City of New York, 513 F. App’x 34, 36-37 (2d Cir.
2013) (summary order) (“[I]t is axiomatic that mistreatment at work . . . through subjection to a
hostile environment . . . is actionable under Title VII only when it occurs because of an
employee’s [protected characteristic]” (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.
2001)). Plaintiff failed to proffer evidence of such a link.8
8
Moreover, at least with respect to certain conduct, the record allows only for the conclusion that the complained-of
conduct was wholly unrelated to race. There is no evidence to contradict Defendants’ assertion that they did not
have a NiOx machine to offer Plaintiff, and as such her project had to change. Additionally, there is no evidence
demonstrating that Dr. Arsura’s alleged rudeness was predicated on anything other than the fact that on one occasion
Dr. Arsura refused to meet with Plaintiff when Plaintiff arrived to Dr. Arsura’s office without a pre-scheduled
appointment. And, Plaintiff does not dispute that on another occasion, “Plaintiff showed up at RUMC
unannounced” and “met with Arsura for no more than 15 minutes.” (RUMC Defs.’ 56.1 ¶¶ 118, 121.) Likewise,
there is no evidence from which to infer that Dr. Durkin’s statement was directed at Plaintiff at all, let alone made
because of her race.
20
That said, construing the facts in the light most favorable to Plaintiff, a reasonable jury
could conclude that two categories of conduct were both objectively and subjectively hostile, and
occurred because Plaintiff is African American. It is undisputed that: (1) Dr. Arsura’s
administrative assistant would sometimes call Plaintiff Michelle instead of Dr. Watson (RUMC
Defs.’ 56.1 ¶ 132); and (2) Plaintiff was directed to perform menial tasks, such as taking out the
garbage, and teaching African American students. (Id. ¶¶ 139-42). With respect to these facts,
the Court finds Plaintiff’s claims not unlike those in Patterson v. County of Oneida, 375 F.3d
206 (2d Cir. 2004). In Patterson, the court found a triable issue on a § 1981 hostile-workenvironment claim where the plaintiff, an African American corrections officer, claimed that a
white lieutenant “subjected [the plaintiff] to constant humiliation by refusing to speak to him and
by always saluting White officers in [the plaintiff’s] presence and never returning a salute from
[plaintiff].” Id. at 229; see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69
(2d Cir. 2000) (holding that the same standard applies to hostile-work-environment claims under
both Title VII and § 1981). Being made to perform janitorial services and denied recognition for
an earned medical degree could be deemed as constantly humiliating as not being returned a
salute. Whether such conduct amounts to a hostile work environment is a triable issue of fact.
C. Retaliation
“To establish a prima facie case of retaliation under Title VII, a plaintiff must generally
show that: (1) [s]he engaged in a protected activity by opposing a practice made unlawful by
Title VII; (2) h[er] employer was aware of that activity; (3) [s]he suffered a materially adverse
employment action; and (4) there was a causal connection between the protected activity and the
adverse employment action.” Giscombe v. New York City Dep’t of Educ., 39 F. Supp. 3d 396,
21
401 (S.D.N.Y. 2014) (quoting Cretella v. Liriano, 633 F.Supp.2d 54, 74 (S.D.N.Y. 2009), aff’d,
370 Fed. App’x. 157 (2d Cir. 2010)).
The parties do not dispute that Plaintiff’s filing of the February 2012 EEOC charge
against RUMC was a protected activity and that Plaintiff’s termination or RUMC’s failure to rehire Plaintiff constituted a materially adverse employment action. (Pl.’s RUMC Opp’n at 18-19;
RUMC Mem. at 17-18.) The parties dispute, however, whether Plaintiff’s termination was
causally related to the filing of Plaintiff’s EEOC charge. (Pl.’s RUMC Opp’n at 19-20; RUMC
Mem. at 17-18.)
