Henry v. Nassau Health Care Corporation et al
ORDER granting 20 Motion for Summary Judgment. For the foregoing reasons, defendants' motion for summary judgment pursuant to Rule 56 is granted in its entirety. Plaintiff's claims under 42 U.S.C. § 2000(e) et. seq. (Title VII), 42 U.S.C. §§ 1981 and 1983, and New Yorks Human Rights Law, Executive Law § 296 are dismissed. The clerk of the court is directed to close this case. Ordered by Judge Denis R. Hurley on 10/7/2013. (Kaley, Regina)
UNITED STATES DISTRICTCOURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
NASSAU HEALTH CARE CORPORATION,
RICHARD PERROTTI, in his official and individual
capacity, and GARY BIE, in his official and
For the Plaintiff:
LAW OFFICES OF FREDERICK K. BREWINGTON
556 Peninsula Blvd.
Hempstead, New York 11550
By: Frederick K. Brewington, Esq.
For the Defendants:
CLIFTON BUDD & DeMARIA, LLP
420 Lexington Avenue
New York, New York 10170
By: Sheryl Ann Orwel, Esq.
1270 Avenue of the Americas, 24th Floor
New York, NY 10020
By: Brian J. Clark, Esq.
HURLEY, Senior District Judge:
Plaintiff, Celia Henry (“Henry” or “plaintiff”) commenced this action against
defendants Nassau Health Care Corporation (“NHCC”), Richard Perrotti (“Perrotti”), and
Gary Bie (“Bie”) (collectively “defendants”) asserting claims of race-based
discrimination and retaliatory employment practices in violation of Title VII of 42 U.S.C.
§ 2000(e) (Title VII), 42 U.S.C. § 1983, 42 U.S.C. § 1981, and New York’s Human
Rights Law, Executive Law § 296. (Sec. Am. Compl. ¶ 1, as Defs.’ Ex. A.) Presently
before the Court is defendants’ motion for summary judgment pursuant to Federal Rule
of Civil Procedure 56 (“Rule 56”). For the reasons set forth below, the defendants’
motion is granted.
The following facts, drawn from the parties’ local Rule 56.1 statements, the
pleadings, and prior decisions in this case, are undisputed unless otherwise noted.
In an Order dated June 13, 2008, this Court, adopting Magistrate Judge
Orenstein’s Report and Recommendation in its entirety, granted defendants’ motion
pursuant to Federal Rule of Civil Procedure 21 to sever into separate actions the claims of
seven plaintiffs, including Henry, each of whom claimed that defendants had
discriminated against him or her on the basis of race. (See 06-CV-4757, Docket No. 64
(Memorandum and Order, dated June 13, 2008).) In the same opinion, the Court also
dismissed plaintiffs’ Title VI claims in their entirety and their Title VII claims against all
of the individual defendants, including defendants Perrotti and Bie. (Id. at 14-15.)
NHCC “is a public benefit corporation created by the New York State
legislature.” (Defs.’ R. 56.1 Stmt. ¶ 1.) “In or about September 19, 1999, the Public
Authorities Law authorized NHCC’s acquisition of certain assets in operation of Nassau
County . . . relating to the provisions of healthcare services, including Nassau University
Medical Center” (“NUMC”). (Id.)
Defendant Perrotti began working for NUMC as “Assistant Vice President of
Finance on September 10, 2001,” and two years later, “NHCC promoted him to Vice
President of Finance.” (Id. ¶ 7.)
Defendant Bie has been the Chief Financial Officer of NHCC since July 2001,
and “oversees[the] financial matters of NHCC.” (Id. ¶ 9.)
Plaintiff’s Employment at NUMC
Plaintiff, an African-American woman, began working for NHCC as an Assistant
Hospital Administrator II, a civil service position paid in accordance with a Civil Service
Pay Grade 17 Classification. (Defs.’ R. 56.1 Stmt. ¶ 10.) “The Assistant Administrator
II’s pay range varie[s] significantly because that Title [is] not a unionized position.” (Id.
at ¶ 11.) Plaintiff’s starting salary was $39,721.00, from which it was increased several
times: in December 1996, to $41,906.00; in December 1997, to 47,493; in January 2000,
to $54,000; and finally in May 2003, to $57,000. (Id.)
