Chauca v. Advantagecare Physicians, P.C. et al
MEMORANDUM DECISION AND ORDER dated 9/5/19 defendants' 23 motion for summary judgment is denied as to the FMLA retaliation claim but otherwise granted. By separate order, the Court will schedule a conference to set this matter down for trial on the FMLA retaliation claim. ( Ordered by Judge Brian M. Cogan on 9/5/2019 ) (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: MEMORANDUM DECISION AND
ADVANTAGECARE PHYSICIANS, P.C., et : 18-cv-2516 (BMC)
COGAN, District Judge.
Plaintiff brought this employment discrimination action against her former employer,
AdvantageCare Physicians, P.C. (“ACP”); ACP’s corporate parents; and her former supervisor,
Tara Harrington. Defendants have moved for summary judgment.
The issue comes down to whether a reasonable jury could find that, although the
employer granted all of plaintiff’s requests for FMLA leave, it didn’t like doing it, so that when a
bona fide justification for terminating plaintiff arose, this resentment about the FMLA leave
could have substantially influenced the termination decision. There is circumstantial evidence
suggesting such influence. The motion for summary judgment therefore is granted in part and
denied in part for the reasons stated below.
Plaintiff was a physical therapy aide for ACP. As a physical therapy aide, plaintiff
assisted physical therapists and performed minor administrative functions. Plaintiff rotated
between two ACP medical facilities: a facility at 1050 Clove Road (the “Clove Road Facility”)
and a facility at 4771 Hylan Boulevard (the “Annadale Facility”). Tara Harrington is the Clove
Road Facility manager and Susanne Marcotte is the Annadale Facility manager.
As set forth below, plaintiff was terminated after taking Family and Medical Leave Act
(“FMLA”) leave and also after complaining about the conduct of a coworker. Plaintiff claims
that defendants created a hostile work environment and terminated her in retaliation for her
complaints and for taking FMLA leave. Defendants claim plaintiff was terminated for not
working the proper hours. Plaintiff brings claims for retaliation under the FMLA, Title VII, the
New York State Human Rights Law (the “NYSHRL”), and the New York City Human Rights
Law (the “NYCHRL”), as well as claims for a hostile work environment under Title VII, the
NYSHRL, and the NYCHRL. 1
I. FMLA Leave
On July 29, 2015, plaintiff was at the Clove Road Facility when a ceiling panel fell on
her, injuring her neck and shoulder. Plaintiff applied for and received FMLA leave for the neck
and shoulder injury. Plaintiff claims that after she took FMLA leave, Harrington began to treat
her differently and became less responsive to plaintiff’s emails.
In January 2017, plaintiff’s young son started getting sick. Plaintiff began taking her
Paid Time Off (“PTO”) days to care for him. In March 2017, Harrington placed plaintiff on a
90-day Performance Improvement Plan (“PIP”) for taking PTO days without adequate notice on
seven occasions in three months. Harrington met with plaintiff twice a week during the PIP to
discuss her performance. Plaintiff successfully completed the PIP.
Plaintiff initially brought a claim for interference under the FMLA but withdrew this claim before defendants
moved for summary judgment.
In May 2017, plaintiff applied for FMLA leave. While that application was under
submission, on June 6, 2017, Harrington emailed plaintiff and two other ACP employees to tell
them that “many employees have been interrupting our physicians to consult on their children’s
health, to be seen, and or have friends or family members seen in this office. This is not
Approval for plaintiff’s FMLA leave was granted on June 8, 2017. Over the next three
months, plaintiff took four days of FMLA leave – on June 12, 2017, June 23, 2017, July 7, 2017,
and August 4, 2017 – and one day was retroactively approved as an FMLA leave day. The last
day of FMLA leave that plaintiff took was on August 4, 2017. Each time plaintiff requested
permission to take FMLA leave, plaintiff received approval.
II. David Garziniti
While she worked at the Annadale Facility, plaintiff worked with David Garziniti, a
physical therapy assistant who was never plaintiff’s supervisor. Plaintiff heard Garziniti make
“sexual comments” to female patients, as well as to male and female employees of ACP. For
instance, Garziniti made sexual comments to Peter DeCeasar, the regional manager, including:
“face down, ass up, you know how I like to do this;” “this is the new stick I’m going to use on
you tonight;” and “you know what to do, get on all fours, I’m coming in with the ball baby … .”
