KING et al v. THE BLOCK INSTITUTE

Filing 33

MEMORANDUM & ORDER, Defendant's (30) motion for summary judgment is GRANTED. The clerk of the court is respectfully DIRECTED to enter judgment in favor of Defendant and close the case. So Ordered by Judge Nicholas G. Garaufis on 5/18/2020. (fwd'd for jgm) (Lee, Tiffeny)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MARLY KING and CEICILY WILLIAMS,
MEMORANDUM & ORDER
17-CV-7318 (NGG) (JO)

Plaintiffs,
-againstTHE BLOCK INSTITUTE, INC.,
Defendant.

NICHOLAS G. GARAUFIS, United States District Judge.
Plaintiffs Marly King and Ceicily Williams bring this action
against their former employer, Defendant The Block Institute,
Inc. (“Block”), alleging: (1) claims of retaliation under 42 U.S.C.
§ 1981 and the New York City Human Rights Law (“NYCHRL”),
N.Y.C. Admin. Code §§ 8-101 et. seq. and (2) intentional infliction of emotional distress under New York state law. (See Compl.
(Dkt. 1).) Before the court is Block’s fully briefed motion for summary judgment. (See Def. Mot. for Summ. J. (“Mot.”) (Dkt. 30);
Def. Mem. in Support of Mot. (“Mem.”) (Dkt. 30-1); Pls.’ Mem.
in Opp. of Mot. (“Opp.”) (Dkt. 31); Reply in Support of Mot.
(“Reply”) (Dkt. 32).) For the following reasons, Block’s motion is
GRANTED.
STATEMENT OF FACTS
The court constructs the following statement of facts from the
parties’ Local Rule 56.1 statements of undisputed fact and the
parties’ submitted admissible evidence. (See Def. Local R. 56.1
Statement (“Def. 56.1”) (Dkt. 30-2); Pls.’ Local R. 56.1 Statement
(“Pls. 56.1”) (Dkt. 31-1).) Unless otherwise noted, a standalone
citation to a party’s 56.1 statement denotes that the court has
deemed the underlying factual allegation undisputed. Any citation to a parties’ 56.1 statement incorporates by reference the
documents cited therein. The court has deemed facts averred in

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a party’s 56.1 statement to which the opposing party cites no admissible evidence in rebuttal as undisputed. Furthermore, to the
extent a party’s 56.1 statement “improperly interjects arguments
and/or immaterial facts in response to facts asserted by [the opposing party] without specifically controverting those facts,” the
court has disregarded the statement. See Risco v. McHugh, 868 F.
Supp. 2d 75, 87 n.2 (S.D.N.Y. 2012).1 The court notes that Plaintiffs’ 56.1 statement includes numerous such non-responsive denials; for example, Plaintiffs provide the identical paragraph-long
denial (seemingly copy-and-pasted from their moving brief) for
ten straight asserted facts. (See Pls. 56.1 at ¶¶ 25-35.) Such an
approach “is in the best case, unproductive and contrary to the
entire purpose of Local Rule 56.1 in that… [it does not] assis[t]
the court by narrowing the scope of issues to be adjudicated.”
Scholarchip, LLC v. Transworld Systems, Inc., No. 17-CV-6296
(NGG), slip op. at 2-3 (E.D.N.Y. Apr. 24, 2020).
A. Block’s Residential Services Program
Block is a not-for-profit social services organization dedicated to
enhancing the lives of developmentally disabled New Yorkers.
(Def. 56.1 ¶ 1.) Of relevance here, Block maintains a Residential
Services Program, through which it operates 19 sites across
Brooklyn to help developmentally disabled adults achieve the
highest levels of independence and community integration possible. (Id. ¶ 2.) The Residential Services Program has various levels of staffing. Residences are primarily staffed by Direct Support
Professionals, who assist residents with daily living routines, and,
in some cases, Qualified Intellectual Disabilities Professionals
(“QIDPs”), who assist in developing each resident’s plan of services. (Id. ¶ 4.) In addition, nurses, therapists, and other clinicians also support residents. (Id. ¶ 5.) Each of the 19 residences

1

When quoting cases, unless otherwise noted, all citations and quotation
marks are omitted and all alterations are adopted.