While plaintiff’s job title is disputed ̶ plaintiff classifies her title as Managed
Care Contractor, and defendants classify it as Managed Care Coordinator ̶ her essential
duties are not disputed in that both parties agree that she was to “negotiate” and “re-
credentialize” managed care contracts. 1 (See id. ¶ 12; Pl.’s R. 56.1 Stmt. ¶ 12.) Plaintiff
was the only hospital employee who had this responsibility, which she undertook while in
the Department of Reimbursement, a three-member sub-department within the
Department of Finance. (Defs.’ R. 56.1 Stmt. ¶¶ 4; 14.) All three members of the
Department of Reimbursement shared an office and reported directly to defendant
Perrotti, from whom plaintiff consistently received favorable performance evaluations.
(Id. ¶¶ 5; 20.)
Plaintiff’s Complaints to the Office of Diversity
“Plaintiff first complained to NHCC that she believed she was not receiving
adequate compensation on July 12, 2000.” (Defs.’ R. 56.1 Stmt. ¶ 36.) Plaintiff “made
various [other] complaints to the Office of Diversity from 2000-2003.” (Id. ¶ 37.) In
particular, “[o]n March 19, 2003, Plaintiff drafted a memo to the Office of Diversity
requesting a significantly larger salary increase than she had done so prior.” (Id.)
Plaintiff claims that the purpose of this memo was to “update  the Office of Diversity
that Ms. Henry’s responsibilities and duties had substantially increased since her original
complaint in July 2000, listing an extensive, yet non-exhaustive list of new functions
under her title.” (Pl.’s R. 56.1 Stmt. ¶ 37.)
According to plaintiff, Vance Shaw, an Affirmative Action Specialist working
within the Office of Diversity, addressed plaintiff’s discrimination complaints with
Perrotti, although Shaw provides no details as to when these conversations took place.
Plaintiff notes that her skills and educational background were applicable to the
demands of her position. Specifically she “possessed a Bachelor’s and a Master’s
degree…was bi-lingual -speaking fluent English and Spanish- and her skills were used to
translate documents and conversations.” (Pl.’s Mem. of Law in Opp’n to Mot. for
Summ. J. at 6.)
(Shaw Decl. ¶ 67, as Pl.’s Ex. C.) Further, Perrotti denies knowledge of plaintiff having
formally filed a complaint with the Office of Diversity. (Perrotti Aff., as Defs.’ Ex. M.)
Similarly, Shaw alleges that in 2003 he had conversations with defendant Bie regarding
Henry, but provides no further details regarding these conversations. (Shaw Decl. ¶ 66.)
Shaw does allege, however, that on June 18, 2003, one of his colleagues in the Office of
Diversity “had a brief phone conversation with Defendant Perrotti discussing Plaintiff
Henry’s duties.” (Id. ¶ 64.) Shaw also alleges that on that same day Henry, Perrotti, and
Bie held a meeting regarding plaintiff’s duties. (Id. ¶ 65.)
On May 17, 2004, plaintiff was transferred to the Department of Academic
Affairs. (Defs.’ R. 56.1 Stmt. ¶ 39.) Defendants claim that plaintiff was “transferred to
fill a vacancy left by the layoff[s]” at the hospital. (Id.) After the transfer, plaintiff’s
compensation, benefits, and work hours remained the same, though plaintiff claims her
“assignments were diminished to ministerial tasks, like filing, scheduling, and answering
phones.” ( Id.; Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J. at 6.)
“On May 18, 2004, Ms. Henry filed a charge of discrimination with the New
York State Division of Human Rights alleging discrimination based on race, color and
retaliation for opposing unlawful discrimination.” (Pl.’s R. 56.1 Counterstatement ¶ 29.)
On or about January 18, 2005, plaintiff was laid off from NHCC. (Id. ¶ 30.)
Plaintiff claims that defendants Perrotti, Bie, and Nassau Health Care Corporation
discriminated against her on the basis of race and retaliated against her after she
complained of the alleged discrimination. In particular, she alleges “1) she did not
receive her required pay from Defendant NHCC; 2 2) Defendant Perrotti and Defendant
Bie attempted to minimize her work title, even though they never reduced her work
responsibilities and she consistently received satisfactory reviews; 3) Defendant NHCC,
Defendant Perrotti, and Defendant Bie, working together, transferred [her] from her
highly demanding position in the Department of Finance, to a menial position located in
the Department of Academic Affairs; 4) [her] responsibilities [were] materially
diminished because she had no meaningful assignments to do upon her transfer; 5) [she]
was terminated, or according to Defendants, ‘laid off.’ ” (Pl.’s Mem. of Law in Opp’n to
Mot. for Summ. J. at 4-5.) Plaintiff further alleges that Perrotti and Bie transferred her
from the Department of Finance to the Department of Academic Affairs in retaliation to
discrimination complaints she made to the hospital’s Office of Diversity between 2000
and 2003. (Id. at 13-16.)