Plaintiff also claims that Garziniti “made sexually harassing gestures,” including “placing the
physio ball between his legs and humping it.”
Plaintiff further claims that Garziniti made inappropriate comments to plaintiff, and has
specifically identified four inappropriate comments. First, in December 2015, Garziniti joked
about whether plaintiff punished her husband the night before. Second, December 2016,
Garziniti joked that if plaintiff sat on his lap, he could tell her how much plaintiff weighed.
Third, in January 2017, plaintiff showed a patient how to use a physio ball, and Garziniti joked to
plaintiff that she should “make sure you don’t hurt the ball like you hurt your husband.” Fourth,
in January or February 2017, after plaintiff went to work late and appeared tired, Garziniti joked
about whether plaintiff’s fiancé kept her up late the night before.
ACP’s sexual harassment policy indicates that employees may complain to the human
resources department (“HR”) or to their supervisors about sexual harassment. If employees
complain to their supervisors, then the policy requires supervisors to report the complaints to
HR. Plaintiff did not complain to HR about Garziniti’s comments because, notwithstanding
ACP’s sexual harassment policy, plaintiff believed that HR only dealt with administrative issues,
excluding sexual harassment complaints.
Although plaintiff did not complain to HR, plaintiff claims that she complained about
Garziniti’s conduct to Harrington in January 2017, as well as to DeCaesar and to Brinda
Swaminaraya, a physical therapist. Her most recent complaint was to Swaminaraya, and this
complaint was in July 2017. Plaintiff believes that these individuals did not report her
complaints to HR. Notwithstanding her complaints about Garziniti, plaintiff does not believe
that any men in the physical therapy department were treated better than plaintiff because they
III. Plaintiff’s Work Schedule
The parties disagree about plaintiff’s correct work schedule at the Annadale Facility on
Thursdays. Defendants claim that plaintiff was supposed to work from 11 AM until 8 PM on
certain Thursdays at the Annadale Facility when patients were present from 11 AM until 8 PM.
However, plaintiff claims that she was supposed to, and did, work from 9 AM until 5 PM on
those days unless a supervisor asked her to work different hours.
On August 4, 2017, Swaminaraya expressed concern to Marcott that plaintiff did not
work the correct schedule, i.e. 11 AM until 8 PM, on multiple Thursdays, including on August 3.
During her deposition, Swaminaraya indicated that when she entered the office at 11 AM on
these Thursdays, she noticed that plaintiff was “doing nothing.” At 5 PM on these Thursdays,
plaintiff would leave the office even though patients were still present.
Swaminaraya explained that plaintiff’s departure at 5 PM particularly affected
Swaminaraya’s ability to work with patients when the physical therapist assistant was on
vacation, leaving Swaminaraya to work with patients by herself after 5 PM. According to
Swaminaraya, plaintiff stated that her schedule “has nothing to do with [Swaminaraya], this is
between [plaintiff] and HR.” Plaintiff denies that anyone at ACP told plaintiff to work any
schedule other than 9 AM until 5 PM.
After Swaminaraya expressed her concerns to Marcott, they both called Harrington to
express concern about plaintiff’s hours. Harrington explained that, before Swaminaraya and
Marcott called her, Harrington did not know plaintiff’s exact hours since she did not review
employees’ time records. After Swaminaraya called her, Harrington wrote to other ACP
employees in an email that they should “really think about dissolving [plaintiff’s] role” because
of “her limited scope of practice and her chronic issues with time and attendance … .”
Harrington also wrote a memorandum, dated August 4, 2017, that memorialized her call
with Swaminaraya and Marcott. The memorandum indicated that, according to Swaminaraya,
plaintiff: showed up and left work early on multiple days; would sit alone in the department
when she arrived early; left the physical therapist alone for hours when she left early; and, when
Swaminaraya directed plaintiff to follow the proper schedule, plaintiff replied that her schedule
“has nothing to do with [Swaminaraya], this is between [plaintiff] and HR.”