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is managed by a Residence Manager and, in most cases, an Assistant Manager. (Id. ¶ 6.) Each Residence Manager (or, as the
case may be, Assistant Manager) reports to a Program Coordinator; Program Coordinators report to the Residential Director; the
Residential Director reports to Block’s CEO. (Id. ¶ 7.)
Plaintiffs, who are both African-American, were Program Coordinators in Block’s Residential Services Program: Ms. Williams
began as a Program Coordinator in 2002, and Ms. King began as
Program Coordinator in 2013. (Id. ¶ 15.) Plaintiffs held these positions until their removal in October 2017. (Id.) Plaintiffs’ key
duties included ensuring that each residence was in compliance
with regulatory requirements, supervising Residence Managers
and Assistant Managers in all aspects of their performance, overseeing the residential monitoring systems in place to ensure highquality care, and maintaining the residences in a clean and safe
manner. (Id. ¶ 17.) In addition, Plaintiffs were responsible for
periodically auditing various aspects of the residences under their
supervision. (Id. ¶ 18.) For instance, Plaintiffs were required to
review residents’ personal allowance ledgers, fire drill records,
incident reports, financial records, and community inclusion calendars on a monthly basis (as well as staff training records on a
quarterly basis). (Id. ¶ 19.)
Block’s Residential Services Program is funded through a Medicaid waiver and is regulated by the New York State Office for
People With Developmental Disabilities (“OPWDD”). (Id. ¶ 3.)
Each Block residence is therefore subject to various regulatory
requirements and is periodically audited by OPWDD for compliance. (Id. ¶ 8.) If OPWDD identifies any violations during the
course of an audit, it issues a Statement of Deficiencies (“SOD”)
which requires the regulated entity to submit a Plan of Corrective
Action (“POCA”) detailing how it will remedy the violations and
ensure future compliance. (Id. ¶ 11.) More serious regulatory violations may result in OPWDD issuing a “45-day letter” or a “60-

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day letter” advising the regulated entity that the operating agreement for the audited residence may be terminated if the regulated entity does not correct the violations and demonstrate
compliance in either 45 or 60 days. (Id. ¶ 12.) Receiving multiple
45- or 60-day letters may subject a regulated entity to placement
on Early Alert status, which may trigger fines, increased monitoring, public disclosure of the entity’s poor performance, and, ultimately, loss of the entity’s operating license. (Id. ¶ 13.) Finally,
in addition to OPWDD’s audits and reviews, Block’s Compliance
Department conducts internal audits of each of its residences. (Id.
¶ 14.)
B. Plaintiffs’ Pre-Complaint Reviews and Placement on
Performance Improvement Plans
Beginning in 2012, Block’s CEO, Dr. Scott Barkin, began to take
steps to remedy chronic shortcomings in quality of care and management accountability in Block’s Residential Services Program.
(Id. ¶ 20.) Dr. Barkin replaced longtime Residential Director,
Carol Robinson, with a new hire, Paul Blaise, and undertook
what he called a Leadership Practices Inventory in 2015 to assess
the overall management across the agency. (Id. ¶ 21.) As Mr.
Blaise wrote in Ms. Williams’s 2016 performance review, Block
had “made a commitment . . . to re-examine the effectiveness of
our leadership practices . . . acknowledging that how we have led
in the past is no longer acceptable and does not work.” (Mar. 5,
2016 Williams Performance Evaluation (Dkt. 30-16).)
While Blaise circled “meet[s] Job Expectations” on Ms. Williams’s
2016 performance review, the evaluation included many negative comments. For example, Mr. Blaise wrote that “[i]n spite of
Ms. Williams’ experience and knowledge of the agency policy
and procedures, she has not demonstrated [the] ability [to] administer her cluster effectively,” and that “[d]uring the period
under review, Ms. Williams did not demonstrate [the] ability to
supervise her programs effectively.” (Id. at 5.) The evaluation