Applicable Law and Legal Standards
Summary judgment pursuant to Rule 56 is only appropriate where admissible
evidence in the form of affidavits, deposition transcripts, or other documentation
demonstrates the absence of a genuine issue of material fact, and one party's entitlement
to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712,
716 (2d Cir. 1994). The relevant governing law in each case determines which facts are
material; "only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment." Anderson v.
Plaintiff also claims that Perrotti and Bie denied her a salary increase based on
racial prejudices, and asserts claims against them in their individual capacities. (Sec.
Am. Compl. ¶ 48, 84-86.)
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). No
genuinely triable factual issue exists when the moving party demonstrates, on the basis of
the pleadings and submitted evidence, and after drawing all inferences and resolving all
ambiguities in favor of the non-movant, that no rational jury could find in the nonmovant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996)
(citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits,
depositions, or other documentation, the non-movant must offer similar materials setting
forth specific facts that show that there is a genuine issue of material fact to be tried.
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present
more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consol. Rail Corp.,
902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some
metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067,
1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)), and cannot rely on the
allegations in his or her pleadings, conclusory statements, or on "mere assertions that
affidavits supporting the motion are not credible." Gottlieb v. Cnty. of Orange, 84 F.3d
511, 518 (2d Cir. 1996) (internal citations omitted).
The district court, in considering a summary judgment motion, must also be
"mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter,
128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the
evidentiary burdens that the respective parties will bear at trial guide district courts in
their determination of summary judgment motions. Brady v. Town of Colchester, 863
F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden
of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if
he can point to an absence of evidence to support an essential element of the nonmovant's claim. Id. at 210-11. Where a movant without the underlying burden of proof
offers evidence that the non-movant has failed to establish her claim, the burden shifts to
the non-movant to offer "persuasive evidence that [her] claim is not implausible." Id. at
211 (citing Matsushita, 475 U.S. at 587).
Summary judgment is generally inappropriate where questions of the defendant's
state of mind are at issue, Gelb v. Bd. of Elections of the City of N. Y., 224 F.3d 149, 157
(2d Cir. 2000), and should thus be granted with caution in employment discrimination
cases. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir.
1994); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). Nonetheless,
"summary judgment remains available to reject discrimination claims in cases lacking
genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d
Cir. 1994). "The summary judgment rule would be rendered sterile . . . if the mere
incantation of intent or state of mind would operate as a talisman to defeat an otherwise
valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "[T]he salutary
purposes of summary judgment — avoiding protracted, expensive and harassing trials —
apply no less to discrimination cases than to commercial or other areas of litigation." Id.
"When no rational jury could find in favor of the nonmoving party because the evidence
to support its case is so slight, there is no genuine issue of material fact and a grant of
summary judgment is proper." Gallo, 22 F.3d at 1224.
Plaintiff’s Discrimination Claim
In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-04, 93 S. Ct.
1817, 36 L. Ed. 2d 668 (1973), the Supreme Court first enunciated the now-familiar
"burden- shifting" formula used in analyzing Title VII employment discrimination claims
based on indirect or circumstantial evidence. This standard was further refined in Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 67
L. Ed. 2d 207 (1981) and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-11, 113 S.
Ct. 2742, 125 L. Ed. 2d 407 (1993). Under McDonnell Douglas and its progeny, a
plaintiff must first establish a prima facie case of discrimination by showing: (1) she
belonged to a protected class, (2) was qualified for the position she held or sought, and
(3) suffered an adverse employment action (4) under circumstances giving rise to an
inference of discriminatory intent. Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir.
2003). The burden of establishing a prima facie case of employment discrimination has
been described as "modest," Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d
Cir. 1994), or even "minimal." Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir.
2001). It is a burden of production, not persuasion, and involves no credibility
assessments. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct.
2097, 147 L. Ed. 2d 105 (2000).
If the plaintiff establishes a prima facie case, the burden then shifts to the employer
to "articulate some legitimate, nondiscriminatory reason for [the adverse act]." Leibowitz
v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009) (internal quotation marks omitted).