IV. Plaintiff’s Termination
On Monday August 7, 2017, plaintiff was terminated. Defendants claim, and plaintiff
does not deny, that HR made the decision to terminate plaintiff. Plaintiff was informed that she
was terminated for failure to work the proper hours.
Under Federal Rule of Civil Procedure 56, a court may 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.” “Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”
Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
A dispute as to a material fact is “‘genuine’ … if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The opposing party must put forward some “concrete evidence from which a
reasonable juror could return a verdict in his favor” to withstand a motion for summary
judgment. Id. at 256. “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether
he is ruling on a motion for summary judgment or for a directed verdict.” Id. When deciding a
motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. (internal quotation mark omitted).
“It is now beyond cavil that summary judgment may be appropriate even in the factintensive context of discrimination cases.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456,
466 (2d Cir. 2001). The Second Circuit has explained that “the salutary purposes of summary
judgment – avoiding protracted, expensive and harassing trials – apply no less to discrimination
cases than to other areas of litigation.” Id. (internal quotation marks and alterations omitted).
I. FMLA Retaliation
Courts “analyze the retaliation claims brought pursuant to the FMLA under the burdenshifting test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Graziadio v.
Culinary Institute of America, 817 F.3d 415, 429 (2d Cir. 2016). “To establish a prima facie
case of FMLA retaliation, a plaintiff must establish that 1) he exercised rights protected under
the FMLA; 2) he was qualified for his position; 3) he suffered an adverse employment action;
and 4) the adverse employment action occurred under circumstances giving rise to an inference
of retaliatory intent.” Id. (internal quotation marks and alterations omitted).
“If the plaintiff makes out a prima facie case, the defendant must demonstrate a
legitimate, non-discriminatory reason for its actions; if the defendant does so, the plaintiff must
then show that defendant's proffered explanation is pretextual.” Id. To succeed on an FMLA
retaliation claim, a plaintiff need only show that taking FMLA leave was a “motivating factor” in
the adverse employment action, rather than a “but for” cause of the adverse employment action.
See Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 164 (2d Cir. 2017).
Here, a reasonable juror could find that defendants terminated plaintiff in retaliation for
taking FMLA leave. Plaintiff has established a prima facie claim for FMLA retaliation: she was
qualified to work as a physical therapy aide, 2 exercised her rights under the FMLA, and was
terminated in circumstances giving rise to an inference of retaliatory intent. Specifically,
plaintiff was terminated three days after she took FMLA leave and Harrington made comments
The parties have not specifically addressed plaintiff’s qualifications, but the record here is sufficient for plaintiff to
meet this element of a prima facie case. The record shows that plaintiff had years of experience as a physical
therapy aide at the time and defendants have not disputed that plaintiff was qualified for her job.
in her June 6, 2017 and August 4, 2017 emails that – when read in a manner favorable to plaintiff
– indicated disapproval of plaintiff taking time off of work for FMLA leave.
Defendants have provided a non-discriminatory reason for plaintiff’s termination: she
was “stealing time” by working the wrong schedule. But plaintiff was not “stealing time” in the
traditional sense of inaccurately recording the hours she worked. There is no evidence that she
failed to accurately record her hours. Rather, defendants’ claim is that the hours she worked did
not properly align with the hours of the physical therapists who plaintiff was supposed to be
However, plaintiff has adduced sufficient evidence for a reasonable juror to find that
FMLA leave was a motivating factor in plaintiff’s termination. Viewing the record in plaintiff’s
favor, as is necessary on defendants’ motion for summary judgment, Liberty Lobby, Inc., 477
U.S. at 256, Harrington expressed repeated frustration at plaintiff’s time off from work.