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noted some particularly “outrageous deficiencies,” at certain of
Ms. Williams’s programs, including “poor survey results, thefts of
individuals funds, missing [] [f]ire drill records, lack of review of
Personal Allowance ledgers and submissions of receipts to the Finance Department in a timely manner, unavailability of [individual residents’] personal allowance, [and individual residents’]
funds not accounted for.” (Id.) Four days after completing Ms.
Williams’s performance review, Mr. Blaise emailed Dr. Barkin
and Block’s Director of Human Resources, Mary Ellen O’Driscoll,
explaining that “it will make my work-life easier as the Director
of Residential Services not to have [Ms. Williams] in the Department. I . . . have [had] enough of her poor performances, unwillingness to receive coaching, and constructive criticism.” (Mar. 8,
2016 Blaise Email (Dkt. 30-17).) Dr. Barkin responded that he
agreed with Mr. Blaise’s assessment. (Id.)
In April, Mr. Blaise conducted a performance evaluation of Ms.
King. (Apr. 4, 2016 King Performance Evaluation) (Dkt. 30-18).)
Ms. King’s evaluation included more positive comments than did
Ms. Williams’s; for instance, Mr. Blaise wrote that Ms. King had
“shown improvement during the course of the period under review,” and that “she has embraced the new environment created
for the leadership team.” (Id at 5.) However, Mr. Blaise wrote
that Ms. King needed “support to be more outspoken and to come
[up] with creative ideas to solve problems,” and that she needed
to “familiarize herself with the agency’s policy and procedures.”
(Id.)
Despite Mr. Blaise’s email to Dr. Barkin suggesting he wanted to
terminate Ms. Williams, Block instead placed both Ms. Williams
and Ms. King on Performance Improvement Plans (“PIPs”). (See
King PIP (Dkt. 30-19); Williams PIP (Dkt. 30-20).) For the next
year, Mr. Blaise also required Ms. King and Ms. Williams to meet
with him monthly and document the achievement of various
goals, including “conduct[ing] and document[ing] monthly

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coaching sessions for program management to ensure that they
are provided with consistent feedback and adequately trained to
perform their duties.” (Def. 56.1 ¶ 35.)
Over the next several months, however, residences under Plaintiffs’ supervision continued to perform poorly on internal and external audits.2 For example, on June 21, 2016, OPWDD issued
Block a SOD after auditing a residence under Ms. King’s supervision. (Id. ¶ 38.) OPWDD found that Block failed to provide sufficient opportunities for community inclusion for four of the five
residents whose records were audited, and, for some residents,
that there was no evidence that they were being provided with
any community inclusion opportunities at all. (Id. ¶ 41.) OPWDD
also identified regulatory violations at residences under Ms. Williams’s supervision, including a finding that Block had failed to
obtain a resident’s informed consent before administering medication, failed to ensure that adequate numbers of staff were on
duty, and failed to properly train staff on the signs and symptoms
of diabetes. (Id. ¶ 43.) Other OPWDD audits revealed that certain
staff at residences under Ms. Williams’s supervision were not following the residence’s fire evacuation plan and were incorrectly
documenting fire drills. (Id. ¶ 44.) Finally, during an April 2016
audit of a residence under Ms. Williams’s supervision, OPWDD
found that the residence was dirty, that Block’s assessments of a
resident’s money management skills were inconsistent, and that

2

The court notes that it is troubled with certain of OPWDD’s findings at
Block residences throughout the entire relevant period of this case. While
there is no dispute that the residences that received negative audits were,
at the relevant times, under the supervision of either Ms. Williams and Ms.
King, it is ultimately the responsibility of Block management, and Block as
an institution, to ensure that the vulnerable populations it serves are getting the care, support, and treatment they need—something that the audits
and other record evidence cast into serious doubt.

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the residence’s management team had not ensured that individuals were receiving all necessary health services. (Id. ¶ 46.) At
deposition, Ms. Williams herself testified that she was aware in
2016 that Block’s senior leadership was concerned with Block’s
audit results. (Tr. of Oct. 8, 2018 Dep. of Ceicily Williams (“Williams Dep.”) (Dkt. 30-11) at 56:21-57:12.)3
C. June 27, 2016 Complaint to Dr. Barkin
At a June 27, 2016 staff meeting, Plaintiffs confronted Dr. Barkin
about what they considered to be unfair treatment. (Def. 56.1 ¶
48; Pls. 56.1 ¶ 48.) The parties dispute exactly what was said, but
it is clear that Plaintiffs accused Dr. Barkin of treating them differently from—and subjecting them to more scrutiny than—
Block’s Director of Nursing, Lucille Golembiewski, who is white.
(Id.) Ms. King initially testified that she did not mention Ms. Golembiewski’s race when Plaintiffs confronted Dr. Barkin and Ms.
Williams initially testified that she did not use the word “discrimination” in the confrontation. (Tr. of Sept. 6, 2018 Dep. of Marly
King (“King Dep.”) (Dkt. 30-10) at 316:10-316:19; Williams Dep.
at 245:9-245:13.) However, Ms. King testified that it was “obvious” she and Ms. Williams were alleging that Block was treating
3