The employer's burden of showing a legitimate non-discriminatory reason for its actions
is not a particularly steep hurdle. Federal courts do not have a "roving commission to
review business judgments," Mont. v. First Fed. Sav. & Loan Ass'n of Rochester, 869
F.2d 100, 106 (2d Cir. 1989) (quoting Graefenhain v. Pabst Brewing Co., 827 F.2d 13,
21 n.8 (7th Cir. 1987)), and thus, "[e]vidence that an employer made a poor business
judgment generally is insufficient to establish a question of fact as to the credibility of the
employer's reasons." Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988).
Should the employer satisfy its burden, the McDonnell Douglas framework and its
presumptions and burdens disappear, leaving the sole remaining issue of "discrimination
vel non." See Reeves, 530 U.S. at 143. To rebut an employer's proffered nondiscriminatory rationale for its actions and withstand summary judgment, a plaintiff must
present more than allegations that are "conclusory and unsupported by evidence of any
weight." Smith v. Am. Exp. Co., 853 F.2d 151, 154-55 (2d Cir. 1988). "To allow a party
to defeat a motion for summary judgment by offering purely conclusory allegations of
discrimination, absent any concrete particulars, would necessitate a trial in all Title VII
cases." Meiri, 759 F.2d at 998. Although intermediate evidentiary burdens shift back
and forth under this framework, "[t]he ultimate burden of persuading the trier of fact that
the defendant intentionally discriminated against the plaintiff remains at all times with the
plaintiff." Reeves, 530 U.S. at 143.
Finally, “the standards for proving discrimination under Section 296 of the New
York Executive Law are the same as under Title VII.” Lucas v. South Nassau Cmtys.
Hosp., 54 F. Supp. 2d 141, 146 (E.D.N.Y. 2008) (citing Kremer v. Chemical Constr.
Corp., 456 U.S. 461, 479, 102 S. Ct. 1883, 72 L. Ed. 2d 262 (1982); Stetson v. NYNEX
Serv. Co., 995 F.2d 355, 360 (2d Cir. 1993) (plaintiff’s claim under New York’s Human
Rights Law “is governed by the same standards as his federal claim”). “Accordingly, the
New York Executive Law inquiry is subsumed within the Title VII analysis.” Id.
Application to Plaintiff’s Discrimination Claim
The Court begins its analysis by determining whether the plaintiff has met her
initial burden of establishing a prima facie case of discrimination under Title VII. The
first two prongs of that analysis, namely plaintiff’s membership in a protected group and
her qualification to perform her job, are undisputed here. (Defs.’ Mem. of Law in Supp.
of Mot. for Summ. J. at 16.) Therefore, the Court must consider only whether the
plaintiff suffered an adverse employment action, and if so, whether discrimination can be
inferred from the defendant’s actions.
Adverse Employment Actions
The Supreme Court has stated that in order to be actionable under federal
discrimination laws, an adverse employment action must be "tangible" or “material.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633
(1998); see also Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) ("A plaintiff sustains an
adverse employment action if he or she endures a materially adverse change in the terms
and conditions of employment.") (citation and internal quotation marks omitted). “A
tangible employment action constitutes a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits." Ellerth, 524 U.S.
at 761. Materially adverse employment actions also include "a demotion evidenced by a
decrease in wage or salary, a less distinguished title, . . . or other indices . . . unique to a
particular situation." Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (citations
and internal quotations omitted). However, a "bruised ego," a "demotion without change
in pay, benefits, duties, or prestige," or "reassignment to [a] more inconvenient job" are
all insufficient to constitute a tangible or material adverse employment action. Ellerth,
524 U.S. at 761 (internal quotations and citations omitted).
The Second Circuit has spoken regarding the types of employment transfers which
may constitute adverse action. The law dictates that "a transfer is an adverse employment
action if it results in a change in responsibilities so significant as to constitute a setback to
the plaintiff’s career." Kessler v. Westchester Cnty. Dep't of Soc. Servs., 461 F.3d 199,
206 (2d Cir. 2006) (quoting Galabya v. N. Y. City Bd. of Educ., 202 F.3d 636, 641 (2d
Cir. 2000)). An adverse employment action also may be found where "the plaintiff was
transferred from an elite unit to one that was less prestigious or where the transfer
effected a radical change in [the] nature of the plaintiff’s work." Id. (citations and
internal quotation marks omitted). In addition, to be materially adverse, "a change in
working conditions must be more disruptive than a mere inconvenience or an alteration
of job responsibilities." Id. at 207 (citations and internal quotation marks omitted).