On June 6, 2017 – a month after plaintiff applied for FMLA leave – Harrington emailed
plaintiff and two other ACP employees to tell them it “is not acceptable” for employees to
“interrupt” ACP’s “physicians to consult on their children’s health … .” Further, on August 4,
2017 – when plaintiff took FMLA leave – Harrington sent an email in which she indicated that
ACP should “really think about dissolving [plaintiff’s] role” because of “her limited scope of
practice and her chronic issues with time and attendance … .” A reasonable juror could
conclude that these “chronic issues” related solely to plaintiff’s schedule on the Thursdays when
defendants claim plaintiff should have been working late. But a reasonable juror could also
conclude that plaintiff’s “chronic” issues with time and attendance included plaintiff’s FMLA
leave, which she took the same day that Harrington sent this August 4, 2017 email and also three
separate times in the two months leading up to this email.
Defendants’ arguments to the contrary are not persuasive. Defendants note “temporal
proximity is insufficient to satisfy [plaintiff]'s burden to bring forward some evidence of
pretext.” El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). But here, plaintiff
has adduced evidence of pretext beyond proximity alone, including Harrington’s June 6, 2017
and August 4, 2017 emails.
Defendants contend that neither email constituted an adverse employment action: the
June 6, 2017 email was a reprimand to multiple employees rather than a termination, and the
August 4, 2017 email was a recommendation that led to plaintiff’s termination rather than a
termination by itself. However, these emails speak to Harrington’s intent. A reasonable juror
could find that these emails suggested that Harrington was unhappy with plaintiff’s FMLA leave,
and then find that these emails – in conjunction with plaintiff’s claim that Harrington began to
treat her differently after she first took FMLA leave – suggest that FMLA leave was a motivating
factor in ACP’s decision to terminate plaintiff upon Harrington’s recommendation.
Defendants also claim that there is no evidence that defendants knew about plaintiff’s
hours before Swaminaraya complained to Harrington about plaintiff’s schedule. But defendants
do not deny that plaintiff properly recorded her hours, so Harrington, as well as the rest of ACP
management, could have determined whether plaintiff was working 11 AM until 8 PM on the
Thursdays when patients stayed late. Harrington also met with plaintiff twice a week during her
PIP to discuss her performance, and during these meetings Harrington either determined or could
have determined whether plaintiff worked from 11 AM until 8 PM on the “late patient”
Plaintiff also completed the PIP while she working 9 AM until 5 PM on Thursdays, and
there is no evidence that plaintiff’s schedule impacted plaintiff’s successful completion of the
PIP. Defendants thus either knew plaintiff’s hours or did not monitor’s plaintiff’s schedule,
which would allow a reasonable juror to doubt whether defendants were as concerned with
plaintiff’s schedule as they purported to be when they terminated her.
Defendants further contend that, even if plaintiff was correct that her proper hours were
always 9 AM until 5 PM, there would still not be a genuine dispute as to a material fact since
“’we are decidedly not interested in the truth of the allegations against plaintiff’ when evaluating
pretext.’” Mathew v. N. Shore-Long Island Jewish Health Sys., Inc., 582 F. App'x 70, 71 (2d
Cir. 2014) (quoting McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 216 (2d Cir. 2006)).
“Instead, we are interested in what motivated the employer.” Matthew, 582 F. App’x at 71
(internal quotation marks, alterations, and emphasis omitted). That is true; even if the issue over
plaintiff’s hours was a result of a miscommunication, termination based on the employer’s
interpretation of the miscommunication, by itself, would not suggest discrimination. Here,
however, plaintiff has adduced sufficient evidence that her FMLA leave was a motivating factor
in her termination as to make summary judgment inappropriate.
II. Retaliation under Title VII and the NYSHRL
A Title VII retaliation claim is evaluated under a similar McDonnell Douglas burdenshifting framework. A prima facie case requires plaintiff to show that: (1) she “engaged in
protected participation or opposition under Title VII;” (2) “that the employer was aware of this
activity;” (3) “that the employer took adverse action against the plaintiff;” and (4) “that a causal
connection exists between the protected activity and the adverse action, i.e., that a retaliatory
motive played a part in the adverse employment action.” Kessler v. Westchester Cnty. Dep’t of
Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006).