Plaintiffs’ 56.1 Statement denies certain of the facts in this paragraph
with a repeated, identical denial. The crux of this denial is that “[w]hile
[Plaintiffs’] written job description for the Program Coordinator position
suggested that a Program Coordinator would also be responsible for the
supervision of clinical team members, that had never been the case, as a
matter of practice.” (E.g., Pls. 56.1 ¶ 43.) For one thing, this denial is irrelevant in certain cases in which Plaintiffs deny a documented finding in an
OPWDD audit, such as OPWDD’s finding that Block’s assessments of resident’s money management skills were inconsistent. (Def. 56.1 ¶ 46.) To
the extent the denial is meant to suggest that findings such as “the residence’s management team had not ensured that [residents] were receiving
all necessary health services,” id., were not issues within Plaintiffs’ job responsibilities, the denial is likewise inappropriate because the relevance of
a particular fact in Plaintiffs’ claim is distinct from whether or not an undisputed fact exists.

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Plaintiffs differently than Ms. Golembiewski based on their race
because: “I’m black, and she’s white. And the treatment was totally different.” (King Dep. at 316:14-316:16.) And, after further
questioning from her attorney, Ms. Williams revised her testimony, saying that “both” she and Ms. King used the word discrimination in the meeting with Dr. Barkin. (Williams Dep. at
24:5-246:14.) Ms. King further testified that, in response to her
and Ms. Williams’s complaints, Dr. Barkin responded that Block
could “scrutinize [its employees] as it likes, and that [Plaintiffs]
would not have ground[s] for a class action suit against Block.”
(King Dep. at 306:18-306:24.) Ms. Williams, for her part, testified that Dr. Barkin responded to their complaint by saying that
Plaintiffs would have “no civil case against me.” (Williams Dep.
at 183:11.)
Several months later, Mr. Blaise resigned as Director of Residential Services and was replaced by Angela Medina-Braddox. (Def.
56.1 ¶¶ 57-58.) Despite the change in leadership, residences under Plaintiffs’ supervision continued to perform poorly on regulatory audits. For example, on December 1, 2016, OPWDD issued
a SOD following an audit of a residence under Ms. King’s supervision which found that, inter alia, Block had failed to ensure that
the residence was “clean and well maintained” and failed to conduct required fire safety drills. (Dec. 1, 2016 OPWDD Audit)
(Dkt. 30-25).) The following month, on January 9, 2017, Ms.
Medina-Braddox met with Dr. Barkin and the head of Human
Resources, Mary O’Driscoll, to discuss Plaintiffs’ performance.
(Def. 56.1 ¶¶ 63-64.) In a memo written by Ms. O’Driscoll to Dr.
Barkin and Ms. Medina-Braddox on January 24, 2017, titled
“Roadmap for Reorganization of the Residential Services Program,” Ms. O’Driscoll wrote that the group had decided at the
January 9 meeting that “[t]he remaining members of Paul
Blaise’s management team, Program Coordinators Ceicily Williams and Marly DeBrosses King, will be terminated. . . Both have
been on PIPs and their poor performance continues to undermine