"Because there are no bright-line rules, courts must pore over each case to determine
whether the challenged employment action reaches the level of 'adverse.' " Wanamaker v.
Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997).
In the instant case, plaintiff asserts that she suffered adverse employment actions
because “1) she did not receive her required pay from Defendant NHCC; 2) Defendant
Perrotti and Defendant Bie attempted to minimize her work title, even though they never
reduced her work responsibilities and she consistently received satisfactory reviews; 3)
Defendant NHCC, Defendant Perrotti, and Defendant Bie, working together, transferred
[her] from her highly demanding position in the Department of Finance, to a menial
position located in the Department of Academic Affairs; 4) [her] responsibilities [were]
materially diminished because she had no meaningful assignments to do upon her
transfer; [and] 5) [she] was terminated, or according to Defendants, ‘laid off.’ ” 3 (Pl.’s
Mem. of Law in Opp’n to Mot. for Summ. J. at 4-5.)
Plaintiff’s claim that defendants attempted to minimize her title is unavailing.
Plaintiff argues that her title was “Managed Care Coordinator,” as opposed to “Managed
Care Contractor,” however, both parties agree as to the scope of plaintiff’s duties. Any
diminution in prestige arising from the use of “coordinator” rather than “contractor” lacks
the severity required of an adverse employment action under the law. See Ellerth, 524
U.S. at 761 (finding that "demotion without change in pay, benefits, duties, or prestige" is
insufficient to constitute a tangible or material adverse employment action).
In contrast, plaintiff’s transfer to the Department of Academic Affairs and her
allegations that this transfer resulted in diminished responsibilities raises a triable issue as
to whether that action materially altered the terms and conditions of her employment in
an adverse manner. According to plaintiff, the duties of her new position entailed mainly
clerical tasks, whereas previously she was responsible for negotiating managed care
contracts. (Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J. at 6.) Furthermore, the
new position did not require her educational background and skills. (Id.) This change in
responsibilities may be considered so severe as to constitute a setback in plaintiff’s
career. See Kessler, 461 F.3d at 209 (finding that plaintiff created a genuine triable issue
on the question of adverse action because he retained his title in name only and lost all
Assuming the lay-off constituted an adverse employment action, plaintiff has
failed to offer any proof that the action was motivated by discriminatory intent, and
accordingly cannot assert that action to establish a prima facie showing. See infra pp. 1217.
job responsibilities after his transfer to a different office); Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 134 (2d Cir. 2008) (finding that employee’s transfer from working in
pharmacy to working in parking lot resulted in “significantly diminished material
responsibilities”). Accordingly, plaintiff has raised a triable issue as to whether her
transfer to the Academic Affairs Department constituted an adverse employment action. 4
Inference of Discrimination
A Title VII plaintiff may establish the last element of the prima facie case in a
number of different ways depending on the specific facts of the case. See Abdu-Brisson
v. Delta Air- Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001). Here, plaintiff claims that
evidence of disparate treatment and a hostile work environment raise an inference of
Under a disparate treatment theory, a plaintiff can raise an inference of
discrimination "by showing that the employer subjected [her] to disparate treatment, that
is, treated [her] less favorably than a similarly situated employee outside [her] protected
group." Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). Plaintiff claims
there are “two viable sets of employees she could reasonably be compared to in showing
disparate treatment: 1) her colleagues in the Finance Executive Area and 2) the other
Assistant Hospital Administrators.” (Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J.
The Court assumes that plaintiff has also created triable issues with regard to
whether she suffered adverse actions because she was not adequately compensated and
was terminated from her job. Nevertheless, as will be seen below, plaintiff cannot make
out a prima facie case because none of the alleged adverse employment actions occurred
under circumstances giving rise to an inference of discrimination.
In comparing herself to her colleagues in the Finance Department, plaintiff claims
that she was treated differently because she was “1) the only African-American in her
department and shared an office in the Department of Finance with two [c]aucasian
employees; 2) was purposely excluded from meetings she customarily attended prior to
Defendant Perrotti’s and Defendant Bie’s arrival, while all [c]aucasian employees in her
area were granted access to attend by Defendant Perrotti; 3) was the only one in her area
yelled at and humiliated frequently by Defendant Perrotti in front of others; 4) was the
only one in the Finance Executive Area asked to perform menial tasks when Defendant
Perrotti’s clerk did not complete her tasks; and 5) was the only one whom Defendant
Perrotti did not want to speak to about work related issues.” (Pl.’s Mem. of Law in
Opp’n to Mot. for Summ. J. at 8.)