“The burden then shifts to defendants to provide a legitimate, non-retaliatory reason for
the adverse employment action.” Green v. Rochdale Vill. Soc. Servs., Inc., 15-cv-5824, 2016
WL 4148322, at *7 (E.D.N.Y. Aug. 4, 2016). “At step three of the analysis, plaintiff must
identify an issue of material fact that would enable the jury to find that the reason given by
defendant is pretext for retaliatory animus based upon the protected Title VII activity … .” Id.
(internal quotation marks omitted).
“If a defendant establishes a legitimate, non-discriminatory reason for the adverse action,
the plaintiff must present evidence that retaliation was the ‘but-for’ cause of the action.”
Montanez v. McDean LLC, 770 F. App'x 592, 595 (2d Cir. 2019) (citing Univ. of Tex. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338 (2013)). “Plaintiff’s NYSHRL discrimination claims are analyzed
identically to h[er] Title VII claims, and the outcome of an employment discrimination claim
made pursuant to the NYSHRL is the same as it is under Title VII.” Leizerovici v. HASC Ctr.,
Inc., 17-cv-5774, 2018 WL 1115348, at *9 (E.D.N.Y. Feb. 27, 2018) (internal quotation marks
No reasonable juror would find in plaintiff’s favor on the Title VII and NYSHRL
retaliation claims. Even assuming plaintiff can make out a prima facie case of retaliation for
complaining about Garziniti, defendants can point to a legitimate reason for terminating plaintiff:
she failed to work the proper hours on Thursdays. The burden then shifts to plaintiff, who
cannot show that defendants’ reason for terminating plaintiff was pretextual.
However, “Title VII does not impose liability on individuals” whereas “individuals may be held liable under the
[NYS]HRL … .” Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012). Thus, if the Court did not dismiss all
of plaintiff’s claims under both statutes, Harrington would have been exposed to liability under Title VII but not
under the NYSHRL.
Although a reasonable juror could find in favor of plaintiff on the FMLA claims, the Title
VII and NYSHRL retaliation claims are governed by a more demanding standard. Plaintiff may
succeed on her FMLA retaliation claim by showing that taking FMLA leave was a “motivating
factor” in her termination, see Woods, 864 F.3d at 164, but to succeed on a Title VII or
NYSHRL retaliation claim, plaintiff must meet a more demanding standard by “present[ing]
evidence that retaliation was the ‘but-for’ cause of” her termination. Montanez, 770 F. App'x at
Plaintiff claims that she complained to Harrington, DeCaesar, and Swaminaraya about
Garizniti, but there is no evidence that anyone expressed any dissatisfaction with or disapproval
of her complaints about Garziniti. Further, defendants have asserted – and plaintiff has not
denied – that HR made the decision to terminate plaintiff. Since plaintiff contends that none of
these individuals reported her complaints to HR, and there is no evidence that ACP’s
management was even aware of these complaints, no reasonable juror could conclude that
plaintiff’s complaints about Garziniti were the “but for” cause of HR’s decision to terminate her.
Plaintiff faults Harrington, DeCaesar, and Swaminaraya for not reporting plaintiff’s
complaints to HR because plaintiff claims ACP’s policy required them to report plaintiff’s
complaints. ACP’s sexual harassment policy specifically provides that employees may report
complaints about sexual harassment to HR, notwithstanding plaintiff’s belief that HR only
addresses administrative issues. Thus, to the extent plaintiff sought to inform HR about her
complaints, she could have informed HR directly. Nonetheless, regardless of whether it was
plaintiff’s fault or her supervisors’ fault that HR was unaware of plaintiff’s complaints, no
reasonable juror would find in plaintiff’s favor without any evidence that HR was even aware of
Further, even if Harrington’s recommendation was the “but for” cause of HR’s decision
to terminate her, plaintiff would still not be able to show that her complaints were the “but for”
cause of Harrington’s recommendation to terminate plaintiff. Plaintiff only complained to
Harrington in January 2017, well before her termination in August 2017. 4 Although there is no
“bright line to define the outer limits beyond which a temporal relationship is too attenuated to
establish a causal relationship between the exercise of a federal constitutional right and an
allegedly retaliatory action,” Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cty.,
252 F.3d 545, 554 (2d Cir. 2001), the relatively lengthy period of time between January and
August 2017 weakens any claim that plaintiff’s complaint was the “but for” cause of her
termination. Further, there is no evidence of Harrington expressing any disapproval of plaintiff’s
complaints. Plaintiff’s Title VII and NYSHRL retaliation claims are dismissed.