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our ability to turn the program around.” (Jan. 24, 2017 HR
Memo (Dkt. 30-27).) However, Plaintiffs were not terminated at
this time; instead, Block fired Ms. Medina-Braddox, whom Dr.
Barkin had determined was unable to rehabilitate the Residential
Services Program. (Def. 56.1 ¶¶ 69-71.) In light of Ms. MedinaBraddox’s termination, Block decided to leave Plaintiffs in their
Program Coordinator positions, at least in part because their departure would leave the Residential Services Program with no
Director or Program Coordinators. (Id. ¶ 73.)
However, the residences under Plaintiffs’ supervision continued
to receive negative audits throughout the first half of 2017. For
example, an OPWDD audit of a Block residence under Ms. King’s
supervision revealed that “the facility failed to provide individuals with a sufficient number of opportunities to participate in
community inclusion activities.” (May 11, 2017 OPWDD Audit
(Dkt. 30-28).) A residence under Ms. Williams’s supervision received a 45-day letter which found, inter alia, that the residence
had not conducted the required fire safety drills. (May 24, 2017
OPWDD Audit (Dkt. 30-31).) Plaintiffs’ annual performance reviews—completed by Dr. Barkin and delivered to Ms. Williams
on June 27, 2017 and Ms. King on July 28, 2017—reflected poor
audit outcomes at residences under Plaintiffs’ supervision. (See
June 27, 2017 Williams Evaluation (Dkt. 30-34); July 28, 2017
King Evaluation (Dkt. 30-33).) Dr. Barkin’s evaluations of Plaintiffs indicated they were not meeting expectations. (Id.)
D. Further Complaints by Plaintiffs
Beginning in the summer of 2017 and continuing through the
fall, Ms. King allegedly made various complaints to Block management about how she was being treated. According to the Defendant’s 56.1 statement—the relevant paragraphs of which
Plaintiffs have admitted as true—the various complaints by Ms.
King were:

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•

•

•

•

June 14, 2017: Ms. King complained at a meeting that
she did not trust Block’s other directors to help run the
Residential Services Program;
July 28, 2017: Ms. King complained at her performance
evaluation meeting that she felt she was being
discriminated against because Block was not holding
Ms. Golembiewski accountable in a similar manner as
Ms. King;
September 2017: Ms. King complained to the
Residential Director about nursing, staffing, and
financial issues;
October 2017: Ms. King complained during an October
2017 meeting with the Residential Director that she was
being subjected to greater scrutiny than Ms.
Golembiewski.

(See Def. 56.1 ¶¶ 91-95.)4 During this time period, audits of residences under Plaintiffs’ supervision continued to turn up negative results. For example, an OPWDD audit of a Block residence
supervised by Ms. Williams found that Block had failed to ensure
that residents had opportunities for personal privacy, a sanitary
environment to avoid sources and transmission of infections, and
meals served consistent with their dietary need. (Aug. 31, 2017
OPWDD Audit (Dkt. 30-36).) OPWDD issued a 60-day letter to a
4

There are certain discrepancies between the paragraphs of Defendant’s
56.1 statement that Plaintiffs admitted as true, and certain of Plaintiffs’
filings. For example, Plaintiff filed an affidavit (styled as a “Statement”) of
Ms. King in opposition to Defendant’s motion. (See Statement of M. King
in Opp. to Mot. (Dkt. 31-11).) In the statement, Ms. King avers that at the
June 14, 2017 meeting she also complained that Ms. Golembiewski was
not being held to the same level of scrutiny as was Ms. King, and that “this
could be perceived as discrimination.” (Id. ¶ 34.) However, this statement
conflicts with Ms. King’s deposition testimony that she did not raise anything at the June 14, 2017 besides her concerns about the ability of other
directors to help run the Residential Services Program. (King Dep. at
311:10-311:17.)

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residence under Ms. King’s supervision and threatened to close
the facility. (See July 25, 2017 60 Day Letter (Dkt. 30-38); Def.
56.1 ¶¶ 109-110).)
In October 2017, Block removed Ms. King and Ms. Williams from
their positions as Program Coordinators. (King Dep. at 198; Williams Dep. at 125:4-125:7.) Block offered Plaintiffs the opportunity to take other positions in lieu of termination; however,
Block only offered non-supervisory positions (including positions
at which Plaintiffs had worked many years earlier in their careers, as well as housekeeping and maintenance positions). (Def.
56.1 ¶ 114; King Dep. at 199:1-199:12; Williams Dep. at 131:3131:9.) Plaintiffs opted not to pursue a non-supervisory job and
did not return to Block in any capacity.
LEGAL STANDARD
A court must grant summary judgment when “the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
Pro. 56(a). “A ‘material’ fact is one capable of influencing the
case’s outcome under governing substantive law, and a ‘genuine’
dispute is one as to which the evidence would permit a reasonable juror to find for the party opposing the motion.” Figueroa v.
Mazza, 825 F.3d 89, 98 (2d Cir. 2016) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The movant may discharge its initial burden by demonstrating that the non-movant
“has ‘failed to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” Lantheus Med. Imaging, Inc. v. Zurich Am. Ins. Co., 255 F. Supp. 3d 443, 451 (S.D.N.Y.
2015) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-323
(1986)).
“To determine whether an issue is genuine, ‘[t]he inferences to
be drawn from the underlying affidavits, exhibits, interrogatory