Plaintiff’s claim must fail because she cannot establish a prima facie case that she
was similarly situated to her colleagues in the Finance Department. The only basis that
plaintiff offers to establish that she was similarly situated to others in her department is
that both she and her colleagues had complex duties relating to financial matters and
reported to defendant Perrotti. (Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J. at 8-9.)
This basis is far too general to support the conclusion that they were similarly situated.
See Roa v. Mineta, 51 F. App'x 896, 899 (2d Cir. 2002) (holding that two employees who
worked in same department and reported to same supervisor were not similarly situated
because their duties and responsibilities were materially different). Furthermore,
plaintiff’s own admission that her function was “[a]bsolutely not” the same as the
function of one of her departmental colleagues further belies the notion that she was
similarly situated to those in her department. (Henry Dep. at 59-61.) Accordingly,
plaintiff’s claim is insufficient to create an inference of disparate treatment.
Similarly, plaintiff’s claim that she was similarly situated to other Assistant
Hospital Administrator IIs is deficient because plaintiff has failed to produce any
evidence explaining how she held similar responsibilities to the other Assistant
Administrator IIs. Although an identical illustration of duties and responsibilities is not
necessary, here, plaintiff has failed to allege any facts demonstrating even a “reasonably
close resemblance of the facts and circumstances” between of her and her comparators.
Graham, 230 F.3d at 40. Moreover, plaintiff even admits that the scope of her duties
varied significantly from the other Hospital Administrator IIs to whom she seeks to
compare herself. For instance, plaintiff concedes she did not oversee other employees,
whereas others with her civil service title were responsible for entire departments with
multiple employees. (Henry Dep. at 62; Pl.’s Mem. of Law in Opp’n to Mot. for Summ.
J. at 9; Perrotti Dep., at 33-40, as Defs.’ Ex. D.)
Plaintiff’s allegation that she can demonstrate disparate treatment “through
evidence of a hostile work environment” also must fail. (Pl.’s Mem. of Law in Opp’n to
Mot. for Summ. J. at 10.) In order to establish a hostile work environment claim, a
plaintiff must prove: “(1) that the workplace was permeated with discriminatory
intimidation that was sufficiently severe or pervasive to alter the conditions of his or her
work environment, and (2) that a specific basis exists for imputing the conduct that
created the hostile work environment to the employer.” Mack v. Otis Elevator Co., 326
F.3d 116, 122 (2d Cir. 2003) (internal quotation marks and brackets omitted). “This test
has objective and subjective elements: the misconduct shown must be ‘severe or
pervasive enough to create an objectively hostile or abusive work environment,’ and the
victim must also subjectively perceive that environment to be abusive.” Alfano v.
Cosstello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Harris v. Forklift Sys., Inc., 501
U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)); see also Demoret v. Zegarelli,
451 F.3d 140, 149 (2d Cir. 2006) (“Plaintiff must show not only that she subjectively
perceived the environment to be abusive, but also that the environment was objectively
hostile and abusive.”).
“Isolated incidents typically do not rise to the level of a hostile work environment
unless they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as
to create such an environment.’ ” Demoret, 451 F.3d at 149 (quoting Patterson v. Cnty. of
Oneida, 375 F.3d 206, 227 (2d Cir. 2004)). However, “[t]here is no fixed number of
incidents that a plaintiff must endure in order to establish a hostile work environment,”
and instead, courts are to “view the circumstances in their totality, examining the nature,
severity, and frequency of the conduct.” Alfano, 294 F.3d at 379. What is necessary is
that plaintiff establish a link between the actions by defendants and plaintiff’s
membership in a protected class. Id. at 374; Brown v. Henderson, 257 F.3d 246, 252 (2d
In support of her claim plaintiff alleges that her “work environment included
unjustifiable yelling from Defendant Perrotti, comments by Defendant Perrotti about the
non-necessity of Black History Month at the Defendant Hospital, and his overt disdain
for the discrimination cases which arose at Defendant NHCC.” (Pl.’s Mem. of Law in
Opp’n to Mot. for Summ. J. at 10.) Here, plaintiff seems to ignore the requirement that
she establish a link between the defendants’ alleged actions and her membership in a
protected class. For example, she alleges only one occasion on which Perrotti yelled at
her, but fails to allege how this incident was related to her race. (Henry Dep., pp.82-83.)