Plaintiff filed an EEOC charge on February 23, 2012. (Id. ¶ 162.) Plaintiff was
terminated sometime between June 29, and July 24, 2012. (RUMC 56.1 ¶¶ ¶ 92-96.) While
Plaintiff has provided the Court with a copy of her February 2012 EEOC complaint, she has
failed to point to any evidence that any individuals at RUMC, including Dr. Nowakowski, were
aware of Plaintiff’s EEOC complaint until at least August 2012. (See RUMC 56.1 ¶ 54.) If
RUMC Defendants were unaware of Plaintiff’s complaint until August 2012, they could not have
terminated Plaintiff in retaliation for that complaint in June or July 2012. See Setelius v. Nat’l
Grid Elec. Servs. LLC, No. 11-CV-5528 MKB, 2014 WL 4773975, at *23-24 (E.D.N.Y. Sept.
24, 2014) (granting summary judgment and dismissing a plaintiff’s claim where “[p]laintiff
cannot show a causal connection between this complaint and her termination, since there is no
evidence that the decision-makers who investigated and ultimately terminated [p]laintiff had
actual knowledge of her complaint”).
Moreover, even assuming that RUMC Defendants were aware of Plaintiff’s EEOC
complaint in February 2012, Plaintiff’s only proffered basis for establishing the requisite causal
connection is the proximity between the February 2012 complaint and her June or July 2012
22
termination. But “[t]he cases that accept mere temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal proximity must be
‘very close.’” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (quoting O’Neal v.
Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (finding that three months or more
is insufficient to establish the requisite causal connection). And the Second Circuit has found
that a time period of four months between the protected activity and adverse employment action
is too attenuated to establish the requisite causal connection. See Dixon v. Int'l Fed'n of
Accountants, 416 F. App’x 107, 110 (2d Cir. 2011). Here, where Plaintiff’s sole evidence in
support of the necessary causal connection is the four-or five-month span between Plaintiff’s
EEOC complaint and alleged termination, Plaintiff cannot establish a prima facie retaliation
claim.9
II. Equal Protection Claim
Plaintiff alleges that Dr. Nowakowski violated her rights under the Equal Protection
Clause of the Fourteenth Amendment. (Am. Compl. ¶¶ 117-120.) “The Equal Protection Clause
of the Fourteenth Amendment guarantees the right to be free from ‘invidious discrimination in
9
Plaintiff initially alleged retaliation on the basis of a 2012 wage garnishment. (See RUMC 56.1 ¶¶ 152-54.) While
the RUMC Defendants moved for summary judgment with respect to that retaliatory wage garnishment claim,
Plaintiff failed to address that argument in her opposition. On this ground alone, the Court could grant RUMC
Defendants summary judgment with respect to any retaliatory wage garnishment claim. “Federal courts may deem a
claim abandoned when a party moves for summary judgment on one ground and the party opposing summary
judgment fails to address the argument in any way.” Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y.
2003). In any event, this claim is meritless because Plaintiff has failed to adduce evidence that her wage
garnishment had any relation to her EEOC charge. To the contrary, the garnishment of Plaintiff’s wages was
pursuant to an income execution served by New York City Marshals on RUMC based on Plaintiff’s failure to pay a
debt owed to Citibank pursuant to New York C.P.L.R. § 5231. (See RUMC 56.1 ¶¶ 152-54.) N.Y. C.P.L.R. § 5231
does not appear to provide an employer with discretion over whether to withhold wages: “A person served with an
income execution shall withhold from money then or thereafter due to the judgment debtor installments as provided
therein and pay them over to the sheriff. If such person shall fail to so pay the sheriff, the judgment creditor may
commence a proceeding against him for accrued installments.” Id. (emphasis added). Therefore, Plaintiff has failed
to establish the necessary causal connection.
23
statutory classifications and other governmental activity.’” Grennan v. Nassau Cty., No.
CIVA042158, 2007 WL 952067, at *13 (E.D.N.Y. Mar. 29, 2007). “The Equal Protection
Clause [thus] requires that the government treat all similarly situated people alike.” Id. (quoting
Harlen Assocs. v. Inc. Village of Mineola, 273 F.3d 494, 499 (2d Cir. 2001)). To make out a
violation of the Equal Protection Clause, Plaintiff was required to produce evidence
demonstrating “(1) that [s]he was treated differently from other similarly situated individuals,
and (2) that such differential treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith
intent to injure a person.” Rodriguez v. Clinton, 357 F. App’x 355, 357 (2d Cir. 2009)
(alterations original).