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answers, and depositions must be viewed in the light most favorable to the party opposing the motion.’” Mikhaylov v. Y & B Trans.
Co., No. 15-CV-7109 (DLI), 2019 WL 1492907, at *3 (E.D.N.Y.
Mar. 31, 2019). While the court must draw all inferences in favor
of the non-movant, the non-movant “may not ‘rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.’” Fletcher v. Atex, Inc., 68
F.3d 1451, 1456 (2d Cir. 1995). Finally, in considering Defendant’s motion, the court is mindful that the Second Circuit “has
long recognized ‘the need for caution about granting summary
judgment to an employer in a discrimination case where, as here,
the merits turn on a dispute as to the employer’s intent.’” Walsh
v. New York City Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016)
(quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d
Cir. 2010)).
DISCUSSION
A. Retaliation Under Section 1981
Claims of retaliation under Section 1981 “are analyzed pursuant
to Title VII principles” outlined in McDonnell-Douglas Corp. v.
Green, 411 U.S. 792 (1973). Hicks v. Baines, 593 F.3d 159, 164
(2d Cir. 2010). Therefore, the court analyzes Plaintiffs’ claim under the burden-shifting framework set forth in McDonnell Douglas. See Summa v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir.
2013). “To make out a prima facie case of retaliation, a plaintiff
must make four showings: that (1) she engaged in a protected
activity; (2) her employer was aware of this activity (3) the employer took adverse employment action against her; and (4) a
causal connection exists between the alleged adverse action and
the protected activity.” Id. “Once a prima facie case of retaliation
is established, the burden of production shifts to the employer to
demonstrate that a legitimate, nondiscriminatory reason existed
for its action.” Raniola v. Bratton, 243 F.3d 619, 625 (2d Cir.
2001). If the employer carries that burden, then the burden shifts

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back to the plaintiff, who must establish “that the employer’s action was, in fact, motivated by discriminatory retaliation.” Id. A
plaintiff alleging retaliation must show that retaliation was a
“but-for” cause of the adverse action, not simply a “substantial”
or “motivating” factor in the employer’s decision. Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 348 (2013). “But-for” causation
does not, however, require proof that retaliation was the only
cause of the employer’s action—it is enough that the adverse action would not have occurred in the absence of the retaliatory
motive. Id. at 360.
Plaintiffs’ theory is that they were retaliated against for complaining of racial discrimination, i.e. that Block was treating Plaintiffs,
who are black, differently than Ms. Golembiewski, who is white.
Plaintiffs contend that they voiced this complaint on two occasions: first in the June 2016 staff meeting and then again in the
June 2017 staff meeting.5 (Opp. at 19-20.) Plaintiffs allege that
after the June 2017 complaint they received their “first ever thoroughly negative performance evaluation[s],” and that, as a result
of their complaints, they were terminated from their positions as
Program Coordinators in October 2017. (Opp. at 22-23.)

5

As described supra, it appears from both Defendant’s 56.1 statement and
Plaintiffs’ depositions that Ms. King complained at various points during
the summer and fall of 2017. However, Plaintiffs’ brief focuses on the June
14, 2017 meeting as the key complaint for the purposes of the opposition
to Defendant’s motion. (See, e.g., Opp. at 24 (“[T]he record evidence shows
that [Plaintiffs] were terminated only after they engaged in protected activities on June 27, 2016 and June 14, 2017.”). Therefore, the court likewise focuses on those two alleged complaints in considering the instant
motion.