III. Retaliation under the NYCHRL
“Retaliation claims under the … NYCHRL are also analyzed under
the McDonnell Douglas framework.” Thrane v. Metro. Transportation Auth., 115-cv-7418, 2019
WL 3388922, at *3 (E.D.N.Y. July 26, 2019). However, “courts must analyze NYCHRL claims
separately and independently from any federal and state law claims, construing the NYCHRL's
provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is
reasonably possible.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d
Cir. 2013) (internal quotation mark and citations omitted). “[T]o prevail on a retaliation claim
under the NYCHRL, the plaintiff must show that she took an action opposing her employer's
Plaintiff has also indicated that she complained to Swaminaraya and DeCeasar, but there is no evidence that they
informed Harrington of plaintiff’s complaints and plaintiff contends that they never told HR.
discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely
to deter a person from engaging in such action.” Id. at 112. (internal citations omitted).
Despite the liberal construction of the NYCHRL, no reasonable juror would find in favor
of plaintiff on the NYCHRL retaliation claim. There is no evidence that HR, which decided to
terminate plaintiff, even knew about plaintiff’s complaints. Even if Harrington’s
recommendation caused HR to make the decision to terminate plaintiff, the connection between
plaintiff’s complaint to Harrington and plaintiff’s termination is too attenuated for plaintiff to be
able to show that her termination was “as a result” of her complaint. Id. Further, no reasonable
juror could find that plaintiff’s termination was the result of her complaints to DeCaesar and
Swaminaraya because there is no evidence that defendants were even aware of these complaints.
Thus, plaintiff’s NYCHRL retaliation claim is dismissed.
IV. Hostile Work Environment under Title VII and the NYSHRL
“To show that she was subjected to sex discrimination by virtue of a hostile work
environment,” plaintiff must show that there was “conduct (1) that is objectively severe or
pervasive—that is, conduct that creates an environment that a reasonable person would find
hostile or abusive … , (2) that the plaintiff subjectively perceives as hostile or abusive … , and
(3) that creates such an environment because of plaintiff's sex ... .” Brown v. Henderson, 257
F.3d 246, 252 (2d Cir. 2001) (internal quotation marks and alterations omitted). Where, as here,
the alleged hostile work environment is the result of conduct by plaintiff’s co-worker, rather than
a supervisor, plaintiff must also show that the employer “is responsible for the continued
hostility of the work environment.” Id.
In assessing a hostile work environment claim, “courts should examine the totality of the
circumstances, 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 the victim’s job performance.” Rivera v. Rochester Genesee Reg’l Transp. Auth.,
743 F.3d 11, 20 (2d Cir. 2014) (internal quotation marks and alterations omitted). “In order to
establish a hostile work environment claim under Title VII, a plaintiff must produce enough
evidence to show 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.” Id. (internal quotation marks omitted).
Although “even one incident of sufficient severity can create a hostile work
environment,” generally “isolated remarks or occasional episodes of harassment do not constitute
a hostile environment within the meaning of Title VII.” Rizzo-Puccio v. Coll. Auxiliary Servs.,
Inc., 216 F.3d 1073, 2000 WL 777955, at *3 (2d Cir. 2000). Evidence that “colleagues
discuss[ed] topics that were inappropriate and sexual in nature,” or otherwise engaged in
unprofessional behavior, is insufficient to sustain a hostile work environment claim. Byrne v.
Telesector Res. Grp., Inc., 339 F. App'x 13, 18 (2d Cir. 2009). “Hostile work environment and
retaliation claims under the NYSHRL are generally governed by the same standards as federal
claims under Title VII.” Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006).