Plaintiff’s allegations against Dr. Nowakowski are largely identical to Plaintiff’s claims
against the RUMC Defendants. Indeed, Plaintiff appears to have simply copied-and-pasted the
majority of her briefing with respect to the RUMC Defendants into her opposition to Dr.
Nowakowski’s motion. Because the substantive standards of an equal-protection claim are
functionally the same as the standards with respect to a Title VII claim, the Court’s conclusions
with respect to the RUMC Defendants apply equally to Dr. Nowakowski. See Feingold v. New
York, 366 F.3d 138, 159 (2d Cir. 2004) (“The elements of [a Title VII claim] are generally the
same as the elements of [an equal protection claim] and the two must stand or fall together.”).10
10
The primary difference between the claims against the RUMC Defendants and those against Dr. Nowakowski is
that under § 1983, Plaintiff must establish Dr. Nowakowski’s “direct participation in the alleged violation[s],”
“gross negligence in the supervision of subordinates who committed the wrongful acts,” or “failure to take action
upon receiving information that constitutional violations are occurring.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d
206, 229 (2d Cir. 2004). As described in greater detail above, none of Dr. Nowakowski’s direct conduct establishes
the requisite discrimination, hostile work environment, or retaliation. Moreover, Plaintiff has failed to adduce
evidence that Dr. Nowakowski directed or was aware of discriminatory acts carried out by others whom she
supervised. Therefore, because Plaintiff could not establish her Title VII claims, she cannot establish individual
liability against Dr. Nowakowski.
24
III. FLSA Claims
Plaintiff alleges that RUMC’s failure to pay Plaintiff’s wages from June 30, 2012 and
July 24, 2012 violated the FLSA’s minimum wage requirements. An employee who sues for
unpaid minimum wages or overtime compensation has the burden of proving that the employer
did not compensate him for completed work. Grochowski v. Phoenix Const., 318 F.3d 80, 87–88
(2d Cir. 2003) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686–87, 66 S.Ct.
1187, 90 L.Ed. 1515 (1946)). “[A]n employee has carried out [her] burden if [s]he proves that
[s]he . . . performed work for which [s]he was improperly compensated and if [s]he produces
sufficient evidence to show the amount and extent of that work as a matter of just and reasonable
inference.” Id.; Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011) (To establish
liability under the FLSA on a claim for unpaid [wages], a plaintiff must prove that [s]he
performed work for which [s]he was not properly compensated, and that the employer had actual
or constructive knowledge of that work.”); see also Chao v. Gotham Registry, Inc., 514 F.3d 280,
287 (2d Cir. 2008) (“It is clear an employer’s actual or imputed knowledge that an employee is
working is a necessary condition to finding the employer suffers or permits that work.”).
Here, Plaintiff was informed on May 18, 2012, that her employment would end on June
29, 2012. (RUMC 56.1 ¶ 88.) Plaintiff claims that she continued working from June 29, 2012 to
July 24, 2012, but no RUMC employee witnessed Plaintiff perform any work during this period
of time. (Id. ¶¶ 93-94.) The only evidence Plaintiff provides to prove that she continued to work
is a July 23, 2012 email to Clarke, informing Clarke that Plaintiff had not received a paycheck
for the previous pay period. (Id. ¶ 95.) In response, Dr. Arsura, to whom Clarke apparently
forwarded the email, informed Plaintiff: “As you know, your employment with Richmond
University Medical Center ended on June 30, 2012, the date the grant expired. Since you did not
work for Richmond University Medical Center from July 1 through July 14, no paycheck for the
25
most recent pay period will be provided.” (Schotter Decl., Ex. M, ECF No. 102-15.) This email
does not indicate that Defendants had actual or constructive knowledge that Plaintiff was
working up until July 23, 2012. To the contrary, in the email, Dr. Arsura informs Plaintiff that
RUMC did not believe that Plaintiff was continuing to work for RUMC and, in no uncertain
terms, informed Plaintiff that RUMC would not continue to compensate her.
IV. State-Law Claims
Defendants contend that they are entitled to summary judgment on Plaintiff’s breach of
contract claims because Plaintiff has failed to adduce any evidence demonstrating a breach. The
Court agrees.