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Plaintiffs’ claim fails because they have failed to adduce evidence
of a causal connection between their complaints of discrimination6 and their removal from their positions as Program Coordinators. “A causal connection in retaliation claims can be shown
either: (1) indirectly, by showing that the protected activity was
followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly,
through evidence of retaliatory animus directed against the
plaintiff by the defendant.” Natofsky v. City of New York, 921 F.3d
337, 353 (2d Cir. 2019).
First, Plaintiffs fail to show that the protected activity was followed closely by discriminatory treatment. Plaintiffs argue that
“the temporal proximity between [Ms. King’s] June 14, 2017
complaint and [Ms. King and Ms. Williams’s] job terminations
strongly suggests retaliation.” (Opp. at 23.) Although the Second
Circuit has “not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish
a causal relationship,” Espinal v. Goord, 558 F.3d 119, 129 (2d
Cir. 2009), district courts in this 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.” Murray v. Visiting Nurse Servs. of N.Y.,
528 F. Supp. 2d 257, 275 (S.D.N.Y. 2007) (collecting cases).
Here, the gap is considerably longer: Block terminated Plaintiffs
from their Program Coordinator positions in October 2017, almost five months after Ms. King’s June 14, 2017 complaint and
a full 16 months after Plaintiffs’ June 27, 2016 complaint. Although such a gap does not preclude Plaintiffs from establishing
a causal connection through other evidence, it is insufficient on
its own to do so. See, e.g., Murray, 528 F. Supp. 2d at 274. The
6

The court assumes, without deciding, that these complaints constituted
protected activities.

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temporal proximity is even less compelling in a case like this because Plaintiffs were receiving negative performance evaluations
and were placed on PIPs even before their first complaint. (See
Mar. 5, 2016 Williams Performance Evaluation; Apr. 4, 2016
King Performance Evaluation.)
In addition, Plaintiffs have failed to adduce any further circumstantial evidence giving rise to the inference of retaliation beyond
the temporal proximity of their 2016 and 2017 complaints and
their termination in October 2017. For instance, Plaintiffs argue
that the fact that Block considered terminating Plaintiffs before
October 2017 (but declined to do so) suggests that Plaintiffs
“were terminated only after they engaged in protected activities
on June 27, 2016 and June 14, 2017.” (Opp. at 24.) Yet, without
more, that claim simply relies on the temporal proximity between
the June 2017 complaint and Plaintiffs’ termination, which is insufficient. Further, Plaintiffs devote a significant portion of their
argument to the allegation that they were treated differently than
their white colleague, Ms. Golembiewski. While any such differential treatment may be grounds for a race discrimination claim,
Plaintiffs have only alleged a claim for retaliation. As such,
Block’s alleged disparate treatment of Plaintiffs—i.e. the merits
of the underlying discrimination complaint that constitutes protected activity for the basis of Plaintiffs’ claim—is not relevant to
the question of whether Plaintiffs can establish a causal connection between the protected activity and the adverse employment
action. See Natofsky, 921 F.3d at 353 (for the purposes of a retaliation claim, disparate treatment of other employees is relevant
insofar as those employees also engaged in similar protected activity).7

7

Plaintiffs also suggest that the fact that, at Block, there had never been
“any prior instances of terminating other Program Coordinators due to deficiency notices,” is further evidence of a retaliatory motive. (Opp. at 26.)

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Finally, Plaintiffs fail to put forward direct evidence of retaliatory
animus directed at Plaintiffs. Plaintiffs suggest that Block’s “[retaliatory] animus manifested itself in [P]laintiff[s’] subsequent
performance evaluations,” which Plaintiffs contend were the
“first ever thoroughly negative performance evaluation” either
had received. (Opp. at 22.) That is inconsistent with the evidence, however, which shows that Plaintiffs received negative
performance reviews well before both the June 2016 and June
2017 complaints. For example, both Ms. Williams and Ms. King
had been placed on PIPs in April 2016 as a result of problematic
performance evaluations, which included “outrageous deficiencies.” (Mar. 5, 2016 Williams Performance Evaluation). The evidence is likewise inconsistent with Plaintiffs’ assertion that they
were “meeting their job expectations, until they complained
about racial discrimination on . . . June 14, 2017.” (Opp. at 23.)
To the contrary, in the months after Plaintiffs were first placed
on PIPs in April 2016, Block residences under Plaintiffs’ supervision received numerous SODs from OPWDD. For example,
OPWDD issued a 45-day letter in connection with an audit of a
Block residence under Ms. Williams’s supervision, finding, inter
alia, that follow-up doctor’s visits had not been scheduled for one
of the residents and that, during the prior year, the residence had
not conducted a dead-of-night or blocked-access fire drill. (May
24, 2017 OPWDDD Audit). Plaintiffs’ performance was so poor
that the Human Resources Director documented that “[b]oth
[Plaintiffs] have been on PIPS and their performance continues
to undermine our ability to turn the program around.” (Jan 24,
2017 HR Memo.) Finally, the evidence suggests that Plaintiffs’

The evidence, suggests, however, that Block has terminated numerous employees—including those at the Residential Director level—for performance reasons, none of whom complained of discrimination or otherwise
engage in protected activity. (See Decl. of Mary Ellen O’Driscoll (Dkt. 322); Def. 56.1 ¶¶ 67-71.)