Similarly, plaintiff fails to link the fact that Perrotti “was tired of” discrimination cases in
general, (Henry Decl. ¶ 22, as Pl.’s Ex. B), to any negativity toward African Americans
specifically. In addition, plaintiff’s allegation that on one occasion Perrotti made a
negative remark about Black History Month, (Henry Decl. ¶ 21), is not of sufficient
severity so as to alter the conditions of plaintiff’s working environment. Moreover, when
examining these occurrences collectively, the situation does not exhibit conduct that is so
severe or recurrent enough to establish a workplace permeated with discriminatory
intimidation. See Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (“[T]he
misconduct shown must be ‘severe or pervasive enough to create an objectively hostile or
abusive work environment,’… [a]s a general rule, incidents must be more than ‘episodic;
they must be sufficiently continuous and concerted in order to be deemed pervasive.’ ”)
(quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). Accordingly,
plaintiff’s allegation of a hostile work environment must fail.
For the reasons stated above, plaintiff has failed to establish the final element of her
prima facie case in that she has not presented sufficient evidence that any alleged adverse
employment actions occurred under circumstances giving rise to an inference of
discriminatory intent. Because plaintiff has failed to satisfy her burden of establishing a
prima facie case, this Court will not shift the burden over to the employer to offer a
legitimate, non-discriminatory reason for its actions. See Patterson v. Cnty. of Oneida,
375 F.3d 206, 221 (2d Cir. 2004) (“Once the plaintiff satisfies his initial minimal burden,
the burden of production shifts to the employer”) (internal quotation marks omitted).
Therefore, the Court dismisses plaintiff’s Title VII discrimination claims.
III. Plaintiff’s Retaliation Claim
Section 704(a) of Title VII makes it unlawful to retaliate against an employee
"because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter." Deravin v.
Kerik, 335 F.3d 195, 203 (2d Cir. 2003) (citing 42 U.S.C. § 2000e-3(a)). "In order to
present a prima facie case of retaliation under Title VII . . ., a plaintiff must adduce
evidence sufficient to permit a rational trier of fact to find  that he engaged in
protected participation or opposition under Title VII . . .,  that the employer was aware
of this activity,” and “ that the employer took adverse action against the plaintiff.”
Kessler, 461 F.3d at 205-06 (internal quotation omitted). In addition, the Supreme Court
recently clarified the causation standard required by § 704(a) stating, “a plaintiff making
a retaliation claim under § 2000e-3(a) must establish that his or her protected activity was
a but-for cause of the alleged adverse action by the employer,” as distinct from “a
motivating factor,” which had previously been the standard in the Second Circuit. Univ.
of Tex. Southwestern Med. Ctr. v. Nassar, 2013 WL 3155234, *16 (June 24, 2013);
Kessler, 461 F.3d at 206.
Claims of retaliation pursuant to Title VII are analyzed according to the burdenshifting framework set forth in McDonnell Douglas. See Terry, 336 F.3d at 141. Once
the employee has established a prima facie case, the employer “must proffer a legitimate,
non-discriminatory reason for the adverse action. If it does so, then the burden shifts
back to the [employee] to demonstrate pretext.” Slattery v. Swiss Reinsurance. Am.
Corp., 248 F.3d 87, 94-95 (2d Cir. 2001).
Application to Plaintiff’s Retaliation Claim
Defendant does not dispute that plaintiff engaged in activity protected under Title
VII when she made several complaints to the Office of Diversity beginning in 2000.