The evidence of a hostile work environment under Title VII and the NYSHRL that
plaintiff has adduced could not persuade a reasonable juror. As an initial matter, plaintiff has not
adduced sufficient evidence that, to the extent there was a hostile work environment, it was the
result of her sex. Garziniti’s comments to Peter DeCaesar were even more sexually charged and
at least as potentially offensive as his comments to plaintiff. “Because the touchstone of the
Title VII inquiry is discrimination, and [Garziniti’s] comments were equally offensive to both
men and women, Plaintiff's hostile work environment claim must fail.” Cobb v. Morningside at
Home, Inc., 06-cv-13161, 2009 WL 874612, at *9 (S.D.N.Y. Mar. 31, 2009).
Further, despite plaintiff’s claim that Garziniti made inappropriate comments to plaintiff
“constantly,” plaintiff has only identified four comments to plaintiff and one gesture by Garziniti
– in addition to other comments that Garziniti made to individuals besides plaintiff – that
purportedly created this hostile work environment. Although Garziniti’s conduct may have been
inappropriate, his conduct merely constituted “isolated remarks or occasional episodes of
harassment” rather than the severe and pervasive conduct that would lead to a hostile work
environment. See Rizzo-Puccio, 2000 WL 777955, at *3. The Second Circuit has rejected
hostile work environment claims under circumstances far more severe than those present here.
See, e.g., Vito v. Bausch & Lomb Inc., 403 F. App'x 593, 596 (2d Cir. 2010) (holding that
multiple colleagues’ repeated sexual banter, gestures, and inappropriate physical contact were
insufficient for a hostile work environment claim); Carter v. State of New York, 151 F. App'x
40, 41 (2d Cir. 2005) (“Three kisses on the cheek in a two-year period, in the absence of any
other discriminatory or offensive treatment, do not meet the threshold this Court has established
for hostile work environment claims.”); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768
(2d Cir. 1998) (holding that a supervisor’s conduct was insufficient for a hostile work
environment claim although the supervisor touched plaintiff’s breasts with papers he was holding
and told her “she had been voted the ‘sleekest ass’ in the office”) (internal quotation marks
Thus, plaintiff has not shown that she experienced conduct that was objectively severe or
pervasive or on the basis of sex. Because plaintiff has failed to establish these elements of a
hostile work environment claim, the Court need not and does not determine whether she has
established any other elements of her hostile work environment claim. See Dauer v. Verizon
Commc'ns Inc., 03-cv-05047, 2009 WL 186199, at *5 n.4 (S.D.N.Y. Jan. 26, 2009). Plaintiff’s
Title VII and NYSHRL hostile work environment claims are dismissed.
V. Hostile Work Environment under the NYCHRL
“To state a claim for discrimination under the NYCHRL, a plaintiff must only show
differential treatment of any degree based on a discriminatory motive; the NYCHRL does not
require either materially adverse employment actions or severe and pervasive
conduct.” Gorokhovsky v. New York City Hous. Auth., 552 F. App'x 100, 102 (2d Cir. 2014)
(internal quotation marks omitted). “In a hostile work environment claim under the NYCHRL,
even a single comment may be actionable in appropriate circumstances.” Id. (internal quotation
However, “the NYCHRL is not a general civility code, and a defendant is not liable if the
plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory
motives, or if the defendant proves the conduct was nothing more than petty slights or trivial
inconveniences … .” Mihalik, 715 F.3d at 113 (internal citations and quotation marks omitted).
Despite the more liberal standards of the NYCHRL, no reasonable juror could find in
favor of plaintiff on the NYCHRL hostile work environment claim. As noted above, Garzinti’s
comments to DeCaesar were even more sexually charged, and no less potentially offensive, than
his comments to plaintiff or other women. Thus, plaintiff has not shown that Garziniti’s conduct
was caused in any part by discriminatory or retaliatory motives. Further, Garziniti’s comments
were petty slights and trivial inconveniences, not the kind of conduct that gives rise to a claim
under the NYCHRL. Plaintiff’s NYCHRL claim for a hostile work environment is dismissed.
Defendants’  motion for summary judgment is denied as to the FMLA retaliation
claim but otherwise granted. By separate order, the Court will schedule a conference to set this
matter down for trial on the FMLA retaliation claim.
Digitally signed by Brian M.
Dated: Brooklyn, New York
September 5, 2019
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