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poor performance continued well after the June 14, 2017 meeting. (See, e.g., July 25, 2017 OPWDD Audit.)
Because Plaintiffs fail to establish a causal connection between
their protected activity and their termination, they fail to establish a prima facie case of retaliation. Accordingly, Plaintiffs’ Section 1981 retaliation claim is dismissed.
B. Retaliation Under NYCHRL
The NYCHRL retaliation provision has important differences
from Title VII when it comes to the causal link a plaintiff must
demonstrate between her protected activity on the one hand and
the defendant’s retaliatory act on the other. 8 In particular, a
plaintiff need only establish that her protected activity was a motivating factor behind the defendant’s retaliatory act—not, as under Title VII, that it was a but-for cause. See Russo v. N.Y.
Presbyterian Hosp., 972 F. Supp. 2d 429, 456 (E.D.N.Y. 2013).
Even under the NYCHRL’s “broa[d] construction,” however, for
the reasons discussed above, Plaintiffs “cannot link [their termination] to a retaliatory motivation.” Williams. 872 NY.S. 2d at
35. Accordingly, Plaintiffs’ NYCHRL retaliation claim is likewise
dismissed.
C. Intentional Infliction of Emotional Distress
Under New York law, a plaintiff claiming intentional infliction of
emotional distress must show: “(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal
connection between the conduct and the injury, and (4) severe
8

There are other important differences. The NYCHRL’s definition of protected activity has been broadly construed, see Albunio v. City of New York,
16 N.Y.3d 472, 479 (2011), and the NYCHRL prohibits an “even broader”
range of retaliatory actions relative to federal and state law. Gorman v.
Covidien, LLC, 146 F. Supp. 3d 509, 534 (S.D.N.Y. 2015); see also Williams
v. New York City Housing Authority, 872 N.Y.S.2d 27, 34 n.12 (1st Dep’t
2009) (NYCHRL “specifically rejects a materiality requirement”).

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emotional distress.” Bender v. City of New York, 78 F.3d 787, 790
(2d Cir. 1996). “[A] claim for intentional infliction of emotional
distress must satisfy an exceedingly high legal standard.” DiRuzza
v. Lanza, 685 F. App’x 34, 36 (2d. Cir 2017) (summary order).
Liability for intentional infliction of emotional distress arises
“only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Chanko v. Am. Broad. Cos., Inc., 27
N.Y.3d 46, 57 (2016). Even “[a]ctions likely to be considered
reprehensible by most people are not sufficient.” DiRuzza, 685 F.
App’x at 37.
Here, no reasonable jury could find that Defendant acted with
the level of “outrageous[ness]” required to prove an intentional
infliction of emotional distress claim. Plaintiffs argue that Block’s
offer to Plaintiffs that they could remain working for Block in
non-supervisory positions—including in entry-level positions
they had held years prior as well as maintenance and housekeeping positions—caused great emotional pain and humiliation for
Plaintiffs, and that Block knew or reasonably should have known
that such an offer would have that result. (Opp. at 27-30.) That
Plaintiffs might have felt humiliated or insulted may well be true;
however, these allegations, without more, are simply insufficient
to create a triable issue of fact as to Plaintiffs’ claim. Accordingly,
Plaintiffs’ intentional infliction of emotional distress claim is dismissed.

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CONCLUSION
For the foregoing reasons, Defendant’s (30) motion for summary
judgment is GRANTED. The clerk of the court is respectfully DIRECTED to enter judgment in favor of Defendant and close the
case.
SO ORDERED.
Dated:

Brooklyn, New York
May 18, 2020
_/s/ Nicholas G. Garaufis_
NICHOLAS G. GARAUFIS
United States District Judge

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