(Defs.’ Reply Mem. in Supp. at 7.) Plaintiff, however, still has not established the
requisite causal nexus between her complaints to the Office of Diversity and her transfer
to the Department of Academic Affairs. While plaintiff claims that Vance Shaw had
conversations with Perrotti and Bie regarding her complaints, the last conversation
regarding plaintiff’s complaints that Shaw alleges with any specificity occurred in June of
2003. (See Shaw Decl. ¶¶ 64-67.) Plaintiff is unable to establish causation because this
incident occurred nearly a year before she was transferred to the Department of
Academic affairs in 2004. 5 See Smith v. Town of Hempstead Dep't of Sanitation Sanitary
Dist. No. 2, 798 F. Supp. 2d 443, 459 (E.D.N.Y. 2011) (holding a one year lapse between
protected activity and alleged retaliation is too attenuated to support retaliation claim);
see also Thomas v. City of New York, 11 CIV. 5978 BMC, 2013 WL 3753557, at *11
(E.D.N.Y. July 12, 2013) (“Courts in this Circuit have varied widely as to the length of
time between the protected activity and the adverse action that is sufficient to break the
chain of causation as a matter of law…but it is the rare case that finds an issue of fact as
to causation when more than a year rather than months have gone by.”) (emphasis
This notion applies equally to defendants’ act of laying plaintiff off in January,
2005, which was nearly two years after her last alleged discrimination complaint, and
over seven months after she filed a complaint with the New York State Division of
Human Rights in May, 2004. See Cunningham v. Consol. Edison Inc., 2006 WL 842914,
at * 20 (finding that lag of seven months is “too long for a causal inference”).
added). Therefore, plaintiff’s retaliation claim is dismissed.
IV. Plaintiff’s 42 U.S.C. § 1981 Claims
42 U.S.C. § 1981 provides that all persons within the jurisdiction of the United
States shall have the right “to make and enforce contracts.” This section prohibits
discrimination “with respect to the enjoyment of benefits, privileges, terms, and
conditions of a contractual relationship, such as employment.” Patterson v. Cnty. of
Oneida, 375 F.3d 206, 224 (2d. Cir. 2004) (citing Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 68-69 (2d Cir. 2000)).
The McDonnell Douglas analysis applies to both Title VII discrimination claims
and claims under § 1981. Johnson, F. Supp. 2d at 605. As a result, because plaintiff has
not provided sufficient evidence to meet even the minimal burden of establishing a prima
facie claim of discrimination under Title VII, her claims under § 1981 must fail as well.
See id. (quoting Patterson, 375 F.3d at 225) ("Most of the core substantive standards that
apply to claims of discriminatory conduct in violation of Title VII are also applicable to
claims of discrimination in employment in violation of § 1981 . . . and the factors
justifying summary judgment dismissing Patterson's Title VII claim against the municipal
defendants for termination of his employment equally support the summary dismissal of
his claims for termination brought under 42 U.S.C. §§ 1981 and 1983.").
Similarly, retaliation claims under § 1981 are generally analyzed in the same
manner as under Title VII. Acosta v. City of New York, No. 11 Civ. 856(KBF),
2012 WL 1506954, at *8 (S.D.N.Y. Apr. 26, 2012) (“Claims of retaliation under [Title
VII and § 1981] are generally analyzed in the same way, with the same standards of
liability.”). Because this Court has dismissed plaintiff’s retaliation claim, her § 1981
retaliation claim is also dismissed.
Plaintiff’s 42 U.S.C. § 1983 Claims
Plaintiff concedes that her equal protection claim under the Fourteenth
Amendment “parallels her Title VII claim” and that “the two must stand or fall together.”
(Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J. at 18) (citing Feingold, 366 F.3d at
159)). Here, because plaintiff’s Title VII claim was insufficient it follows that her
Fourteenth Amendment equal protection claim, as exercised under 42 U.S.C. § 1983, is
also without merit, and is therefore dismissed.
In addition, to the extent plaintiff's § 1983 claim is predicated on a violation of the
Due Process Clause of the Fourteenth Amendment, her claim is dismissed as she has not
alleged any evidence that she was deprived of a property or liberty interest. See Hynes v.
Squillace, 143 F.3d 653, 658 (2d Cir. 1998) ("To state a Section 1983 claim [premised
upon a due process violation], a plaintiff must demonstrate that he possessed a protected
liberty or property interest, and that he was deprived of that interest without due
Count IV of the complaint alleges that defendants violated plaintiff’s First
Amendment rights of free speech and free association. (Sec. Am. Compl. ¶ 86.)
However, plaintiff subsequently withdrew her First Amendment claims in her brief.
(Pl.’s Mem. of Law in Opp’n to Mot. for Summ. J. at 1.) Accordingly, these claims are
For the foregoing reasons, defendants’ motion for summary judgment pursuant to
Rule 56 is granted in its entirety. Plaintiff’s claims under 42 U.S.C. § 2000(e) et. seq.
(Title VII), 42 U.S.C. §§ 1981 and 1983, and New York’s Human Rights Law, Executive
Law § 296 are dismissed.
Central Islip, New York
October 7, 2013
Denis R. Hurley
United States District Judge
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