To be successful on a claim for breach of contract under New York law, a plaintiff must
demonstrate: (1) the existence of a contract; (2) that the plaintiff has performed her obligations
under the contract; (3) that the defendant failed to perform its obligations thereunder; and (4) that
plaintiff was thereby damaged. RCN Telecom Servs., Inc. v. 202 Ctr. St. Realty LLC., 156 F.
App'x 349, 350–51 (2d Cir. 2005) (summary order); Brooklyn 13th Street Holding Corp. v.
Nextel of N.Y., Inc., No. 11-cv-1048, 2011 WL 6945862, at *3 (E.D.N.Y. Dec. 30, 2011).
Plaintiff maintains that Defendants are liable for their breach of two contracts: the First
ECRIP Grant Agreement, and the RUMC Agreement. (Pl.’s Opp. 32-35.) With respect to the
First ECRIP Agreement, Plaintiff alleges that RUMC Defendants breached the First ECRIP
Grant by failing to allocate certain funds for Plaintiff’s use in pursuing her project. (Am. Compl.
¶ 136.) To satisfy her burden of proving the existence of a contract, Plaintiff directs the Court to
a series of documents referred to as “Start-up Reports.” (Pl.’s Opp. 24.) These documents relate
to the Second and Third ECRIP Grants – not the allegedly breached First ECRIP Grant
Agreement. (Decl. of Michelle Watson Ex. K, L (ECF. 117-11, 117-12.)). For this reason alone
26
Plaintiff’s breach of contract claim fails. Assuming the Start-up Reports related to the First
ECRIP Agreement, Plaintiff has failed to adduce evidence that they constitute a valid and
enforceable employment agreement. Yes, the Start-up reports identify the commencement dates
of the agreements, and the parties – Plaintiff, as a research candidate; Dr. Nowakowski, as a
sponsor/mentor; and Dr. Arsura, as the principal contact. However, absent from the Start-up
Reports are the indicia of an employment agreement necessary under law. Under New York law,
an employment contract must include, among other things the terms of employment including
the duration of the contract, and the salary. Morizio v. Roeder, 58 Misc. 3d 1210(A), 94
N.Y.S.3d 539 (N.Y. Sup. Ct. 2018). None of these terms are included in the Start-up Reports.
The deficiencies do not stop there. Even if the Court could somehow construe the Start-up
Reports as a contract related to the First ECRIP Grant, Plaintiff has failed to adduce evidence of
a breach. According to Plaintiff, Defendants acted in breach of the purported First ECRIP Grant
Agreement because they failed to allocate additional funds for Plaintiff in pursuing her project.
Nowhere in the Start-up Reports is there any mention of funding, let alone an obligation by
Defendant’s to provide additional funding.
The alleged breach of the RUMC Agreement is similarly deficient. As to this agreement,
Plaintiff explains that Defendants failed to pay her for her accrued holidays or vacation, sick, or
personal days as she alleges. (Decl. of Michelle Watson Ex. UU at. 13 (ECF. 117-47)). This
document, however, indicates nothing more than that Plaintiff was entitled to certain paid time
off. The document does not indicate how much time Plaintiff had accrued and was subject to
payment upon conclusion of her employment. Plaintiff provides no paystubs or other evidence
that might show any payment deficiency. Plaintiff does not even include a sworn affidavit
attesting to owed monies. Accordingly, Plaintiff’s breach-of-contract claims must be dismissed.
27
CONCLUSION
For the foregoing reasons, Defendant Nowakowski’s motion for summary judgment is
GRANTED, and RUMC Defendants’ motion for summary judgment is GRANTED in part and
DENIED in part. Defendant Nowakowski’s motion for summary judgment is GRANTED with
respect to Plaintiff’s equal protection and breach of contract claims, both of which are dismissed
with prejudice. RUMC Defendants’ motion for summary judgment is GRANTED with respect
to Plaintiff’s claims for disparate treatment, retaliation, violations of the Fair Labor Standards
Act, and breach of contract, all of which are dismissed with prejudice. RUMC Defendants’
motion is DENIED with respect to Plaintiff’s hostile work environment claim. The only claim
remaining for trial is Plaintiff’s hostile work environment claim.
SO ORDERED:
/s/LDH
LASHANN DEARCY HALL
United States District Judge
Dated: Brooklyn, New York
October 10, 2019
28
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